Defendant’s parole officer brought along two police officers for a home visit and search on suspicion he was communicating with minors on his phone and computer, and this was reasonable. “The court finds that the seizure of defendant’s cell phone was valid under the special needs exception because Detectives Wright and Bostick were participating under the direction of Officer Radcliffe. The mere fact that defendant handed the phone to Detective Wright as opposed to Officer Radcliffe is a distinction without any Constitutional significance.” United States v. McClelland, 2011 U.S. Dist. LEXIS 123954 (D. Kan. October 26, 2011).*

Defendant did not object to the USMJ’s findings, so it is waived. On the merits, he would lose because there was reasonable suspicion anyway as to his car. United States v. Beasley, 447 Fed. Appx. 32 (11th Cir. 2011).*

There was reasonable suspicion to stop defendant’s car because it matched the description of a vehicle involved in a robbery and was near it. United States v. Hicks, 2011 U.S. Dist. LEXIS 124255 (E.D. Pa. October 27, 2011).*

Defendant was legally detained as an alleged illegal alien, but the search of her purse in her work locker was unreasonable. It was not abandoned and the employer could not consent. United States v. Chavez, 2011 U.S. Dist. LEXIS 132960 (D. Neb. October 3, 2011).

Informant’s reliability was sufficiently shown to justify the stop of the taxicab defendant was riding in. State v. Palmer, 2011 Tenn. Crim. App. LEXIS 834 (November 14, 2011).* (The court finds the driver consented to a search of the cab, but how can the cab driver consent to a search of the belongings of the defendant in the car?)

The district court erred in dismissing plaintiff’s complaint for false arrest under Heck because he had not yet been convicted, but that was harmless when he was later convicted and the Heck bar was triggered. Taylor v. Freeman, 447 Fed. Appx. 78 (11th Cir. 2011).*

A private entrance to a business was an area where the defendant had a reasonable expectation of privacy. The fact it was a screen door was still a door and did not invite an entry. State v. Dierks, 2011 Iowa App. LEXIS 1422 (December 7, 2011):

Under the record presented, we conclude the door was a private, not a public, entrance to the business. It makes no difference that the security door was open; the screen door to the private entrance was closed. There was no “open gate” inviting entry. See Tolar, 268 F.3d at 532; see also Sandoval-Vasquez, 435 F.3d at 742-44. Based on these specific facts and circumstances, we conclude Dierks had a legitimate expectation of privacy in the area of his business premises where he was confronted by Quandt.

Defendant gave consent to search his car on the street and nothing incriminating was found. He was transported to the police station, and his car was driven there so he’d have access to it. At the police station, another officer searched the car again, and this was within the original consent. The court surveyed cases from several states reaching the same result. People v. Valencia, 201 Cal. App. 4th 922, 136 Cal. Rptr. 3d 25 (2d Dist. 2011).

While the court has granted the government’s motion to reopen the suppression hearing, the government has moved for a deposition of the alleged child victim in this case who is residing in a “secure educational institution” who has a substantial risk of nonappearance at the trial. Granting depositions are not done lightly in the federal system, and defendant will be able to participate and cross-examine and it will be taken in the courthouse. The testimony is for trial. United States v. Christy, 2011 U.S. Dist. LEXIS 127235 (D. N.M. September 21, 2011).*

The officer had reasonable suspicion but didn’t need it during a traffic stop to ask for consent to search. Defendant also did not have a right to Miranda warnings before being asked for consent. State v. Lara, 78 So. 3d 159 (La. App. 2d Cir. 2011).*

Defendant was stopped for a traffic offense, and the smell of marijuana was sufficient to continue the detention. Williams v. State, 356 S.W.3d 508 (Tex. App.—Texarkana 2011).*

A Bronx motel room search was found to be without exigent circumstances, as much as the government tried, but sustained on a strained reading of inevitable discovery because defendant’s arrest made the room searchable. Defendant was wanted for a murder two weeks earlier upstate, and his hotel room was staked out, but the police got impatient, twice considering search warrants. United States v. Stokes, 2012 U.S. Dist. LEXIS 31513 (S.D. N.Y. March 7, 2012)*:

This is a tale of nine guns, a misguided prosecutor whose poor judgment jeopardized the safety of the public he is tasked to protect, and a motel clerk, who, by simply doing his job, has prevented the Fourth Amendment and its exclusionary rule from becoming a suicide pact.

