A trash pull at defendant’s house produced extensive evidence of marijuana trafficking for a search warrant, and that, in turn, provided reasonable suspicion for a stop of defendant’s car as he was leaving his house before execution of the search warrant. Then officers smell marijuana in the car. United States v. Montieth, 662 F.3d 660 (4th Cir. 2011):

… In United States v. Taylor, 857 F.2d 210 (4th Cir. 1988), we held that under the circumstances presented, a narcotics search warrant furnished the reasonable suspicion necessary to conduct an investigative stop of the appellants, whose suspected drug trafficking was the target of the warrant.

As in Taylor, the officers here “possessed a search warrant based upon probable cause to believe that appellant[ ] [was] engaged in narcotics trafficking” and the stop likewise took place as appellant left his home where he was believed to keep narcotics and drug paraphernalia. Id. at 213. Moreover, the warrant in this case specified the defendant’s person, in addition to his residence, as subject to search for evidence of drug trafficking. Once the officers pulled Montieth over, the odor of marijuana emanating from his car offered further reason to suspect he was presently engaged in criminal activity and to support his confinement to the police car. Under these circumstances, the detention was valid under Terry.

“Standing is a component of subject matter jurisdiction, which may be raised for the first time on appeal. … Whether standing exists is a question of law subject to unlimited review. …” Brendlin is limited to standing to challenge a stop, not the search of the car, and the court of appeals erred in so holding. Rakas is still good law. State v. Gilbert, 292 Kan. 428, 254 P.3d 1271 (2011).* [Note: Standing cannot be raised for the first time on appeal if the prosecution acquiesced in findings that support standing. Steagald v. United States, 451 U.S. 204, 209-10 (1981). The way Gilbert is written, the Steagald bar is avoided, but it raises another question: If the prosecution fails to argue standing, they sandbag the defendant into not putting on proof that might show standing. Therefore, at best, the case should be reversed and remanded for a hearing on standing, not just declaring defendant loses from his failure to show standing when the state did not put the defense on notice that standing was an issue so the defense could put it on if it had any proof of standing.]

Defendant was an occasional overnight guest at the place searched, but there was no evidence that he was there on the day of the search enough to give him standing in the place to be searched. Nevertheless, there was third party consent to a search. State v. Corbin, 2011 Ohio 3491, 194 Ohio App. 3d 720, 957 N.E.2d 849 (6th Dist. 2011).*

“[*P22] Based upon the totality of these facts and circumstances, including that police were investigating possible drug trafficking activities, the recognized nexus between guns and drug trafficking, and Defendant’s failure to keep his hands in plain sight and his reluctance to move away from the driver’s area of his vehicle, police had a reasonable suspicion that Defendant might be armed and dangerous and might gain immediate control of a weapon inside his vehicle upon returning to it. Accordingly, the limited protective search of the driver’s area of Defendant’s vehicle for weapons was reasonable and did not violate Defendant’s Fourth Amendment rights. Terry v. Ohio, supra; Michigan v. Long, supra; Wilcox, supra.” State v. Pattson, 2011 Ohio 3507, 957 N.E.2d 849 (Ohio App. 2d Dist. July 15, 2011).*

NYTimes: ‘We the People’ Loses Appeal With People Around the World by Adam Liptak:

The Constitution has seen better days.

Sure, it is the nation’s founding document and sacred text. And it is the oldest written national constitution still in force anywhere in the world. But its influence is waning.

Same with the Fourth Amendment and personal privacy.

Where the trial court found the search of the house illegal from its inception, the court of appeals erred in finding attenuation on its own where the state didn’t raise it. State v. Ibarra-Cisneros, 172 Wn.2d 880, 263 P.3d 591 (2011) (rev’g State v. Ibarra-Raya, 145 Wn. App. 516, 187 P.3d 301 (2008)) with two dissents:

¶9 Here, the Court of Appeals affirmed Ibarra-Cisneros’s conviction by sua sponte applying the attenuation doctrine as an exception to the exclusionary rule. It did not consider the joint treatment of Ibarra-Raya’s and Ibarra-Cisneros’s suppression motions below or the lack of a record at the CrR 3.6 hearing on the factors it articulated as supporting an attenuation analysis. Accordingly, the Court of Appeals erred in relying on the attenuation doctrine as the basis to allow the cocaine evidence against Ibarra-Cisneros.

