Defendant was stopped for being involved in an armed robbery. When he got out of the car, he had wads of cash in both hands and fled. The officers had a basis for a search incident or a search under the automobile exception. State v. Richardson, 313 S.W.3d 696 (Mo. App. 2010).*

The record supports the district court’s conclusion that the defendant consented to a search after a knock-and-talk. He consented first to an entry at the officer’s suggestion so they would not be discussing the matter in the hallway outside. United States v. Lewis, 608 F.3d 996 (7th Cir. 2010).*

During a probation officer’s “home visit” of defendant’s place, a person with apparent authority consented to a search, and it was reasonable for the officers to rely on it. United States v. Sanchez, 608 F.3d 685 (10th Cir. 2010).*

Grabbing defendant’s arm when he reached into his pocket after having gotten out of his car at the officer’s direction was reasonable. United States v. Street, 614 F.3d 228, 2010 FED App. 0216P (6th Cir. 2010).*

Defendant’s stop was objectively reasonable for a partially obscured license plate, and the officer’s other reasons for the stop were not pertinent. The officer had objective probable cause to arrest defendant for car theft. United States v. Boyd, 388 Fed. Appx. 943 (11th Cir. 2010) (unpublished).*

Defendant failed to stop at a weigh station, so his stop was valid. After the officer looked at his paperwork and issued a ticket for the failure to stop and warnings for other infractions, he told defendant he could go. Then he asked for consent and got it. The court finds the officers more credible on the question of consent. United States v. Narcisse, 2010 U.S. Dist. LEXIS 75359 (M.D. Pa. July 26, 2010).*

Defendant’s stop was over when the officer handed the warning ticket back. Making the driver wait 20 minutes for the drug dog to show up was not by consent, and it was unreasonable. United States v. Grant, 2011 U.S. Dist. LEXIS 132608 (D. Neb. November 15, 2011)*:

The statement by the Sergeant Wilcynski that he would release the defendant if nothing happened is bothersome to the court. Sergeant Wilcynski told the defendant that if the dog did not indicate, “then we’ll get you going.” Id. That language sounds more like a coerced consent and resulting detention than it does a consensual arrangement. It is hard to imagine that the defendant really felt free to leave after that statement. If a reasonable person does not believe he is free to leave, a seizure occurs. Garcia, 613 F.3d at 753, citing United States v. Jones, 269 F.3d 919, 925 (8th Cir. 2001).

The burden is on the government to show consent. Law enforcement officers must ask good questions. These questions must be clear and the responses must be clear and not the result of coercion or coercive language. Further, there is always the option of obtaining a written consent which was not done in this case. The question/statement by Sergeant Wilcynski telling the defendant that if the dog did not indicate, “then we’ll get you going” was clearly coercive. …

The court finds that the entry on a knock-and-talk was by consent, discounting the consenter’s version of events. The consenter was told she could refuse and said “I don’t know, I don’t know,” then later consented. “Ms. Handley’s initial reluctance to consent negates a coercive atmosphere.” The consent was valid. United States v. Turner, 2012 U.S. Dist. LEXIS 14551 (W.D. Mo. January 19, 2012).*

Voluntariness of consent is reviewed for clear error, and this is supported by the evidence. The defendants also exchanged incriminating comments to each other in the jail elevator that were not the product of interrogation. United States v. Martinez, 2012 U.S. App. LEXIS 2423 (3d Cir. February 7, 2012) (unpublished).*

Officers had reasonable suspicion from defendant’s movements between his car and a known “stash pad” under surveillance. United States v. Reyes, 2012 U.S. Dist. LEXIS 14980 (S.D. N.Y. February 1, 2012).*

USMJ finds that officer was not credible because the proof at the suppression hearing was developed by leading questions, and the officer seemed to have little independent recollection of the stop, needing to repeatedly look at this file. Also, there was a proven embellishment in the reports. United States v. Northington, 2011 U.S. Dist. LEXIS 153029 (E.D. N.C. November 29, 2011):

