The probable cause in the affidavit for search warrant was for 401 Baker St., so the search warrant showed no probable cause for 422 Cowan St., the place actually searched. Bonds v. State, 355 S.W.3d 902 (Tex. App.—Ft. Worth 2011):

Looking at the totality of the circumstances set forth in the supporting affidavit that was reviewed by the magistrate and recognizing that the magistrate may interpret the affidavit in a non-technical, common-sense manner and draw reasonable inferences from it, Officer Ashburn’s affidavit nonetheless does not provide a substantial basis to conclude that a fair probability exists that contraband or evidence of a crime would be found at the residence actually searched—the residence that now bears an address placard for 422 Cowan. The information in Officer Ashburn’s affidavit connects the items to be seized with 401 Barker Street via the informant’s nine-month-old tip that he had seen drugs in Bonds’s home–which Officer Ashburn identified as 401 Barker Street when he transported the informant to the location to point out Bonds’s home—and via garbage searches of refuse left for collection at 401 Barker Street (the object-place nexus). The affidavit articulates criminal activity by Bonds—the offenses of possession of methamphetamine and cocaine, possession of drug paraphernalia, and the sale of methamphetamine to the confidential informant—and connects Bonds, via his driver’s license address, a credit card application, and garbage searches, to 401 Barker Street (the criminal activity-place nexus). See Serrano, 123 S.W.3d at 61 (explaining that in determining whether a search warrant is supported by probable cause, the crucial element is not whether the person targeted by the search is suspected of a crime but whether it is reasonable to believe that the items to be seized will be found in the place to be searched). But virtually no facts exist in Officer Ashburn’s probable cause affidavit expressing any cause, much less probable cause, to search any residence other than 401 Barker Street. The probable cause facts stated in the affidavit (all linked to 401 Barker Street) do not “match up” with the location that was actually searched (the home next door now displaying an address placard for 422 Cowan). Accord Long, 132 S.W.3d at 447 (recognizing constitutional objective that probable cause must in fact be established for the place described in the warrant).

A detention on reasonable suspicion cannot be used as time to get a search warrant because there wasn’t any probable cause to get a search warrant. Commonwealth v. Joseph, 2011 PA Super 273, 34 A.3d 855 (2011):

In its reliance on Terry, however, [in Commonwealth v. Chase, 599 Pa. 80, 960 A.2d 108 (2008),] our Supreme Court emphasized that the nature of the stop in question was “to allow immediate investigation through temporarily maintaining the status quo.” Id. at 94, 960 A.2d at 115-16. The focus on the temporal nature of a Terry-type stop is important: “[O]ne must remember the reason why the Constitution tolerates the lesser standard articulated in Terry [i.e., reasonable suspicion] — the detention is allowed to maintain the status quo so the officer may conduct a brief and safe investigation to see if indeed there is criminal activity afoot.” Id. (emphasis added). Specifically, the Supreme Court described the limited scope of the police officer’s investigative authority: “In a Terry stop, the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.” Id. at 101-02, 960 A.2d at 120 (quoting Commonwealth v. Mistler, 590 Pa. 390, 411, 912 A.2d 1265, 1277 (2006) (Eakin, J., dissenting) (quoting Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)).

The issue in the case sub judice, of course, is not the propriety of the initial stop of Joseph’s vehicle, as Trooper Yingst clearly had a reasonable suspicion that Joseph had violated traffic laws (including driving under the influence). Instead, the issue here is the constitutionality of Trooper Yingst’s seizure of Joseph’s vehicle during the course of the traffic stop. To this end, the record on appeal contains no evidence regarding the length of time that would have been required for the troopers to obtain a warrant (including the drafting of an affidavit, its presentation to a magistrate, and then a return to the scene for service). As such, we cannot agree that Trooper Yingst’s seizure of Joseph’s vehicle while attempting to obtain a warrant constituted a “brief” Terry-type investigation. See, e.g., United States v. Place, 462 U.S. 696, 708, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (“The length of detention of respondent’s luggage [90 minutes] alone precludes the conclusion that the seizure was reasonable in the absence of probable cause.”). For these reasons, of this we conclude that seizure of a vehicle for an indeterminate amount of time while the police attempt to obtain a search warrant cannot be constitutionally justified as a “Terry stop” based upon mere reasonable suspicion.

