“Standing,” such that it is, is not a threshold issue that always needs to be decided, and the court can decide the merits first. A passenger has “standing” to challenge the stop, and thus the search if the stop is invalid. So, the merits have to be decided. United States v. Blackshear, 2011 U.S. Dist. LEXIS 125357 fn. 7 (E.D. Pa. October 28, 2011):

The Third Circuit recently clarified that although the right to challenge a search on Fourth Amendment grounds is often referred to as “standing,” that right “is more properly placed within the purview of the substantive Fourth Amendment law than within that of standing.” United States v. Kennedy, 638 F.3d 159, 163 (3d Cir. 2011) (quoting Rakas v. Illinois, 439 U.S. 128, 140, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978)). Thus, “standing to challenge a search is not a threshold issue that must be decided before reaching the question of whether a search was or was not constitutional.” Id.; see also United States v. Varlack Ventures, Inc., 149 F.3d 212, 215-16 (3d Cir. 1998) (assuming, without deciding, standing to challenge search).

Failure to brief a search issue was a waiver. United States v. Conard, 2011 U.S. Dist. LEXIS 125737 (N.D. Ga. October 5, 2011).*

Claimant first claimed a reasonable expectation of privacy in the trailer of a tractor-trailer but disclaimed it in his brief on the forfeiture, and that was a waiver. United States v. Rodriguez, 2011 U.S. Dist. LEXIS 125747 (N.D. Ga. September 23, 2011).*

Defendant relied on the government’s evidence to show standing, but it didn’t. He had to do something to show standing. [It doesn’t require the defendant testify, but sometimes it does, but so what? The evidence of standing can’t be used by the government in its case in chief unless the defendant takes the stand and contradicts the prior testimony.] United States v. Valdez, 2011 U.S. Dist. LEXIS 125371 (M.D. Pa. October 31, 2011)*:

Defendant’s motion itself and his initial brief do nothing to establish his standing, that is to say, his reasonable expectation of privacy. Additionally, he presented no witnesses or exhibits at the suppression hearing on this matter. Rather, defendant asserts that he met his burden as follows: “it is the government’s own investigation that corroborates the his [sic] residency and expectation of privacy at the Strawberry Hill Road property.” (Doc. 61, Def. Br. at 2). In other words, to establish standing, the defendant relies upon the affidavit of probable cause that the government drafted in order to obtain a search warrant on October 15, 2010, the day after the search at issue. This affidavit indicates that on the day of his arrest, police observed defendant at the residence throwing several garbage bags into a dumpster. (Doc. 50-5, Affidavit of Probable Cause at 3-4). Further, the affidavit indicates that defendant told the police that he had moved into the residence with his cousin two months previously. (Id. at 4). At the suppression hearing the DEA Agent in charge of the search, James Farano, indicated that it appeared that defendant had been living in the residence. (N.T. at 16).

Defendant’s position is that these facts establish that he had a privacy interest in the area where the DEA found the drugs and other material. The court disagrees. These assertions might support some sort of privacy interest in the residence itself. The police, however, did not find the evidence at issue in the residence. As noted above, the police found the evidence under a tub next to a commercial garage.

The defendant presented no evidence to establish that he had a privacy interest in the area located under the tub next to the commercial garage, where the police found the drugs. At best, the evidence indicates that a man, who may have been defendant’s cousin, leased the property, perhaps even the area at issue. The defendant indicated to the police that he lived with his cousin for several months. This familial relationship and sharing the residence with the lessee does not create an expectation of privacy in the area where the agents found the evidence. This case is similar to United States v. Mankani, 738 F.2d 538, 545 (2d Cir. 1984). In Mankani, the defendants occupied rooms in a farmhouse and made periodic visits to a barn located on the property. The Second Circuit Court of Appeals concluded that those contacts did not give rise to a reasonable expectation of privacy in the barn, and thus the defendants lacked standing to challenge the seizure of evidence from the barn. Id.

Defendant officer had qualified immunity for probable cause for a search warrant that described stuff from two burglaries, but actually described nineteen. “The fact that officers can seize items not listed in a warrant also makes Wirth’s reliance on the allegedly defective warrant in this case reasonable. We have held that ‘even evidence “not described in a search warrant may be seized if it is reasonably related to the offense which formed the basis for the search warrant.”’” Wheeler v. City of Lansing, 660 F.3d 931 (6th Cir. 2011).