Further detracting, at least to some degree, from Daughtry’s credibility is the fact that various portions of the direct examination of him were leading in character. (Id., e.g., 14:21; 15:8-10; 18:3-4; 18:15-17; 19:7-8; 19:10-11; 21:7; 21:15-17; 30:13-15; 30:20-21). In addition, Daughtry repeatedly looked at his report for the first two-thirds of his direct examination before the questioning was stopped and Daughtry provided time to review it. (Id. 21:23 to 22:16). The inference, of course, is that Daughtry lacked a strong, if any, independent recollection of the events about which he was being examined.

The court concludes that Daughtry is not a reliable source of information regarding the stop of defendant. As discussed, his lack of credibility is shown by a broad range of factors, including the implausibility of certain statements he made, the inconsistency of his conduct with certain statements, the inconsistency of his testimony with his report and/or the ATF Letter, the inconsistency of portions of his testimony with other portions, the inconsistency of his testimony with portions of Johnson’s testimony, omissions from his report, and other factors. Some of the statements shown to lack credibility relate to facts central to the question of reasonable suspicion and their unreliability therefore directly undermines the government’s case on that issue. But the other statements are also material to reasonable suspicion because they shed light on Daughtry’s overall credibility.

Similarly, there are statements by Daughtry that do not themselves bear indicia of unreliability and there is some evidence tending to support Daughtry’s credibility, such as Johnson’s corroboration of Daughtry’s testimony that defendant was acting erratically (see id. 92:10-21). However, the number of statements that do bear such indicia, the significance of many of these statements to the issue of reasonable suspicion, and the underlying deficiencies in veracity the demonstrably noncredible statements reveal, such as possible misperceptions, deficient memory, and embellishment, render all of Daughtry’s statements unreliable. Given the government’s reliance on Daughtry’s statements to support its case on reasonable suspicion, his lack of credibility precludes the government from establishing by a preponderance of the evidence that reasonable suspicion existed. Defendant’s motion to suppress should accordingly be allowed.

This case isn’t really precedent for anything, but it is significant for all of us to see how this court discounted testimony when the government carries the burden of proving reasonable suspicion because of “possible misperceptions, deficient memory, and embellishment.” Look, officers: you don’t need to embellish. Your truthful testimony will usually carry the day. If it doesn’t, too bad; you were operating on a hunch. Having made the arrest, you felt you had to follow through to bring some “bad guy” to justice. The ADA or AUSA, however, took your reports at face value, as they are expected to. When you had to be led through the testimony, the AUSA here should have seen this coming. And, AUSA’s, don’t lead. Let the case collapse of its own weight. You got the indictment, but you don’t own this case. Also, this was a Federal Defender case.

Defendant was stopped for suspicion of DWI, and he attempted to show the officer that he was not drunk, so he showed the officer that he could walk on his hands. When he did that, a marijuana pipe fell from his pocket. A search incident of the vehicle for marijuana to go with the pipe was valid. Daves v. State, 327 S.W.3d 289 (Tex. App.–Eastland 2010).*

Defense counsel did not make a search incident objection consistent with Gant which had not been decided yet, but defense counsel was not ineffective for not forecasting Gant. State v. Slighte, 157 Wn. App. 618, 267 P.3d 401 (2010).*

The officer’s testimony is credited that there was a valid reason for the stop. The video did not contradict the officer; it was just inconclusive. United States v. Arango, 396 Fed. Appx. 631 (11th Cir. 2010).*

The video showed that the officer’s Spanish was bad, and the defendant never understood what he was consenting to, if he was consenting at all. The court apologizes to the officers for suppressing. United States v. Mora-Morales, 807 F. Supp. 2d 1017 (D. Kan. 2011)*:

The evidence in this case is that defendants had significant difficulties understanding the troopers. The video demonstrates that the troopers repeatedly had to ask questions several times and utilize hand motions in an attempt to communicate. Rose’s attempt to gain consent to an extended encounter was never understood by defendants. Rose then attempted to ask for permission to search which was also not understood. By the time Goheen attempted to ask the question in Spanish, both Rose and Goheen had made several hand motions to defendants which could be seen on the video as motions to exit the Ford. It is the government’s burden to establish that consent was “unequivocal and specific and freely given,” and it has not met its burden in this case. Thus, the validity of the search and subsequent seizure of the ecstasy turns on the existence of a reasonable and articulable suspicion of illegal activity.

