Based on the testimony of the officers, it was apparent defendant consented to a search of his car, and then he did nothing to withdraw consent. Then the officers could use a drug dog. United States v. Nothstein, 424 Fed. Appx. 645 (9th Cir. 2011) (unpublished).*

There was probable cause for the search of defendant’s car, so the automobile exception applied. United States v. Marcum, 2011 U.S. Dist. LEXIS 31802 (E.D. Ky. March 4, 2011).*

There was probable cause for issuance of the search warrant in this case based on two CIs. State v. Brown, 2011 Ohio 1461, 2011 Ohio App. LEXIS 1260 (3d Dist. March 28, 2011).*

On the totality of circumstances, it appears that the defendant was not “seized” when he and two others were talking to three officers. If it was a seizure, there was reasonable suspicion. United States v. Hines, 2011 U.S. Dist. LEXIS 32224 (S.D. Ga. March 24, 2011).*

Defendant consented to a search of his car during his traffic stop. He wouldn’t look the officer in the eye, and he was nervous, so the officer asked for consent and got it. Hammont v. State, 309 Ga. App. 395, 710 S.E.2d 598 (2011).*

Defense counsel’s failure to argue an alternative theory to suppress a search fails both Strickland prongs: defendant could not win on the search issue, so defense counsel could not be ineffective. Cowans v. Bagley, 639 F.3d 241, 2011 FED App. 0100P (6th Cir. 2011).*

Because a fact dispute remained on the protective sweep, the denial of qualified immunity on the search of the house was affirmed. The grant of qualified immunity on the search of the car outside was affirmed because the facts clearly showed the automobile exception applied. Asher v. McClure, 424 Fed. Appx. 818 (11th Cir. 2011) (unpublished).*

Officers received an “anonymous” tip by e-mail of drugs being sold out of defendant’s house, so officers went there for a knock-and-talk. His wife consented. No level of suspicion is required for a knock-and-talk. United States v. Johnson, 2011 U.S. Dist. LEXIS 97577 (W.D. Tenn. August 30, 2011), R&R 2011 U.S. Dist. LEXIS 97576 (W.D. Tenn. July 21, 2011):

[I]t is well-established that “[a]n officer may initiate a knock and talk without any objective level of suspicion.” Pritchard v. Hamilton Twp. Bd. of Trs., No. 09-4594, 424 Fed. Appx. 492 (6th Cir. May 25, 2011) (citing United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005)). Any resulting discussion with a suspect does not implicate the Fourth Amendment. Thomas, 430 F.3d at 277 (citing cases).

Petitioner’s overbreadth of search warrant claim in a § 2255 would not have been reversed on appeal even if it had been raised. Baker v. United States, 2011 U.S. Dist. LEXIS 97493 (E.D. Va. August 29, 2011).*

Defendant’s wife found child pornography on their computer and she signed a consent to search the house for the computer. That included consent to seize it. Consent was not limited after she talked to defendant before the police came in the house. United States v. Powers, 432 Fed. Appx. 16 (2d Cir. 2011) (unpublished).*

Defendant refused three requests for consent, so they detained him 15 minutes for the drug dog, and that required reasonable suspicion. All they had was a vague anonymous tip, and nothing corroborating it. Defendant’s nervousness alone was not enough. The motion to suppress should have been granted. Dominguez v. State, 310 Ga. App. 370 (2011).*

Defendant lived in the office building of a used car lot as an on-site security guard, and a fire inspector checking the premises ultimately was “invited” in after requesting to inspect. What he saw was disturbing and led him to conclude that child pornography was produced there. Ultimately, a search warrant was obtained. Defendant had a reasonable expectation of privacy in the area because he lived there, and the officers following the inspector entering had no exigent circumstances or consent. However, there was probable cause for issuance of the state search warrant even redacting what was seen from the unlawful entry, so the independent source doctrine and the good faith exception supported the warrant. United States v. Cannon, 2011 U.S. Dist. LEXIS 70318 (W.D. Ark. June 30, 2011),* R&R 2011 U.S. Dist. LEXIS 70882 (W.D. Ark. May 19, 2011).*

The officer had reasonable suspicion to detain defendant, and it was more than just guilt by association like Ybarra with the other man he was talking to between cars. United States v. Zuniga-Valencia, 2011 U.S. Dist. LEXIS 70362 (D. Neb. June 30, 2011).*

