Stopping a motorist for information about a third party speeding was an unconstitutional seizure because the purpose of the stop was not sufficiently serious to justify the infringement of the motorist’s rights. State v. LaPlante, 2011 ME 85, 26 A.3d 337 (2011):

[¶1] In this appeal, we consider the constitutionality of a state trooper’s stop of a vehicle for the sole purpose of seeking information from the operator concerning another vehicle that the trooper observed speeding. … We conclude that a law enforcement officer’s investigation of a third party’s civil speeding offense cannot, standing alone, justify the stop and seizure of a motorist, and we vacate the judgment.

. . .

[¶11] As noted above, the investigation of serious crimes has been deemed sufficiently important to outweigh certain interferences with the liberty interests of stopped motorists. …

[¶12] In contrast, the investigation of noncriminal offenses is generally not a sufficiently grave public concern to outweigh the interference with a motorist’s liberty interest that occurs when the motorist is stopped without any reasonable articulable suspicion.

. . .

[¶16] The Fourth Amendment protects the individual’s reasonable desire for privacy, which arises from “the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). Every traffic stop involves some degree of interference with that liberty interest because the motorist, whether law-abiding or not, loses the freedom to travel without interruption. The resulting intrusion on a person’s individual autonomy is not insubstantial. In his testimony, the trooper agreed that once he initiated his stop of LaPlante’s motorcycle by activating the blue lights of his cruiser, LaPlante was “obligated to pull over,” was “not free to leave,” and was “seized for [all] effective purposes.” See Brewer, 1999 ME 58, ¶ 12, 727 A.2d at 355 (discussing when an officer’s interaction with a citizen constitutes a seizure). Furthermore, if law enforcement officers routinely stopped motorists to inquire about third-party speeding offenses, the aggregate damage to individual liberty would be great.

[¶17] In addition, none of the elements that have been found to lessen the severity of the interference with the liberty interest when a motorist is stopped in the absence of reasonable articulable suspicion are present here. …

The officer was coming up on defendant’s vehicle moving much slower, and she abruptly pulled off the road 200 yards in front of him. He turned on his emergency lights and stopped to see if she had a flat or engine trouble. When he talked to her, she said everything was fine, but she smelled of intoxicants. One thing led to another and she was arrested for DUI. The “stop” was a community caretaking inquiry, and reasonable suspicion developed from that. Even if there was a possible mixed motive, all the objective facts support the community caretaking stop. State v. Spaulding, 2011 MT 204, 361 Mont. 445, 259 P.3d 793 (2011)*:

It is true that the community caretaker doctrine cannot be used as a pretext for an illegal search and seizure. Lovegren, ¶ 23. For this reason, we require that a welfare check be based on objective, specific, and articulable facts from which an officer would suspect that a citizen is in need of help or is in peril, Lovegren, ¶ 25, and that the stop actually involve a welfare check, see e.g. Graham, ¶¶ 30-31 (the officer’s admitted purpose was not to conduct a welfare check, but rather to “move [the defendant] along”); State v. Reiner, 2003 MT 243, ¶¶ 21-22, 317 Mont. 304, 77 P.3d 210 (the officer did not stop out of concern for the defendant being in peril or in need of assistance, but rather to commence an investigation based on a report of a possibly intoxicated driver); Seaman, ¶ 30 (the officer’s initial questions reflected his concern for the defendant’s well-being); cf. State v. Nelson, 2004 MT 13, ¶ 9, 319 Mont. 250, 84 P.3d 25 (even if the officer suspected that the defendant’s license was suspended, the primary purpose of her stop was to determine whether any possible occupants of the vehicle needed assistance).

[*P25] In the present case, there were objective, specific, and articulable facts from which an officer would suspect that a citizen was in peril or in need of help. The vehicle pulled over abruptly, while Croft was still 200 yards away. In Croft’s experience, this indicated that the driver might have a flat tire or car troubles. They were on a back road in a desolate area, out “in the middle of nowhere,” and the road was “not a very well-travelled road.”