. . .

Based on many cases such as this one, the court knows that experienced, well-trained officers such as Trooper Rose have the ability to distinguish between innocent and suspicious circumstances. The court is always reluctant to make a ruling which seems to be second-guessing an officer who was on the scene. Nevertheless, this is one of those relatively rare cases where the totality of the circumstances does not give rise to reasonable suspicion. Accordingly, defendants’ joint motion to suppress is granted.

After considering federal and state law in detail, the court concludes that the officer had reasonable suspicion for a stop based on a 911 caller’s information about a potential DUI. People v. Barbarich, 291 Mich. App. 468, 807 N.W.2d 56 (2011) (2-1):

Certainly more facts could have strengthened the officer’s suspicion, but in cases involving tips of erratic driving of a motor vehicle, fewer facts are necessary to justify the investigatory stop. Wheat, 278 F3d at 730-737; Whalen, 390 Mich at 682. “[T]he Fourth Amendment does not require a policeman to simply shrug his shoulders and allow a crime to occur or a criminal escape.” Whalen, 390 Mich at 682. Had the officer waited to personally observe defendant engage in dangerous and erratic driving, his suspicion would have surpassed a reasonable articulable suspicion and become a probable cause to seize defendant and issue an appropriate citation. “Thus, police would lose the intermediate step of investigatory stops based on reasonable suspicion.” Wheat, 278 F 3d at 733. Here, sufficient indicia of reliability supported the citizen’s tip and Bommarito was justified in conducting the investigatory stop. The tip provided sufficient information to accurately identify the vehicle and to create an inference that a crime or civil infraction had occurred; and, the tip was also sufficiently reliable, based on the woman’s contemporaneous observations. Under the totality of the circumstances, Bammarito had a reasonable articulable suspicion that justified an investigatory stop of defendant’s vehicle. The circuit court erred by concluding otherwise.

The district court correctly ruled that the protective frisk for weapons was done when the officer asked defendant what was in his pocket that he felt, and the defendant replied “it’s a bullet.” Thus, the motion to suppress was properly granted. United States v. Perez, 408 Fed. Appx. 198 (10th Cir. 2011) (unpublished).*

The search warrant was for women’s “gold watches” from burglaries. When the police were in defendant’s home, they found a gold watch that turned out to be unique and from a home invasion murder. The unique nature of the watch was not apparent when it was seized, and it was still described by the warrant. Another piece of “jewelry” was validly seized under plain view. Garcia-Perlera v. State, 197 Md. App. 534, 14 A.3d 1164 (2011).*

Defendant and two others were sitting on a bank “engaged in the act of fishing.” Two conservation officers approached, and defendant put something in a bag he had with him. The officers asked for their fishing licenses, which they had. Then the officer asked to search the bag while still holding the fishing license, but it was not by consent. Under the circumstances, defendant would not have felt free to have not complied. State v. Alter, 953 N.E.2d 1182 (Ind. App. 2011)*:

Based upon our review of the record, the circumstances presented lead us to agree with the trial court that a reasonable person in Alter’s position would not feel free to leave or resist Officer Neargardner’s directives. See Calmes, 894 N.E.2d at 205 (concluding that a reasonable person in the defendant’s position would not feel free simply to terminate the encounter and walk away); see also Finger v. State, 799 N.E.2d 528, 533 (Ind. 2003) (noting that “a reasonable person in [the defendant’s] position would not feel free to leave after [the officer] retained his identification” and holding that the defendant was “detained for purposes of the Fourth Amendment” where a police officer asked for and received the driver’s license of the defendant and did not return the license or say that he was free to leave while the officer continued to converse with the defendant). Alter was detained for purposes of the Fourth Amendment.

