The Federal Defender was not ineffective for not appealing defendant suppression hearing. “Simply put, the suppression argument was a clear loser.” United States v. Forrest, 2011 U.S. Dist. LEXIS 115227 (D. Neb. October 5, 2011):

Moreover, defense counsel like Vanderslice do not have a constitutional duty to raise on appeal every nonfrivolous issue requested by the defendant. See, e.g., Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983) (“Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible ….”) Because the suppression argument was weaker than the critically important sentencing issue, Vanderslice cannot be faulted for failing to raise it even though Vanderslice prudently preserved the search issue in the plea agreement. Vanderslice did what all good appellate advocates do; that is, he focused on what was most likely to attract careful appellate attention.

Defense counsel was not ineffective in handling defendant’s suppression motion. It was appealed on the merits, and arguing it a different way would not have helped him. United States v. Chester, 2011 U.S. Dist. LEXIS 114740 (D. Nev. October 4, 2011).*

Defendant was not just a mere bystander like in Ybarra; there was specific information about others involved in the crime, and the defendant matched the description. United States v. McCauley, 659 F.3d 645 (7th Cir. 2011).*

Defendant was a Michigan licensed medical marijuana grower and caregiver. The court finds consent to an entry because the defendant knew that state officials were permitted to inspect a medical marijuana grow operation. However, he had too many plants, and he was charged federally with manufacturing. Motion to suppress denied. United States v. Hathaway, 2011 U.S. Dist. LEXIS 81298 (W.D. Mich. July 26, 2011).*

Defendant had no standing to suppress the searches of passengers finding drugs on their persons. United States v. Sherrills, 432 Fed. Appx. 476 (6th Cir. 2011).*

The manager of a tribal housing complex who had the ability to enter apartments on occasion under the lease terms hardly had apparent or common authority to consent to a search of the apartment. The Supreme Court held in Chapman in 1961 that landlords could not consent to a search. United States v. Smith, 2011 U.S. Dist. LEXIS 80529 (D. Neb. July 22, 2011).*

Defendant’s car was suspected of being involved in an assault where a gun was fired. When he was arrested with the car, a dog sniffed his car and alerted. The car was impounded in the police lot, and it was searched the next day, and that was still valid under the automobile exception. It was not valid as an inventory because policies were not followed, and the dog sniff was invalid under state law. State v. Gardner, 72 So. 3d 218 (Fla. 2d DCA 2011):

The trial court mistakenly believed that even when probable cause exists, exigent circumstances are required before police can search a vehicle. The trial court held that when the vehicle was impounded, “all exigency disappeared as the only people with access to the vehicle was law enforcement.” In Michigan v. Thomas, 458 U.S. 259, 261, 102 S. Ct. 3079, 73 L. Ed. 2d 750 (1982), the Supreme Court noted that ”when police officers have probable cause to believe there is contraband inside an automobile that has been stopped on the road, the officers may conduct a warrantless search of the vehicle, even after it has been impounded and is in police custody.”

In State v. Green, 943 So. 2d 1004, 1006 n.1 (Fla. 2d DCA 2006), this court noted that exigent circumstances are no longer “required in order to apply the automobile exception to the warrant requirement.” Therefore, the issue is whether police had probable cause to search Gardner’s car, irrespective of the fact that the search was conducted at the police station.

NM explains its requirements for preserving state constitutional arguments v. Fourth Amendment arguments (which he loses on the merits). State v. Leyva, 2011 NMSC 9, 149 N.M. 435, 250 P.3d 861 (2011)*:

2. Preservation requirements restated.

[*49] Rule 12-216 (A)’s preservation requirements are straightforward: “To preserve a question for review it must appear that a ruling or decision by the district court was fairly invoked ….” Where a state constitutional provision has previously been interpreted more expansively than its federal counterpart, trial counsel must develop the necessary factual base and raise the applicable constitutional provision in trial court. Where the provision has never before been addressed under our interstitial analysis, trial counsel additionally must argue that the state constitutional provision should provide greater protection, and suggest reasons as to why, for example, “a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics.” Gomez, 1997 NMSC 06, ¶ 19.