Officers were called to a domestic disturbance, and they heard yelling as they approached. Once inside, it was obvious there was a disturbance there, and the female caller was vague and acted like it was over, and she denied that he was there, which the officers believed was false. The officers did not leave right away and stuck around to “learn certain things first” until she finally revoked her consent for them to be inside for a second time. By then, an officer saw drugs in plain view which she tried to grab from him. The entry and remaining inside was valid. Miller v. State, 345 S.W.3d 616 (Tex. App.—San Antonio 2011).*

Probation officers still had probable cause to believe that defendant’s residence was as he stated it. While there was conflicting information about his residence, he only saying that he was thinking about moving and somebody else saying that he didn’t live there, that person had lied to probation officers before about his residence. United States v. Romero, 2011 U.S. Dist. LEXIS 34440 (D. Mont. March 30, 2011).*

There was no indication that defendant’s written consent was anything other than voluntary. Also, he was asked about the luggage carrier during the search, and he did not object at that time. United States v. $93,120.00 in United States Currency, 2011 U.S. Dist. LEXIS 34664 (D. Neb. February 23, 2011).*

Officers responded to a call about an “unwelcome woman” in a house. Police entered and they were directed to a bedroom, and they were told she had a gun in the room. Officers knocked on the door and she said “come in.” They asked about a gun, and she said she had one and pointed toward the headboard. That was considered implied consent for a search of the headboard. The officers found out she had been involuntarily committed, so she was a prohibited person, and she was arrested. United States v. Reynolds, 646 F.3d 63 (1st Cir. 2011).

Giving the district court’s finding the credit it is due, there is evidence to support the finding of consent that is not clearly erroneous. United States v. Boyd, 429 Fed. Appx. 233 (4th Cir. 2011).*

Two trash pulls from defendant with the last the day before the search warrant was sought was hardly stale information. United States v. Kruse, 2011 U.S. Dist. LEXIS 52488 (N.D. Iowa May 16, 2011).*

There was probable cause for plaintiff’s arrest, so his § 1983 case fails. McLennan v. Burke, 425 Fed. Appx. 377 (5th Cir. 2011).*

Maybe the first citation of King: Fifth Circuit finds no police manufactured exigency where they arrested him in his garage after observing crime. [This case was submitted before King.] United States v. Montanya, 425 Fed. Appx. 392 (5th Cir. 2011) (unpublished):

Montanya concedes that police had probable cause to arrest him and Figueroa but asserts that the seizure from his garage was improper because any exigency for the arrest was manufactured by the officers. We see no manufactured exigencies under the circumstances in this case because “we see no evidence that the officers either violated the Fourth Amendment or threatened to do so prior to the point when they entered the [garage].” Kentucky v. King, No. 09-1272, ___ S. Ct. ___, 2011 WL 1832821, slip. op. at 17 (U.S. May 16, 2011); see also United States v. Rico, 51 F.3d 495, 502 (5th Cir. 1995) (holding that we examine the motivation of the police and the reasonableness and propriety of the investigative tactics that created the exigency). Police had probable cause to investigate Figueroa standing in plain view in the driveway, a place that is not constitutionally protected and in which there is no reasonable expectation of privacy. See, e.g., United States v. Brown, 510 F.3d 57, 65 (1st Cir. 2007) (holding that when a driveway is exposed to public view it is not part of the home’s curtilage protected by the Fourth Amendment). At that point, the officers knew that a substantial drug deal had likely just occurred and that the drugs had apparently been offloaded from a vehicle not registered to that location. When they saw Montanya throw an apparent weapon under the car they were justified in seizing him for officer safety and in conducting a protective sweep. See United States v. Jones, 239 F.3d 716, 721-22 (5th Cir. 2001) (holding that police could enter apartment when they viewed a gun through an open door after conducting a proper “knock and talk”); United States v. Maldonado, 472 F.3d 388, 394 (5th Cir. 2006) (holding that protective sweep may be reasonable to ensure officers’ safety, particularly during drug arrests where the presence of weapons is not uncommon). We conclude that the officers’ “actions that led up to the decision to discontinue covert surveillance, approach the … residence, and seize [Montanya]” were reasonable. See Rico, 51 F.3d at 502. They neither engaged nor threatened to engage in conduct that violated the Fourth Amendment, and Montanya’s police-created exigency argument fails. See King, slip. op. at 8.