[Note: This is the same rule that applies to driver’s licenses.]

The District Court erred in concluding there was no probable cause, but the search warrant for blood was saved by the good faith exception. Instead, there was probable cause for the search warrant. State v. Walker, 2011 UT 53, 690 Utah Adv. Rep. 27, 267 P.3d 210 (2011).*

Defendant was seen sitting in a car in a parking lot known for drug activity. He got out, put on a backpack, and got on a bicycle and rode around in the parking lot. The officer stopped him, and he got belligerent which led to his handcuffing for officer safety and a search of his backpack finding pirated DVDs. The stop and search were without reasonable suspicion. Woodson v. State, 960 N.E.2d 224 (Ind. App. 2012)*:

Officer Cooper testified here that he could not see any transaction between Woodson and the driver of the maroon car and there had been no report of criminal activity to which Officer Cooper was responding. Woodson did not attempt to flee the scene and hide or dump contraband upon completing a transaction and seeing a police officer approach in a high-crime area. See Ross v. State, 844 N.E.2d 537, 541-42 (Ind. Ct. App. 2006). Nor did Officer Cooper testify that in his training and experience Woodson’s behavior was of a type frequently displayed by individuals dealing in pirated DVDs, drugs, or any other contraband. See Wilson v. State, 670 N.E.2d 27, 28-29 (Ind. Ct. App. 1996) (concluding there was reasonable suspicion to detain defendant where the arresting officer was in a high-crime and -drug area, was trained in the factors pointing to drug transactions, and observed conduct conforming to this pattern).

While defendant arguably had standing to contest the stop of the vehicle [which Brendlin holds and the court does not even cite] he was a mere passenger and had no standing to contest the search of the trunk of a car where he was a mere passenger under Rakas. The search was valid both by consent and search incident for probable cause defendant was involved in a bank robbery. United States v. Shabazz, 2012 U.S. Dist. LEXIS 18470 (M.D. Pa. February 14, 2012).* [Standing to challenge the stop of a vehicle is axiomatic. The court’s failure to cite Brendlin is both its own fault and defense counsel’s failure to raise it.]

Defendant pulled out into the street and stopped for a minute and then backed into the parking lot that he came from. He got the attention of an officer who walked toward his car. While the defendant blocked no traffic and committed no traffic offense, the officer recognized the defendant as somebody with a warrant out on him. That was reasonable suspicion for more. State v. Rodriguez, 2012 Tenn. Crim. App. LEXIS 87 (February 13, 2012).*

Officers came to arrest defendant for bank fraud and they knew that defendant used a computer as an instrumentality of the crime. They seized his laptop in plain view when making the arrest, and they applied for a search warrant 19 days later. The seizure of the laptop to preserve it and the 19 day delay were not unreasonable under the circumstances. United States v. Camp, 2012 U.S. Dist. LEXIS 5878 (E.D. N.C. January 18, 2012):

Insofar as Defendant has contended that the nineteen day delay between the seizure of Defendant’s laptop computer and Agent Spears’ application for a search warrant was unreasonable, the Court finds this argument to be without merit. “[E]ven a seizure based on probable cause is unconstitutional if police act with unreasonable delay in securing a warrant.” United States v. Martin, 157 F.3d 46, 54 (2nd Cir. 1998). In determining whether a delay is reasonable, a court must consider all of the facts and circumstances surrounding the delay in each particular case. United States v. Mitchell, 565 F.3d 1347, 1351 (11th Cir. 2009) (citation omitted).

