Defendant was ordered outside of a house to talk to the police, and that was a seizure under the totality of the circumstances. He dropped drugs and was arrested for that. His discarding the drugs was a product of the illegal detention. Jones v. State, 28 A.3d 1046 (Del. 2011):

Case law from other jurisdictions also is instructive. Given the “necessarily imprecise” standard for determining whether an individual has been seized,11 other courts have developed factors to consider when evaluating whether a police encounter amounts to a seizure. For example, in United States v. Mendenhall, the United States Supreme Court explained that four circumstances might indicate a seizure: (1) “the threatening presence of several officers,” (2) “the display of a weapon by an officer,” (3) “some physical touching of the person of the citizen,” or (4) “the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”12

11 See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988).
12 United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (citing Terry, 392 U.S. at 19 n.16).

In United States v. Scheets, the Seventh Circuit considered the following six factors in its totality-of-the-circumstances analysis: (1) “whether the encounter occurred in a public or private place,” (2) “whether the suspect was informed that he was not under arrest and free to leave,” (3) “whether the suspect consented or refused to talk to the investigating officers,” (4) “whether the investigating officers removed the suspect to another area,” (5) “whether there was physical touching, display of weapons, or other threatening conduct,” and (6) “whether the suspect eventually departed the area without hindrance.”13

13 United States v. Scheets, 188 F.3d 829, 836-37 (7th Cir. 1999) (citing United States v. McCarthur, 6 F.3d 1270, 1276 (7th Cir. 1993)). See also United States v. Withers, 972 F.2d 837, 842 (7th Cir. 1992) (“The factors we consider in determining whether, in the totality of the circumstances, a reasonable person would believe she were free to leave include: whether the encounter occurred in a public or private place; whether the suspect consented or refused to talk to the police; whether the police informed the suspect that she was not under arrest and was free to leave; whether the police removed the suspect to another area; whether the suspect felt capable of refusing to consent to the search; and whether the suspect eventually departs the area without hindrance.”); State v. McGinnis, 290 Kan. 547, 233 P.3d 246, 252 (Kan. 2010) (considering a similar set of factors).

We adopt the Scheets factors here to channel the unavoidable discretion that is part and parcel of our totality of the circumstances inquiry. …

WaPo Op-Ed: Supreme Court’s GPS case asks: How much privacy do we expect? by Jonathan Turley:

In December 1967, the Supreme Court issued what many consider to be one of its greatest and most eloquent decisions, in Katz v. United States. That case, which is celebrated as saving privacy in the United States, articulated the principle that “the Fourth Amendment protects people, not places.” The decision reversed a long erosion of privacy protection and required greater use of warrants by the government.

This past week, a different high court sat to hear a new privacy challenge in Jones v. United States. The issue this time is whether privacy protections are dying in the United States — and whether Katz may be to blame.

Defendant was arrested for taking a picture in the jail lobby which had a sign saying no cameras in the jail property. A search incident to that arrest produced two jail locker keys, and the lockers were searched finding methamphetamine in personal belongings. The searches of the lockers were valid as a jail administrative entry-type search, and there is no reasonable expectation of privacy in the jail’s visitation room lockers. People v. Boulter, 199 Cal. App. 4th 761, 131 Cal. Rptr. 3d 185 (2d Dist. 2011):

Because of the nature of a jail or prison, a visitor to those institutions should have a reduced expectancy of privacy. As noted by one court, “the searches with which we are here concerned are not taking place in airports or on public streets, but on the premises of a maximum security prison. As the United States Supreme Court has recognized, ‘central to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.’ [Citation.]” (Estes v. Rowland, supra, 14 Cal.App.4th at p. 537.) “Because of the character of prisoners and the nature of imprisonment, corrections facilities are volatile places, brimming with peril, places where security is not just an operational nicety but a matter of life or death importance. [Citation.] That is why the Supreme Court has decided that even when a prison restriction or practice ‘infringes a specific constitutional guarantee, … the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security.’ [Citation.] [¶] … ‘That which would be unreasonable in the outside world may be indispensable within a prison.’ [Citation.] … ‘Prison authorities have both the right and the duty by all reasonable means to see to it that visitors are not smuggling weapons or other objects which could be used in an effort to escape or to harm other prisoners.’ [Citation.]” (United States v. Prevo (11th Cir. 2006) 435 F.3d 1343, 1346.) As a result of the obvious need for a jail to maintain security defendant was presumed to know that upon entering jail property he and his belongings were subject to search, and therefore he implicitly consented to the search or had a reduced expectation of privacy.