Defendant’s consent to search his car could only be understood to be for “drug activity,” and that implicitly permitted a search of his cell phone under that consent. United States v. Gilbert, 2011 U.S. Dist. LEXIS 124235 (W.D. Mo. September 30, 2011)* [Like the defendant would remotely understand that; another fiction].

Officers came to defendant’s apartment at night on a report he had a gun and asked about it under the public safety exception to Miranda. He said there was a gun inside and told them where it was. The officers were able to ascertain that there were no others in the apartment, so the entry into the apartment to seize the gun was an unreasonable warrantless entry into the home. United States v. Simmons, 661 F.3d 151 (2d Cir. 2011).*

Defendant’s reliance on Gant in his 2255 was without any basis. United States v. Hamilton, 2011 U.S. Dist. LEXIS 123346 (D. N.J. October 25, 2011).*

The inventory of defendant’s car was clearly within the local PD’s inventory policy. United States v. Crawford, 2011 U.S. Dist. LEXIS 123973 (S.D. Ohio October 26, 2011).*

The search warrant in an export violation case was not overbroad considering what was under investigation. The defendant was accused of unlawfully shipping telecommunications equipment to Iraq in violation of an embargo through intermediaries in different countries. At the time of the search, the government did not know the breadth of the conspiracy. Limiting the search to email subject lines might have caused the investigators to miss important evidence. The warrant was not an “all records” search, and it was tailored to look for evidence of the crime at hand. Some emails in evidence had blank subject lines, and the government was entitled to try to figure out who else was involved by the senders and recipients. United States v. Hanna, 661 F.3d 271 (6th Cir. 2011).*

Mail was addressed to the defendants from the Pinellas County jail disguised as legal mail, and the defendants were under investigation in a white collar fraud case. Search warrants were obtained for the mail after an FBI agent acting as a “taint team” determined that they were not legal mail. Mary Morgan had no standing to contest a search of mail addressed to John Morgan. United States v. Morgan, 2011 U.S. Dist. LEXIS 88876 (M.D. Fla. August 10, 2011).*

In his 2255, defendant argued that his counsel did not “properly” argue the suppression motion that was filed and litigated and appealed. He doesn’t say how, so no claim is presented. United States v. Perez-Jacome, 2011 U.S. Dist. LEXIS 89617 (D. Kan. August 11, 2011).*

The officer showed the defendant a printed phrase book of Spanish in Law Enforcement which was a request for consent, and the court finds that sufficient for consent. Once granted, consent extends the stop. United States v. Lamela-Cardenas, 2011 U.S. Dist. LEXIS 89003 (S.D. Ala. August 10, 2011).*

Officers executed a no-knock warrant to search defendant’s residence. The entry was accomplished with an armored vehicle, a large complement of officers, noise-flash accompaniment, and a formidable show of force. Even this “shock-and-awe” entry would not lead to exclusion of the evidence under Hudson and Herring. United States v. Garcia-Hernandez, 659 F.3d 108 (1st Cir. 2011):

For one thing, the circumstances to which the defendant adverts do nothing to satisfy the requirement of but-for causation. Even if the officers had knocked, announced, and politely entered the defendant’s dwelling, the incriminating evidence would have been found when they conducted the search. The exclusionary remedy is unavailable when, as in this case, there is no causal link between the constitutional violation alleged and the evidence discovered during the ensuing search. See Hudson, 547 U.S. at 592.

For another thing, we do not accept the defendant’s claim that an aggressive manner of entry materially alters the decisional calculus employed in Hudson. The defendant insists that there are compelling reasons to discourage officers executing search warrants from engaging in “military assault” tactics and that those reasons outweigh the social costs incident to employing the exclusionary rule. But this is nothing more than an ipse dixit, and we fail to see how the level of force used tips the Hudson balance. After all, the Court recognized that the chief benefit of applying the exclusionary rule to knock-and-announce violations would be its deterrent effect on police misconduct. See id. at 596. The Court nevertheless concluded that the social costs of imposing exclusion outweighed that benefit. Id. In cases alleging a failure to knock and announce, the Court reasoned, police misconduct could be effectively deterred through civil suits, thus negating the need to invoke the extreme remedy of exclusion. Id. at 596-99. That the officers in this case used shock-and-awe tactics does not undermine this reasoning.