The Government has asserted that, during the delay, Agent Spears prepared a draft application for review by the Office of the United States Attorney while simultaneously working on other investigations and arrests. Ultimately, Agent Spears submitted a seventeen page affidavit in support of his application that contained detailed descriptions and statements. Defendant has not pointed to any basis, other than the mere lapse of time, that would support a finding that the delay was unreasonable. Although Defendant’s possessory interest in his laptop computer was substantial, the Court finds that there was a compelling justification for the delay in applying for a search warrant such that evidence seized from Defendant’s laptop computer should not be suppressed. See Id. (discussing the court’s role in weighing the possessory interest in the item seized against the justification for delay offered by the government).

Volokh.com: Does Fourth Amendment Standing Work Differently for Jones Trespass Searches, Traditional Katz Searches, and Long-term Katz Searches? by Orin Kerr:

Over the last forty years, the Supreme Court has worked out a series of principles for when a defendant has standing to object to the Fourth Amendment search of someone else’s property. According to the those cases, the key issue is whether the government violated the defendant’s own reasonable expectation of privacy under the framework introduced by Justice Harlan’s concurring opinion in Katz v. United States. The owner, legitimate renter, or legitimate repeated borrower of a car generally has standing to object to a search of it. A person who steals a car or drives it in violation of a rental contract does not.

In the recent GPS decision of United States v. Jones, however, the Supreme Court introduced — or, depending on how you look at it, reintroduced — two new kinds of Fourth Amendment searches. First, the majority opinion introduced a trespass test for what is a search that supplements the Katz expectation-of-privacy test. Second, to the extent you think it proper to combine the votes of the concurring opinions and consider that an alternative holding, five Justices thought that the cumulative effect of 30 days of monitoring of the car also amounted to a search of the car because it revealed such invasive information about its public location over time.

So here’s the question: Does the standing inquiry developed over the last forty years for Katz expectation–of-privacy searches apply in the same way for Jones trespass searches and Jones long-term expectation of privacy searches? Or is the standing test different?

The government failed on proving “actual authority,” but it succeeded in showing “apparent authority.” United States v. Shady, 2012 U.S. Dist. LEXIS 17210 (N.D. Iowa January 20, 2012)*:

Here, Hubbard is not Defendant’s spouse nor does she have legal title in Defendant’s residence. The exact nature of the living arrangement understood between Defendant and Hubbard is unknown. Hubbard told officers that she had lived at the residence since March 2010, but she did not testify at the hearing. It is likely that 18 months of living with Defendant featured all of the privileges typical of cohabitation, which would thus enable Hubbard authority to consent. See Matlock, 415 U.S. at 171 n.7 (“[i]t is reasonable to recognize that any of the co-inhabitants has the right to permit inspection in his own right.”). However, no evidence was presented at the hearing detailing the arrangement. Without proof regarding Hubbard’s prior use of and access to the trailer, the Court is unable to find that she had common authority over the residence. Thus, the Government has failed to meet its burden of proving her actual authority to consent to a search.

. . .

Furthermore, the facts available to the officers prior to the warrantless entry support their belief that Hubbard had authority. Most importantly, Hubbard told the police she lived with Defendant. She described in detail her efforts to retrieve personal effects still inside. Hubbard told the officers that Defendant had carried her belongings back into the residence after she had removed them to the sidewalk. This could reasonably suggest to the officers that Defendant recognized Hubbard’s cohabitation of the trailer. Finally, Officer Fier testified that Hubbard’s knowledge of an unlocked window was apparently not discovered through trial-and-error, as if she were a guest, but with the precise knowledge of a genuine resident. The Eighth Circuit has routinely upheld a finding of apparent authority under similar facts. See Nichols, 574 F.3d at 636-37 (finding apparent authority where cohabitant girlfriend kept possessions at defendant’s house, called and met police at the door, and “appeared familiar with the home”); Hilliard, 490 F.3d at 639 (finding apparent authority where girlfriend invited officers into defendant’s home, picked up her personal items from the floor, and retrieved defendant’s hidden handgun); Douglas, 135 Fed. Appx. at 5-6 (finding girlfriend had apparent authority where she invited officers into defendant’s apartment, claimed it was her primary residence over defendant’s objections, kept belongings there and revealed location of defendant’s handgun). Therefore, the Court believes that the officers could have reasonably believed that Hubbard had authority to allow law enforcement to enter the residence. Amratiel, 622 F.3d at 916.