. . .

Defendant makes much of the fact that the officers made a strategic decision not to obtain a warrant in order to evade Defendant’s right to counsel. The officers’ subjective reason for proceeding without a warrant is not relevant to MacDonald’s objective test. However, the surrounding facts do bear on the exigent circumstances determination. For instance, Detective Perrotta had time to make two separate attempts to secure a warrant prior to entering room 57; there were no exigencies between the time the Marshals located the Defendant and the time of the warrant requests, and nothing happened after Detective Perrotta’s second conversation with ADA Chase to create a newfound urgency in apprehending the Defendant. Moreover, when Detective Perrotta decided to approach Defendant without a warrant, his mission shifted from effecting a quick arrest to reasoning with the Defendant and trying to convince him to cooperate. The Court cannot see any urgent need to enter the motel room where the officer’s goal was to talk first and then detain. Ultimately, the officers had nothing more than probable cause to arrest a murder suspect. That probable cause, standing alone, is not enough get the officers into the motel room and, as a result, is not enough to sustain the Government’s burden of proof with respect to the exigent circumstances exception to the exclusionary rule.

. . .

Even if Defendant left the bag in his room, a proposition the Court finds highly unlikely considering his demonstrated concern about protection from retaliation for Kareem Porter’s stabbing, then cleaning staff would have found the open bag of firearms along with the ammunition, ring, and documents that were in fact recovered when they went into the room to prepare it for another guest. Just as he did with the ammunition, ring, and documents, the Court has no doubt that Mr. Patel, in the ordinary course of business, would have turned the firearms over to law enforcement. In other words, the fact that additional ammunition was inevitably discovered in room 57 gives the Court a high level of confidence that the firearms would have been inevitably discovered as well. Defendant makes two points in opposition. First, Defendant argues that his arrest did not terminate his rental of room 57, which was paid through July 13, 2010, and therefore he had a reasonable expectation of privacy in the room post-arrest such that police could not search property recovered by motel cleaning staff without a warrant. However, Defendant cites no authority in this Circuit in support of his argument, and at least one court had made findings to the contrary. See United States v. Wyche, 307 F. Supp. 2d 453, 460-61 (E.D.N.Y. 2004) (“Wyche having been taken into custody on the basis of the witness identification, the police would have seized his luggage from his motel room. (It is unlikely that the motel owner would allow Wyche to indefinitely keep his belongings there.) … Wyche’s three weapons would have inevitably, and lawfully, been discovered in his duffel bag when the bag was later inventoried at the Fifth Precinct after Wyche’s arrest.”). Thus, if cleaning staff entered room 57 after Defendant’s arrest but prior to the expiration of the rental period, found the bag of firearms, and turned it over to the police, there is no authority in this Circuit preventing law enforcement from searching the bag. Indeed, it is not at all clear that Defendant’s expectation of privacy in a pre-paid motel room survives his arrest such that police could not enter the room or search items recovered from that room. See United States v. Rahme, 813 F.2d 31, 34-35 (2d Cir. 1987) (holding that “when a hotel guest’s rental period has expired or been lawfully terminated, the guest does not have a legitimate expectation of privacy” in the room or articles therein (emphasis added)); see also Patel Decl. ¶ 2 (noting motel policy of entering rooms to clean after tenants “check out or otherwise cease their stay”).

Another self-fulfilling prophecy: We arrest you, then we can search your hotel room because you’re not going back to it. That borders on the absurd, and is a clear manipulation of the Fourth Amendment. Let’s just call this the “9-guns-in-a-motel-room exception to the Fourth Amendment.”

NYT: Police Officer Guilty of Falsifying Information by Russ Buettner:

A New York City police officer was convicted on Thursday of lying under oath and filing false information to obtain a search warrant, the second conviction in what prosecutors described as a scheme to cover up illegal searches of vehicles.

The officer, Michael Carsey, 31, was acquitted in September of other charges. His prior supervisor, William Eiseman, a former sergeant, pleaded guilty in June to performing illegal searches of cars and an apartment of people he had stopped, and then lying in court about why he had performed the searches.