The state material witness statute is different from the federal one, and the purpose is to get the subpoena served, not keep detaining the witness. Also, a witness should not be detained longer than a suspect who is subject to bail. In re Marshall, 2011 Iowa Sup. LEXIS 67 (September 2, 2011):

The State zealously argues that, as a matter of sound policy, it should have the authority to detain a material witness until the underlying trial is held. Iowa Code section 804.11, however, makes no mention of using detention to secure attendance at trial. It references unavailability for service of a subpoena. While the State offers policy reasons for an expansive interpretation of the statute, we have repeatedly said that “‘we are bound by what the legislature said, not by what it should or might have said.’”

Possession of a lighter by a student with a history of tobacco disciplinary issues at school justified a search, and the drugs found were admissible in a criminal prosecution. In re B. A. H., 245 Ore. App. 203 (2011).*

Because the search was justified on the facts and law, defense counsel could not be ineffective for not challenging it. State v. Grimes, 2011 Ohio 4406, 2011 Ohio App. LEXIS 3665 (8th Dist. September 1, 2011).*

A factual misstatement in the CID affidavit for the search warrant for defendant’s computer survived a Franks challenge because there still was probable cause after omitting it. United States v. Clayton, 68 M.J. 419 (C.A.A.F. 2010),* aff’g United States v. Clayton, 2008 CCA LEXIS 599 (A. Ct. Crim. App. May 9, 2008) (unpublished).

Defense counsel was not ineffective for not raising a search issue on appeal because it would clearly lose. From the Sixth Amendment perspective, defense counsel “winnowed” out the weaker arguments to concentrate on the strong ones. Lynch v. United States, 2009 U.S. Dist. LEXIS 126413 (N.D. W.Va. August 10, 2009)*:

In this case, the petitioner has not overcome the presumption that appellate counsel merely “winnowed” out the weaker arguments on appeal to focus on those that he felt were more likely to prevail. Moreover, the petitioner has failed to show that the “ignored” claim was clearly stronger than those raised. At best, the petitioner has shown that this claim could have been raised on direct appeal, not that it should have been raised, or that it was more meritorious than those presented.

[Courts usually just say the omitted issue was a loser so no prejudice and no IAC. Here, the court looked to Smith v. Murray, too.]

Defendant’s traffic stop was justified, and he consented to a search thereafter. United States v. Summers, 2010 U.S. Dist. LEXIS 32637 (D. Neb. March 9, 2010).*

Nervousness and furtive movements in the car justified getting the driver and passengers out of the car. People v. Magras, 54 V.I. 3 (Super. Ct. 2010).*

Tip that defendant had a gun at school required school and police to act. Removing him from the school cafeteria to talk about it, and search if necessary, was reasonable. M.D. v. State, 65 So. 3d 563 (Fla. App. 1st DCA 2011), Rehearing denied, 2011 Fla. App. LEXIS 13552 (Fla. Dist.
Ct. App. 1st Dist., July 27, 2011).*

Because the body’s natural processes cause the alcohol concentration of urine to change rapidly over time, exigent circumstances justify the warrantless collection of a urine sample from a person arrested for driving while impaired. Ellingson v. Comm’r of Pub. Safety, 800 N.W.2d 805 (Minn. App. 2011).*

Voluntariness of defendant’s consent to search his computer for child pornography was fully supported by the record. Another Marine saw it on his computer when the plane to Iraq stopped in Bangor, Maine for mechanical issues, and it was reported. A month later in Iraq, NCIS talked to defendant and he confessed to possession of the child porn. United States v. Malone, 2011 CCA LEXIS 115 (N.-M. Ct. App. June 28, 2011) (unpublished).*

Just because a drug dog alerted on a backpack too, where no drugs were found, is not an indication that the dog was unreliable. Parts of a meth lab were found in the backpack. Then a search warrant was obtained for defendant’s house. People v. Stillwell, 197 Cal. App. 4th 996, 129 Cal. Rptr. 3d 233 (3d Dist. 2011):