The driver of the car with the keys who asserted control over the car had common authority to consent to a search of the car. United States v. Scott, 2011 U.S. Dist. LEXIS 128664 (W.D. Mo. November 7, 2011).*

An officer investigating hunting with a firearm during archery season had reasonable suspicion when he encountered defendant with a gun. United States v. Weatherford, 2011 U.S. Dist. LEXIS 129349 (N.D. Ind. November 8, 2011).*

Chicago Tribune: Lawmakers define protections from police entry by Tom LoBianco:

INDIANAPOLIS — Richard Barnes may have started a constitutional furor in 2007 when he shoved a police officer against the wall of his apartment. But he would not have benefitted from a new set of rules Indiana lawmakers are drafting in response to the incident.

A legislative study committee voted Thursday to advance new guidelines on police entry to the full General Assembly when it reconvenes in January. Indiana residents would be able to use force to prevent police from entering their homes in a handful of instances if the Legislature approves the recommendations.

The Indiana Supreme Court sparked an uproar when it ruled in May that homeowners cannot violently resist police officer’s entry into their homes. The justices later clarified their ruling does not abridge Fourth Amendment rights.

See prior posts on Barnes starting here.

The government narrowed a child pornography website to a particular server in a server center in Los Angeles housing 2000 computer servers. Under the showing of probable cause of what was known to them at the time, the seizure of the entire server was justified by the warrant. Search of the entire server was also permitted because it was believed there was more than one child porn site on it. The court recognizes that virtually every folder can be checked for intentional mislabeling. United States v. Richards, 659 F.3d 527 (6th Cir. 2011):

Courts that have addressed the permissible breadth of computer-related searches have grappled with how to balance two interests that are in tension with each other:

On one hand, it is clear that because criminals can — and often do — hide, mislabel, or manipulate files to conceal criminal activity, a broad, expansive search of the hard drive may be required. … On the other hand, … granting the Government a carte blanche to search every file on the hard drive impermissibly transforms a limited search into a general one.

United States v. Stabile, 633 F.3d 219, 237 (3d Cir. 2011) (citation and internal quotation marks omitted).

Our court has not yet had occasion to confront this issue in depth. Ultimately, however, given the unique problem encountered in computer searches, and the practical difficulties inherent in implementing universal search methodologies, the majority of federal courts have eschewed the use of a specific search protocol and, instead, have employed the Fourth Amendment’s bedrock principle of reasonableness on a case-by-case basis: “While officers must be clear as to what it is they are seeking on the computer and conduct the search in a way that avoids searching files of types not identified in the warrant, … a computer search may be as extensive as reasonably required to locate the items described in the warrant based on probable cause.” United States v. Burgess, 576 F.3d 1078, 1092 (10th Cir.), cert. denied, 130 S. Ct. 1028, 175 L. Ed. 2d 629 (2009) (citations and internal quotation marks omitted). We agree with the Tenth Circuit’s succinct assessment in Burgess that

it is folly for a search warrant to attempt to structure the mechanics of the search and a warrant imposing such limits would unduly restrict legitimate search objectives. One would not ordinarily expect a warrant to search filing cabinets for evidence of drug activity to prospectively restrict the search to “file cabinets in the basement” or to file folders labeled “Meth Lab” or “Customers.” And there is no reason to so limit computer searches. But that is not to say methodology is irrelevant.

A warrant may permit only the search of particularly described places and only particularly described things may be seized. As the description of such places and things becomes more general, the method by which the search is executed become[s] more important — the search method must be tailored to meet allowed ends. And those limits must be functional. For instance, unless specifically authorized by the warrant there would be little reason for officers searching for evidence of drug trafficking to look at tax returns (beyond verifying the folder labeled “2002 Tax Return” actually contains tax returns and not drug files or trophy pictures).

Respect for legitimate rights to privacy in papers and effects requires an officer executing a search warrant to first look in the most obvious places and as it becomes necessary to progressively move from the obvious to the obscure. That is the purpose of a search protocol which structures the search by requiring an analysis of the file structure, next looking for suspicious file folders, then looking for files and types of files most likely to contain the objects of the search by doing keyword searches.

But in the end, there may be no practical substitute for actually looking in many (perhaps all) folders and sometimes at the documents contained within those folders, and that is true whether the search is of computer files or physical files. It is particularly true with image files.

Id. at 1094 (footnote omitted).

Orin Kerr’s An Equilibrium-Adjustment Theory of the Fourth Amendment, previously noted on Volokh Conspiracy, has been published in the Harvard Law Review.