In an effort to change the trajectory of the debate, the defendant notes the Hudson Court’s discussion of the important interests safeguarded by the knock-and-announce rule: “protection of human life and limb,” “protection of property,” and “protect[ion] … of privacy and dignity.” Id. at 594. He speculates that the threat to those interests is greater in this case than in the mine-run of cases due to the overly aggressive manner of the officers’ entry.

Whether or not this is so, it is beside the point. The knock-and-announce rule does not implicate the interest in “shielding … evidence from the government’s eyes.” Id. at 593. That interest is suspended (in limited scope) once a valid warrant has issued. Id. A defendant claiming harm to that interest (say, harm from a warrantless search) may be entitled to exclusion as a remedy. But where, as here, a defendant asserts injury from a no-knock entry antecedent to an otherwise valid search, the remedies afforded in civil suits can adequately redress the harm to the interests that are affected. See id. at 596-99.

A civil case? Really? Like a convicted drug dealer would get any sympathy from a jury? The innocent will have an excellent civil case; the guilty are virtually screwed and the court has to know it.

Two women were tased in separate occurrences, one who wouldn’t get out of a car (tased twice) and the other in a domestic dispute who stood between the officer and her husband trying to defuse the situation. Excessive force cases, however, are fact dependent, and the Supreme Court hasn’t spoken, so the officers’ conduct was subject to qualified immunity. Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (en banc, 6-4):

Finally, Graham’s general excessive force standard cannot always, alone, provide fair notice to every reasonable law enforcement officer that his or her conduct is unconstitutional. See Brosseau v. Haugen, 543 U.S. 194, 198-99 (2004) (per curiam) (explaining that Graham and Tennessee v. Garner, 471 U.S. 1 (1985), “are cast at a high level of generality” and cannot, in every case, “offer a basis for decision”). The Supreme Court has stated, however, that “in an obvious case, these standards can ‘clearly establish’ the answer, even without a body of relevant case law.” Id. at 199 (citing Hope, 536 U.S. at 738). Although this “obvious case” exception remains good law, the Supreme Court recently clarified that the bar for finding such obviousness is quite high. In al-Kidd, the Court emphasized that it has “repeatedly told courts not to define clearly established law at a high level of generality. The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” 131 S. Ct. at 2084 (citations omitted).

In tasering cases:

we proceed to determine whether Jones’s use of the taser against Brooks in this case was reasonable, keeping in mind the magnitude of the electric shock at issue and the extreme pain that Brooks experienced. See Brown v. City of Golden Valley, 574 F.3d 491, 495 (8th Cir. 2009) (noting that a woman who was tased in drive-stun mode experienced “extreme pain” and “felt a sharp pain where the Taser met her arm, with the pain radiating from her upper arm and causing her muscles to clench”).

In evaluating the reasonableness of Jones’s action, we consider the governmental interests at stake and begin with (1) how severe the crime at issue was, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight. Deorle, 272 F.3d at 1279-80.

Plaintiffs pled a Fourth Amendment violation, but the court concludes that the officers were entitled to qualified immunity because the law was unsettled.

Judge Kozinski dissented in part:

The Fourth Amendment proscribes only unreasonable searches and seizures. Police need not use the least necessary force, see Luchtel v. Hagemann, 623 F.3d 975, 982 (9th Cir. 2010), but the officers here did just that. Nevertheless, the majority finds their actions unconstitutional, and thereby deters officers from employing a safe, effective technique for subduing uncooperative subjects. This will cause police to resort to more dangerous methods in the future. Count me out.

. . .

