Failure to inquire into defendant’s medical history before a BAC blood draw did not make the blood draw unreasonable under Schmerber. State v. Johnston, 336 S.W.3d 649 (Tex. Crim. App. 2011), revg State v. Johnston, 305 S.W.3d 746 (Tex. App.—Fort Worth 2009):

Implicit within Schmerber is that each suspect bears the burden of showing that a venipuncture blood draw is not a reasonable means to obtain a blood alcohol level assessment as to him or her, individually. And in the absence of any record evidence showing that a venipuncture blood draw would not be reasonable in a particular case due to a verifiable medical condition, we will presume that the choice to administer such a test is reasonable. A DWI suspect, naturally familiar with his or her own medical history, is in the best position to identify and disclose any peculiar medical condition that could result in risk, trauma, or more than de minimus pain if a blood draw were to be performed.

Defendant’s guilty plea colloquy that he was satisfied with counsel’s efforts did not mention that defense counsel failed to pursue that his confession was the product of an illegal arrest, and his post conviction petition is denied. Wright v. State, 57 So. 3d 683 (Miss. App. 2011).*

Idaho’s probation condition that a probationer submit to a search “at the request of” a probation officer means that the probation officer must tell the probationer that the search is going to occur. A search in the probationer’s absence was thus void. State v. Turek, 250 P.3d 796 (Ida. App. 2011):

Finding the reasoning of these authorities persuasive, we conclude that a probation condition that requires a probationer to submit to a search “at the request of” an officer requires that the probationer be informed of an officer’s intent to conduct an impending search. Like the Joubert Court, we recognize that the purposes of probation may be better advanced if we were to allow probation officers to conduct unrestricted, unannounced searches of a probationer’s residence. However, we must keep in mind that probationers’ expectation of privacy is merely diminished, not obliterated. In addition, to adopt the state’s interpretation of the term would be to essentially ignore the plain language of the probation condition–a proposition for which the state has cited no authority and which does not constitute an “objectively reasonable,” nor logical, interpretation.

The officer obtained a telephonic search warrant for defendant’s blood, but the magistrate failed to properly record it. Suppression will not be ordered for the mistake of the magistrate; the officer did his part correctly. State v. Dominguez, 2011 UT 11, 677 Utah Adv. Rep. 29, 248 P.3d 473 (2011), rev’g State v. Dominguez, 2009 UT App 73, 206 P.3d 640 (2009).

While the suppression hearing testimony about NHTSA testing standards was insufficient, it was harmless because there was plenty of testimony that the defendant was under the influence when he was stopped after three lane violations and apparently being under the influence. State v. Frase, 2011 Ohio 966, 2011 Ohio App. LEXIS 821 (6th Dist. March 4, 2011).*

In a strong reaffirmation of the exclusionary rule as necessary to enforce the Fourth Amendment, the NJ Supreme Court held that a dispatcher’s unreasonable error about the defendant’s similarly spelled name and wrong DOB made the arrest unreasonable and exclusion was required under the Fourth Amendment and the N.J. Constitution. Herring is inapplicable. State v. Handy, 206 N.J. 39, 18 A.3d 179 (2011), affg 412 N.J. Super. 492, 991 A.2d 281 (2010):

There was nothing reasonable about that conduct in light of what the dispatcher actually knew. Indeed, there were two reasonable paths for her: one was to tell Officer Drogo about the information on the warrant she had before her so that he could probe the issue further with Handy, the other was to say that there was no warrant matching the information she had been given. She chose neither course, deciding instead to tell Officer Drogo that there was an outstanding warrant against the errant Millville bicyclist who had been stopped for riding on the sidewalk, thus precipitating the arrest that could not otherwise have occurred in the face of an ordinance violation, and the cascade of events that followed.