Worth a read, and the Table of Contents:

INTRODUCTION, 479
I. THE THEORY OF EQUILIBRIUM-ADJUSTMENT IN FOURTH AMENDMENT LAW, 482
A. The Fourth Amendment in Year Zero, 482
B. How New Facts Threaten the Balance of Power, 485
C. The Theory of Equilibrium-Adjustment and Six Scenarios, 487
1. The Government Uses a New Tool to Find Evidence, 489
2. Criminals Use a New Tool to Evade Detection, 489
3. New Crimes and New Practices, 489
4. Both Criminals and the Police Use a New Tool, 489
5. The Status Quo, 489
6. Defeating Countermeasures, 489
D. Equilibrium-Adjustment and Fourth Amendment Doctrine, at Both the Principles Layer and the Application Layer, 490
E. Equilibrium-Adjustment and Common Law Reasoning, 492
II. EXAMPLES OF EQUILIBRIUM-ADJUSTMENT IN FOURTH AMENDMENT LAW, 494
A. New Government Tools: Thermal Imagers, Beepers, and GPS Devices, 496
1. Thermal Imaging Devices, 496
2. Beepers and GPS Devices, 499
3. Sense-Enhancing Devices and Equilibrium-Adjustment, 501
B. New Tools to Commit Crime: The Automobile Exception, 502
1. How Automobiles Challenged the Privacy Balance of Year Zero, 503
2. Equilibrium-Adjustment and the Automobile Exception, 507
C. New Practices and New Crimes: The Subpoena Power and the End of the Mere Evidence Rule, 508
1. Rejecting the Equivalence Between Orders to Compel and Direct Physical Entry, 509
2. The End of the Mere Evidence Rule, 510
D. Both Sides Use a New Tool: Telephone Network Surveillance, 512
1. Contents of Telephone Calls: From Olmstead to Katz, 513
2. Surveillance of Numbers Dialed, 516
E. The Status Quo: Physical Entry into the Home, the Use of Undercover Agents, and
the Law of Arrests, 517
1. The Special Protections of the Home, 517
2. Undercover Agents, 518
3. The Law of Arrests, 521
F. Defeating Countermeasures: Open Fields and Aerial Surveillance, 522
1. Crossing over Fences, 523

A government contractor doing cyber security noticed that there was high traffic to potential child pornography websites from a government office in a university. After further investigation, it was determined that a particular IP address was involved, and then it was narrowed down to one computer issued to defendant by the university under a policy that said that the computer belonged to the university and was subject to monitoring. The computer was seized by university police, and then a search warrant was issued for its contents on a wealth of probable cause, including a prior offense for sexually molesting a child. There was no reasonable expectation of privacy in this computer. United States v. Busby, 2011 U.S. Dist. LEXIS 145217 (N.D. Cal. December 14, 2011):

As a general matter, courts have found that an employee’s expectation of privacy in files stored on a work-issued computer is not objectively reasonable where the employer notifies employees that their computer files are subject to monitoring. See United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000) (holding that government employee’s belief that his computer files were private was not objectively reasonable where the employer’s policy reserved its right to “audit, inspect, and monitor” his computer files); United States v. Angevine, 281 F.3d 1130, 1134 (10th Cir. 2002) (upholding denial of defendant professor’s motion to suppress child pornography located on the erased files on his office computer which was part of a university network where the university’s computer use policy notified users that internet activity was subject to monitoring); Sporer v. UAL Corp., No. C 08-02835 JSW, 2009 U.S. Dist. LEXIS 76852, 2009 WL 2761329, at *5 (N.D. Cal. Aug. 27, 2009) (finding that employee lacked a reasonable expectation of privacy in his work email where the employer had a policy of monitoring its employee’s computer use and warned employees that they had no expectation of privacy on e-mail transmitted on the company system); Wasson v. Sonoma County Junior Coll., 4 F. Supp. 2d 893, 905-906 (N.D. Cal. 1997) (employer’s computer policy giving it “the right to access all information stored on [the employer’s] computers” defeated employee’s reasonable expectation of privacy in files stored on employer’s computers); but see United States v. Heckenkamp, 482 F.3d 1142, 1147 (9th Cir. 2007) (university student had a reasonable expectation of privacy in files on his personal computer connected to the university network where the university had “no announced monitoring policy on the network”).