Faced with these utterly positive results, despite Brooks’s stubborn effort to put herself and her unborn daughter in harm’s way, the majority is reduced to counting the seconds between Tasings, finding that the “rapid succession provided no time for Brooks to recover … and reconsider her refusal to comply.” Majority op. at 19023. Bull pucky! Although Brooks claims she was “scared” and “in shock” after the initial Tasing, she also admits that she began yelling for help and honking her car’s horn. Stepping into the shoes of a reasonable officer at the scene, as we must, see Graham, 490 U.S. at 396-97; Luchtel, 623 F.3d at 980, Brooks’s actions weren’t those of someone dazed and befuddled, unable to think about what to do next. They bespoke a deliberate decision to continue her defiance. A single drive-stun application having already proved insufficient inducement to Brooks’s compliance, the double dose was an objectively reasonable next step and was therefore entirely constitutional. See Scott v. Harris, 550 U.S. 372, 381-82 & n.8 (2007).

. . .

The majority and concurrence get the law wrong, with dire consequences for police officers and those against whom they’re required to use force. My colleagues cast doubt on an effective alternative to more dangerous police techniques, and the resulting uncertainty will lead to more, worse injuries. This mistake will be paid for in the blood and lives of police and members of the public.

Today’s decision, though nominally a victory for the officers, is a step backward in terms of police and public safety. One can only hope the Supreme Court will take a more enlightened view.

See Orin Kerr on Volokh Conspiracy.

“Conflicting statements by the occupants of a vehicle about their travel may be sufficient to establish the required reasonable suspicion to detain the occupants for further investigation.” United States v. Rivera-Apodaca, 2010 U.S. Dist. LEXIS 127300 (E.D. Mo. August 20, 2010).*

A suppression motion for possession of knife on school grounds was granted, and the state appealed. The court of appeals reversed for consideration of whether there was individualized suspicion under T.L.O. On the record here, it seemed that the search was random, but the record is inadequate. State v. Gage R., 2010 NMCA 104, 149 N.M. 14, 243 P.3d 453 (2010).*

Defendant was arrested with her john for prostitution, and the john said that she was paid with drugs which she put under her tongue. [I guess that ruled out fellatio? Maybe not.] When the officer got this information from the john, he could force defendant to open her mouth because the evidence was easily destructible just by swallowing. State v. Geer, 391 S.C. 179, 705 S.E.2d 441 (2010).*

Part of the reasonable suspicion for defendant’s stop was a “ping order” on his cell phone to keep tabs on him, conversations on a phone with snitch working for the police, and confirmation of where he was after they went to the locations provided from the pings. “Specifically, the officers had reasonable suspicion to believe that Ayers and Showes had driven to Detroit to pick up heroin and that, at the time of the Terry stop, they were in the process of transporting said heroin back to Cincinnati for further distribution.” United States v. Ayers, 2011 U.S. Dist. LEXIS 123532 (S.D. Ohio October 25, 2011).* (There is no discussion of the validity or scope or issuance of the ping order. Under Jones (see ScotusBlog) this is a huge lurking issue: Can the government follow people through their cell phones already GPS enabled and not have to install a GPS on a car?)

Defendant was stopped and his passenger fled. Defendant was compliant and removed his hands from his pocket when instructed. There was no reasonable suspicion he was armed to justify a pat down, and any suspicion as to the passenger did not relate to him. Hill v. State, 956 N.E.2d 174 (Ind. App. 2011).*

A 911 call was an invitation to the police to come and enter: “At 4:15 p.m. on the day of the murders, Movant called 911. He reported that someone was hurt and not breathing, and said ‘[y]ou just need to send somebody over here.’ When police arrived, Movant was in the front drive. Officers briefly spoke with Movant, then entered the home. Movant never subsequently objected to police being in or about his home. Within two hours, officers had discovered the bodies, secured the crime scene, arrested Movant, and taken him to the police station.” Mayes v. State, 349 S.W.3d 413 (Mo. App. 2011).

Defendant was stopped without probable cause he was impaired, and he was told that blood would be taken from him if he didn’t consent, and he did not. The forced blood draw was unconstitutional under the Fourth Amendment and Texas Constitution. State v. Mosely, 348 S.W.3d 435 (Tex. App.—Austin July 28, 2011).