WisBar.org: Legal proceedings: What is a John Doe investigation anyway? by Marcus J. Berghahn, Hurley, Burish & Stanton S.C., Madison:

The news is full of references to an ongoing John Doe investigation concerning the activities of persons connected to Gov. Scott Walker while he served as Milwaukee County executive. John Doe, in this context, does not refer to a person; it is a legal proceeding.

The John Doe proceeding is an institution sanctioned by long usage since Wisconsin’s territorial days. The provisions of Wis. Stat. section 968.26 currently define the scope of a John Doe proceeding in Wisconsin, which is intended as an independent, investigatory tool to ascertain whether a crime has been committed and if so, by whom.

The goal is to allow the judge to determine whether it appears probable from the testimony given that a crime has been committed, and whether to file a complaint. But the proceedings are also designed to protect innocent citizens from the fallout of frivolous prosecutions.

As the Wisconsin Supreme Court stated in 1889: “When [the John Doe] statute was first enacted the common-law practice was for the magistrate to issue the warrant on a complaint of mere suspicion, and he was protected in doing so. This was found to be a very unsafe practice. Many arrests were made on groundless suspicion, when the accused were innocent of the crime and there was no testimony whatever against them. This statute was made to protect citizens from arrest and imprisonment on frivolous and groundless suspicion.”

WSJ.com: Feds Argue Using a Fake Name Can Deprive You of Rights by Jennifer Valentino-DeVries:

Does using a fake name when you sign up for a cellphone plan mean the government can get information from your phone without a warrant?

That’s one argument the Department of Justice is making in an Arizona case – that using a false name is fraud and means you don’t have a reasonable expectation of privacy.

Such a stance might raise questions about the widespread practice of using pseudonyms to sign up for services online. But legal experts said it’s unlikely a court would take the argument that far.

The case, which the Journal first covered in an article last year, involves the use of a cellphone-tracking device called a stingray to find a mobile broadband card that the government says was being used to file fraudulent tax returns.

Update: Not the first time the government has argued it. I’ve seen and posted cases dealing with false names to rent cars and likely hotel rooms as depriving someone of an expectation of privacy. See Use of stolen ID to rent storage unit defeated expectation of privacy.

NewsObserver.com: Case on ‘bra-lift search’ goes to N.C. Supreme Court by Martha Waggoner:

The state Supreme Court will hear arguments involving a student at an alternative school in Brunswick County who had to untuck her shirt and pull out her bra with her thumb as part of a search for pills.

The attorney who represents the student will argue that search in front of two men violated constitutional guarantees involving unwarranted searches.

Attorney Geeta Kapur said she believes the court’s ruling will apply to all public school students, about 1.5 million of them, and not just those in alternative schools.

The case involves a 15-year-old who attended Brunswick County Academy, a school for at-risk children.

Dog alert on the front of the car justified a search of the trunk. Defendant’s Franks challenge failed for no offer of proof and lack of materiality. United States v. Kelley, 2012 U.S. App. LEXIS 2634, 2012 FED App. 0155N (6th Cir. February 7, 2012) (unpublished) *:

This showing must be “accompanied by an offer of proof …. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained ….” Id. at 171. Kelley alleged that the affiant’s statement that “Kelley, Akins, Lewis and their associates have extensive experience trafficking drugs and have numerous arrests for drug violations” was false as to him. However, this claim was not supported by an offer of proof. Further, the statement, even if it was false, was not necessary to the issuing magistrate’s finding of probable cause. Therefore, Kelley’s motion for a Franks hearing was properly denied.