Hartford Courant: Feel Like You’re Being Watched? It’s Because You Are by David McGuire:

Imagine a government that can track everyone, all the time, with license plate scanners, cellphone signals and networks of cameras mounted on buildings, traffic lights — even flying drones.

You don’t have to imagine. Law enforcement agencies in the United States already use these technologies and are starting to collect, indiscriminately and on a massive scale, data on the movements and associations of innocent Americans. It’s happening everywhere, including Connecticut.

As the surveillance state expands, it is rapidly developing the capacity to expose your whole life, the way an airport scanner exposes your body. The damage to privacy and constitutional protections is incalculable. The potential for abuse is staggering.

Inventory law requires that there be a standardized policy which need not be in writing. The policy has to include inventorying containers within containers, and this one doesn’t, so that part would be invalid, if it applied here. State v. Goss, 2012 Ohio 857, 2012 Ohio App. LEXIS 747 (9th Dist. March 5, 2012).

Defendant’s MySpace page came into evidence, and he only challenged it as a search on appeal, for which he cited no law. That argument was waived. State v. Yates, 2012 Ohio 919, 2012 Ohio App. LEXIS 809 (8th Dist. March 8, 2012).*

Search claim not raised in original case procedurally barred in § 2255. Grose v. United States, 2011 U.S. Dist. LEXIS 153875 (S.D. W.Va. December 19, 2011).*

Defendant conceded his traffic stop was lawful, and that led to a plain view of a gun. Since defendant was known to be a felon, that was probable cause for an arrest. United States v. Chivers, 2012 U.S. Dist. LEXIS 30123 (W.D. Mo. February 10, 2012).*

Former defense counsel waived the suppression motion and hearing on the ground that it was done by private action. Second successor counsel wants to raise the issue anew on the eve of trial, and it is denied. United States v. Onyekaba, 2011 U.S. Dist. LEXIS 153919 (N.D. Ga. October 21, 2011). Even the “good cause” claim in Rule 12(e) that former defense counsel would be ineffective for waiving wasn’t good enough, and led to footnote 8:

8 To the extent defendant is arguing ineffective assistance of counsel as “good cause” to “hear these motions now, rather than in a future 28 U.S.C. § 2255 proceeding,” [Doc. 148 at 4], this argument is misplaced. Indeed, ineffective assistance claims raised for the purpose of showing “good cause” under Rule 12(e) are “not ripe for review” and “are best brought by a defendant in a post-conviction proceeding under 28 U.S.C. § 2255 so that the parties can develop an adequate record on the issue.” United States v. Jones, No. 3:07-CR-162, 2009 WL 1471807, at *4 (E.D. Tenn. May 27, 2009) (rejecting defendant’s argument that he has shown good cause to excuse the waiver due to the alleged ineffective assistance of his prior attorney); see also United States v. Lopez-Medina, 461 F.3d 724, 738-39 (6th Cir. 2006) (finding defendant’s “ineffective assistance claim is not ripe for review, and [defendant] therefore, cannot, at this point, demonstrate ‘good cause’ to excuse his waiver under Rule 12(e)”).

Reading between the lines in this case, I’d think that the defendant was insisting on raising this search issue despite the court’s summary which shows it woefully inadequate. Defendant was arrested for shoplifting in a Macy’s store by store security. On him were three credit cards that didn’t belong to him. They called police who stopped the car he was in for a traffic stop, and the codefendants were arrested. The full details aren’t given, but it appears that something came from the traffic stop and there’s at least the appearance that the vehicle was not his; hence a standing problem. Therefore, one might conclude that this was the USMJ’s way of brushing off a motion to suppress that was doomed anyway. We all know clients know more about the Fourth Amendment from their friends than from us.

Based on representations from defendant’s wife and all the police officers knew, she had apparent authority to consent to a search of what they believed was the family computer. It was not locked with a password, and she had full access to it. The after-acquired facts were not enough to undermine what they knew at the time. United States v. Schuler, 2012 U.S. Dist. LEXIS 30512 (D. Kan. March 8, 2012):

The court heard the testimony of Mrs. Schuler and Officer Crawford. The court also heard the testimony of defendant. The court has reviewed the parties’ briefs and the applicable law. The court does not believe that Officer Crawford was presented with an ambiguous situation here, nor was he required to make further inquiry. Mrs. Schuler had retrieved her husband’s laptop from their home, had it in her possession, and provided it to officers–on and unlocked–explaining that she believed it was used to write the letters and/or that it contained the letters, although she was not able to find them on it. The computer was in her care, custody, and control when she provided it to officers and consented to their search of it.