¶10 This case does not require us to consider whether Ibarra-Cisneros has a protectable privacy interest at stake, as the State did not raise this issue below, and there is some indication that the State affirmatively waived this issue when it agreed that the brothers’ suppression motions should be treated similarly. For the same reason, there is no question here that Ibarra-Cisneros has standing to challenge the search of his brother’s home. In a different case, similar facts may raise issues of standing or the extent of the petitioner’s protectable privacy interest, but these issues were not raised below by the State, and we will not consider them for the first time on appeal, particularly in the absence of adequate briefing.

¶11 In light of the way this case has developed, the only fair resolution of Ibarra-Cisneros’s appeal is to treat it as the Court of Appeals treated Ibarra-Raya’s appeal. The State has not met its burden of purging the taint resulting from the unlawful home search. Rather than reaching for issues not raised below, we return this case to where it started with the acknowledgement that, because the warrantless home search was unlawful, all evidence seized as a result must be suppressed. We reverse the Court of Appeals.

Defendant’s search claim could not be raised for the first time on appeal because there was no development of the record. State v. Fenwick, 164 Wn. App. 392 (October 18, 2011).

Defendant’s briefcase was left at somebody else’s house, and defendant did not abandon it and he still had a reasonable expectation of privacy in it. The search of the briefcase was not based on an independent source. Wilder v. State, 290 Ga. 13, 717 S.E.2d 457 (2011):

1. Before examining the merits of the Fourth Amendment issue, we first address the argument that Wilder lacks standing to challenge the seizure of his briefcase because it was obtained from the home of a third party. Stated simply, “the assertion that [Wilder] is without standing to object to the seizure of his personal belongings is plainly wrong. [Cit.]” Mooney v. State, 243 Ga. 373, 374-375 (1) (254 SE2d 337) (1979) (appellant had standing to challenge seizure of his luggage from third party’s automobile), abrogated on other grounds by Horton v. California, 496 U.S. 128 (110 SC 2301, 110 LE2d 112) (1990). Though lacking standing to challenge a search of Malin’s premises, see, e.g., Brown v. State, 240 Ga. App. 321, 322, n.2 (1) (523 SE2d 333) (1999) (search of premises owned by third party does not implicate defendant’s Fourth Amendment rights), appellant does have standing to contest the seizure of his own personal property from the premises of another. Mooney v. State, supra at 374-375. Compare English v. State, 288 Ga. App. 436 (3) (654 SE2d 150) (2007) (no standing to challenge search of third party’s premises and seizure of stolen vehicle stored there by defendant).

. . .

This case presents a different scenario, in that it involves a single search, preceded only by an unlawful seizure, which yielded custody of the item ultimately searched rather than information giving rise to the eventual lawful search. Here, while the information on which the search warrant was based derived from a source wholly independent of the initial unlawful seizure, the search itself cannot be said to have been conducted independent of the seizure, as it was the seizure that in fact made possible the search that actually occurred. Accordingly, we simply cannot find that the evidence here was “discovered by means wholly independent of any constitutional violation.” Teal, supra, 282 Ga. at 323 (2). The Court of Appeals thus erred in affirming the trial court in its application of the independent source doctrine.

Police responded to a 911 call and found a body outside. A cursory sweep of the interior was permissible, but a second entry was invalid. Also, defendant’s mobile home, hooked up to utilities, was not readily mobile, so the automobile exception did not apply. The trial court’s failure to suppress, however, was harmless considering that the product of the search was barely referenced at trial and the other evidence was overwhelming. Tollefson v. State, 352 S.W.3d 816 (Tex. App.—San Antonio 2011):

Tollefson argues because Barbara’s body was found outside his trailer, rather than inside as in Johnson, officers did not have consent to enter his trailer. Tollefson’s argument is persuasive. After the initial protective sweep of the trailer, it was unnecessary for law enforcement officials to re-enter the trailer to investigate the shooting or remove Barbara’s body. In comparison, the defendant in Johnson was still at the scene as officers continued to investigate and was, therefore, “in a position to revoke her consent had she wished to do so.” Johnson, 226 S.W.3d at 445. Officers took Tollefson to the Wilson County jail before Chief Deputy Deagen searched the trailer, so Tollefson was not in a position to deny consent.