[Note: What gets me is the state arguing with a straight face that they could detain on reasonable suspicion to get a search warrant which requires probable cause to be issued. And, obviously, a search warrant would never have been issued, if this had gone that far.]

Defendant’s stop by the police was with reasonable suspicion, albeit mistaken, that defendant was involved in a homicide. The officers were warned at shift change of trouble brewing at the subject address, and then they got trouble calls from there. Defendant was seen on the street leaving and was stopped. United States v. Pontoo, 666 F.3d 20 (1st Cir. 2011)*:

Given this factual mosaic, we think that the district court supportably determined that Officer Maillet’s stop of the appellant was accompanied by a reasonable suspicion that a crime (murder) may have been committed, that Austin may have committed it, and that the appellant was Austin. A reasonably prudent police officer standing in Maillet’s shoes and knowing what Maillet knew would certainly have harbored such suspicions.

To be sure, this suspicion was predicated on two mistaken conclusions: that Officer Michaud had said “the suspect” rather than “a subject” and that the appellant was Austin. The district court found, at least implicitly, that these mistakes were objectively reasonable and made in good faith. This finding was not clearly erroneous. See, e.g., United States v. Lang, 81 F.3d 955, 965-66 (10th Cir. 1996).

Also from the same circuit same day:

The use of handcuffs for safety, particularly when the officer is alone during a Terry stop does not automatically convert the stop into an arrest. United States v. Maguire, 2012 U.S. Dist. LEXIS 17729 (D. Me. February 13, 2012):

The government has the better argument. The use of handcuffs to address legitimate officer safety concerns during a Terry stop or investigative detention does not transform that detention into an arrest. See, e.g., United States v. Pontoo, 666 F.3d 20 at *8 (1st Cir. 2011) (“[T]he limits of a Terry stop are not automatically transcended by an officer’s use of other prophylactic measures. When officer safety is a legitimate concern, a Terry stop appropriately may involve the application of handcuffs[.]”); United States v. Navarrete-Barron, 192 F.3d 786, 791 (8th Cir. 1999) (in light of dangerous nature of suspected crime of drug trafficking and good possibility driver or passenger had weapon, limits of Terry stop were not exceeded when suspect was handcuffed while officers searched truck; “Several other circuits also have found that using handcuffs can be a reasonable precaution during a Terry stop.”); Gallegos v. City of Colorado Springs, 114 F.3d 1024, 1030 (10th Cir. 1997) (“[A] Terry stop does not automatically elevate into an arrest where police officers use handcuffs on a suspect or place him on the ground. Police officers are authorized to take such steps as are reasonably necessary to protect their personal safety and to maintain the status quo during the course of a Terry stop.”) (citations and internal punctuation omitted); United States v. Le, 377 F. Supp.2d 245, 254 (D. Me. 2005), aff’d, 471 F.3d 1 (1st Cir. 2006) (“Of course, officers may take necessary steps to protect themselves if the circumstances reasonably warrant such measures without transforming a Terry stop into an arrest. This includes drawing weapons when reasonable, such as when officers are faced with a report of an armed threat. The First Circuit has also allowed the reasonable use of handcuffs and backup officers as the situation requires.”) (citations and internal quotation marks omitted).

The defendant’s motion for return of property under Rule 41(g) is denied until the trial. While some may not be used at trial, the court will not second guess the government’s trial preparation in determining what will be used. United States v. Tomkins, 2012 U.S. Dist. LEXIS 23197 (E.D. Ill. February 23, 2012):

Defendant also asserts that none of the documents which he wants the government to return has any evidentiary value. For each of the items that remain in dispute, the government has explained why it might wish to use the material as evidence at trial. Defendant disagrees with the government’s articulated reasons, but that disagreement is not enough to override the government’s interest in retaining materials that it may wish to offer as evidence at trial.