. . .

Kelley next argues that the police search of his car was illegal, arguing that the dog alerted only at the front of the car and that therefore there was no basis for searching his trunk. However, it is well settled that an alert from a trained dog provides probable cause for a search for drugs. United States v. Hill, 195 F.3d 258, 273 (6th Cir. 1999). Further, the search based on such probable cause may be of the entire car, including the trunk. United States v. Burnett, 791 F.2d 64, 67 (6th Cir. 1986) (“[I]f probable cause justifies the search of the lawfully stopped vehicle, it justifies the search of every part of the vehicle and the contents that may conceal the object of the search.”) (citing United States v. Ross, 456 U.S. 798, 825 (1982)). The magistrate judge’s finding that Officer Thompson’s dog was certified to detect drugs was not disputed, and Sixth Circuit case law clearly demonstrates that the search of an entire car for drugs after a drug-dog’s alert is reasonable. Therefore, the search of Kelley’s car was justified.

Defendant was never given any indication the stop was over to be able to know that he was ever free to leave; indeed, no reasonable person would leave. The consent was invalid. “Because a videotape is present in this case, the court should view ‘the facts in the light depicted by the videotape.’ Scott v. Harris, 550 U.S. 372, 381-82 (2007).” United States v. Conte, 2012 U.S. Dist. LEXIS 16470 (D. Utah February 8, 2012):

Because Conte had been given no warning or citation, he could not know the traffic stop had ended. See Guerrero-Espinoza, 462 F.3d at 1310. “More to the point, a reasonable person in [Conte’s] position would not have felt free at that time to decline to answer the trooper’s questions and instead leave.” Id. Indeed, under the circumstances, “May I ask you some additional questions?” is similar in nature to “May I see your license and registration?” Although worded as questions, circumstances can change them into polite commands. “No one … after having been stopped by [an] officer for a perfectly legitimate reason … can reasonably view himself or herself as free to leave,” Sandoval, 29 F.3d at 542, when an officer has failed to inform the driver about the outcome of the stop. This is particularly so when leaving would cause injury to an officer due to the officer’s contact with the driver’s vehicle. The court, therefore, concludes that Conte was unlawfully detained after Trooper Jensen returned his documents to him.

. . .

As stated before in this case, Trooper Jensen maintained a calm, professional demeanor throughout the encounter. As in McSwain, however, he leaned into the vehicle and rested on the door. Although the court does not find that Trooper Jensen did this in an effort to intimidate Conte, his actions, combined with failing to inform Conte the stop had concluded, suggest Conte’s consent was not voluntary. Furthermore, Conte’s consent was given less than a minute after the illegal detention and there were no intervening circumstances. These “factors weigh heavily against finding the taint cleansed.” Id. Finally, with respect to the third factor, when Trooper Jensen engaged Conte in additional conversation he had no articulable suspicion of criminal activity. Instead, his questions were designed to see if something would turn up. The questions were purposeful and devised to see if Conte would implicate himself. Based on the totality of these facts, the court concludes that the taint of the unlawful detention had not been removed and Conte’s consent was invalid. Accordingly, the court hereby suppresses the evidence found during the search.

The officer had reasonable suspicion and conducted a patdown for “officer safety,” and he testified that he almost always has the suspect remove his shoes as a part of the patdown. Here, the patdown produced a baggy of marijuana, and the patdown was not for officer safety. It was a full scale search incident. State v. Minyoung, 2012 Ohio 411, 2012 Ohio App. LEXIS 367 (3d Dist. February 6, 2012).

The arrest warrant for the defendant was based on a failure to appear on the sworn affidavit of the judge presiding in the failure to appear case. There was no affidavit. The police officers’ entry into his house on that warrant was void. State v. Sandusky, 2012 Tenn. Crim. App. LEXIS 75 (February 8, 2012). [Note there was no discussion of good faith.]