In a case after remand, the Seventh Circuit decides that an officer had probable cause when he made a threat to get a search warrant. In the process, the court applies the same standard that it would apply to the good faith exception saving a search warrant on the margins since that would have been the standard applied if a magistrate reviewed all that the officer had. Here, the officer was in the process of gathering information for the warrant, including visiting the house to get a description to put in the affidavit and warrant when they decided to proceed without one. The consent was valid, too. United States v. Hicks, 650 F.3d 1058 (7th Cir. 2011):

This successive appeal picks up where we left off in United States v. Hicks, 539 F.3d 566, 571-72 & n.1 (7th Cir. 2008) (Hicks I). Did Milwaukee Police Detective Donald Brown base his threat to obtain a search warrant on “a legitimate belief” that police could obtain a warrant, or was it a pretextual threat potentially rendering the subsequent consent involuntary? In Hicks I, we instructed the district court to determine the factual basis supporting Detective Brown’s statement to Samella Smith—who initially resisted consenting to her home’s search—that if she did not consent police would simply obtain a warrant. Id. at 572. Once the court answered that question, it was to reassess the totality of the circumstances to determine the voluntariness of Smith’s consent. Id. at 572 n.1.

. . .

Hicks next argues that nothing inherent about guns supports an inference of continuing possession because guns are by their nature easily transferrable. See United States v. Martin, 399 F.3d 879, 881 (7th Cir. 2005) (noting that the “[p]assage of time could affect reasonableness” for Fourth Amendment purposes, “especially for search warrants that authorize the police to hunt for items that are portable (or consumable)”). Hicks charges that presuming that the suspect’s alleged gun possession continued for months would amount to armchair empiricism, citing United States v. Chambers, 473 F.3d 724, 726 (7th Cir. 2007) (“But it is an embarrassment to the law when judges base decisions of consequence on conjectures . . . .”), rev’d, 555 U.S. 122 (2009).

The conclusion that Hicks (or Stevens) kept the weapon is not mere conjecture or armchair empiricism. Multiple sources supported Detective Armon’s basis for believing either Hicks or Stevens kept the weapon as a sort of modus operandi. Although handguns are quite mobile, markets exist for their sale, and they could be disposed of, Detective Armon had a sufficient factual basis for believing that Hicks and Stevens were associated with this particular weapon, perhaps even infamously. And we have recognized that, depending on the circumstances, evidence of the sighting of a gun (or related items) does not automatically grow stale as time passes. See United States v. Harju, 466 F.3d 602, 608 (7th Cir. 2006) (holding that even though three weeks passed between the gun’s sighting by a CI and the warrant’s execution, reliance on the CI was not undermined because unlike a small amount of drugs or cash, “the gun was not likely to have been sold (or consumed) during that period”); [citations omitted]

. . .

We hold that the district court did not clearly err in finding that Detective Armon had a reasonable factual basis to conclude that he had probable cause for a search warrant. We do not address whether in fact there was probable cause but we are satisfied that Detective Armon had a reasonable factual basis for probable cause and took actions consistent with the mindset of someone who believed he could, if necessary, get a search warrant. Thus, consistent with Hicks I, 539 F.3d at 571, we also hold that the district court did not clearly err in finding that Smith “freely” consented to the search of her home.

A Michigan v. Long protective weapons search was justified here, and it parallels the permitted search incident under Belton. United States v. McGregor, 650 F.3d 813 (1st Cir. 2011):

McGregor is right that the only lawful purpose of a Long search is to protect officers from the danger that the persons they have stopped will grab for weapons. See 463 U.S. at 1047-48. And he is also right that the search must be no more invasive than necessary to serve that safety function. Id. at 1052 n.16. A Long search is a limited search. Id. But it is limited in this sense: officers with reasonable grounds for suspecting that the detainees are dangerous must confine their weapons search to accessible areas of the vehicle. Id. at 1049. The question here is whether the console hide was a searchable part of the passenger compartment under Long and its successors. Our answer is yes, for these reasons.