It is true that police only later learned more facts that would either support or undermine Mrs. Schuler’s authority to consent to the search, such as where the laptop was kept; whether Mrs. Schumer had previously been provided a password (or whether any password was actually required); and whether she occasionally used the laptop. However, the critical inquiry is what police knew at the time consent was given. Sanchez, 608 F.3d at 689, n.1 (noting that reasonableness of officer’s belief that a third party has authority to consent is an objective inquiry, “based on the ‘facts available to the officer at the moment,'” quoting Illinois v. Rodriguez, 497 U.S. 177, 188 (1990)); United States v. Andrus, 483 F.3d 711, 722 (10th Cir. 2007) (noting that “[a]ny after-acquired factual knowledge that ‘might undermine the initial reasonable conclusion of third-party apparent authority [is] generally immaterial,'” (quotation omitted)). The court need not resolve contradictions in the hearing testimony because these additional facts are not relevant to the inquiry. The court agrees with the government that, at the time and under the circumstances in which Mrs. Schuler gave consent to search, it was reasonable for Officer Crawford to believe that she had authority to do so.

A Wii stolen in a burglary had the victim’s Netflix account, and the police were able to track the Netflix use back to defendant’s IP address. That was sufficient nexus for a search warrant for the premises, and it also was not stale. United States v. Medel, 2012 U.S. Dist. LEXIS 27410 (C.D. Cal. February 29, 2012).*

The protective sweep here was legal. But, even if it wasn’t, the person consenting didn’t know about it, so the consent was not tainted by the sweep. United States v. Gomez-Rivero, 807 F. Supp. 2d 1134 (N.D. Ga. 2012).*

As a mere passenger, defendant had no standing to challenge the inventory search of the car. State v. Parker, 2012 Ohio 839, 2012 Ohio App. LEXIS 730 (2d Dist. March 2, 2012).*

Police were called to a domestic dispute, and defendant held off the police for a while, finally surrendering. He was taken away, objecting to a search. After he left, his wife consented to a protective sweep for weapons which were found, along with a pipe bomb. Randolph condones this search because of the protective sweep. The trial court erred in suppressing. People v. Strimple, 2012 CO 1, 267 P.3d 1219 (2012):

Nevertheless, the circumstances of a domestic abuse incident can justify a warrantless search for weapons based upon a request of one co-tenant, despite the objection of one or more other co-tenants. The Randolph Court clarified two points applicable to the case now before us. First, a co-tenant’s consent to a search can prevail over a defendant’s refusal to consent when the defendant has left the scene, where there is “no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection.” Id. at 121. Second, a warrantless search for weapons can be justified under the totality of the circumstances involved in a domestic abuse incident:

[T]his case has no bearing on the capacity of the police to protect domestic victims …. [T]he question whether the police might lawfully enter over objection in order to provide any protection that might be reasonable is easily answered yes …. The undoubted right of the police to enter in order to protect a victim … has nothing to do with the question in this case, whether a search with the consent of one co-tenant is good against another, standing at the door and expressly refusing consent.

Id. at 118-19 (citations omitted). Both of these clarifications are applicable in this case.

Considering that reasonable suspicion is less than a preponderance of the evidence, a 911 caller who left her number but not name was sufficient where it related first hand information. United States v. Collier, 2011 U.S. Dist. LEXIS 138645 (D. Kan. December 2, 2011)*:

(1) the informant lacked “true anonymity” since she had provided her telephone number to the police; (2) the informant was reporting contemporaneous first-hand knowledge of the events as they were transpiring; (3) the informant’s motivation was to prevent her neighbor’s house from being burglarized; and (4) the police corroborated some of the informant’s information, such as the reported information that the two men on the property were driving a white van that was pulling a trailer. The tip also provided sufficient information that criminal conduct was occurring or was about to occur. The court reaches this conclusion with the thought that the level of suspicion required for reasonable suspicion is considerably less than a preponderance of the evidence.