The process of pretrial preparation typically requires lawyers to assess a larger volume of evidence than ultimately will be used at trial. For some items of evidence, it may be abundantly clear early on whether they will be used at trial. For other items, that decision may be uncertain even as trial commences. It is the role of trial attorneys to progressively make judgments — all the way up to and including during trial — about which materials will be used.

We decline the invitation to dismiss (or dictate) the government’s strategic considerations as to what evidence it may seek to use at trial. Defendant may believe that the government will not need certain items of evidence because he will not dispute certain points at trial. However, the government still may seek to introduce some evidence on those points to attempt to enhance the persuasiveness of its case. Defendant may believe that some of the materials the government seeks to keep are duplicative of other evidence that the government already possesses (such as, with respect to handwriting). However, the judgment about whether certain evidence is cumulative of other evidence depends on knowing what has been admitted into evidence at trial, which at this time is plainly unknown.

A park ranger stopped defendant’s car because a 12 year old was driving it, and defendant was arrested for child endangerment. The car was inventoried for tow, and papers and folders strongly suggestive of child pornography were found in the trunk along with a camera and a thumb drive hidden under the spare, an unusual place. Officers searched a digital camera finding child pornography that defendant made. The search of the camera was valid as a container search under Ross because it was with probable cause defendant sexually molested the 12 year old with him and there very well could be pictures there. People v. Haraszewski, 2012 Cal. App. LEXIS 197 (4th Dist. January 30, 2012), Published February 23, 2012.

The court finds that the officer has cause to stop defendant for a lane change violation, and that he consented to a search of the car. The fact the audio on the video was off at the time of the consent did not otherwise make it involuntary. United States v. Perry, 2012 U.S. Dist. LEXIS 22789 (N.D. Ga. January 19, 2012).*

Alaska rejects Brigham City emergency exception under state constitution in favor of the rule adopted by its court of appeals in 1982’s Gallmeyer and New York’s 1976 Mitchell. Nevertheless, this entry was valid under the state constitution. State v. Gibson, 267 P.3d 645 (Alas. 2012):

In this appeal we consider the long-standing emergency aid exception to the general requirement that a search warrant be obtained prior to police entry into a residence. Today we establish that the Alaska Constitution’s standards for justifying the doctrine’s application go beyond those required by the United States Constitution, and we adopt the standards our court of appeals first implemented in Gallmeyer v. State. We then consider whether the court of appeals correctly applied the doctrine when it reversed the trial court’s ruling that the doctrine excused the warrantless police entry in this case. Because the police had a reasonable belief of an emergency justifying a warrantless entry into the residence, we conclude the court of appeals did not and we reverse its decision.

. . .

We conclude the Alaska Constitution article I, sections 14 and 22, affords greater protection against warrantless searches and seizures in the emergency aid context than the United States Constitution and the Alaska Constitution prior to the enactment of section 22. Although the State accurately observes that article I, section 22, does not create an independent ground for suppressing evidence, Alaska courts have used section 22’s right to privacy to give section 14’s protection against unreasonable searches and seizures “a liberal interpretation.” Alaskans’ heightened right to privacy is safeguarded by requiring the State to meet all three Mitchell test prongs when seeking to justify a warrantless search under the emergency aid exception. We therefore hold the Alaska Constitution requires that warrantless searches under the emergency aid doctrine satisfy all three Mitchell test prongs specified in Gallmeyer: (1) the police must have reasonable grounds to believe there is an emergency at hand and an immediate need for their assistance in the protection of life or property; (2) the search must not be primarily motivated by the intent to arrest a person or to seize evidence; and (3) there must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.