The Long Court set the parameters for a protective search in part by copying the search-incident-to-arrest standard in New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). See Long, 463 U.S. at 1048-49. Belton held that police may search an auto’s passenger compartment incident to an occupant’s lawful arrest both to protect officer safety and to preserve evidence. See 453 U.S. at 460. Long’s rationale is limited to officer safety. But if officers restrict their searches to areas “that may contain a weapon and to which the motorist may have access,” the physical borders of the passenger compartment covered by Belton and Long are the same. United States v. Arnold, 388 F.3d 237, 240 (7th Cir. 2004).

Officer’s comment on the defendant’s exercise of his right to refuse to consent is usually reversible error, but it is subject to harmless error review. Here, however, it cannot be said beyond doubt that the comment in the context of a self-defense claim was harmless. Reversed. Bravo v. State, 65 So. 3d 621 (Fla. 1st DCA 2011).*

“Does an officer have reasonable suspicion to effect a traffic stop when he conducts a computer check of a car’s tag and learns that the tag is registered to the same make of car, but to one of a different color? We agree with courts in Indiana and Georgia and hold that under these circumstances an officer may lawfully make a traffic stop under the Fourth Amendment of the United States Constitution.” Aders v. State, 67 So. 3d 368 (Fla. 4th DCA 2011).

Defendant’s Gant argument for the first time at oral argument was waived. The trial was five months after Gant, and it was never mentioned. State v. Lee, 2011 Wash. App. LEXIS 1747 (July 26, 2011).*

Defendant was a sex offender under a community control sentence, and he violated the terms of release. The search of his portable memory cards by his PO did not violate his state constitutional privacy rights because statute reasonably permitted a search of his home, car, and other “personal property.” State v. Parris, 163 Wn. App. 110 (2011).*

The officer called the judge for a telephonic search warrant, and the officer testified that he was not sworn in before giving information from the CI that made the PC for the warrant. After the search, he returned the warrant to the judge who signed it. The judge had no recollection of the call or the warrant approval. The trial court held that the warrant was invalid, but nevertheless executed in good faith under Leon, and the appellate court affirmed on the good faith exception. Bailey v. State, 67 So. 3d 145 (Ala. Crim. App. 2009), Released for Publication July 27, 2011.*

The issuing magistrate was a trial commissioner who held over his term of office, and he was still a de facto officer under state law. [If he was not, the good faith exception would not apply.] Gourley v. Commonwealth, 335 S.W.3d 468 (Ky. App. 2010).*

The Privacy Protection Act of 1980 did not apply where there was probable cause to believe defendant was involved in a crime: the “suspect exception.” Sennett v. United States, 778 F. Supp. 2d 655 (E.D. Va. 2011):

At issue on the government’s motion to dismiss, or in the alternative for summary judgment, is whether the “suspect exception” to the Privacy Protection Act of 1980 (“PPA”), 42 U.S.C. §§ 2000aa(a)(1), (b)(1), bars plaintiff’s claim that federal law enforcement officers violated her PPA rights by searching her home and seizing photographs and photographic equipment. The PPA’s “suspect exception” applies only where government officials have probable cause to believe that the target of the search has committed an offense, and the materials seized are related to that offense. Here, the record evidence establishes that there was probable cause to believe that plaintiff was involved in the vandalism of the Four Seasons Hotel on April 12, 2008, and the subsequent search of plaintiff’s home related to the investigation of that incident. Accordingly, the PPA’s “suspect exception” applies, and summary judgment must be granted in favor of the government.

Officers approached defendant’s house to conduct a knock and talk. As they approached they could smell burning marijuana. At the door they heard something to the effect of “I’ve got a half pound of weed.” When the door opened, marijuana smoke billowed out. The entry was justified. United States v. Silkwood, 2011 U.S. Dist. LEXIS 40040 (W.D. Mo. March 15, 2011).*

Roadblock near house being searched was reasonable where the police during the raid overheard a call about somebody coming to buy drugs. Defendant was a passenger in the car, and it was stopped with reasonable suspicion. Spurlock v. State, 67 So. 3d 811 (Miss. App. 2011), Rehearing en banc denied, 2011 Miss. App. LEXIS 467 (Miss. Ct. App.,
Aug. 9, 2011):

¶12. In this case, the police received a phone call from an unidentified male while executing a search warrant at Jefferson’s home. When police answered, the caller asked, “Are you ready to re-up?” Before receiving the call, the police had uncovered marijuana, ecstacy, and handguns in Jefferson’s home. While the police did not have any identifying information for the caller other than his gender, they reasonably suspected that someone was approaching Jefferson’s home with contraband. Therefore, the police utilized a roadblock to confirm their reasonable suspicion. Because the police had reasonable suspicion, their investigatory stop of the vehicle in which Spurlock was a passenger was not unconstitutional. As such, the circuit court did not err in denying Spurlock’s motion to suppress.