When the actions of the dispatcher, given the facts she knew at the time, are tested against the “touchstone of reasonableness,” Ramirez, supra, 523 U.S. at 71, 118 S. Ct. at 996, 140 L. Ed. 2d at 198, her conduct fell short. Although she had before her every reason to doubt the existence of a warrant for this defendant, she reported the opposite and did not make Officer Drogo aware of the real facts in the matter. Like the courts below, we have no difficulty in concluding that that conduct was constitutionally infirm.

B.

Alternatively, the State contends that even if the dispatcher’s conduct is deemed unreasonable, suppression is unwarranted. In particular the State, citing Herring v. United States, 555 U.S. 135, ___, 129 S. Ct. 695, 702, 172 L. Ed. 2d 496, 507 (2009), argues that the conduct was not deliberate, reckless, grossly negligent, or evidential of systemic carelessness and, under those circumstances, the deterrence rationale of the exclusionary rule would not be advanced by suppression.

. . .

The State properly concedes that this is not an Arizona v. Evans case in that the dispatcher was not attenuated from the arrest, but was an integral link in the law enforcement chain. …

It is axiomatic that our interpretation of our own constitution will not always conform with the view of the federal courts. Indeed, although we look to federal interpretation of the United States Constitution as a guide, we do not view it as requiring lockstep. Thus, we often interpret our own constitution in such a way as to provide greater protections for our citizens than would its federal counterpart. …

We make that point in light of the robust criticism that Herring has drawn. Indeed, many scholars and treatise writers fault Herring for unjustifiably watering down Fourth Amendment protections and, in particular, for failing to consider the non-deterrent rationales underlying the exclusionary rule. See, e.g., Albert W. Alschuler, Herring v. United States: A Minnow or a Shark?, 7 Ohio St. J. Crim. L. 463, 463 (2009); Thomas K. Clancy, The Irrelevancy of the Fourth Amendment in the Roberts Court, 85 Chi.-Kent L. Rev. 191, 191-92 (2010); George M. Dery, III, Good Enough for Government Work: The Court’s Dangerous Decision, In Herring v. United States, to Limit the Exclusionary Rule to Only the Most Culpable Police Behavior, 20 Geo. Mason U. C.R. L.J. 1, 27-28 (2009); Wayne R. LaFave, The Smell of Herring: A Critique of the Supreme Court’s Latest Assault on the Exclusionary Rule, 99 J. Crim. L. & Criminology 757, 758, 765-66 (2009); see also Wayne R. LaFave, Search and Seizure, § 1.6 at 40-41 (rev. 4th ed. Supp. 2010-11).

. . .

We need not assess whether Herring can be reconciled with our own constitutional standards for, like the Appellate Division, we conclude that this case would not be governed by Herring, in any event. …

A protective sweep on conjecture there was a gun inside when the defendant was arrested outside was invalid under Buie. State v. Fisher, 250 P.3d 1192 (Ariz. 2011):

¶15 Similarly, the officers in this case could not articulate specific facts indicating that another person was inside Fisher’s apartment. The record does not reflect any attempt by the officers to find out how many people lived with Taz. Three people, including Fisher, exited the apartment. Fisher identified himself and matched the victim’s detailed description of the assailant. Although there was still an unaccounted-for weapon, as in Gandia [United States v. Gandia, 424 F.3d 255, 264 (2d Cir. 2005)], nothing indicated that anyone else was inside the apartment. Officers cannot conduct protective sweeps based on mere speculation or the general risk inherent in all police work. Because the officers here did not articulate specific facts to establish a reasonable belief that someone might be in the apartment, the protective sweep was invalid.

¶16 We are mindful that:

[P]olice officers have an incredibly difficult and dangerous task and are placed in life threatening situations on a regular basis. It would perhaps reduce the danger inherent in the job if we allowed the police to do whatever they felt necessary, whenever they needed to do it, in whatever manner required, in every situation in which they must act. However, there is a Fourth Amendment to the Constitution which necessarily forecloses this possibility.