Defendant did not have a reasonable expectation of privacy with respect to possessions he placed in a locker on the jail property. Although law enforcement employees and jail employees are differently situated than jail visitors, cases holding that searches of the employees’ lockers were proper suggest that others who store goods in lockers on jail property should have no expectation of privacy with respect to those lockers.

Defendant’s stop for a traffic violation was valid, but defendant did not show that his stop was based on his race. Even so, the court would not find that exclusion is the remedy for an equal protection violation because no court has yet so found. United States v. Harmon, 785 F. Supp. 2d 1146 (D. N.M. May 6, 2011):

Even if Harmon’s race motivated Lucero’s decision to stop Harmon, the Court is not aware of a court that has applied the exclusionary rule for a violation of the Equal Protection Clause. As the Sixth Circuit stated in United States v. Nichols, 512 F.3d 789, 794 (6th Cir. 2008), overruled on other grounds by United States v. Buford, 632 F.3d 264 (6th Cir. 2011):

Since we know from Whren that the evidence against Nichols would not be suppressed under the Fourth Amendment (even if the officers were improperly motivated by race), we are reluctant to graft that Amendment’s traditional remedy into the equal protection context. Indeed, we are aware of no court that has ever applied the exclusionary rule for a violation of the Fourteenth Amendment’s Equal Protection Clause and we decline Nichols’s invitation to do so here. Rather, we believe the proper remedy for any alleged violation is a 42 U.S.C. § 1983 action against the offending officers.

512 F.3d at 794. See United States v. Torrellas, 197 F. App’x 318, 319 (5th Cir. 2006) (“Torrellas’s claim that the alleged racial profiling violated the Equal Protection Clause … fails. Although whether suppression is an appropriate remedy for an Equal Protection Clause violation is an open question … we need not answer that question …, because Torrellas has [not] provide[d] evidence of any discriminatory motives by the officers.”); United States v. Chavez, 281 F.3d 479, 486 (5th Cir. 2002) (“Neither the Supreme Court nor our Court has ruled that there is a suppression remedy for violations of the Fourteenth Amendment’s Equal Protection Clause, ….”); United States v. Cousin, No. 1:09-CR-89, 2010 WL 338087, at *5 (E.D. Tenn. Jan. 19, 2010) (“[N]o court has suppressed evidence for a violation of the Fourteenth Amendment’s Equal Protection Clause. … The Sixth Circuit [has] clearly determined civil actions under 42 U.S.C. § 1983 are the appropriate remedy for violations of the Equal Protection Clause and the exclusionary rule does not apply.”); United States v. Foster, No. 2:07-cr-254-WKW, 2008 WL 1927392, at *5 n.10 (Apr. 28, 2008) (“While a handful of “other jurists and commentators have proposed such a rule, there does not appear to be any case in which a court has ever actually applied suppression as a remedy, at least in the absence of a concomitant Fourth Amendment violation.” (internal quotation marks and citations omitted)). Even if there was evidence that Lucero purposefully discriminated against Harmon in stopping him, the Court does not believe that suppression would be an appropriate remedy; instead, the appropriate remedy for an alleged violation is a 42 U.S.C. § 1983 action.

The fact the state search warrant for child pornography did not state that the search was a nighttime search was not sufficient to suppress. Defendant’s house was secured while the warrant was being sought at 10:15 pm. Defendant was not rousted out of bed; he was expecting the warrant. The judge issuing the warrant obviously knew it was at night. United States v. Busse, 2011 U.S. Dist. LEXIS 62341 (D. Minn. May 24, 2011).*

Defendant’s motel business was subjected to a records search relating to fraud against FEMA for housing displaced persons from Hurricane Katrina. The search warrant was not overbroad, and seizure of draft tax returns was not unreasonable. That led to an indictment for failure to pay income taxes. United States v. Patel, 429 Fed. Appx. 885 (11th Cir. 2011).*

Defendant was a passenger on a bus that made a stop in Omaha, and the police got on the bus looking for suspicious travelers who bought their tickets within one day of departure. He was not confined and consented to a search of his jacket by handing it over when requested. United States v. Correa, 2011 U.S. App. LEXIS 11970 (8th Cir. June 13, 2011).*