The inventory search here was not shown to be valid as an inventory and fails on that score, but it was alternatively valid as a search incident. State v. Fortune, 72 So. 3d 1000 (La. App. 2d Cir. 2011)*:

To do so we must consider the facts of the case in light of the factors as set forth in La Rue, supra, that are significant in determining that a so-called inventory search was merely subterfuge. These factors include whether (1) formal impoundment procedures were not followed; (2) the search was conducted “in the field”; (3) a tow truck was not called before commencing the search; (4) the car owner was not asked for his consent to the search, if his car contained valuables, if he would waive an inventory search, or if he could make arrangements to have someone pick up the vehicle. It is unclear whether or not formal impoundment procedures were followed here. Chief Clark mentioned impoundment in his testimony when describing the procedure for inventory searches, but was not further pressed about the procedures employed on the night in question. The search was conducted “in the field.” It is unclear whether a tow truck was called before commencing the search. It is unclear whether the car owner was asked for his consent to the search, if his car contained valuables, if he would waive an inventory search, or if he could make arrangements to have someone pick up the vehicle. Chief Clark stated that upon viewing the vehicle’s registration, he was uncertain about who actually owned the vehicle. This could have accounted for the lack of questioning on the topic. What is clear here is that according to Chief Clark, only items he deemed as contraband were logged. …

. . .

This goes against the nature of an inventory search, which is done for the purpose of preserving a car owner’s property and protecting the police against claims of lost or stolen property. An inventory search may not be used as a subterfuge for rummaging through an arrestee’s vehicle without a warrant for the primary purpose of seizing evidence. From the limited testimony adduced at the suppression hearing, we cannot conclude that this was a valid inventory search.

However, while the search was not a valid inventory search, it was a valid search incident to arrest. …

Defendant gave consent for the police to enter his welding shop to look for a wanted man. While inside, they called for a drug dog to sniff his van parked inside, and the dog alerted. The consent did not include bringing in a drug dog and the trial court was correct in suppressing and the court of appeals in affirming. State v. Weaver, 349 S.W.3d 521 (Tex. Crim. App. 2011) (with dissent here and here):

The scope of a search is usually defined by its expressed object. A person is free to limit the scope of the consent that he gives. If police rely on consent as the basis for a warrantless search, “they have no more authority than they have apparently been given by the consent.” It is therefore “important to take account of any express or implied limitations or qualifications attending that consent which establish the permissible scope of the search in terms of such matters as time, duration, area, or intensity.” On the other hand, a person’s silence in the face of an officer’s further actions may imply consent to that further action. The “standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Therefore, a court reviewing the totality of the circumstances of a particular police-citizen interaction does so without regard for the subjective thoughts or intents of either the officer or the citizen. Still, in Texas, the “clear and convincing” burden “requires the prosecution to show the consent given was positive and unequivocal and there must not be duress or coercion, actual or implied.”

Plaintiffs barely showed a “reasonable expectation of privacy in a building under construction, but the defendants get qualified immunity because the law was unsettled. Klen v. City of Loveland, 661 F.3d 498 (10th Cir. 2011). The entirety of the Fourth Amendment issue:

Plaintiffs complain that defendants George, Hawkinson and Duval violated the Fourth Amendment by ordering Hoskinson to conduct an unauthorized “special inspection” of the Anasazi Phase 2 premises to determine whether unauthorized construction was going on. The district court concluded that “[t]o the extent that the plaintiffs contend that Hoskinson’s entry onto the property was an illegal search in violation of the Fourth Amendment, the facts do not support the claimed violation even if it is shown that Hawkinson directed the inspection.” Aplt. App., Vol. 1D at 1477. The district court did not describe the facts on which it relied, however, or why they did not support the claimed Fourth Amendment violation.

Defendants argue that summary judgment should be affirmed because “a trespass to property, negligent or intentional, is a common law tort; it does not infringe the federal constitution.” Wise v. Bravo, 666 F.2d 1328, 1335 (10th Cir. 1981). In Wise, the plaintiff evoked only the common-law tort of trespass as the basis for his § 1983 suit and there is no indication he sought to advance a Fourth Amendment claim. Wise certainly should not be read to stand for the proposition that a trespass cannot give rise to a claim under the Fourth Amendment. See, e.g., Reeves v. Churchich, 484 F.3d 1244, 1258 (10th Cir. 2007) (“Of course, a police officer’s mere entry or trespass into a home without consent is enough to constitute a search, often referred to in the case law as an ‘unlawful entry.’”).

While not every common-law trespass (into an open field, for example) violates the Fourth Amendment, a Fourth Amendment violation may be shown if the alleged trespass violated the plaintiff’s “constitutionally protected reasonable expectation of privacy.” United States v. Hatfield, 333 F.3d 1189, 1195 (10th Cir. 2003) (quotation omitted). The threshold issue is thus whether plaintiffs had such a reasonable expectation of privacy in the premises of Anasazi Phase 2 searched by Hoskinson.