United States v. Colbert, 76 F.3d 773, 778 (6th Cir. 1996). We likewise are aware of the high price of suppressing evidence. See State v. Bolt, 142 Ariz. 260, 266-67, 689 P.2d 519, 525-26 (1984); cf. Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 700-01 (2009) (“The principal cost of applying the [exclusionary] rule is, of course, letting guilty and possibly dangerous defendants go free – something that ‘offends basic concepts of the criminal justice system.’” (quoting United States v. Leon, 468 U.S. 897, 908 (1984))). But the right to privacy in one’s home is “‘basic to a free society.’” Mapp v. Ohio, 367 U.S. 643, 656 (1961) (quoting Wolf v. Colorado, 338 U.S. 25, 27 (1949)). Thus, specific facts, and not mere conjecture, are required to justify a protective sweep of a residence based on concerns for officer safety.

Police had probable cause for a search warrant for defendant’s computer and cell phone for child pornography. Defendant’s girlfriend got a call from defendant’s ex and the mother of his child that he’d emailed her explicit pictures of her 14 year old sister. The girlfriend accessed defendant’s email account and saw that he emailed himself pictures from his cell phone. She told police, and this was PC for a search warrant. United States v. Blauvelt, 638 F.3d 281 (4th Cir. 2011).*

Consent as a whole was found to be valid. Defendant was handcuffed without display of weapons, and he reinforced his oral consent with written consent. Gonzalez v. State, 59 So. 3d 182 (Fla. 4th DCA 2011).*

Defendant invoked his right to remain silent, but, down at the PD, he “sua sponte” started talking and consented to a search of his vehicle. State v. Ashby, 2011 Mo. App. LEXIS 291 (March 8, 2011).*

The officer’s observations of objective conduct at the time of the stop justify the stop. The defendant’s post hoc justifications for crossing the fog line twice do not show there was no reason for the stop. State v. Flynn, 2011 MT 48, 359 Mont. 376, 251 P.3d 143 (2011):

[*P11] A defendant’s subsequent, valid explanation for conduct that objectively appeared suspicious may affect his or her ultimate liability for a charged offense, but it cannot affect the validity of a stop properly based on particularized suspicion. Lincolnshire v. Dispirito, 552 N.E.2d 1238, 1241 (Ill. App. Ct. 2d Dist. 1990); State v. Kinkead, 570 N.W.2d 97, 101 (Iowa 1997). The particularized suspicion inquiry is a fact based assessment of the objective quantity, content and reliability of information “available to the officer.” State v. Clawson, 2009 MT 228, ¶ 11, 351 Mont. 354, 212 P.3d 1056 (emphasis added). An officer in the field need not consider every possible innocent explanation or legal exception before concluding that particularized suspicion exists. State v. Clark, 2009 MT 327, ¶ 13, 353 Mont. 1, 218 P.3d 483.

[*P12] When this Court first adopted the particularized suspicion standard for vehicular stops, it properly recognized that the inquiry turned on what the officer knew, observed, inferred and ultimately suspected. State v. Gopher, 193 Mont. 189, 193-94, 631 P.2d 293, 296 (1981). …

“[F]light from police officers is the most important factor in the totality of circumstances analysis.” State v. Morgan, 59 So. 3d 403 (La. 2011):

However, in several cases, we have expressly held or at least implied that the defendant’s flight from police officers is the most important factor in the totality of the circumstances analysis. In State v. Lewis, we specifically held that, “the totality of the circumstances known to the officer at the time, including the residents’ complaints of drug activity, the ‘hot spot’ nature of the area, respondent’s nervousness, and, most importantly, his unprovoked headlong flight from the officer, gave rise to reasonable suspicion for an investigatory detention.” 00-3136 (La. 4/26/02); 815 So. 2d 818, 821 (emphasis added); cert. denied, 537 U.S. 922, 123 S.Ct. 312, 154 L.Ed.2d 211 (2002). Similarly, in State v. Belton, we held that the defendant’s flight from the approaching officers, in addition to the other facts known by the officers at the time, was sufficiently suspicious to justify an investigatory stop. 441 So. 2d at 1199. We used identical language in State v. Johnson, when we held that the defendant’s evasive behavior in quickening his pace to a “near run,” in the context of the other circumstances known to the officer, including the lateness of the hour, the high-crime character of the area, and the defendant repeatedly glancing over his shoulder, provided the minimal objective justification for an investigatory stop. 01-2081 (La. 4/26/02); 815 So. 2d 809, 811. We even found reasonable suspicion in State v. Benjamin, where the only factor in addition to the defendant’s flight was the fact that he clutched his waistband as if he were supporting a weapon or contraband. 97-3065 (La. 12/1/98); 722 So. 2d 988, 989.