Defendant was stopped for following too close, and he easily consented to a search when his travel plans didn’t make sense. The search revealed a hidden compartment and 6 kg of cocaine. United States v. Jimenez, 446 Fed. Appx. 771, 2011 FED App. 0802N (6th Cir. 2011) (unpublished).*

Where the search of defendant’s property was illegal and defendant saw them, confronting him with the product of the search was designed to get him to make a statement which was not attenuated since he had not consulted with a lawyer in the meantime. United States v. Shetler, 665 F.3d 1150 (9th Cir. 2011):

The government did not bear its burden of showing that Shetler’s statements were not the product of the illegal searches. Contrary to the district court’s determination, there is no evidence in the record to support the conclusion that the statements were “the product of the initial legal search of the garage, … and were not tainted by the illegal searches of the garage.” Both the district court and the government appear to presume that the relevant inquiry is whether the agents could have questioned Shetler regarding his drug activities but for the illegal search. The logic underlying this position is as follows: because the government had probable cause, regardless of any evidence revealed during the illegal searches of his house and garage, to arrest and question Shetler as to whether he used or manufactured methamphetamine, the statements he made during that questioning cannot be considered the product of the illegal searches.

Although the presence of probable cause may generally be the “dispositive” issue in determining whether a confession stemming from an illegal detention should be suppressed, see Crawford 372 F.3d at 1056, “[t]he analysis that applies to illegal detentions differs from that applied to illegal searches,” id. at 1054 (citing 5 Wayne R. LaFave, Search and Seizure 273, § 11.4(c) (3d ed. 1996)). As Shetler’s case illustrates, there are at least two additional relevant considerations when a confession follows an illegal search rather than an illegal detention.

. . .

A second, related, consideration in an illegal search case such as this is that the answers the suspect gives to officials questioning him may be influenced by his knowledge that the officials had already seized certain evidence. “Confronting a suspect with illegally seized evidence tends to induce a confession by demonstrating the futility of remaining silent.” 6 Wayne R. LaFave, Search and Seizure 307, § 11.4(c) (4th ed. 2004) (quoting People v. Robbins, 54 Ill. App. 3d 298, 369 N.E.2d 577, 581, 12 Ill. Dec. 80 (Ill. App. Ct. 1977)). The government has produced no evidence to demonstrate that the answers Shetler gave to the government officials’ questions were not induced or influenced by the illegal search; indeed, there is every reason to believe that they were. Nothing in the record suggests that Shetler was aware of the initial, legal search of his garage: he came out of a side door of his house shortly after the officers had already completed their initial sweep. There is, on the other hand, irrefutable evidence that while detained outside his home for more than five hours he witnessed multiple illegal searches of his house and garage, including a set of lengthy searches, using protective clothing and masks, of the garage which he knew contained extensive materials associated with methamphetamine production. Witnessing government officials conduct these extensive searches that uncovered numerous items indicative of methamphetamine production could certainly have led Shetler to make the inculpatory statements he made to the DEA agents. Contrary to the district court’s holding, therefore, these statements cannot be said to be simply the product of the initial legal search (of which Shetler was likely unaware) rather than the extensive subsequent illegal searches (of which Shetler was undoubtedly acutely aware).

Whether or not the parole officer violated the parole officer’s field manual really doesn’t matter if the search otherwise complied with the Fourth Amendment. United States v. Wade, 2012 U.S. Dist. LEXIS 11552 (N.D. Ga. January 31, 2012).*

Plaintiff was a potential suspect under the suspect exception of the Privacy Protection Act, 42 U.S.C. § 2000aa(a)(1). Her status as a photojournalist did not automatically protect her under the Act. Sennett v. United States, 667 F.3d 531 (4th Cir. 2012) (unpublished).

The trial court’s incomplete findings of fact left the appellate court unsure how it was applying the facts in crediting defendant (no violations of the law) or the officer (three traffic offenses). The fact that the trial court applied a reasonable suspicion standard rather than a probable cause standard suggested either that the trial court misapplied the law or disbelieved some or all of defendant’s testimony. The law that applied depended upon whose version of the events was to be believed, and the trial court failed to make any credibility determinations in the first instance. State v. Payne, 2012 Ohio 305, 2012 Ohio App. LEXIS 247 (9th Dist. January 30, 2012).*

An officer came upon a group of 15+ men in an area known for drinking in public, and they dispersed quickly when the officer arrived, all except the defendant. He slowly walked to his car, and tried to drive away. The officer made him stop because he was the only one not to get away. He was found to be OUI. The stop was without reasonable suspicion of criminal activity. State v. Tominiko, 126 Haw. 68, 266 P.3d 1122 (2011)* (concurring and dissenting opinions).