More importantly, even if it were shown no cocaine, methamphetamine, marijuana, or heroin was found in the backpack in this case, substantial evidence would still exist to find Tommy reliable. Defendants offer no California authority for the proposition that evidence of a single error by an otherwise well-trained detection dog makes that dog unreliable. Instead, defendants rely on a single Florida case to support the notion that the People must present evidence of a dog’s success rate to prove reliability. In that case, the court held that the state could not make a prima facie showing of probable cause based solely on testimony as to the training and certification of a narcotics detection dog. (Matheson v. State (Fla. Dist. Ct. App. 2003) 870 So.2d 8, 14–15.) California cases, however, have not required evidence of a dog’s success rate to establish probable cause. (See Estes v. Rowland (1993) 14 Cal.App.4th 508, 529 [17 Cal. Rptr. 2d 901]; People v. Salih (1985) 173 Cal.App.3d 1009, 1015 [219 Cal. Rptr. 603]; People v. Bautista (2004) 115 Cal.App.4th 229, 236–237 [8 Cal. Rptr. 3d 862].) The appellate court’s discussion in People v. Bautista, supra, 115 Cal.App.4th at page 229 is illustrative. In that case, the court found an agent’s knowledge of a pair of detection dogs’ training and experience and observation of the dogs’ trained behavior gave probable cause for the issuance of a warrant. (Id. at pp. 236–237.)

The officer’s pulling defendant’s underwear out to retrieve drugs he felt at the waist was not an unreasonable invasion of privacy. Defendant wore his pants belted below his buttocks, and his underwear was already exposed. Partlow v. State, 199 Md. App. 624, 24 A.3d 122 (2011)*:

Turning to the scope, manner, and location of the search, appellant contends it was unreasonable because it occurred on a public street and exposed a portion of his buttocks to passers by. Appellant’s clothing was not removed from his body, however, and, indeed, his underwear was already exposed to the public by the manner in which he chose to wear his pants.

Schultz testified, and the suppression court credited his testimony, that he pulled appellant’s underwear up after feeling a hard object under his buttocks, but he was unable to remove the object. He therefore cut away a small piece—less than the size of a baseball—of appellant’s underwear so as to remove the object. Schultz further testified that the search was undertaken on the passenger side of the police cruiser, away from the view of traffic, and that he generally stands behind the person he is searching to conduct the search. It thus appears that the officer made some effort to protect appellant’s privacy.

Officers came to defendant’s motel room door and demanded entry. He opened the door to drawn weapons. There were no exigent circumstances, and his consent on the totality was involuntary. State v. Pederson, 2011 ND 155, 801 N.W.2d 723 (2011):

[*P12] However, there is insufficient evidence to support the district court’s determination that Pederson voluntarily consented to the officers’ entry. There was evidence there were four officers at the motel room door with their weapons drawn, they yelled and ordered the room occupants to come out with their hands up, Pederson came out of the bathroom with his hands up, and the officers asked if they could come into the room before ordering Pederson to the ground. Generally, courts have held consent is not voluntarily given when officers have their weapons drawn at the individual’s door, unless there are other indications the consent was voluntary. … Although the district court found there were legitimate safety concerns justifying the officers’ use of weapons, that fact is not relevant in deciding whether Pederson’s consent was voluntary. To determine whether consent is voluntary the court must consider the totality of the circumstances, including the condition of the accused at the time he gave consent. … The officers; motivations for having their weapons drawn and pointed at Pederson were not known to Pederson when he gave consent to enter.

[*P13] Considering the totality of the circumstances, we conclude the district court’s decision that Pederson voluntarily consented to the officers’ entry into his motel room is contrary to the manifest weight of the evidence. The State did not argue the entry was justified by exigent circumstances or any other exception to the warrant requirement. … We conclude the officers unlawfully entered the motel room and arrested Pederson.

The only real question here is why the trial court found the consent voluntary ….

The trial and appellate court (State v. McLain, 310 S.W.3d 180 (Tex. App.—Amarillo 2010)) engaged in a hypertechnical reading of the affidavit for the search warrant to conclude there was no probable cause. Neither court gave the affidavit the deference it was entitled to. State v. McLain, 337 S.W.3d 268 (Tex. Crim. app. 2011)* (dissenting opinion here):

While the plain meaning of the aforementioned statement, read literally, fails to clearly indicate exactly when the informant observed Appellee in possession of the methamphetamine, we believe that the magistrate could have reasonably inferred that the informant observed Appellee with the methamphetamine within the past 72 hours. By looking at the affidavit in its entirety, and not just this one sentence in isolation, it certainly would have been reasonable for the magistrate, considering all the facts in the affidavit along with reasonable inferences from those facts, to conclude that there was a fair probability that there was methamphetamine at appellee’s home at the time of the issuance of the warrant. We also believe that a magistrate’s experience and expertise in these matters would indicate that the time at which the affiant received the information from the confidential informant that Appellee possessed methamphetamine was irrelevant, but that the time at which the confidential informant observed such possession was necessary to establish probable cause. And if there was any doubt, the trial and appellate courts both should have deferred to the magistrate’s determination. They failed to do so.