Defendant’s landlord gave notice of a quarterly inspection of the premises. Inside, a box on the stairway to the basement was accidently kicked and it fell down the stairs. Inside was apparent marijuana and a packaged brick of a white substance. The police were called. While landlords cannot consent to a search, the police inspection of the box did not exceed the private search, and a warrant was obtained for the brick. Motion to suppress denied. United States v. Johnson, 2011 U.S. Dist. LEXIS 68942 (W.D. Mo. May 10, 2011).*

While the affidavit for the search warrant did not discuss the informant’s reliability, it did show that the officers corroborated the informant’s information by observation, and that was sufficient to show probable cause. United States v. Adkins, 429 Fed. Appx. 471 (6th Cir. 2011).*

Defendant’s traffic offense justified his stop, and the police were watching based on a CI’s tip. When defendant was arrested, the search incident of his cell phone was justified. [The court also justified the seizure of the cell phone as a part of inventory, but it does not explain searching the cell phone under inventory.] United States v. Arciga-Saucedo, 2011 U.S. Dist. LEXIS 68857 (N.D. Ga. May 12, 2011).*

A couple who were two professional poker players were searched in San Juan finding their “traveling bank” and winnings and records of travel and winnings for tax purposes. They were completely up-front about what they were doing. When they got to Atlanta to change planes flying to Las Vegas, where they obviously spent a lot of time, their $97,000 was seized by the DEA on an ostensibly false affidavit that they were involved in drugs even though there was no factual basis for such a claim whatsoever. Seven months after the money was seized it was finally returned after they refused to sign a release of liability for the government agents involved in the seizure. The DEA officer in ATL could be sued in Las Vegas, considering that most of his career there has been interdicting people he knows were passing through. This case was purely a jurisdiction issue since there clearly was a question for the jury on the officer’s false statement in the affidavit for seizure of the cash. Fiore v. Walden, 657 F.3d 838 (9th Cir. 2011)*:

Walden seized all of the large amount of money Fiore and Gipson were carrying with them as they travelled from San Juan to Las Vegas via Atlanta. Although Fiore and Gipson sent Walden, from Nevada, documentation establishing the legitimate sources of their funds, he persisted in seeking forfeiture of their money. Walden’s intentional acts with regard to the false probable cause affidavit and the consequent delay in returning their money were expressly aimed at Nevada and so satisfy the requirements for personal jurisdiction. As to the search and seizure claim, we are remanding it to the district court for the exercise of discretion with regard to pendent personal jurisdiction. We also hold that venue is proper in the District of Nevada.

[I had a case like this once in pre-TSA times where the DEA officer lied in a search warrant affidavit for the traveler’s briefcase that it was drug money pointing out that he was sweating unusually (omitting that he weighed 350 lbs, it was 98º outside that day, and he told the officer he had congestive heart disease and literally carried a towel because he always sweat in the summer) and that he paid cash for his plane ticket (back then, the credit card was imprinted on the ticket and this was) to show probable cause. The guy showed the officer a withdrawal ticket showing that he took $160,000 out of a bank two hours before he was stopped. The client was a professional bookie from Las Vegas with a bank account here. We got the money back the next day after I sued in federal court. When the judge started asking questions at the hearing, the government offered it back, starting at 50-50. The client laughed in the AUSA’s face. That was twenty years ago. The point being: What lengths will DEA agents go to seize cash? Apparently some are willing to lie under oath.]

A premises warrant permits a search of the mailbox. State v. Martinez, 2011 Fla. App. LEXIS 13757 (Fla. 3d DCA August 31, 2011).

The license number of defendant’s car was randomly checked, and it came back with a financial responsibility suspension that required that the car be impounded. The inventory of the car finding cocaine was valid. State v. Kemp, 2011 Ohio 4235, 2011 Ohio App. LEXIS 3574 (8th Dist. August 25, 2011).*

Defendant’s second post-conviction motion three years after the first was denied added a different Fourth Amendment claim, which is found to be procedurally defaulted and time barred. Bunting v. State, 27 A.3d 550 (Del. 2011).*

Officers had reasonable suspicion from defendant being in a high crime area and not complying with officers’ directions and another man fled. United States v. Smullen, 2011 U.S. Dist. LEXIS 130143 (D. Del. November 9, 2011)*:

Considering this authority against the totality of the circumstances of record, the court finds that Smith’s stop of defendant was supported by reasonable suspicion. In so doing, the court credits Smith’s testimony and concludes it was reasonable to infer that defendant was engaged in criminal activity and posed a danger to officer safety based on: (1) defendant’s evasive actions after learning that O[peration] S[afe] S[treets] officers requested entry to the residence; (2) defendant’s noncompliance with OSS’ request; (3) defendant’s immediate exit from the back of the residence via the fire escape staircase instead of the front door; (4) defendant’s stuttering and shaking when confronted on the fire escape staircase by Smith; (5) Smith was alone in the dimly lit backyard in an area fraught with crime; (6) Smith did not recognize defendant; and (7) defendant (an unidentified male to Smith) was fleeing the residence and descending steps leading to Smith.

The testimony supports the USMJ’s conclusion that the officer was credible on defendant consenting. United States v. Starling, 2011 U.S. Dist. LEXIS 130121 (N.D. W.Va. November 9, 2011), R&R 2011 U.S. Dist. LEXIS 130119 (N.D. W.Va. October 14, 2011).*

The state failed to show consent for entry where the officer pointed a Taser in her face and pushed his way in. Turrubiate v. State, 2011 Tex. App. LEXIS 8895 (Tex. App. — San Antonio November 9, 2011) (dissent)*:

In this case, the record as it existed at the time of the suppression hearing is particularly scant. In fact, the record before this court indicates that all the trial court had before it at the time of the hearing was appellant’s motion to suppress, appellant’s testimony, and the arresting officer’s police report. Appellant testified that on February 11, 2010, Christopher Lopez, an investigator for Child Protective Services, knocked on appellant’s front door while Deputy Santos Chavarria, a sheriff’s officer with the Bexar County Sheriff’s Office, “hid[] from out of sight … of the peephole.” Appellant testified that when he “barely cracked open the door[],” Deputy Chavarria “pushed his way in with his hand, pointing his taser gun in my face, saying to turn around and put my hands behind my back. … And he put me in handcuffs and sat me down.” At that point, appellant testified he gave Deputy Chavarria consent to search in a blue backpack nearby. Deputy Chavarria found a bag of marijuana inside the backpack and placed appellant under arrest.

The State, which had the burden of proving a lawful entry and search, did not call Deputy Chavarria to testify during the hearing, but rather produced only his report, which contained the following handwritten statement: ….

A car was stop after a suspected hand-to-hand buy, and they gave up defendant. That was probable cause for a warrant. Even if their stop was unconstitutional, defendant cannot claim an injury from that. State v. Dingess, 2011 Ohio 5659, 2011 Ohio App. LEXIS 4648 (10th Dist. November 3, 2011).*

I’ve updated the link to Searching & Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations on the DOJ website.

This “new” publication has been out for two years, but I haven’t been to it for a while. The prior edition was from 2002, and it was quite helpful. The case law really exploded between 2002 and 2009, so the update should be quite useful. This is an excellent resource for both sides of the table.

Politico.com: Claire McCaskill: TSA pat-downs ‘get ugly’:

Now that she’s sold her private jet, Sen. Claire McCaskill is airing her grievances about flying commercial.

The Missouri Democrat told Transportation Security Administration chief John Pistole on Wednesday that she is an “expert” on commercial air travel, and that with her artificial knee, she tries her hardest to avoid what she calls “unbelievably invasive” pat-downs in favor of the Advanced Imaging Technology scanning machines.

McCaskill keeps an eye out for one TSA agent in particular. “When I see her, I tense up. Because I know it’s going to get ugly,” the senator said at a Commerce Committee hearing, noting she often arrives at checkpoints to see the machines unstaffed. Rather than wait, she submits to pat-downs, of which she’s not a fan.

ABAJ.com: Prosecutor Served Search Warrant on Defense Lawyer During Trial to Get His Documents by Martha Neil:

In a San Antonio courtroom packed with lawyers attending as spectators, a Texas prosecutor testified today that she had a search warrant served on opposing counsel and his client during a trial in an embezzlement case early this year. The reason why was because she feared he was withholding stolen documents from the government.