Search warrant for evidence of ownership and control of the premises where a murder occurred was properly issued. Incriminating evidence was seen when it was executed. Also, exculpatory evidence omitted from the affidavit was not material. People v. Eubanks, 53 Cal. 4th 110, 134 Cal. Rptr. 3d 795 (2011):

Here, in light of the information available to the affiant sheriff’s detective at the time he sought the first warrant, he could not have realistically described the personal property sought to establish dominion and control with any more particularity. (See, e.g., U.S. v. Spilotro (9th Cir. 1986) 800 F.2d 959, 964; U.S. v. Cardwell (9th Cir. 1982) 680 F.2d 75, 78.) Officers knew that multiple murders recently had occurred inside the house, but they had little information as to how they were carried out or why. While it appeared that defendant had committed the crimes, her responsibility had to be ascertained with more certainty, and any others who had access to the property or dominion and control of it needed to be considered or eliminated as suspects.

In People v. Nicolaus (1991) 54 Cal.3d 551 (Nicolaus), police obtained a search warrant to search the defendant’s apartment for “letters, papers and bills tending to show who occupied the apartment” (id. at p. 575), after they learned defendant’s address from a dying woman who said defendant had shot her. During the search of the apartment, an officer opened a folder on the defendant’s desk and found documents in the defendant’s handwriting that described his plans to harm the victim and revealed his motives and state of mind before the murder. In finding the search into the folder for indicia of occupancy constitutional, we rejected defendant’s contention that the search authorized by the above quoted phrase was not “sufficiently particularized.” (Ibid.) We additionally noted that, “[i]n any event, the officers acted entirely properly in seeking independent evidence to establish defendant’s occupancy of the apartment, and defendant’s control over any evidence seized therefrom, for presentation in court.” (Ibid.)

. . .

4. Seizure of Dominion and Control Evidence.

Defendant next faults the investigating officers for reading and seizing the letters lying about her bed. She claims those letters were not relevant to dominion and control, that they were “merely [her] personal writings,” and the officers had “no authorization to seize them under the guise of ‘dominion and control.’” However, as officers searching defendant’s residence for items tending to show dominion and control were entitled to search through trash cans and to look at any paper items inside the home, they were also entitled to seize defendant’s letters, though not listed in the warrant, because they were in plain view and their incriminating character was immediately apparent. (Horton v. California (1990) 496 U.S. 128, 136-137; Kraft, supra, 23 Cal.4th at p. 1043; Nicolaus, supra, 54 Cal.3d at p. 575.) Defendant’s reliance on Arizona v. Hicks (1987) 480 U.S. 321, is misplaced. In that case, investigating officers engaged in conduct unrelated to the objectives of the authorized intrusion to search for a shooter and for weapons when they moved stereo equipment and obtained its serial numbers. (Id. at pp. 324-326.) Here, by contrast, the officers were engaged in an authorized search when they came upon the immediately apparent incriminating letters.

Police violated defendant’s constitutional privacy rights by looking at a hotel registry, but the witnesses’ testimony was attenuated from it. State v. Smith, 165 Wn. App. 296, 266 P.3d 250 (2011):

Relevant factors we consider in determining whether the witness’s testimony is sufficiently attenuated from the police misconduct are: (1) the length of the “road” between the unlawful police conduct and the witness’s testimony; (2) the degree of free will the witness exercised; and (3) whether exclusion would permanently disable the witness from testifying about relevant and material facts, even though her testimony might be unrelated to the original illegal search’s purpose or the evidence discovered during it. State v. Childress, 35 Wn. App. 314, 316, 666 P.2d 941, review denied, 100 Wn.2d 1031 (1983). Additional factors we consider to determine attenuation between police misconduct and witness testimony are: (1) the witnesses’ stated willingness to testify; (2) the role the illegally-seized evidence played in gaining the witnesses’ cooperation; (3) the proximity between the illegal behavior, the witnesses’ decisions to cooperate, and the actual trial testimony; and (4) the police motivation in conducting the search. State v. Stone, 56 Wn. App. 153, 162, 782 P.2d 1093 (1989) …

While defendant claimed to be “a very private man,” his use of his property was sufficiently joint with his son that the son could consent to a search, and the consent was voluntary. United States v. Ervin, 2011 U.S. Dist. LEXIS 105123 (M.D. Ala. August 17, 2011), adopted 2011 U.S. Dist. LEXIS 101362 (M.D. Ala., Sept. 8, 2011).*