[And the Mississippi courts website still sucks.]

Officers had an arrest warrant for defendant for selling drugs out of his vehicle. When they found him, he was standing next to the vehicle with the door open. The search was valid as a search incident. [Looks to me that it would have been sustained under the automobile exception, too; it is reasonable to believe that drugs would be in the car since drugs were recently sold from it.] United States v. Johnson, 424 Fed. Appx. 922 (11th Cir. 2011) (unpublished).*

Traffic stop on I-70 was without justification, so the stop is suppressed, as are the defendants’ statements. United States v. Murphy, 778 F. Supp. 2d 237 (N.D. N.Y. 2011).*

Seizure of defendant’s computer was proper because of his admissions that there was child pornography on it. His consent thereafter was not the fruit of the poisonous tree. United States v. Blood, 429 Fed. Appx. 670 (9th Cir. 2011).*

Wearing a ski mask and a hoody on November 30, 2009, in Milwaukee while standing on a corner in a high crime area justified officers accosting defendant and seeing what was up. He was frisked finding cocaine, marijuana, and pills. The trial court suppressed because nothing was “a foot.” State v. Matthews, 2011 WI App 92, 334 Wis. 2d 455, 799 N.W.2d 911 (2011), with a serious dissent. The dissent said a woman walking a dog walked by and nothing happened at all. The majority said the officers said she appeared nervous.

The stop was reasonable here where the victim of a robbery was riding with the police when the defendant’s car was seen. She ID’d the car and the defendant, and she was subject to prosecution for false information. The defendant ultimately had no standing in the car he was driving because he could show no legitimate relationship to it. Commonwealth v. Cruz, 2011 PA Super 106, 21 A.3d 1247 (2011).*

While the Fourth Amendment applies to an arrestee’s medical needs at the time of arrest, here the officers had qualified immunity for denying baby aspirin to a suspect who had a heart attack when they battered in his door. They also had no notice at the time of the raid that the plaintiff was a potential heart attack victim. Florek v. Mundelein, 649 F.3d 594 (7th Cir. 2011):

The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ….” U.S. Const. amend. IV. We have held that an officer violates the prohibition on unreasonable seizures when, in the course of making an otherwise lawful arrest, he does not respond reasonably to an arrestee’s medical needs. Sides v. City of Champaign, 496 F.3d 820, 828 (7th Cir. 2007) (citing Graham v. Connor, 490 U.S. 386, 394-95, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), and holding that the Fourth Amendment’s ban on unreasonable seizures applies to claims of unreasonable inattention to medical needs at the time of arrest). Not every constitutional violation will furnish a plaintiff with a basis for recovery, however. Qualified immunity will shield an officer from money damages unless a plaintiff establishes that the officer violated a right that was clearly established. Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). And because “[l]evel of generality is destiny” in law, see Thomas More Law Center v. Obama, __ F.3d ___, 2011 U.S. App. LEXIS 13265, 2011 WL 2556039, at *27 (6th Cir. June 29, 2011) (Sutton, J., concurring), it bears emphasizing that courts should not decide that a right is clearly established at a high level of abstraction: we look to “whether the violative nature of particular conduct is clearly established.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084, 179 L. Ed. 2d 1149 (2011) (emphasis added).

[Sounds a bit like the taser cases where the police taser an older person who has a heart attack. Aren’t they on notice that the age of the target might be a health problem when the batter down a door in a surprise “dynamic” entry?]