We hold the emergency exception to the warrant requirement does not apply because after the initial protective sweep of Tollefson’s trailer, wherein the officers did not seize the evidence in question, officers did not have Tollefson’s implied consent to search his trailer. At the time of the second search, Tollefson had been removed from the scene and Barbara’s body was outside the trailer.

Officer’s testimony that he routinely pats down the passenger after getting the driver out of the car was not reasonable suspicion. Here, however, defendant later consented to a search of his wallet after the patdown, and that was independent. Rogue v. State, 311 Ga. App. 421, 715 S.E.2d 814 (2011).

Defendant was prosecuted for a Mann Act violation involving underage prostitution. He was kicked out of a hotel room with the police in tow. The officers questioned the girls in the rooms and looked at their cell phones. He had no standing to question the alleged violation of the rights of the girls. United States v. Collins, 437 Fed. Appx. 760 (11th Cir. 2011).*

SVPA prisoner strip searches were shown by defense affidavit to be for legitimate penological security interests, and plaintiff has not countered that proof. Jones v. Baca, 2010 U.S. Dist. LEXIS 143589 (C.D. Cal. March 31, 2010).*

Pursuit of a minor into a home for an alleged traffic offense was not justified by hot pursuit because there was no exigency, and any reasonable officer could have understood the constitutional implications. Mascorro v. Billings, 656 F.3d 1198 (10th Cir. 2011).

The plain view and automobile exception applied to the search of defendant’s car. United States v. Brown, 653 F.3d 656 (8th Cir. 2011).*

Defendant’s car was searched four times, and the automobile exception applied to all of them because it was always potentially “mobile.” United States v. Medina-Gonzalez, 437 Fed. Appx. 714 (10th Cir. 2011).*

Officers were told by a CI of a sale of drug store pseudophedrine in exchange for meth and then destruction of the packaging. Officers following defendant saw him dispose of trash. They detained him, frisked him with probable cause and found a small quantity of meth. They took him back to his place and searched, then got a search warrant. The possibility that others involved could have seen defendant’s arrest and could destroy evidence justified the entry. State v. Channell, 2010 Ohio 6566, 2010 Ohio App. LEXIS 5428 (5th Dist. December 30, 2010)*:

[*P25] The informant told the detectives that appellant was getting ready to leave his apartment. Id. at 20. The detectives observed appellant leave and drive away. A traffic stop was initiated and appellant was returned to his apartment. The detectives believed if someone had observed the stop of appellant, they might have tipped off the remaining persons in the apartment. Id. at 22, 24. Upon this belief, detectives entered the apartment to secure it pending the issuance of a warrant.

[*P26] Detective Doug Bline testified upon entry to appellant’s apartment, he observed a white bag with pseudoephedrine boxes and some drug paraphernalia (foil). A small amount of methamphetamine was found on an occupant in the apartment.

[*P27] The items seized were of little use in the prosecution of appellant’s case. The exigent circumstances articulated by the police were sufficient to justify their entry for the protection of possible evidence. There were sufficient facts to establish that the items sold by the informant would be taken from the premises and it was likely the evidence from the sale would be destroyed. Also, given the stop of appellant in a high drug crime area, there was a reasonable belief that a tip could be made back to the apartment thereby causing further destruction of evidence.