Defense lawyer Tony Reyes was representing Kathleen Kavooras Pierce, a hair salon worker who was accused of embezzling from her former employers. Pierce was convicted and is now, represented by another attorney, seeking a new trial due to the mid-trial execution of the search warrant, reports the San Antonio Express-News.

I testified in that case two weeks ago as an expert on legal ethics and the law of search and seizure that everybody screwed this up: the trial judge, the defense lawyer, and the District Attorney. The warrant could have waited because they knew defense counsel had been coming and going with the records, they could have executed it at the end of the day, if not the end of the trial, the trial judge should have monitored this better, defense counsel finished the trial without even objecting.

Philly.com: Video of pot bust spotlights lapses by police by Nathan Gorenstein:

It looked like an open-and-shut case. A cop pulls over a car, walks up to the driver’s door, and sees a plastic baggy of marijuana. He brings in a drug-sniffing dog to prove probable cause for a search, gets a warrant, and finds a kilo of weed in the trunk.

That’s what Officer Steven Lupo put in his report and testified to in Philadelphia Municipal Court.

Then defense attorney Michael Diamondstein produced the video.

Turned out reality was different.

The video taken from nearby surveillance cameras contradicted key facts in Lupo’s report and sworn testimony. Most crucially, Lupo and an unidentified supervisor are seen rummaging through the trunk hours before a warrant was issued. On the witness stand just moments before the video was played, Lupo emphatically denied that had occurred.

4th Amendment vs Virtual Force by Feds, Trojan Horse Warrants for Remote Searches? by Ms. Smith

If you missed part one, Fourth Amendment’s Future if Gov’t Uses Virtual Force and Trojan Horse Warrants, then please go catch up with the rest of us. This time we’ll look at Remote Access Trojans (RAT) which are nothing new, yet assume that this government-injected malware/spyware was not detected by antivirus. Also in this case, we are not assuming the target is a SE (social engineering) victim who opens an email or clicks on a link that installs the backdoor into their digital life. This isn’t about if I agree or if I think that sort of privacy invasion is right (if you are wondering, then you’ve never read this blog huh?); this is about an interesting paper that discussed if the government/law enforcement can legally get around your Fourth Amendment rights and secretly install software for remote searches.

Volokh Conspiracy: Reflections on the Oral Argument in United States v. Jones, the GPS Fourth Amendment Case by Orin Kerr:

I was at the Supreme Court this morning for the oral argument in United States v. Jones, the GPS case. In this post, I want to blog my reactions to the argument: I’m going to update the post as I go, so general readers can get the important stuff first at the top and then general readers can get the rest down the page.

1) My basic reaction was that the outcome was too close to call. The Justices gave both sides a very hard time, and few Justices tipped their hand. …

Most commentators say the argument favored the citizen not the government. Go with this one because he’s been there before.

I woke up this morning with the ominous feeling: today is oral argument in the Jones case. If this case comes out for the government, it could be the technological death of the Fourth Amendment. If the government can track our cars by GPS and no warrant, then the next step logically would be to track any of us through our cell phones, with the limited exception maybe of inside the house.

Justice Scalia always looks to what the founding fathers would think, and I can’t help but think that they are rolling over in their graves at the possibility that the government can track us in real time as easily as planting device that transmits our whereabouts to a satellite then to a computer through the Internet.

Scalia “hop[es] the living Constitution will die,” and, with technology destroying so much of our privacy, that scares the hell out of me. I have no confidence in this Court where corporations > government > individuals.

WSJ: Conservatives, Liberals Share Kumbaya Moment in GPS Case by Jess Bravin:

Today the case of whether the government can put a GPS tracker on someone’s car without a warrant comes before the Supreme Court. (Click here for our preview of the case.) One interesting aspect of the case is the way it scrambles the usual ideological lines, and lawyers battling the government have a two-track argument designed to appeal to different sides of the bench.

The lawyers for accused drug trafficker Antoine Jones, who had a GPS device put on his Jeep, say that the device violates Jones’s Fourth Amendment right against unreasonable searches and that his property rights were violated.

Consent to search does not necessarily include consent to seize. United States v. Chappell, 2011 U.S. Dist. LEXIS 128113 (N.D. Ga. May 24, 2011):

Upon consideration, the undersigned finds [United States v. Tatman, 615 F.Supp.2d 644, 690 (S.D.Ohio. 2008)] persuasive and holds that the waiver of privacy rights under the Fourth Amendment through a consent to search does not act as a separate waiver of possessory rights under the Fourth Amendment. Therefore, a mere consent to search, without more, does not amount to a consent to seize. Horton, 496 U.S. at 133.