Police lacked reason to believe the defendant was in his house for entry without a warrant, surveying all the cases, and finding that even the lowest standard from other circuits was not met. United States v. Hill, 649 F.3d 258 (4th Cir. 2011):

This case is about the “centuries-old principle of respect for the privacy of the home.” Wilson v. Layne, 526 U.S. 603, 610 (1999). Defendant, Torrance G. Hill, filed a motion to suppress evidence obtained in his residence without a warrant. The district court denied the motion, and determined that the police acted legally when they entered Hill’s home. Hill subsequently entered a conditional guilty plea while reserving his right to appeal the denial of his motion to suppress. We now hold that the district court erred in finding that the police’s initial entry into the house was valid, but that it properly found Ms. Alvarez’s consent for the second search was valid. We remand to the district court for a determination as to whether the taint from the initial illegal entry into the house was dissipated by Ms. Alvarez’s consent.

. . .

The police did not have sufficient reasons upon which to base their belief that Hill was present in the home to execute their arrest warrant. In Payton v. New York, the Supreme Court concluded that police may enter into a home without a search warrant in order to execute an arrest warrant only if “there is reason to believe [that the subject of the warrant] is within.” 445 U.S. 573, 602 (1980). Generally, circuits have broken the analysis of whether the entry was lawful into two conjunctive parts: (1) whether there is reason to believe that the location is the defendant’s residence, and (2) whether or not there was a “reasonable belief” that he would be home. See, e.g., United States v. Graham, 553 F.3d 6, 13 (1st Cir. 2009); United States v. Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995), cert. denied, 116 S. Ct. 189 (1995).

Circuits have employed a variety of approaches in defining reasonable belief and its relationship to probable cause. Some circuits have found that reasonable belief is the same as probable cause. See United States v. Hardin, 539 F.3d 404, 416 (6th Cir. 2008) (probable cause is the correct standard to use in determining an officer’s reasonable belief that the subject of a warrant is present in the home); United States v. Gorman, 314 F.3d 1105, 1114 (9th Cir. 2002) (same); see also United States v. Jackson, 576 F.3d 465, 469 (7th Cir. 2009) (noting an inclination to believe “that ‘reasonable belief’ is synonymous with probable cause.”).

Other circuits have simply found that the distinction between reasonable belief and probable cause is indefinite or negligible. See United States v. Barrera, 464 F.3d 496, 501 n.5 (5th Cir. 2006) (noting that the distinction between probable cause and reasonable belief is “more about semantics than substance”), cert. denied, 550 U.S. 937 (2007); Magluta, 44 F.3d at 1535 (noting that it is “difficult to define the Payton ‘reason to believe’ standard, or to compare the quantum of proof the standard requires with the proof that probable cause requires.”).

While still other circuits have found that the requirements of reasonable belief are something less than probable cause. See United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005) (“reasonable belief” requires less than probable cause), cert. denied, 549 U.S. 1055 (2006); Valdez v. Machetes, 172 F.3d 1220, 1227 n.5 (10th Cir. 1999) (same); United States v. Later, 57 F.3d 212, 215 (2d Cir. 1995) (same). A final set of circuits has taken no position as to the relationship between “reasonable belief” and probable cause. United States v. Weems, 322 F.3d 18, 22 (1st Cir. 2003); United States v. Rise, 83 F.3d 212, 216 (8th Cir. 1996); United States v. Edmonds, 52 F.3d 1236, 1248 (3d Cir. 1995), vacated in part on other grounds, 52 F.3d 1251.

In light of the diverse views taken by our sister circuits, we decline to reach a conclusion as to whether ‘reason to believe’ is as stringent as ‘probable cause’ because we conclude below that the police entry was not justified even under the less stringent interpretation of the standard.

The “protective frisk” of defendant’s car was justified. When he was stopped, he was nervous and the officer observed furtive movements. A computer check revealed defendant’s arrest record, which included a recent drug delivery arrest and arrests for armed robbery, false imprisonment and murder. State v. Buchanan, 2011 WI 49, 334 Wis. 2d 379, 799 N.W.2d 775 (2011).*

The officer had probable cause to arrest defendant for interference with an officer, and that led to discovery of DWI. Vasco v. State, 2011 WY 100, 253 P.3d 515 (2011).*

The search of defendant’s car for heroin was based on probable cause. United States v. Feliciano-Melendez, 2011 U.S. Dist. LEXIS 69511 (D. Del. June 29, 2011).*