Defendant was the passenger in a car lawfully stopped for a traffic offense. When his name was run, he came back as somebody who was likely armed and with a drug past. That justified his frisk. Commonwealth v. Smith, 281 Va. 582 (2011):

In the context of a traffic stop in which multiple individuals were present in the vehicle, the officer’s knowledge of the driver’s, or the occupants’, prior criminal history is highly relevant in determining whether the officer had reasonable suspicion to conduct a pat down for his or her safety, particularly when that prior criminal history included weapons and dangerous narcotics violations. In this case, after conducting a valid traffic stop, Officers Hedman and Moore were alerted via the … system that Smith was “probably armed and a narcotics seller/user.” We agree with the Court of Appeals that the knowledge of the officers who entered the criminal history into the PISTOL system is imputed to Officers Hedman and Moore for purposes of assessing whether they had reasonable suspicion to frisk Smith. Smith v. Commonwealth, 55 Va. App. 30, 42-43, 683 S.E.2d 316, 322-23 (2009); see also United States v. Hensley, 469 U.S. 221, 229-33, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985).

Officers conducted a knock-and-talk, and defendant opened the door, saw the police, and slammed the door. That was sufficient exigency of possible destruction of evidence to justify the police entry. State v. Phillips, 2009 WI App 179, 322 Wis. 2d 576, 778 N.W.2d 157 (2009):

P11 We need not delve into the appropriateness of the officers’ determination to conduct a knock and talk or whether a knock and talk creates an exigency because in this case, a knock and talk was never actually accomplished. Instead, we conclude that Phillips, not the police, created the exigency that resulted in the warrantless search when, after seeing the police outside the residence, Phillips retreated into the residence and shut the door after the police ordered him to stop. Those actions created the exigency in this matter–namely, the risk that evidence would be destroyed.

Comment: How convenient. What if he just did not want to talk to them? He was ordered to stop. What about the freedom to terminate an encounter that has no legal justification for a detention?

Officers had reasonable suspicion of defendant driving in a high-crime area and he stopped and a person walked up and stuck his hand inside the car. It appeared to be a hand-to-hand drug sale. State v. Mello, 200 N.C. App. 437, 684 S.E.2d 483 (2009).*

Officers approaching defendant to talk to him in a high-crime area did not stop him before he fled, per Hodari D. State v. Mewborn, 200 N.C. App. 731, 684 S.E.2d 535 (2009).*

Defendant agreed to a knock-and-talk entry after police said that they smell marijuana. The fact it was packaged tightly did not make the officers’ testimony inherently incredible. Circumstances also justified a protective sweep. State v. Stover, 200 N.C. App. 506, 685 S.E.2d 127 (2009).*

The officer had a search warrant which he executed but also obtained consent to search. The trial court considered only consent and the good faith exception. This was error because probable cause had to be determined before moving to the good faith exception. State v. Mendell, 2010 Ohio 6107, 191 Ohio App. 3d 325, 945 N.E.2d 1130 (2d Dist. 2010):