Defendant’s stop was based on two 911 calls about a shooting incident that were not played at the suppression hearing. The officers testified, however, to their ability to corroborate the information, including actually talking to one of the callers at her house about the incident. Basis of knowledge of both callers was shown. Commonwealth v. Perez, 80 Mass. App. Ct. 271, 952 N.E.2d 441 (2011)*:

The basis of knowledge test was satisfied with respect to both the first caller and the second caller. The officers testified that according to the dispatches they received, the first caller heard shots and the second caller observed the vehicle leaving the scene just after the gunshots. Firsthand observations would satisfy the basis of knowledge test. See ibid. While a 911 recording would likely have provided more information about the gunshots, a dispatch of a 911 call that gunshots had been heard at 17 Wilmington Avenue supports the inference that the report was based on personal knowledge or perception. See Commonwealth v. Ancrum, 65 Mass. App. Ct. 647, 652 (2006); Commonwealth v. Campbell, 69 Mass. App. Ct. 212, 216 (2007). Indeed, as discussed below, when the police returned to 17 Wilmington Avenue and spoke with the initial caller, she stated that she had heard the gunshots. With respect to the second caller, her auditory perception was also buttressed by the specificity of information she relayed, reporting a license plate number that was later confirmed by the police. Thus, “it is reasonable to infer that the source of the information was a firsthand witness to the event and not a casual rumor.” Commonwealth v. Ancrum, 65 Mass. App. Ct. at 652.

Meth found in a cigarette package during a courthouse security search was invalid because the search policy was subject to arbitrary and nonstandardized application in violation of state constitution. State v. Snow, 247 Ore. App. 497, 268 P.3d 802 (2011):

Defendant argues that the policy fails to meet the third criterion for a valid administrative search—that it be “designed and systematically administered” to control the discretion of those implementing it. Atkinson, 298 Ore. at 10. “The purpose of that requirement is to protect against arbitrariness and to ensure that individuals or particular items of property are not improperly singled out for special attention.” Weber, 184 Ore. App. at 436 (citation omitted).

Order 94-5 permits “searches of an individual’s person and carried item[s]” and requires that “any person” entering the courthouse “submit to a search of their person and a search of their bags, briefcases, valises, and hand-carried items.” That policy grants wide latitude to an officer to decide both who to search and the scope of a search. In other words, the policy does not specify which persons an officer must search—for instance, by requiring that every person’s closed containers be searched—nor does the policy specify how intrusive any given search may be—for instance, by requiring that closed containers be examined only by x-ray as opposed to a visual search. See, e.g., Department of Justice v. Spring, 201 Ore. App. 367, 373, 120 P3d 1 (2005), rev den, 340 Ore. 483, 135 P.3d 318 (2006) (statute authorizing DNA testing to establish paternity adequately limited discretion where it required every person who denied paternity to submit to a test); Coleman, 196 Ore. App. at 130 (police waiting room policy adequately limited discretion where it required “every person” to be searched and prohibited searches of closed containers); Weber, 184 Ore. App. at 436-37 (school drug testing policy adequately limited discretion where students were selected randomly and testing procedures were standardized). Instead, the policy would permit a security officer searching for weapons to subject one person to a metal detector and x-ray examination, while subjecting another to a full strip search. We readily conclude that that policy fails to limit the discretion of those conducting a search under its authority. See, e.g., State v. Eldridge, 207 Ore. App. 337, 342-43, 142 P3d 82 (2006) (police inventory policy did not adequately limit discretion because it lacked standardized criteria or procedures regarding the scope of each inventory); Haney, 195 Ore. App. at 280-81 (assuming that policy authorized officer to search car after accident, it did not adequately limit officer discretion because it provided no guidelines on the physical scope of searches); Willhite, 110 Ore. App. at 573-74 (although police inventory policy specified that every towed vehicle must be inventoried, and specified a standardized procedure for removing property, it was nonetheless defective because “it [was] so general that an officer [could] look everywhere he [could] think of”). Thus, the search in this case—carried out pursuant to that policy—violated Article I, section 9.