The defendants characterize the premises invaded as “the ‘core and shell’ of an unfinished commercial building,” Aplee. Br. at 28, implying that plaintiffs had no reasonable expectation of privacy in the premises searched. Plaintiffs, while not denying the unfinished nature of the structure, stress the fact that “the Klens used the premises to store their wallets, briefcases and other personal belongings, and had installed doors and windows in order to secure the premises,” Aplt. Opening Br. at 44-45. Plaintiffs do not argue that defendants knew they used Anasazi Phase 2 for storage purposes before dispatching Hoskinson to conduct the inspection.

Although plaintiffs correctly argue that “[t]he Fourth Amendment protects an individual’s reasonable expectation of privacy in commercial premises,” United States v. Bute, 43 F.3d 531, 536 (10th Cir. 1994), it is also true that “there is a lesser expectation of privacy in commercial as contrasted with residential buildings,” id. An unfinished commercial building, such as the premises in question here, arguably affords even less of a reasonable expectation of privacy than the typical commercial premises.

That said, plaintiffs appear to have shown enough evidence of a Fourth Amendment violation to survive summary judgment on the question of whether defendants violated the constitution. But the individual defendants also argue that they are entitled to qualified immunity as to this claim, and we agree. Plaintiffs have failed to show at the time defendants ordered Hoskinson to conduct an inspection of Anasazi Phase 2 that it was clearly established that this type of impromptu inspection of an unfinished commercial building, still under construction, violated their Fourth Amendment rights. The individual defendants are therefore entitled to qualified immunity and we thus affirm the entry of summary judgment in their favor on this claim.

Under the law of most states, an unwanted entry into an unfinished commercial building would still be a commercial burglary or a breaking and entering or a trespass because of the potential for theft of building materials. If it would be a crime for an unauthorized person to enter, then the plaintiffs certainly would have a reasonable expectation of privacy as to the government.

Officers stopped a man coming out of defendant’s house, and he said that there was a working meth lab inside. That was exigency for a warrantless entry. The dangers of the chemical process in a meth lab have been held to be exigency in New Mexico. State v. Allen, 2011 NMCA 19, 149 N.M. 267, 247 P.3d 1152 (2010), Certiorari Denied, January 25, 2011, No. 32,785:

[*16] In Calloway, we concluded that the presence of the potentially hazardous nature of the chemicals used to manufacture meth constitutes exigency. 111 N.M. at 50, 801 P.2d at 120. Fourteen years later, in dealing with a purported violation of the knock and announce rule, State v. Johnson recognized that in at least two other jurisdictions, courts have held that “where officers know there is a [meth] lab in operation, that knowledge may create exigency” because of the risk of fire, explosion, or other potential harms. 2004 NMCA 64, ¶ 11, 135 N.M. 615, 92 P.3d 61, aff’d in part, rev’d in part on other grounds, 2006 NMSC 49, 140 N.M. 653, 146 P.3d 298. Despite having made this observation, our Court ultimately determined that the officers did not possess an objectively reasonable belief of exigency because they had only the vaguest suspicion that there was a meth lab inside the dwelling. Id. ¶¶ 11-12.

Erroneous address of apartment complex which did not lead to another apartment complex because there was no other on the street. Across the street from the erroneous address was the apartment complex. Even more definitive was the fact the officer had been there before and knew the right place. United States v. Murdock, 2010 U.S. Dist. LEXIS 138943 (S.D. Ga. December 17, 2010).*

This court and other district courts in the Eighth Circuit have said that pre-Gant search incidents are not governed by Gant, so this one won’t be either. Alternatively, the vehicle could have been lawfully towed and inventoried, and the gun would have been inevitably found. United States v. Golden, 2010 U.S. Dist. LEXIS 138827 (W.D. Mo. November 3, 2010).*

The fact the owner of the vehicle had a suspended license was reasonable suspicion to stop the car. This was an issue of first impression in New Mexico. One thing led to another, and reasonable suspicion compounded. State v. Candelaria, 2011 NMCA 1, 149 N.M. 125, 245 P.3d 69 (2010), certiorari Denied, November 15, 2010, No. 32,655.*

Defendant was being watched based on a CI’s statement he was armed, and officers saw him hand a gun to another who fled into a house. Then there was consent to search the house. State v. Turner, 2010 Ohio 6475, 2010 Ohio App. LEXIS 5465 (8th Dist. December 30, 2010).*