The court to hear a motion to suppress is the one with jurisdiction in the criminal case and not the court that issued the search warrant where the counties are different. Flinn v. State, 354 S.W.3d 332 (Tenn. Crim. App. 2010).*

Police came to arrest defendant, and, when the door was opened, the officers could smell burning marijuana and see the defendant, and that was sufficient exigent circumstances for an immediate entry to protect the evidence from destruction since defendant knew their presence. United States v. McMillion, 2011 U.S. Dist. LEXIS 7 (M.D. Pa. January 3, 2011).*

The Kentucky constitution is not applied differently than the Fourth Amendment, so the “inadvertent discovery” requirement of the plain view doctrine is not a requirement. When a computer was the object of the search, a computer bag was plain view. Chavies v. Commonwealth, 354 S.W.3d 103 (Ky. 2011):

The laptop and lights were in plain view. Chavies argues the computer and lights themselves were not visible because the computer was in a laptop bag, and the lights were in a box. We disagree. Hurley said Chavies took lights packaged in a box and a computer. Police saw in Chavies’s car the original packaging for the lights, as Hurley described, and a laptop bag. It is sufficient that the police saw a laptop bag in the car. Police did not have to see the laptop itself as long as they had probable cause to believe the laptop bag was stolen or contained a stolen computer.

The incriminating nature of the evidence was immediately apparent. Where the nature of the evidence is not inherently criminal, probable cause of its incriminating nature is necessary. …

Defendant was stopped without legal justification, and one thing led to another and he assaulted the officer. Acquittal was not an appropriate remedy for what was a separate crime despite the Fourth Amendment violation. Crossland v. United States, 32 A.3d 1005 (D.C. 2011):

In his post-trial Motion for Judgment of Acquittal, appellant argued that “because Officer Baldwin’s behavior violated his [Fourth Amendment] rights,” the trial court “should consider sanctioning the Government” by entering a judgment of acquittal. Relying on Mapp v. Ohio, appellant argues that the trial court erred in denying his motion, contending that “the only way to deter the MPD police policy of ‘aggressive high visibility patrol,’ … is to remove the incentive” for police officers to disregard constitutional rights. We discern no reason to doubt (and the government does not dispute) that Officer Baldwin’s conduct — forcibly searching appellant when, as the officer acknowledged, appellant was doing nothing unlawful — violated appellant’s Fourth Amendment right to be free from unreasonable searches and seizures. However, application of the sanction established by Mapp (the so-called “exclusionary rule”) has “been limited to cases in which the prosecution seeks to use the fruits of an illegal search or seizure against the victim of police misconduct.” Artis v. United States, 802 A.2d 959, 967 (D.C. 2002) (quoting United States v. Leon, 468 U.S. 897, 910, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)). This case did not involve the seizure of evidence, and the authority that appellant cited did not require or authorize the trial court to grant appellant’s request for a judgment of acquittal. Moreover, as the trial court recognized, the APO statute “prohibits forceful resistance even if the officer’s conduct is unlawful.” Dolson v. United States, 948 A.2d 1193, 1202 (D.C. 2008) (explaining that the rationale for this rule is to “deescalate the potential for violence which exists whenever a police officer encounters an individual in the line of duty”) (citations and internal quotation marks omitted). The trial court did not err in denying appellant’s motion.

Peter Swire, A Reasonableness Approach to Searches After the Jones GPS Tracking Case, 64 Stan. L. Rev. Online 57 (2012):

In the oral argument this fall in United States v. Jones,[1] several Supreme Court Justices struggled with the government’s view that it can place Global Positioning System (GPS) tracking devices on cars without a warrant or other Fourth Amendment limit. Chief Justice Roberts asked: “You think there would also not be a search if you put a GPS device on all of [the Justices’] cars, monitored our movements for a month?”[2] (The lawyer for the government said yes.) Justice Breyer remarked: “[I]f you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.”[3] He added: “[I]f you win, you suddenly produce what sounds like 1984 ….”

USA Today: FBI cuts back on GPS surveillance after Supreme Court ruling by Kevin Johnson:

The FBI has begun cutting back GPS surveillance in an array of criminal and intelligence investigations following a Supreme Court ruling last month restricting its use, a federal law enforcement official said.

The bureau began implementing the change the day after the Jan. 23 ruling in which the court found that attaching such a device to a car amounted to a search covered by the Fourth Amendment, requiring police to seek warrants in many cases.

The official, who was not authorized to comment publicly on the matter, said the GPS directive was issued until further legal guidance is provided on the use of the technology.