Dropping a duffle bag and walking away from it was an abandonment. The guns found in it were not suppressed. United States v. Thomas, 423 Fed. Appx. 199 (3d Cir. 2011) (unpublished).*

Strobe lights on a police car are a command to stop. Here, the officer claimed he stopped defendant for speeding, but he was playing solitaire in the car and just glimpsed defendant going by. He didn’t even testify to what the speed limit was or how fast defendant was going. State v. Petzoldt, 2011 Iowa App. LEXIS 480 (June 29, 2011).*

The defendant told officers that co-defendant put cocaine down her pants, and he voluntarily removed it. That was not an unlawful strip search. When the cocaine fell out, it was then in plain view. State v. Young, 2011 Tenn. Crim. App. LEXIS 497 (June 30, 2011).*

The officer lacked reasonable suspicion to detain defendant for a drug dog. He questioned the driver and passenger about their travel plans, which were not all that unusual, they had four cell phones between them, they had luggage in the back seat, not trunk, and they were nervous. Still, no reasonable suspicion on the totality. State v. Duhaime, 2011 UT App 209, 258 P.3d 649, 685 Utah Adv. Rep. 12 (2011).*

Defendant’s stop was unlawful, but his admission that he had recently smoked meth was [somehow] attenuated from the unlawful stop 30 minutes into it such that the search of the car was valid. State v. Lay, 242 Ore. App. 38, 252 P.3d 850 (2011)*:

Here, defendant’s initial statement that the drugs in the car were his occurred nearly 30 minutes after Powers obtained and ran defendant’s driver’s license, returned the license, and thanked defendant for his cooperation. Thus, the “temporal proximity” between initiation of the stop and defendant’s statement was not close. In addition, several “intervening circumstances” serve to attenuate the stop from the statements. First, as discussed above, an intervening lawful stop occurred. Second, the drugs at issue were discovered as the result of an undisputedly lawful search based on the consent of the driver of the vehicle. That search was entirely independent of the unlawful stop—it was not based on any information acquired from the taking of defendant’s identification and would have occurred even in the absence of the stop of defendant. Finally, we think it particularly significant that, without prompting of any kind from the officers, defendant volunteered the statements which are the evidence at issue. … Immediately after seeing the drugs that were discovered in the vehicle, defendant made the unsolicited statement that the drugs were his. The unsolicited nature of the statement, taken together with the other intervening circumstances, convinces us that the evidence at issue was sufficiently attenuated from the unlawful stop. Further, because the chain of causation between the un-Mirandized statements and the unlawful seizure was too attenuated to justify suppression, a priori the connection between the subsequent Mirandized statement was as well. Accordingly, we conclude that the state met its burden to show that both statements were so tenuously related to the unlawful conduct that suppression was not required.

Where the testimony was in conflict as to whether defendant consented because of a promise made to him, the trial court erred in not making written findings on the conflict, so the case is remanded for a hearing. State v. Neal, 2011 N.C. App. LEXIS 642 (April 5, 2011).*

The record supports the district court’s finding of consent to search. United States v. Gardner, 422 Fed. Appx. 245 (4th Cir. 2011) (unpublished).*

Defendant abandoned his property by leaving it in another person’s outbuilding and moving to another state. The building was searched just before it was to be demolished. Driggers v. State, 295 Ga. App. 711, 673 S.E.2d 95, 67 A.L.R.6th 719 (2009):

Viewed in this manner, the record reflects that at the time of the search, Driggers had been absent from the outbuilding for approximately three months, was living in Florida, and had made no efforts to retrieve his personal belongings from the outbuilding despite having been advised to do so by the Laceys in their March 2002 letter. Moreover, in their January 2002 letter, the Laceys had specifically notified Driggers that he was not to return to the outbuilding. The evidence further reflected that at the time of the search, the outbuilding no longer had running water or functioning heat and was about to be demolished. Nor was Driggers paying any rent or utilities on the outbuilding, and he had not entered into a lease agreement with the Laceys. Finally, the Laceys themselves told the investigator that the outbuilding was now vacant and that Driggers had abandoned the items left behind in the building. [¶] These combined facts supported a finding of abandonment.