After a controlled delivery by USPS Postal Inspectors of cocaine from Panama, a search warrant was executed on the premises and a vehicle associated with it. The search of papers in the car did not exceed the officer’s authority under the warrant. United States v. Ashley, 2011 U.S. Dist. LEXIS 69441 (E.D. Va. June 27, 2011).*

The state’s failure to raise standing in the trial court means that it cannot raise the issue on appeal for the first time. Three of N.Y.’s four appellate courts have held otherwise, and their cases are disapproved as contrary to a 1987 case of this court. People v Hunter, 2011 NY Slip Op 4542, 17 N.Y.3d 725, 950 N.E.2d 137, 926 N.Y.S.2d 401 (2011):

It is well settled that a defendant seeking suppression of evidence obtained as the result of an alleged illegal search must prove standing to challenge the search (see People v Ramirez-Portoreal, 88 NY2d 99, 108, 666 N.E.2d 207, 643 N.Y.S.2d 502 [1996]). At issue in this appeal is the related question of whether the People must timely object to a defendant’s failure to prove standing in order to preserve that issue for appellate review. We previously answered this question in the affirmative in People v Stith (69 NY2d 313, 506 N.E.2d 911, 514 N.Y.S.2d 201 [1987]), and reiterate that holding today.

The facts that defendant contended were omitted from the affidavit for the search warrant did not undermine probable cause at all. State v. Wolfe, 344 S.W.3d 822 (Mo. App. 2011)*:

Defendant’s list of “omitted” facts amount to nothing more than a general attack on the reliability of the information Cox provided to police. Any such concerns about Cox’s credibility, however, were alleviated by the fact that police found physical evidence relating to the crime at a location described by Cox in her interview prior to the warrants being issued. Deputy Bowling’s failure to mention the immunity agreement did not make his affidavit misleading.

In a rule almost impossible to apply, the Wisconsin Supreme Court concludes that the target of a search sitting in his car out front is not close enough to the house for his refusal to consent to be binding on his co-tenant from whom the police got consent. The defendant was not “present” for his objection to be valid under Randolph, which must be construed narrowly. State v. St. Martin, 2011 WI 44, 334 Wis. 2d 290, 800 N.W.2d 858 (2011):

[*P24] We next turn to whether he was “invited to take part in the threshold colloquy,” a point disputed by the parties. St. Martin argues that he was invited to take part because the officer came to him and asked for his consent. The State argues that the “threshold colloquy” referenced by the Court in Randolph cannot be rightly construed to include a colloquy that occurs outside the home.

. . .

[*P27] We agree with those courts that the Randolph Court incorporated an express requirement of physical presence in its shared-dwelling consent rule. An approach that reads the phrase “threshold colloquy” metaphorically would not be consistent with either the “physically present” requirement or the “fine line” framework set forth by the United States Supreme Court. Such an approach cannot be reconciled with the clear statement of the Court that minor factual differences will be dispositive. The Seventh Circuit’s analysis in Henderson noted that the Randolph concurrence by Justice Breyer stressed the fact-intensive nature of the analysis in this type of case. See Henderson, 536 F.3d at 781 (citing Randolph, 547 U.S. at 127 (Breyer, J., concurring)). In cases where the United States Supreme Court has drawn what it acknowledges are fine lines, the facts matter, and slight factual differences may take the analysis in far different directions. The argument that a slight variation in the facts would require an opposite result is therefore not persuasive. Slight differences in facts do actually often make a difference. We therefore agree with the State that under the justified formalism of the rules set forth by the United States Supreme Court, St. Martin was “nearby” and “not invited to take part in the threshold colloquy,” and that he therefore does not fall within the rule stated in Randolph such that the search should have been barred and the evidence gained from it suppressed.

Dissent:

[*P48] In making the determination that St. Martin was not physically present, the majority sidesteps Randolph’s holding. Instead, it handpicks the language from Randolph where the Court was applying its rule to the particular facts of the case.

[*P49] Under the majority’s analysis, it is unclear how close a nonconsenting occupant must be to the front door to be considered “physically present.” The majority notes that St. Martin “did not expressly object to [the officers’] entry as he stood at the door,” majority op., ¶22, and that when St. Martin did object, he was “not at the door and objecting.” Id., ¶23. Neither the court of appeals nor the State advances such a restrictive rule. Both acknowledge that the test is whether the defendant is “physically present.” See supra, ¶36.