Passengers in a stopped vehicle can be ordered out of it for a search incident. Defendant was stopped for a drug offense, so a search incident of his vehicle was likely to find drug evidence, and having people in the car was more likely to have that evidence destroyed. Commonwealth v. Young, 78 Mass. App. Ct. 548, 940 N.E.2d 885 (2011).*

Police went to a house on a shots fired call, and dispatch got a call from a man who said his son called him saying he was held against his will inside with guns. Police went to the door, which was opened and shut on seeing the police. Exigent circumstances justified the entry. State v. Cooper, 2011 Ohio 5017, 2011 Ohio App. LEXIS 4164 (2d Dist. September 30, 2011).

Defendant was stopped at a sobriety checkpoint and detained. He claimed his detention was extended by racial profiling, but it was not found to be proved. What was found was not excludable in his immigration hearing before the BIA under INS v. Lopez-Mendoza. Luevano v. Holder, 660 F.3d 1207 (10th Cir. 2011).

Defendant was lawfully arrested inside his home, and marijuana was seen in plain view. That supported a protective sweep. United States v. Derrick, 2011 U.S. Dist. LEXIS 113202 (S.D. Fla. September 26, 2011).*

In State v. Granville, 2006 NMCA 98, 140 N.M. 345, 142 P.3d 933 (2006), New Mexico extended state constitutional protection to trash bags left in the alley behind a house. Here, the trash bags were from a motel room. Since motel rooms have the same constitutional protection as the home, trash in opaque containers from a motel room are protected, too. State v. Crane, 2011 NMCA 61, 149 N.M. 674, 254 P.3d 117 (App. 2011), Certiorari Granted, June 8, 2011, Docket No. 33,014.*

The threat to get a search warrant for defendant’s computer was not baseless because officers could have gotten one. There was no promise of leniency. United States v. Reemsnyder, 2011 U.S. Dist. LEXIS 38681 (E.D. Tenn. March 18, 2011)*:

Finally, telling Defendant that he was not under arrest and that law enforcement wanted to know (only) two things: where Defendant got the images and whether Defendant could identify the children in the images, is not improper. To be sure, and depending on the totality of the circumstances, coercion may be found where law enforcement makes a promise of leniency if that promise is subsequently broken or illusory when made. United States v. Stokes, 631 F.3d 802, 808 (6th Cir. 2011); Johnson, 351 F.3d at 262. Here, however, I FIND Agent Poff’s statements were not an implied promise of leniency.

After a protective sweep looking for a rifle came up empty, officers could not just go back into the house to search it for the gun. United States v. Laudermilt, 2011 U.S. Dist. LEXIS 61661 (N.D. W.Va. June 10, 2011), adopting R&R, 2011 U.S. Dist. LEXIS 61682 (N.D. W.Va. May 31, 2011):

This Court agrees with the magistrate judge’s finding that the defendant’s recent possession of a rifle, his threatening demeanor, and the fact that his younger half-brother was still inside are circumstances that justified the initial entry into the home to locate any unaccounted for individuals and to ensure the safety of the officers. However, these circumstances did not permit the officers to seize the firearm after the residence had been secured and the protective sweep had ended. The key inquiry — the determination of when the protective sweep ended — requires a detailed review of the facts.

DWI is not a minor offense, and a warrantless entry into the home may be justified by exigent circumstances of dissipation of alcohol. State v. Nance, 2011 NMCA 48, 149 N.M. 644, 253 P.3d 934 (App. 2011), Writ of certiorari denied State v. Nance, 2011 N.M. LEXIS 176 (N.M., Apr. 14, 2011).

The defendant’s consent to search a gift bag that the officer had picked up and he believed by its weight held a gun was reasonable and valid. Brooks v. Commonwealth, 2011 Va. LEXIS 132 (June 9, 2011).*

The call for a backup officer conveyed to the defendant she was not free to leave. State v. Thomas, 291 Kan. 676, 246 P.3d 678 (2011):

We conclude that Officer Brown’s call for back-up, when combined with his other conduct, would convey to a reasonable person that he or she was not free to refuse to answer Brown’s questions or otherwise terminate the second stage of the encounter. See State v. McGinnis, 290 Kan. at 552. More specifically, both before and after making the call, Brown repeatedly asked Thomas questions about her drug use and possession. After the call, Thomas emptied her pockets for him, apparently in an attempt to prove her denials. He then asked to feel inside her pockets, and she threw her hands in the air. After Brown again told Thomas to “be honest with me,” she confessed to possessing two crack pipes. In contrast to the first stage, at no time during the second stage did Brown tell Thomas she was free to leave. See State v. Thompson, 284 Kan. 763, 811, 166 P.3d 1015 (2007) (a clear communication that the person is free to terminate the encounter or refuse to answer questions is a factor in determining the coercive effect of the encounter); State v. Reason, 263 Kan. 405, 414, 951 P.2d 538 (1997).