. . .

The government contends that the consent authorized the agents to seize all of the items because they were “of potential evidentiary value as to the charges against the Defendant, i.e., the sex trafficking of a child.” [Doc. 36, at 8]. However, to preserve the distinction between possessory and privacy rights, the consent to seize inferred from a consent to search must be no more than what is “inherently necessary to effect that search.” Andracek, 2007 WL 1575355 at *6 (emphasis added) (consent to seize a computer inferred from consent to search the computer does not extend to the removal of the computer from the Defendant’s premises, finding that the off-premises search was not necessary to the search of the hard drive). Applying the Andracek limitation to the Strickland inquiry, the undersigned concludes that the scope of a consent to seize which reasonably may be inferred from a general consent to search is the minimum level of seizure which an objective person would have believed to be necessary to effectuate such a search. Andracek, 2007 WL 1575355 at *6; see Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801 (1991) (scope of consent determined by “objective reasonableness” under the circumstances). Otherwise, to hold that a consent to search would authorize the seizure of property beyond what is reasonably necessary to effectuate the search would obliterate the distinction between the privacy and possessory interests protected under the Fourth Amendment.

An unlawful stop makes unconstitutional an arrest on a warrant found during the stop. If the law were otherwise, police would have motive to unconstitutionally stop people just to run warrants on them. State v. Gardner, 2011 Ohio 5692, 2011 Ohio App. LEXIS 4668 (2d Dist. November 4, 2011):

[*P27] “To hold otherwise would result in a rule that creates a new form of police investigation, whereby an officer patrolling a high crime area may, without consequence, illegally stop a group of residents where he has a ‘police hunch’ that the residents may: 1) have outstanding warrants; or 2) be engaged in some activity that does not rise to a level of reasonable suspicion. Despite a lack of reasonable suspicion, a well-established constitutional requirement, the officer may then seize those individuals, ask for their identifying information (which the individuals will feel coerced into giving as they will have been seized and will not feel free to leave or end the encounter), run their names through a warrant database, and then proceed to arrest and search those individuals for whom a warrant appears. Under this scenario, an officer need no longer have reasonable suspicion on probable cause, the very crux of our Fourth Amendment jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); [United States v.] Williams [2010], 615 F.3d [657] at 670, n. 6 (‘[Allowing information obtained from a suspect about an outstanding warrant to purge the taint of an unconstitutional search or seizure would have deleterious effects. It would encourage officers to seize individuals without reasonable suspicion-not merely engage them in consensual encounters-and ask them about outstanding warrants.’); see, also, Kimberly, Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability, 118 Yale L.J. 177 (2008) (commenting that a rule where the discovery of an outstanding warrant constitutes an intervening circumstance has the perverse effect of encouraging law enforcement officials to engage in illegal stops where they have an inarticulable hunch regarding a person on the street or in a car).” Gross, [United States v. Gross, 624 F.3d 309 (6th Cir. 2010)] supra, at 321-22.

. . .

[*P37] Whether viewed as lack of proximate cause or as attenuation, there is a point, albeit perhaps ultimately subjective, at which the discovery of a warrant, and a search incident to arrest under the warrant, is so removed, unrelated, unforseen, and independent from the unlawful stop and seizure that the exclusionary rule is not applicable. In the case before us, the warrant was discovered as a direct, proximate and non-attenuated result of Gardner’s seizure.

[*P38] In summary, Gardner had a reasonable expectation of privacy at the time of the stop despite there being a warrant for his arrest. Once the warrant was discovered, the law enforcement officers had the right to infringe upon that expectation, arrest him, and conduct a search incident to that arrest. However, if the warrant was discovered as a result of an unlawful stop or seizure (unless its discovery was unconnected to and attenuated from the illegality), then any evidence seized in the search incident to the arrest must be suppressed.

[*P39] We cannot tell from the record exactly when and how the officers discovered Gardner’s name or that there was a warrant; whether the court found facts justifying — or not justifying — a Terry patdown; or whether, if such a patdown were justified, whether the seizure of the drugs was within the plain feel exception. We will reverse the judgment and remand the case to the trial court for further proceedings consistent with this opinion.