The disputed facts for summary judgment were whether the officers had a search warrant or a valid exception for search without one, and summary judgment for the officers was inappropriate at this time. Brown v. Passmore, 445 Fed. Appx. 187 (11th Cir. 2011).*

The affidavit for the issuance of a search warrant for immigration fraud clearly provided probable cause, and during the execution of the search warrant officers found evidence of providing material support to terrorists. Defendant was pro se on the motion to suppress, and he made fantastic and disjointed arguments that the officer applying for the search warrants didn’t know what he clearly knew. United States v. Subasic, 2011 U.S. Dist. LEXIS 105547 (E.D. N.C. August 11, 2011).*

Officers had Buchanan’s house under surveillance for a long time, and recorded drug deals inside. On the day in question, however, they stopped McCoy leaving the house and they had nothing at all on him. Defendant’s stop failed under Ybarra: “In sum, the Government’s argument that probable cause existed on these facts rests on ‘mere propinquity’ to a known individual independently suspected of criminal activity. ‘Mere propinquity,’ of course, does not rise to the level of probable cause, and therefore the court rejects the argument that probable cause supported McCoy’s seizure.” United States v. McCoy, 2011 U.S. Dist. LEXIS 106779 (N.D. Ohio September 20, 2011).

Defendant’s consent was shown by the fact he was Mirandized before. United States v. Toler, 444 Fed. Appx. 561 (3d Cir. 2011).*

Defendants’ Franks challenge based on records that the government had not yet seen when the search warrant affidavit had been presented to the USMJ was unavailing because the government did with withhold the information. United States v. Hollnagel, 2011 U.S. Dist. LEXIS 106516 (N.D. Ill. September 20, 2011).*

On remand from State v. Singer, 349 Ore. 663, 249 P.3d 1281 (2011), the court concludes the defendant would not know she was free to leave and was thus detained when the officer directed her out of the car rather than the driver. [A passenger also has to communicate to the driver that he or she wants to leave, but societal understandings require that they stand by while the officer does whatever he is going to do.] State v. Singer, 245 Ore. App. 568, 262 P.3d 1172 (2011)*:

We conclude that Kirkpatrick’s conduct toward defendant would lead a reasonable person in defendant’s position to believe that she was the subject of a criminal investigation and, hence, that Kirkpatrick had seized defendant for purposes of Article I, section 9, before he requested consent to search her and her purse. Although the record does not establish that defendant knew that Kirkpatrick had requested her name and date of birth in order to run a warrant check on her, Kirkpatrick’s actions after completing the check would reasonably lead defendant to believe that she was the subject of an investigation. Rather than returning from the warrant check to speak with the driver, whose unlawful turn had led to the stop, Kirkpatrick went to the passenger side of the stopped car and asked defendant to get out of the car, which she did. Kirkpatrick then told her that he knew that she was on probation for a drug offense and asked her to remove her sunglasses, which she also did. Those actions by Kirkpatrick constituted a show of authority that would lead a reasonable person in defendant’s position to believe that Kirkpatrick had significantly restricted her freedom of movement. Therefore, under the test articulated in Ashbaugh, Kirkpatrick had seized defendant for purposes of Article I, section 9, before he asked her for consent to search her and her purse.

Where only one person testified to consent, the officer, how can the appellate court question the district court’s finding of voluntariness? United States v. Lopez, 445 Fed. Appx. 190 (11th Cir. 2011).*

No special showing of reliability of information from another officer is required; just knowledge. United States v. Johnson, 2011 U.S. Dist. LEXIS 107617 (N.D. Ill. September 20, 2011).*

The video raised sufficient question of the lawfulness of defendant’s detention that he was entitled to a jury instruction on that under Texas law. Hamal v. State, 352 S.W.3d 835 (Tex. App.—Ft. Worth 2011).*