Defendant’s argument in the trial court for suppression of evidence was not the same one he made on appeal, so the argument on appeal would not be considered. Brown v. State, 2010 Tex. App. LEXIS 5432 (Tex. App.—San Antonio July 14, 2010), Released for Publication January 27, 2011.*

Defective taillight led to stop to “I’ve only had two beers,” and a finding of RS to detain him. Urdiales v. State, 2010 Tex. App. LEXIS 4349 (Tex. App.—San Antonio June 9, 2010), Released for Publication January 24, 2011.*

Whether the consent was to “check” the room or “search” his hotel room, defendant understood it was for drugs and that permitted the officers to look where drugs might be found. A small safe was represented to contain only papers, but it rattled when shaken. When officers got a search warrant for the room, it did not mention the safe, but it still could be searched under a warrant for the room for drugs and paraphernalia. United States v. Rios, 434 Fed. Appx. 648 (11th Cir. 2011):

Additionally, the search warrant itself described the location of the hotel and specific directions to the room to be searched, including the room number. It authorized officers to search that room and to seize, among other things, “controlled substances[;] controlled substance residue”; equipment “used or reasonably believed to have been used to cut, weigh[,] package, store[,] and transport controlled substances”; and “firearms, firearms accessories, ammunition[,] or firearms storage devices.” Therefore, the warrant itself sufficiently described the place to be searched, and sufficiently described the things to be seized. See U.S. Const. amend. IV. And, because this was a “lawful search of fixed premises” for controlled substances and firearms, the officers had the authority to open the locked safe. Ross, 456 U.S. at 820-21; see also Jackson, 120 F.3d at 1228-29. Accordingly, the district court did not err in denying Rios’s motion to suppress.

. . .

We have no case law that squarely answers the question before us — whether it is a violation of the Fourth or Fifth Amendments for the government to comment at trial on a defendant’s refusal to consent to a warrantless search. But even if we were to assume, arguendo, that it was improper for the government to comment at trial on Rios’s refusal to consent to the search of the safe, we need not reach the question, because the government has shown that the error, if any, was harmless beyond a reasonable doubt. Gari, 572 F.3d at 1362.

Request for an order for a DNA swab from the defendant to attempt to connect him to two guns found in a house that he exited just before the police were directed to the guns was denied. There was enough genetic material on the guns to attempt to connect them to somebody, but there was no “clear indication” it would connect defendant to them under Matter of Abe A. Defendant dropped marijuana when he came out as it was. People v Washington, 2011 NY Slip Op 21311, 33 Misc. 3d 640, 929 N.Y.S.2d 432 (Crim.Ct. Kings Co. 2011):

In delineating the Fourth Amendment safeguards afforded the defendant in the case before it, this court adheres to the principle that a formal charge for commission of a crime is not a prerequisite to making the defendant available for DNA oral swabbing. As the Court stated in Matter of Abe A., “[w]e can find no case in which a court of general jurisdiction has been held to be without power to authorize a seizure or a search until a suspect is arrested and actually charged with a crime (cf. Zurcher v. Standford Daily, 436 U.S. 547 …).: Id. at 296.

Charged with a crime or not, probable cause is one pivotal factor that spearheads a court’s determination to acquiesce defendant’s constitutional right to be free of bodily intrusion when delicately balanced against circumstances the People insist call for intrusion of the defendant’s body to provide DNA samples.

A USMJ has the legal authority to dismiss a criminal complaint for lack of probable cause after having signed off on it in the first place. Here, however, there was probable cause as defendant was arrested in a grow house in the Bronx. United States v. Coiscou, 793 F. Supp. 2d 680 (S.D. N.Y. 2011):

I find the Tejada court’s reasoning more persuasive and conclude that a magistrate judge has the authority to dismiss a complaint for lack of probable cause at or after an initial appearance. I see little difference between dismissing a complaint for lack of probable cause at a preliminary hearing—as a magistrate judge must under Rule 5.1(f)—and dismissing the complaint at some point during or after an initial appearance but before a probable cause determination at such a hearing has been made. Someone being denied his liberty on an insufficient complaint should not have to wait to be released, even for the relatively short period of time until a preliminary hearing takes place. As Coiscou correctly notes, “[a] complaint that does not establish probable cause is ‘invalid.’” Def.’s Letter at 2 (quoting Hollingsworth v. United States, 321 F.2d 342, 348 (10th Cir. 1963)).