Examiner.com: Harrisburg headlines: Pilot program of drug tests for welfare recipients may go statewide by Yvonne P Mazzulo:

On January 18th, 2012, Senator David G. Argall (R-29) announced that the Pennsylvania Department of Public Welfare (DPW) would implement a drug testing pilot program in Schuylkill County.

Under the pilot program, DPW will randomly drug test applicants and recipients of Temporary Assistance for Needy Families and General Assistance cash assistance who have been convicted of a felony drug offense that occurred within the past five years and for applicants who are currently on probation for a felony drug offense.

Upon the announcement of the pilot program for Schuylkill County, Senator Argall stated, “People at my town hall meetings throughout the district repeatedly tell me they would like to see serious reforms to stop giving a ‘free ride’. This news is long overdue in a department that consumes 30 percent of the state budget.”

WaPo: Beware of privacy policies: Time to clean up your digital footprint by Melissa Bell:

Last week, Google tracked the Web sites I visited and, like most technology companies, tried to guess who I was based on the places I visited. Its goal: to target advertising to me. The result? The search engine thought I was a 70-year-old man based in Atlanta.

I am not a man, not 70 and haven’t had the privilege of visiting the Peach State. Google’s guessing game might improve, though, thanks to a change in its privacy policies launched Wednesday. Now all the company’s products are governed by one policy, which lets the company track what I write on Gmail and compare it to what I watch on YouTube — all to better direct ads to me.

Why is facebook worth $75B? The information it has collected on 875M people.

When will the government start datamining to target people? It already can.

Officers asked defendant whether they could come through his gate to talk to him, and he agreed. That did not amount to consent to roam the curtilage or search the house. Ferrer v. State, 2012 Fla. App. LEXIS 1406 (Fla. App. 2d DCA February 3, 2012):

We reject the State’s contention that once Ferrer open the locked gate, general “knock-and-talk” principles authorized the deputies to proceed to the front door area. See, e.g., State v. Navarro, 19 So. 3d 370, 372-73 (Fla. 2d DCA 2009). The State argues that because the officers were free to proceed to the front door of the house to knock and talk, the evidence of marijuana was legally obtained under the “plain smell” doctrine. However, the facts of this case do not demonstrate the implied general consent to enter the curtilage of the house that provides the basis for entry to conduct a knock-and-talk investigation. Rather than leaving his property open for any member of the public to enter, Ferrer had taken steps to keep out uninvited visitors by fencing it and erecting an electric gate across his driveway, thereby demonstrating an expectation of privacy. Cf. Nieminski v. State, 60 So. 3d 521, 525-27 (Fla. 2d DCA 2011) (finding no violation of privacy where officers entered fenced property through a closed, but unlocked, gate). Thus, while officers were free to approach the gate to conduct a knock and talk—which they did—the area inside the fence fell under the same constitutional protections as the residence itself, and the officers were not at liberty, absent consent, to approach the residence. Compare Fernandez v. State, 63 So. 3d 881, 883-84 (Fla. 3d DCA 2011) (holding that the defendant had a reasonable expectation of privacy in the fenced yard adjacent to his residence and that the momentary opening of the gate to allow the defendant to leave was not an invitation for police to enter); with State v. Triana, 979 So. 2d 1039, 1045 (Fla. 3d DCA 2008) (finding no constitutional violation where the police had a consensual encounter with the defendant outside of the locked gate to the defendant’s property and the defendant agreed to a search and opened the gate to allow the police to enter).