The exclusionary rule does not apply in driver’s license revocation proceedings. [This was never a given in the opinion; it is well considered and considers plenty of authority before coming to this conclusion.] Glynn v. State Taxation & Revenue Dep’t, 2011 NMCA 31, 149 N.M. 518, 252 P.3d 742 (2011), Certiorari Denied, 2011 N.M. LEXIS 115 (N.M., Mar. 8, 2011).

Defendant was on a peer to peer network sharing child pornography, but the government used a different way into his computer. He was linked to a network, and while he was using the computer sharing with others, the government got into his computer with “enhanced software.” He was sharing files, so he had no reasonable expectation of privacy from this particular intrusion. United States v. Gabel, 2010 U.S. Dist. LEXIS 107131 (S.D. Fla. September 16, 2010).*

Defendant’s traffic stop leaving a suspected “stash house” was valid, based on lack of mud flaps on his truck as required by state law. United States v. Rios, 2010 U.S. Dist. LEXIS 107109 (D. Ariz. September 2, 2010).*

Defendant was the subject of a child sexual abuse investigation, and a search warrant was obtained for his computer in South Dakota, and it was seized. It was transferred to Wisconsin where another search warrant was issued to search it. The search warrants were based on probable cause to believe that there was child pornography [despite all the boilerplate revealed in the opinion] because the victim’s mother checked the computer and its Internet history and saw that child porn was defendant’s focus. That gave probable cause. United States v. Houston, 754 F. Supp. 2d 1059 (D. S.D. 2010).*

A stop led to ICE being called, and that slowed “investigation of the justification for the stop.” However, the officer’s “calling ICE to inquire into the validity of the Gaitan ID is analogous in many ways to how an officer routinely runs a driver’s license and registration to check their validity,” and here it was not unreasonable. United States v. Guijon-Ortiz, 660 F.3d 757 (4th Cir. 2011):

Strictly speaking, the scope and duration inquiries under Terry’s second prong are distinct. They become intertwined, however, in cases where, as here, the actions a defendant argues exceeded the scope of the stop necessarily also extended its duration. This raises the following question: Under what circumstances, if ever, may an officer prolong a traffic stop to investigate matters unrelated to the justification for the stop and without reasonable suspicion, whether through questioning or other means?

. . .

As we explained in Digiovanni, for a traffic stop to satisfy Terry’s second prong, the police officer “must diligently pursue the investigation of the justification for the stop.” Id. (citing Sharpe, 470 U.S. at 686). Although we have held that “where a delay can be characterized as de minimis under the totality of the circumstances, it will not be recognized as a Fourth Amendment violation,” id. (citing Mason, 628 F.3d at 132), the principal inquiry, as articulated by the Sixth Circuit, is “the officer’s diligence—i.e., his persevering or devoted application to accomplish the undertaking of ascertaining whether the suspected traffic violation occurred, and, if necessary, issuing a ticket.” United States v. Everett, 601 F.3d 484, 494 (6th Cir. 2010) (internal quotation marks and alterations omitted). If “the totality of the circumstances, viewed objectively, establishes that the officer, without reasonable suspicion, definitively abandoned the prosecution of the traffic stop and embarked on another sustained course of investigation, this would surely bespeak a lack of diligence.” Id. at 495.

This standard incorporates both the duration and scope components of Terry’s second prong. Some courts and commentators have questioned whether the scope component survives Johnson. See United States v. Stewart, 473 F.3d 1265, 1269 (10th Cir. 2007) (“The correct Fourth Amendment inquiry (assuming the detention is legitimate) is whether an officer’s traffic stop questions ‘extended the time’ that a driver was detained, regardless of the questions’ content.”); Reid M. Bolton, Comment, The Legality of Prolonged Traffic Stops After Herring: Brief Delays as Isolated Negligence, 76 U. Chi. L. Rev. 1781, 1786-87 (2009). We disagree, because, as we have explained: “[T]he scope of a police officer’s actions during a traffic stop still is relevant to the reasonableness analysis under the Fourth Amendment … because, during a stop, a police officer must act reasonably, that is, he must diligently pursue the investigation of the justification for the stop.” Digiovanni, 650 F.3d at 509. Johnson holds only that unrelated questioning that does not prolong a traffic stop does not render the stop unlawful. In cases where, as here, the questioning does extend the seizure, the scope of an officer’s unrelated investigation could be relevant to whether the officer “definitively abandoned the prosecution of the traffic stop and embarked on another sustained course of investigation.” Everett, 601 F.3d at 495.