Further, the fact that a magistrate judge—here, the undersigned—may have taken the agent’s oath and signed the complaint as required by Rule 3 and thus made an initial determination that probable cause exists as required by Rule 4 does not mean that the same or another magistrate judge may not later reach a different conclusion as to probable cause as legal arguments are presented in the adversarial process. Indeed, that is exactly what is contemplated by Rule 5.1(f). This is particularly so because, when the complaint is filed, “[t]he criminal process is still in the investigative stage, and ‘the adverse positions of government and defendant’ have yet to solidify.” United States v. Alvarado, 440 F.3d 191, 200 (4th Cir. 2006) (quoting United States v. Gouveia, 467 U.S. 180, 189, 104 S. Ct. 2292, 81 L. Ed. 2d 146 (1984)). Thus, the filing of a complaint “can no more be characterized as ‘the initiation of adversary judicial proceedings against the defendant,’ than can the filing of an affidavit in support of a search warrant.” Id. (quoting Gouveia, 467 U.S. at 187); see also United States v. Stein, 541 F.3d 130, 152 (2d Cir. 2008) (“The Supreme Court has ‘pegged commencement of a prosecution to the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’” (alterations omitted) (quoting Rothgery v. Gillespie County, 554 U.S. 191, 198, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008)).

Officers approached a house with a search warrant, and they encountered defendant who lived next door in his own yard. Although he was compliant, he was put down and handcuffed and frisked. While it was theoretically possible he was a lookout, that alone was no reason to frisk him. State v. Williams, 2011 Ohio 2397, 194 Ohio App. 3d 431, 956 N.E.2d 887 (8th Dist. 2011), Discretionary appeal not allowed by State v. Williams, 2011 Ohio 5358, 129 Ohio St. 3d 1506, 955 N.E.2d 388 (2011):

[*P17] There was no prior basis to suggest that Williams posed any threat to the officers or was involved in any criminal activity other than the fact he was in close proximity to the officers closing in on the target address. Detective O’Connor’s past experiences, that Williams could have been a lookout for the target address and that executing warrants on drug houses is inherently risky, are insufficient collectively standing on their own to establish an individualized, reasonable, articulable suspicion of criminal activity to support the initial detention. See Bobo, 37 Ohio St.3d at 179.

[*P18] We are cognizant that this case is as much about officer safety as it is about the Fourth Amendment. Police officers are exposed to dangerous situations when conducting searches of homes. Events often happen in a matter of seconds, and there is little time for reflection. The margin of error is often close, and errors carry deadly consequences. Nevertheless, police know they will likely encounter uninvolved citizens on adjacent properties when approaching targeted locations and should be prepared to deal with them. Asking citizens on an adjacent property to go indoors, or to stay indoors, or to leave the immediate vicinity of the search area are all less intrusive options. If the individual then exhibits any behavior that warrants additional police intrusion, it can be justified without violating the tenants of the Fourth Amendment. Officer safety must be a determination of what is both reasonable and acceptable to afford police the necessary protections to ensure both their personal safety and the safety of the public. Officer safety cannot justify what amounts to a custodial arrest where the bystander is handcuffed and mandated to lie on the ground in all instances.

Officers were denied qualified immunity on plaintiff’s claim that, during a drug raid, they dragged her from the shower nude, and placed her face down on the floor of the house for 30-45 minutes with inappropriate and crude comments about her nudity, including one touching her buttocks. Rettele involving two minutes of nudity during a raid is distinguished. She sued for Fourth Amendment unreasonableness, invasion of privacy, and tort of outrage. Hutchinson v. Lemmon, 436 Fed. Appx. 210 (4th Cir. 2011):

Here, the unlawfulness of the individual officers’ conduct was obvious, even before the Supreme Court’s decision in Rettele. Accepting Ms. Hutchinson’s version of the events, she was kept naked for a period substantially longer than necessary to secure the home and protect the officers’ safety. There was no valid justification for the prolonged detention of Ms. Hutchinson while naked, especially given the police testimony that a home of that size ordinarily could be secured within four or five minutes. In engaging in this manifestly unlawful behavior, the individual officers could not have “reasonably misapprehend[ed] the law,” cf. Brosseau, 543 U.S. at 198, nor can it be said that they made a “bad guess[] in [a] gray area[],” cf. Iko, 535 F.3d at 238.