Defendant has no expectation of privacy in a cell phone call in public on the phone’s speaker which here happened to get recorded. United States v. Curtis, 2011 U.S. Dist. LEXIS 122858 (S.D. Fla. October 24, 2011).*

Pro se plaintiff did not state a claim that seizure of $2,900 from his wallet during booking inventory violated the Fourth Amendment or due process by not depositing it into his inmate account in the jail. Stork v. McKinley, 444 Fed. Appx. 920 (7th Cir. 2011).*

Multiple cell phones, extra gas cans, overwhelming odor of air fresheners, and no drivers license was reasonable suspicion. United States v. Banks, 2011 U.S. Dist. LEXIS 123082 (M.D. Pa. October 25, 2011).*

The search of defendant’s car that produced cash was admittedly by consent. United States v. Two Hundred & Eight Thousand Sixty Dollars, 2011 U.S. Dist. LEXIS 123127 (E.D. Mo. October 25, 2011).*

Davis creates a blanket rule that a pre-Gant search was governed by Belton. There is no Fourth Amendment basis or justification for weighing whether then defendant was “targeted” for a stop by the police just to conduct a search incident. United States v. Owens, 445 Fed. Appx. 248 (11th Cir. 2011):

In the instant case, the arresting officers stopped Owens with probable cause to believe that he was driving on a suspended license, and searched the passenger compartment of his vehicle based on a proper understanding of pre-Gant law. Contrary to Owens’s argument on appeal, the Davis decision established a blanket rule that the good-faith exception applies to searches performed in reasonable reliance on then-binding appellate precedent. Although the Davis Court discussed the need to weigh the costs and benefits of suppression, it did so only in the context of formulating this blanket rule. Accordingly, the Davis analysis does not require us to consider alleged misconduct that fell short of violating the Fourth Amendment—as understood at the time of the search—nor does it require consideration of unrelated constitutional violations.

Fifteen minutes was not too long for a stop. “Officer Moore approached the car and noticed marijuana on Marsh’s shirt while Officer Nelson was still writing Johnson’s traffic citation. From that point, Officer Moore had at least a reasonable suspicion that Marsh possessed marijuana and, thus, could search the passenger area where Marsh had been sitting and the handgun was found.” United States v. Marsh, 443 Fed. Appx. 941, 2011 FED App. 0733N (6th Cir. 2011) (unpublished).*

The warrantless entry here did not violate plaintiff’s Fourth Amendment rights because the objective circumstances at the time could cause a reasonable officer to believe that there were exigent circumstances requiring prompt entry. Prior to entering the house, officers were told that plaintiff was armed and dangerous and a convicted felon wanted for weapons and drug violations, there was a documented history of substantiated DCF involvement with plaintiff’s seven-year-old step-daughter, that an earlier search resulted in the seizure of guns and drugs accessible to children, and that DCF wanted to remove the child due to concerns about her health, welfare, and safety. Thus, it was objectively reasonable to believe that plaintiff may have been at the residence and that he posed a threat to the child as well as the DCF worker conducting the welfare check, so entry was justified by exigent circumstances and the officers were entitled to qualified immunity. Montanez v. Sharoh, 444 Fed. Appx. 484 (2d Cir. 2011).*

Officer entered plaintiff’s property on a “civil standby” where he didn’t read the order and the order did not permit an entry. The entry thus violated the Fourth Amendment. Osborne v. Seymour, 164 Wn. App. 820, 265 P.3d 917 (2011).*

Officers entered defendant’s house on exigency, and then reentered allegedly by consent. However, “[t]he inconsistencies in the record and evidence presented support a finding, based on the totality of the circumstances, that the government has failed to meet its burden to show that it obtained valid consent to re-enter and search the house in which the firearm was seized, and the Defendant’s Motion to Suppress is granted with respect to the firearm.” United States v. Drake, 2011 U.S. Dist. LEXIS 103640 (D. S.C. September 13, 2011).*

Whether the search warrant was valid in this case was moot because it was valid as a parole search in any event. United States v. Crutchfield, 444 Fed. Appx. 526 (3d Cir. 2011).*

The officer here testified that defendant refused consent, but it was not found to be error. It was offered by the government to show why they got a search warrant and wasn’t error [what BS], but it was harmless considering the overwhelming evidence in the case. United States v. Williams, 444 Fed. Appx. 535 (3d Cir. 2011).*

A 55 minute delay of a package in transit for a search under a warrant was not unreasonable. Delivery at a certain time is not a Fourth Amendment interest, even for “Next-Day-Air, Early-A.M.” delivery. People v. Tyus, 2011 IL App (4th) 100168, 960 N.E.2d 624 (2011).