[*P17] In overruling the motion to suppress, the trial court addressed two issues that Mendell raised in connection with his motion: the timing of the warrant (whether it was executed before it was filed); and the voluntariness of Mendell’s written consent to search, and resolved both of them in the State’s favor. But the trial court did not address two other issues that Mendell and the State raised: whether the affidavit in support of the search warrant made out probable cause for the issuance of the warrant; and, if not, whether the police acted in good faith in executing the warrant, under United States v. Leon (1984), 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677. The issue of the good-faith exception is dependent not only upon the officers’ objective good faith, but also upon their subjective good faith, which, in turn, is dependent upon the trial court’s findings of fact. Although the trial court made findings of fact, it did not make findings of fact specific to these issues. Therefore, we reverse the judgment of the trial court, and remand this cause for findings on the probable-cause and good-faith issues. If the trial court shall find in favor of the State on either or both of these issues, it may re-enter a judgment of conviction based upon Mendell’s no-contest plea, and impose an appropriate sentence.

[Note: This holding is what I’ve been saying for years. PC first, GFE second, always, unlike a recent case from the Eighth Circuit posted here. Leon did not say that courts could avoid deciding probable cause, but it implied it. Unless the courts want to default their jobs and fail to perform the judicial function, they have to decide probable cause so the police will know what is probable cause and what isn’t.]

Defendant rented a car and then loaned it to co-conspirators. He had no reasonable expectation of privacy in the car when he loaned it. United States v. Guzman-Correa, 754 F. Supp. 2d 342 (D. P.R. 2011).*

Meth odor coming from car was probable cause for search of the car. United States v. Bowman, 2011 U.S. Dist. LEXIS 8043 (E.D. Tenn. January 27, 2011), adopting 2010 U.S. Dist. LEXIS 140613 (E.D. Tenn. November 22, 2010).*

Based on information from wiretaps, there was probable cause to believe that defendant’s car had cocaine in it. United States v. Solorio, 2011 U.S. Dist. LEXIS 7877 (M.D. Pa. January 27, 2011).*

Officers did a knock and talk in a child pornography investigation, and talked to defendant about the possibility that his credit card had been compromised and used to buy child porn on the internet. Defendant agreed to a search of three of his computer hard drives. The situation was not coercive. Defendant even offered to make the officers coffee while they were there. “While he may have been on prescription medications and may not be a morning person, there is no evidence that he was confused or unable to think clearly at the time he consented to the search. His own testimony about what transpired on that morning reflects that he was clear-headed when he voluntarily consented to the search of his computers.” United States v. Schmit, 2011 U.S. Dist. LEXIS 7742 (D. Ariz. January 25, 2011), adopting 2010 U.S. Dist. LEXIS 140531 (D. Ariz. November 19, 2010).*

Whether knock-and-announce is required at the time of the search can be determined by the officers at the scene based on the circumstances, and it does not require preapproval by the issuing magistrate. Lacey v. State, 2011 Ind. LEXIS 351 (May 10, 2011), rev’g Lacey v. State, 931 N.E.2d 378 (Ind. App. 2010):

The major thrust of the defendant’s argument is that the Search and Seizure Clause in Article 1, Section 11 should be interpreted to require law enforcement to obtain prior express authorization from the judicial officer issuing the warrant if the grounds for bypassing the knock and announce procedure are based solely upon facts known when the warrant is sought. The use of no-knock warrants has been previously approved. Id. at 47. But Indiana jurisprudence has not confronted whether police must obtain no-knock warrants when justified solely by information known at the time of warrant application.

Other jurisdictions have addressed the use of no-knock warrants. They are permitted in the federal courts.

The practice of allowing magistrates to issue no-knock warrants seems entirely reasonable when sufficient cause to do so can be demonstrated ahead of time. But … a magistrate’s decision not to authorize a no-knock entry should not be interpreted to remove the officers’ authority to exercise independent judgment concerning the wisdom of a no-knock entry at the time the warrant is being executed.