Our conclusion is supported further by two cases, each of which was decided before the individual officers’ prolonged detention of Ms. Hutchinson. These cases would have put a reasonable officer on notice that the individual officers’ alleged treatment of Ms. Hutchinson violated a clearly-established constitutional right.

[Even cops that are jerks can get qualified immunity. At least not here.]

“It appears from the transcript of the hearing on Huey’s motion that [officer] Nicholson seemed to be at a completely different incident scene than [officer] Zinner,” and that justified the trial court disbelieving their testimony from leading questions from the DA that furtive movements justified the search. The stop was for a nonarrestable misdemeanor under Ohio law, and the search would not be justified without the convenient testimony that was rejected. State v. Huey, 2011 Ohio 5496, 2011 Ohio App. LEXIS 4501 (8th Dist. October 27, 2011).*

Left turn from center lane was not a violation of the law in this state, so the stop was without reasonable suspicion as a mistake of law. Gunn v. State, 956 N.E.2d 136 (Ind. App. 2011).*

Although there was no reasonable suspicion to believe that a probation violation had occurred, and consent to search defendant’s room was not given, his drug conviction was still upheld because defendant admitted to possession of paraphernalia that contained methamphetamine under oath at a probation revocation hearing. Nowling v. State, 955 N.E.2d 854 (Ind. App. 2011).*

Officers came to defendant’s house with a court order to seize guns. The trial court credited the consent to enter was given by one of his parents. State v. Feeney, 2011 Ohio 5474, 2011 Ohio App. LEXIS 4486 (9th Dist. October 26, 2011).*

Defendant’s incredible story during these forfeiture proceedings that he inherited the money from his mother which was not raised until well into the proceedings justified the court not believing his version that the search was without his consent in the first place. United States v. Funds in the Amount of $40,000, 2010 U.S. Dist. LEXIS 131582 (N.D. Ill. December 13, 2010).*

Officers applied for a search warrant for a drug house with ongoing sales. While waiting, they decided they could do a probation search and entered. Because there were ongoing drug sales on the property, they were justified in doing frisks of the people inside because of the number alone. This was not a one on one encounter on the street. State v. Crooks, 150 Idaho 117, 244 P.3d 261 (App. 2010).*

An officer passed a vehicle with a headlight out and he turned around and pulled it over. When stopped, there were three vehicles together that stopped with the officer in the middle. The officer walked back to another vehicle to tell them what he was doing, and he smelled marijuana in the vehicle. The person in that vehicle would not feel free to leave when the officer came back to talk to him, so that person’s encounter was unreasonable when the officer told him to stay put. State v. Ray, 2010 Ida. App. LEXIS 101 (December 10, 2010)* [Note: I think that the officer had a right to go back to the vehicle that stopped behind him for his own safety to make sure this was not an ambush coming. Here, telling that driver to stay was the seizure. He should have just told them to take off and leave him alone to do his job.]

Plaintiff filed a sparse complaint that his forced catheterization violated the Fourth Amendment. No case like this holds that forced catheterization for a urine sample is unreasonable or reasonable. Thus, under the Supreme Court’s mandate that constitutional issues not be decided unless necessary, the court holds that the officer has qualified immunity in the suit. Miller v. Idaho State Patrol, 150 Idaho 856, 252 P.3d 1274 (2011):*