Defendant’s motion to reconsider the search issue is just a rehash of what has already been denied, so the court’s not going into it again. United States v. Pitts, 2011 U.S. Dist. LEXIS 125354 (E.D. Pa. October 28, 2011).*

Seizure under a search warrant of medical marijuana by the police did not trigger the theft provision in plaintiff’s homeowner’s property insurance policy. Barnett v. State Farm General Ins. Co., 200 Cal. App. 4th 536, 132 Cal. Rptr. 3d 742 (4th Dist. 2011).*

There was no testimony at the suppression hearing about the policy permitting an inventory search, and the government filed to show that there was a policy. The search was not by consent because the officer told the defendant he was going to do the inventory, and defendant had no choice. United States v. Milligan, 2011 U.S. Dist. LEXIS 94344 (D. Conn. May 4, 2011).*

Defendants landed a private plane at an unmanned airport, and police encountered them to talk. The officer called in their IDs to Homeland Security and they came back clean. The officer asked for consent and it was denied. The defendants seemed to act nervous, so they flew on to Nashville and registered the plane and spent the night. In Nashville, a drug dog alerted on the plane, and it was searched. Testimony about the first encounter and the refusal to consent was not barred by the exclusionary rule. [But, not a word about the constitutional right to refuse a consent search and not have it used at trial.] United States v. Clariot, 655 F.3d 550, 2011 FED App. 0238P (6th Cir. 2011).*

The district court’s credibility determination on consent is not clearly erroneous. United States v. Maldonado-Gonzalez, 444 Fed. Appx. 632 (4th Cir. 2011),* cert. denied 132 S. Ct. 466, 181 L. Ed. 2d 304 (U.S., Oct. 17, 2011).

Kentucky refuses to recognize a new constitutional tort against a hospital and its employees conducting a strip search and removal of bodily fluids at the request of the police. St. Luke Hosp. v. Straub, 354 S.W.3d 529 (Ky. 2011)*:

We granted discretionary review to consider whether an individual may bring a civil action for money damages under Kentucky Revised Statutes (KRS) 446.070 on the basis of an alleged violation of a provision of the Kentucky Constitution. In addition to traditional common law tort claims, Shannon Straub made a claim for money damages based upon the alleged violation of her substantive due process interests under the Kentucky Constitution. Straub alleges that St. Luke Hospital, some of its nurses and security guards, and the emergency room physician acted under the direction of a city police officer to violate her due process interests by forcibly restraining her, stripping and gowning her, and extracting blood and urine samples from her without her consent, the consent of a parent, or a court order.

We hold that an action for money damages under KRS 446.070 is not available for alleged constitutional violations, and we decline Straub’s invitation to create judicially a new constitutional tort in Kentucky because adequate remedial alternatives exist in the common law.

The officer here lacked probable cause to believe that defendant had driven his car drunk to the private property where he was found intoxicated. State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).*

While the entry onto the defendant’s property was probably illegal, the defendant consented after conferring with his wife by telephone and said he wanted to cooperate. Considering attenuation analysis, the consent was truly attenuated from the first illegal entry. Stevens v. Commonwealth, 354 S.W.3d 586 (Ky. App. 2011).*

Defendant was stopped for a headlight being out, and he was going to get a warning. Defendant, however, was excessively nervous, and immediately after telling the defendant he was going to get a warning the officer asked for consent, and the consent was not invalid for delay. Nix v. State, 312 Ga. App. 43, 717 S.E.2d 550 (2011).*