Two bailbondsmen with a warrant for defendant’s arrest call Sheriff’s deputies per state law for assistance. The deputies look up the arrest warrant from a neighboring county, and they all go to the house where defendant would be found. One bondsman and one deputy to the front door, and one each to the back door. At the back door, they find a marijuana plant, clearly in an area not visible from the road. On the knock at the front door, the defendant comes out the back door, and he gets arrested. The back door was curtilage, and the marijuana plant was suppressed. On the mixed question of law and fact, the trial court’s finding of curtilage and reasonable expectation of privacy is affirmed. State v. Bates, 344 S.W.3d 783 (Mo. App. 2011):

. . . The rationale justifying an officer’s warrantless presence at a residence for a legitimate investigatory purpose is that “there is no reasonable expectation of privacy subject to Fourth Amendment protection where the public at large is welcome.” Kriley, 976 S.W.2d at 22.

We find that Kruse is basically indistinguishable from the present matter. In Kruse, officers went to Kruse’s mobile-home residence shortly after midnight to search for a third party, Jeremy Beel, who had an arrest warrant which had “caution indicators,” meaning the subject was considered dangerous. Kruse, 306 S.W.3d at 606. When the officers arrived at Kruse’s residence, the vehicle Beel was driving was parked on the driveway with a flat tire. Id. “No trespassing” signs were posted near the front door of Kruse’s trailer and on the front door of a shed at the end of the driveway on the property. Id. No obstructions blocked access to the backyard. Id. As the officers passed between the shed and the residence, without first knocking at the front door, the shed door flew open and Kruse came “bolting” out of the shed. Id. at 607. With the shed door open, an officer observed methamphetamine manufacturing equipment inside the shed. Id. A search warrant for the property was secured, pursuant to which the officers discovered various evidence of methamphetamine manufacturing. Id. The trial court found that the officers conducted a warrantless search of Kruse’s backyard and that the search was not justified by exigent circumstances. Id. at 607-08. The Western District of this Court affirmed the suppression of the evidence and found that Kruse had an expectation of privacy in his backyard and that the trial court did not err in finding that exigent circumstances that would allow the officers to search the home of Kruse for Beel did not exist. Id. at 612.

The State encourages us not to follow Kruse or, in the alternative, claims Kruse is distinguishable. We decline the first request and disagree with the second. In Kruse, unlike in this case, the vehicle that police were informed that Beel was driving was at Kruse’s residence. Id. at 606. Beel was considered violent. Id. In this case, Threlkeld had an outstanding warrant for driving while revoked. Despite the more compelling facts in Kruse, suppression of the evidence was affirmed because Kruse had an expectation of privacy in his backyard and the trial court did not err in finding that exigent circumstances did not justify the search. Id. at 612. Likewise, we find the trial court did not err in finding Defendant had a reasonable expectation of privacy in his backyard. In the light most favorable to the trial court’s ruling, the evidence was discovered on “property as to which there was a privacy interest protected by the Fourth Amendment.” Id. We believe Kruse is controlling precedent and not meaningfully distinguishable.

[Arkansas had a similar case and came out just the opposite.]

Responding to a shots fired call 25-30 minutes after where officers had no real description of the shooter or the street where shots came from did not give officers reasonable suspicion to stop the defendant. People v. Fredericks, 54 V.I. 161 (Super. Ct. 2011):

The facts known to the police in this case were: 1) there was an anonymous report of shots fired on Garden Street; 2) they responded 25 to 30 minutes after the shots were fired; and 3) upon their response the officers encountered a group of men on a street which intersected with Garden Street who were, by the officers’ own testimony, not engaged in any criminal, or even suspicious, behavior. Conspicuously absent from the facts known to the officers was any description of any person or persons who fired the reported shots. To establish reasonable suspicion to support a warrantless stop, the government must not only demonstrate that there was criminal activity afoot, but also present evidence that the particular person in question was involved in some criminal activity. No facts were produced which sustain any reasonable belief or suspicion that Mr. Fredericks was involved in any criminal activity. In fact, both officers testified that none of the individuals they stopped were engaged in any illegal activity or acting suspiciously.