Even though courts nationwide have not had many opportunities to address forced catheterizations, there are some areas where cases appear to be coalescing into universal rules. For instance, it is objectively well-established that a suspicionless catheterization, like any suspicionless bodily search, would be unconstitutional. Ellis v. City of San Diego, 176 F.3d 1183, 1192 (9th Cir. 1999); Ohio v. Funk, 896 N.E.2d 203, 207-08 (Ohio Ct. App. 2008); see also Hammer v. Gross, 932 F.2d 842, 844 (9th Cir. 1991) (stating that a warrantless blood draw requires probable cause). If the police have probable cause to search for something that is not likely to dissipate from the body, then a warrantless search for bodily fluids would be unconstitutional. See Barlow v. Ground, 943 F.2d 1132, 1138 (9th Cir. 1991) (discussing blood draws); Graves v. Beto, 424 F.2d 524, 525 (5th Cir. 1970) (similar). On the other hand, a forced catheterization performed on arrestees solely for medical screening or treatment, and not for investigatory reasons, is constitutional. Sullivan v. Bornemann, 384 F.3d 372, 377 (2004) (addressing catheterizations done by hospital personnel for medical clearance before accepting a suspect into county jail); Meyer v. Woodward, 617 F. Supp. 2d 554, 565 (E.D. Mich. 2008); Tinius v. Carroll Cnty. Sheriff Dep’t, 321 F. Supp. 2d 1064, 1075-76 (N.D. Iowa 2004) (upholding a catheterization performed by hospital personnel on a person detained under the police community-caretaking function); see also United States v. Attson, 900 F.2d 1427, 1433 (9th Cir. 1990) (stating that a blood draw performed by medical personnel for purely medical reasons was permissible).

The clarity ends, however, once the Court attempts to determine whether it is reasonable for police to catheterize someone to search for dissipating evidence of a crime without a warrant. This question is at its thorniest where, as here, the police presumably could just as easily have performed a relatively painless blood draw rather than use a catheter to extract urine.

Defendant was stopped and detained near a street “rumble” involving the Latin Kings, but there was nothing that justified the inference that he was a member of the Latin Kings or even involved in the brawl. “Tapping” defendant’s waist with an open palm was a frisk, and it violated the Fourth Amendment because it was the fruit of the unlawful stop under Wong Sun. United States v. Camacho, 661 F.3d 718 (1st Cir. 2011):

Under these facts, we need not address the legality of the frisk itself. We conclude that regardless of the legality of the frisk, the discovery of the gun was so tainted by the illegal stop that it should have been suppressed as “fruit of the poisonous tree.” See Werra, 638 F.3d at 341 (noting that the reasonableness of a protective frisk does not determine the suppression issue generated by an earlier Fourth Amendment violation).

Evidence obtained during a search may be tainted by the illegality of an earlier Fourth Amendment violation, so as to render such evidence inadmissable as “fruit of the poisonous tree.” See United States v. D’Andrea, 648 F.3d 1, 6 (2011) (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)) (internal quotation marks omitted); see also Werra, 638 F.3d at 341. “[T]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous tree.’” Segura v. United States, 468 U.S. 796, 804, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984) (citation omitted) (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 84 L. Ed. 307 (1939)). This rule equally extends to both the direct and the indirect products of unlawful searches and seizures. See Wong Sun, 371 U.S. at 484. “[T]he indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality.” New York v. Harris, 495 U.S. 14, 19, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990). Suppression is not appropriate, however, if “the connection between the illegal police conduct and the discovery and seizure of the evidence is ‘so attenuated as to dissipate the taint.’” Segura, 468 U.S. at 805 (quoting Nardone, 308 U.S. at 341).

Determining the consequences of unlawful police conduct for seized evidence requires looking at both causation and attenuation. The Supreme Court has declined to adopt a simple “but for” test that would mandate suppression of any evidence that “came to light through a chain of causation that began with an illegal arrest” or another Fourth Amendment violation. United States v. Leon, 468 U.S. 897, 910-11, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); see also Hudson v. Michigan, 547 U.S. 586, 592, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006) (“[B]ut-for causality is only a necessary, not a sufficient, condition for suppression.”). A strict but-for rule would prove nearly limitless. “Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’” Wong Sun, 371 U.S. at 488 (quoting J. Maguire, Evidence of Guilt 221 (1959). When determining attenuation, “temporal proximity [], the presence of intervening circumstances, and, particularly the purpose and flagrancy of the official misconduct are all relevant.” Brown, 422 U.S. at 603-604.