We acknowledge that in Digiovanni the issue was whether police questioning caused the traffic stop to exceed its permissible scope and duration. Here, in contrast, the action Guijon-Ortiz argues prolonged the stop was the call to ICE, which Flowers made from the patrol car while the three men waited in the pickup truck. We believe the “diligently pursue” standard applies nonetheless, because either questioning a person directly or pursuing other means of investigation may, in the context of a particular traffic stop, be relevant to whether an officer diligently pursued the investigation of the justification for the stop.

Our approach is in accord with not only that of the Sixth Circuit in Everett but also that of at least the Eighth and Ninth Circuits. See United States v. Turvin, 517 F.3d 1097, 1101 (9th Cir. 2008) (holding that “whether questioning unrelated to the purpose of the traffic stop and separate from the ticket-writing process that prolongs the duration of the stop may nonetheless be reasonable” is determined by “examin[ing] the ‘totality of the circumstances’ surrounding the stop”); United States v. Olivera-Mendez, 484 F.3d 505, 510 (8th Cir. 2007) (“Whether a particular detention is reasonable in length is a fact-intensive question, and there is no per se time limit on all traffic stops. When there are complications in carrying out the traffic-related purposes of the stop, for example, police may reasonably detain a driver for a longer duration than when a stop is strictly routine.”) (citing Sharpe, 470 U.S. at 685-87).

Consent found from pointing to where defendant was hiding. United States v. Livingston, 429 Fed. Appx. 751 (10th Cir. 2011):

Of course, this raises the question whether Ms. Adams actually gave consent. But the answer here is clear. Before entering the bedroom, the officers asked Ms. Adams where Mr. Livingston was located. She responded “in the closet,” pointed in that direction, and stepped out of the bedroom to let the officers in. From this exchange, “reasonable law enforcement officer[s] would have understood” that Ms. Adams consented to the search of the bedroom and closet. United States v. Flores, 48 F.3d 467, 468-69 (10th Cir. 1995); see also United States v. Mains, 33 F.3d 1222, 1227 (10th Cir. 1994). While she did not expressly tell the officers to come in, Ms. Adams’s “non-verbal conduct” in pointing to the closet and stepping out of the bedroom constituted a voluntary consent to search. See, e.g., United States v. Gordon, 173 F.3d 761, 766 (10th Cir. 1999).

The renter of the apartment defendant was staying in had common and apparent authority to consent. [If anything, he had greater authority compared to defendant who was an occasional visitor.] United States v. Bone, 433 Fed. Appx. 831 (11th Cir. 2011).*

Defendant was fumbling at his waist in his car and finally got out with his shirttail sticking out his fly. The officers had reasonable suspicion for a search as to why because he could have been hiding a gun or drugs. State v. Williams, 2011 NMSC 26, 149 N.M. 729, 255 P.3d 307 (2011), rev’g State v. Williams, 2010 NMCA 30, 148 N.M. 160, 231 P.3d 616 (App. 2010):

[*21] We hold that the under-clothing search of Defendant passes constitutional muster because the officer had particularized reasonable suspicion that Defendant was concealing a weapon or evidence, and the location, manner, and scope of the search were reasonable under the circumstances. Invasive, under-clothing searches remain the exception, and this Opinion is not to be read as an approval of the incorporation of an under-clothing search into the typical search incident to arrest. We reject any suggestion that our holding would permit invasive searches for all felony drug offenses, as such would be inconsistent with our preference for case-by-case reasonableness analyses based on the totality of the circumstances. See, e.g., Leyva, 2011 NMSC 9, ¶ 54.

Plaintiff was walking partially on an interstate highway drug and under the influence of that and probably ecstacy. In what as visible on the police car video of the encounter, it was apparent that plaintiff was a danger to himself and others in walking toward traffic, and he fought with officers trying to handcuff him. He was tasered in the process. The officers’ conduct was not objectively unreasonable, and summary judgment should have been granted. Williams v. Sandel, 433 Fed. Appx. 353 (6th Cir. 2011).*