The entry into plaintiff’s home under the community caretaking function to retrieve weapons was not clearly unconstitutional, so the officers have qualified immunity. SCOTUS has yet to speak to it. Feis v. King County Sheriff’s Dep’t, 165 Wn. App. 525, 267 P.3d 1022 (2011)*:

¶32 At the time of Feis’s arrest, the question of whether community caretaking could justify a warrantless entry of Feis’s home under the circumstances attendant to this particular type of domestic dispute was not clearly established beyond debate. “Where no controlling authority specifically prohibits a defendant’s conduct, and when the federal circuit courts are split on the issue, the law cannot be said to be clearly established.” Morgan, 659 F.3d at 372 (citing Wilson v. Layne, 526 U.S. 603, 617-18, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999)). Since Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), wherein the Court foreshadowed the current uncertainty regarding community caretaking by discussing the “constitutional difference” between vehicles and houses, the Supreme Court has not elaborated on whether or when the community caretaking exception may justify warrantless entry into a home. Cady, 413 U.S. at 441; see United States v. Gillespie, 332 F. Supp. 2d 923, 929 (W.D. Va. 2004). As a result, the federal circuits are not in agreement on the precise contours of the community caretaking exception. See Ray v. Township of Warren, 626 F.3d 170, 175-76 (3rd Cir. 2010) (“There is some confusion among the circuits as to whether the community caretaking exception set forth in Cady applies to warrantless searches of the home.”). Some federal courts condone resort to the community caretaking exception as an independent justification for a warrantless search of a private residence, while others do not. Because the extent, scope, and applicability of the community caretaking doctrine itself was not settled at the time of the search of Feis’s home, the law was certainly not clearly established such that the deputies’ actions here were unlawful beyond debate.

While the police did, in fact, violate defendant’s Fourth Amendment rights by looking through a crack in the blinds through a window, the police would have obtained a search warrant anyway under inevitable discovery. United States v. Christy, 810 F. Supp. 2d 1219 (D. N.M. 2011), Motion granted by, 2011 U.S. Dist. LEXIS 127233 (D.N.M., Sept. 8, 2011):

Although the deputies’ presence in the area from which Littlefield looked into Christy’s residence window did not violate the Fourth Amendment, Littlefield’s act of peering into a small crack in the blinds constituted a search. The crack in the blinds was a little longer than half the length of the blinds, and the height of the crack was approximately an inch or less. “The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’” California v. Ciraolo, 476 U.S. 207, 211 (1986) (quoting Katz v. United States, 389 U.S. 347, 360 (1967)(Harlan, J., concurring)). Courts generally “determine whether a person has a constitutionally protected expectation of privacy by making two inquiries: first has the person exhibited a subjective expectation of privacy in the place or thing searched? Second, is the person’s expectation of privacy one that society is prepared to recognize as reasonable?” United States v. Hatfield, 333 F.3d at 1195. The “prototypical … area of protected privacy” is the interior of a residence. Kyllo v. United States, 533 U.S. 57, 35 (2001).

Defendant’s argument in a motion to reconsider that his roommates were acting as agents of the police in conducting a private search that turned up child pornography was not timely. That was not the purpose of a motion to reconsider. United States v. Jones, 2011 U.S. Dist. LEXIS 139561 (W.D. Tenn. September 23, 2011).*

Inconsistent and nervous responses, the suspicious method of travel, and failure to stop for a mile was reasonable suspicion. United States v. Cotton, 2011 U.S. Dist. LEXIS 139636 (E.D. Tex. November 7, 2011)*:

Lt. Viator testified that the inconsistent and nervous responses, the suspicious method of travel, and the fact that Cotton drove for nearly one mile before pulling the vehicle to the shoulder all contributed to a reasonable suspicion that criminal activity was afoot. The undersigned agrees. Given the totality of the circumstances, Lt. Viator’s questioning exemplified a graduated response to emerging facts, and therefore does not constitute a Fourth Amendment violation. Brigham at 508 & nn. 5-6 (“‘[D]etention, not questioning, is the evil at which Terry’s second prong is aimed.’”) (citation omitted).

Failure to file a suppression motion was a waiver of the issue for appeal. Carroll v. State, 202 Md. App. 487, 32 A.3d 1090 (2011).*