Under Jones, the person complaining has to have standing to contest installation of the GPS in the vehicle. The members of the robbery crew here had no standing. United States v. Hanna, 2012 U.S. Dist. LEXIS 11385 (S.D. Fla. January 30, 2012):

Under either approach recognized by Jones, an essential component of the Fourth Amendment claim requires that one’s own personal “effects” have been trespassed (e.g., one’s automobile when a GPS tracking device was secretly installed), or that one’s own expectation of privacy was impinged (e.g., one’s own movements were continuously monitored and tracked for a material period of time). That is principally where these Defendants’ attempt to benefit from the Supreme Court’s decision in Jones fails. Neither Ransfer nor Hanna was either the owner or exclusive user of the Ford Expedition. To the contrary, the record shows that members of the robbery crew consistently referred to the Expedition as co-Defendant Middleton’s truck. It is undisputed, and the Court has found, that neither Ransfer nor Hanna was in possession of the Expedition at the time that the alleged trespass (the installation and subsequent use of the tracker) occurred. It is also undisputed that Middleton owned that vehicle at all relevant times. Thus, to the extent that Jones relies upon a theory of trespass upon private property, neither Ransfer nor Hanna has standing to challenge a trespass upon property as to which they had no rights.

Moreover, Defendants Ransfer and Hanna also lack standing to challenge the installation and use of the GPS device on the Ford Expedition because — under a traditional Katz analysis — they had no reasonable expectation of privacy in the vehicle. In Jones, five members of the Court concluded that Justice Scalia’s trespass theory did not form a sufficiently comprehensive analysis of the Fourth Amendment implications of GPS monitoring and argued that GPS monitoring should also (in the case of Justice Sotomayor) or only (in the case of Justice Alito) be analyzed to determine whether it has invaded a reasonable expectation of privacy. Under this traditional test as well, neither defendant Ransfer nor Hanna had a reasonable expectation of privacy in the Ford Expedition or its movements, and thus neither has standing to challenge the installation and use of the GPS device.

Where a cell phone was seized under a search warrant, a separate search warrant was not required to search it under Ross. State v. White, 2011 W. Va. LEXIS 761 (February 10, 2011) [yes, a year ago]:

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

Defendant and the passengers were all out of the car and frisked after defendant was stopped. The officers articulated no reason to search the car. However, defendant consented to a dog search of the car, and that gave probable cause. United States v. Campbell, 2011 U.S. Dist. LEXIS 152725 (D. Me. December 6, 2011).*

A previous post:

OH9: Campus police led drug dog down the street to sniff cars and validly searched car when dog alerted

Campus police leading a drug dog down the street saw the dog alert on a parked car. They tried to contact the owner, but couldn’t so they used a lockout device to enter the car and conduct a warrantless search. The entry was valid because the car was still “inherently mobile,” and the drug dog alert was valid. State v. Friedman, 2011 Ohio 2989, 194 Ohio App. 3d 677, 957 N.E.2d 815 (9th Dist. 2011):

Her whereabouts were unknown, despite the officers attempting to contact her at her residence, on her cell phone, and at the school’s activity center. Further, there was testimony that there were not enough officers on duty to post an officer with the vehicle. The fact that Friedman was not present when the officers developed probable cause does not detract from the inherent mobility of her vehicle or render inapposite the application of the automobile exception to the warrant requirement. See Carney, 471 U.S. at 390; Chambers, 399 U.S. at 48; Carroll, 267 U.S. at 153.

The Ohio Supreme Court granted discretionary review today.

h/t to a reader. This is a case to watch. Hopefully the grant of review is at least a sign four justices think the 9th Dist. decision is wrong.

Officers had a warrant for the defendant, and they got permission to enter the dwelling of another to look for him. They found defendant standing in a bedroom closet, and took him downstairs to secure him. The officer who found him went back to the bedroom and searched a duffle bag that was in the closet. The search was invalid under the search incident doctrine because defendant was nowhere around it at the time. State v. Justice, 2011 Ohio 4004, 2011 Ohio App. LEXIS 3366 (5th Dist. August 10, 2011).

Defendant was walking in a high crime area with a shopping bag and he was observed near the officers reaching into a truck. The officer grabbed for defendant and saw a baggie of drugs. The defendant did not make a furtive movement and there was no reason to believe he was armed, so the search was invalid. State v. Abner, 2011 Ohio 4007, 194 Ohio App. 3d 523, 957 N.E.2d 72 (2d Dist. 2011).*

Defendant’s frisk was justified under Terry, so defense counsel was not ineffective for not raising it. State v. Parra, 2011 Ohio 3977, 2011 Ohio App. LEXIS 3348 (8th Dist. August 11, 2011).*