Trial court’s finding that defendant consented to production of marijuana from his person when he got out of his car was supported by the evidence. State v. Dipietro, 2009 ME 12, 964 A.2d 636 (2009).*

Iowa upholds DNA extraction from convicts. State v. Duffy, 2009 Iowa App. LEXIS 80 (February 4, 2009).*

Applying the more rational view, the good faith exception should be the only consideration if the Fourth Amendment question in the case is not necessary for instruction of police officers. United States v. Bell, 2011 U.S. Dist. LEXIS 63451 (E.D. Penn. June 13, 2011):

Even if one of these arguments was sound, the searches of the Range Rover and the items therein undoubtedly fall within the good faith exception to the warrant requirement. Where, as here, “a motion to suppress evidence obtained pursuant to a warrant does not present a Fourth Amendment argument that should be decided in order to provide instruction to law enforcement or to magistrate judges, it is appropriate for a reviewing court to turn immediately to a consideration of the officers’ good faith.” United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d 137, 145 (3d Cir. 2002) (citations omitted). Mr. Bell’s argument does not involve any “novel questions of law whose resolution is necessary to guide future action by law enforcement officers and magistrates,” and therefore this Court must first determine whether the good faith exception to the warrant requirement applies. Id.

Grabbing defendant to get him to spit out a bag of drugs before he could swallow it, choking him some, and striking him on the thigh were not “shocking to the conscience” of the Court under Rochin, so the officer’s actions to get him spit out the drugs were not unreasonable under the Fourth Amendment. (Following State v. Holloman, unpublished.) State v. Orloske, 45 Kan. App. 2d
1034, 257 P.3d 794 (2011).

The Massachusetts Department of Social Services received information with details about access with passwords to defendant’s Sprint PCS account about how the CI accidently received child pornography from the defendant to the CI’s phone. The district court erred in denying the motion to suppress without having a hearing to determine whether the government exceeded the private search. United States v. D’Andrea, 648 F.3d 1 (1st Cir. 2011):

There can be no serious debate, and the government does not dispute, that defendants had a subjective expectation of privacy in their password-protected online account and that this expectation of privacy was, at least initially, reasonable. Nor is there any question that the DSS agent’s unauthorized accessing of the website constituted a warrantless search. The question presented is whether the warrantless search was nonetheless valid because an exception to the warrant requirement applied or there were circumstances defeating the reasonableness of defendants’ expectation of privacy. The government presses three theories: (1) the private search doctrine; (2) emergency intervention; and (3) inevitable discovery.

Still, the district court abused its discretion in denying a hearing on the government’s theories to support the search.

The district court’s decision suppressing a nighttime knock-and-talk of a hotel room was bolstered by the officers’ falsely identifying themselves as hotel security and the occupants being scared by what the officers were saying. A nighttime knock-and-talk is inherently more coercive. Defendants were asleep when rousted. United States v. Quintero, 648 F.3d 660 (8th Cir. 2011).

Just because defendant was a person of interest in a narcotics investigation, officers did not have reasonable suspicion to stop him. He was seized and not free to leave when the officer took his ID back to the patrol car to call it in, because he certainly was not free to take it back and leave. The officer asked him whether he had anything, and defendant admitted he had drugs. The admission led to a search which was suppressed because the stop was invalid. United States v. Blount, 2011 U.S. Dist. LEXIS 86580 (E.D. Tenn. August 5, 2011).*

Defendant was found to have knowingly consented to a search of his vehicle eight minutes into his traffic stop. “You don’t mind if I take a look, do you?” was not a command. Tucker v. State, 2010 Tex. App. LEXIS 5922 (Tex. App.—San Antonio July 28, 2010), Released for Publication February 23, 2011.Petition for discretionary review granted by In re Tucker, 2011 Tex. Crim. App. LEXIS 172 (Tex. Crim. App., Feb. 2, 2011).*

Police violated curtilage without a warrant or consent when they went down defendant’s unpaved driveway to the back of his house. “Because we treat curtilage as part of the home, Oliver, 466 U.S. at 180, those same rules apply here.” United States v. Wells, 648 F.3d 671 (8th Cir. 2011). Applying the Dunn factors:

A reasonable expectation of privacy will not always be an expectation of absolute privacy. See, e.g., Katz v. United States, 389 U.S. 347, 349-52 (1967) (“[Katz] was as visible after he entered [the telephone booth] as he would have been if he had remained outside. But what he sought to exclude when he entered the booth was not the intruding eye—it was the uninvited ear. He did not shed his right to do so simply because he made his calls from a place where he might be seen.”). Certainly Wells would have no cause to complain had the officers, standing in the public street, observed him openly cooking methamphetamine on the unpaved driveway, just as he would have no cause to complain had the officers observed the same through an open window in his home. “The Fourth Amendment protection of the home has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.” Ciraolo, 476 U.S. at 213.

But an officer’s ability to observe through open windows what happens inside a home does not altogether extinguish the homeowner’s otherwise reasonable expectation of privacy in the home itself. Not even probable cause, absent an exigent circumstance, would permit an officer to enter that home without a warrant to make an arrest or seize contraband. See Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971) (“[P]lain view alone is never enough to justify the warrantless seizure of evidence. … [It] may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.”). That a homeowner exposes some portion of his dwelling to public view is not a license for officers to treat it as public space.

Similarly, we think that a homeowner may expose portions of the curtilage of his home to public view while still maintaining some expectation of privacy in those areas. In this case, for example, Wells certainly exposed his unpaved driveway to public view, and therefore could not reasonably expect that members of the public would not observe whatever he might do there. But he could reasonably expect that members of the public would not traipse down the drive to the back corner of his home, from where they could freely observe his entire backyard. Accord Garrott, 745 F. Supp. 2d at 1213 (“Though the yard was visible from beyond the fence, it is important to distinguish the physical invasion into defendants’ backyard that took place in this case from visual inspection from a lawful vantage point.” (internal quotation marks omitted)). We therefore will not accord this fourth factor the controlling weight the government’s position requires.

Defendant was the subject of a tribal telephonic search warrant that had some errors. The fact the FBI took the case over did not make the warrant subject to Rule 41. Overall, the search warrant complied with the Fourth Amendment. United States v. Medearis, 775 F. Supp. 2d 1110 (D. S.D. 2011), R&R United States v. Medearis, 2010 U.S. Dist. LEXIS 139933 (D. S.D. October 20, 2010).*

Search warrant was clearly supported by probable cause, and a mere scrivener’s error on a date was not fatal to the search. United States v. Villa verde-Leyva, 2010 U.S. Dist. LEXIS 139775 (N.D. Ga. December 8, 2010).*

The consenter’s claim that her consent was coerced was not credible in light of her conflicting testimony. United States v. Schmitz, 2010 U.S. Dist. LEXIS 139785 (M.D. Fla. October 18, 2010).*

Consent to search one room for a gun permitted a fairly intense search of the room. The gun led to PC for a search warrant. United States v. Myers, 2010 U.S. Dist. LEXIS 139782 (M.D. Fla. October 12, 2010).*

The CI was known to the officer, and, while he was a first time informant, his information was “enhanced” by its great detail. United States v. Martin, 2010 U.S. Dist. LEXIS 139838 (D. Nev. October 5, 2010).*

Defendant’s suppression motion came at trial as soon as it was first revealed there was a search and seizure. The motion was timely, and the trial court erred in not conducting a mid-trial suppression hearing. Matlock v. Commonwealth, 344 S.W.3d 138 (Ky. App. 2011):

Shanks and Higdon rely on two different triggering events that indicate the timeliness of such an objection. In Shanks, the court focused on the evidence and the point during trial when it was proffered. In Higdon, the court looked to the witnesses and found that an objection is timely when made during the testimony of the first witness who testifies regarding the circumstances of the search and seizure. It is plausible that several witnesses might testify regarding the circumstances of the search and seizure before the actual items are offered into evidence. In such a case, Higdon would control and require the objection be made during the first such witness’s testimony. Shanks adds an additional requirement, that the objection occur before or at the same time the seized items are first offered into evidence.

It is clear that this case complies both with Shanks and with Higdon. The objection was made prior to cross-examination of Chief Goforth, the Commonwealth’s first witness, when the seized items were first offered into evidence. Therefore, the objection was timely.