Richards v. Wisconsin, 520 U.S. 385, 396 n.7, 117 S. Ct. 1416, 1422 n.7, 137 L. Ed. 2d 615, 625 n.7 (1997). Judicial opinions in Florida, Oregon, and Virginia have declared that a magistrate lacks the authority to issue a no-knock warrant and that the determination to bypass the knock and announce procedure is to be made only by the executing officers at the time of execution. Ten states, including Indiana, have recognized judicially the validity of the practice of magistrates issuing no-knock warrants. But we find only one jurisdiction whose opinions require police to inform the issuing magistrate of the circumstances believed to justify an unannounced entry and to obtain specific advance authorization for such entry. State v. Wasson, 615 N.W.2d 316, 320 (Minn. 2000). Statutory provisions in twelve states authorize the issuance of no-knock warrants. Several of these statutes appear to authorize the execution of a warrant by forceful entry into a residence only in the event of either of two conditions: (a) refusal of admittance after announcement of police purpose, or (b) exigent circumstances if a no-knock entry is specifically authorized by the judicial officer. See, e.g., Neb. Rev. Stat. § 29-411; N.Y. Crim. Proc. Law § 690.50; N.D. Cent. Code § 29-29-08; Okla. Stat. tit. 22, § 1228; Utah Code Ann. § 77-23-210. We do not find case authority from these jurisdictions addressing whether such statutes prohibit police in the absence of such advance judicial authorization from executing a warrant in a no-knock fashion due to exigent circumstances. (footnotes omitted)

There are numerous cases cited in the omitted footnotes. The co-defendant’s case:

The police provided the following reasons to justify their forced entry without first knocking and announcing their presence: (a) co-defendant had a warrant stating he might be armed; (b) co-defendant was a felon convicted for dealing in cocaine; (c) police believed defendant and co-defendant were in the house; (d) there would probably be weapons inside; and (e) defendant had a propensity for violence. The trial court correctly denied defendant’s motion to suppress, because safety concerns permitted the police to serve the warrant without knocking and announcing their presence. The no-knock execution of the warrant did not violate Ind. Code § 35-33-5-7. The police were not required to present known exigent circumstances and obtain specific judicial authorization before executing a no-knock entry. Suppression was not appropriate under federal law. Wilkins v. State, 946 N.E.2d 1144 (Ind. 2011).

Defendant was arrested for smoking marijuana, and it was not a Fourth Amendment violation to take the car’s remote and go looking for it and seeing marijuana in plain view. The keys were seized in a search incident. The officer could have searched the car under the automobile exception. Fair v. State, 198 Md. App. 1, 16 A.3d 211 (2011):

At issue here is not a “subsequent search” of the keys and remote. Therefore, we need not decide whether Holland and Wallace would authorize the use of keys included among the inventoried belongings of an arrestee to carry out a search of a place or an automobile without probable cause to obtain a warrant. As we explain, a warrant was not necessary to search the vehicle in this case.

Clearly, the focus of the investigation shifted from the original violation to the marijuana inside the vehicle when Detective Mahan observed the marijuana in plain view inside the Cadillac next to Tanner’s vehicle. …

Defense counsel was not ineffective for not noticing a discrepancy between the time stamp on photographs of his vehicle that suggest that the search of the car occurred before the consent. Nothing shows that this would have changed the outcome. United States v. Daniels, 2011 U.S. Dist. LEXIS 34144 (E.D. La. March 18, 2011).*

Defendant was stopped on a tip, but he was doing nothing wrong. The officer finally determined that defendant was not the person named in the tip, but it was continued essentially because of defendant’s prior arrests. The officer should then have let defendant go, but he instead kept checking and found an outstanding minor warrant that he took the defendant in for. Defendant left drugs in the police car, and that got him charged. The officer should have let defendant go when it was discovered he wasn’t the one described in the tip, and the arrest was invalid. State v. Grayson, 336 S.W.3d 138 (Mo. 2011).*

Defendant’s argument that a federal search warrant violated state law was irrelevant. The court does not have to look to whether there was a substantial basis for finding probable cause if the warrant was issued in good faith, but here there was probable cause. United States v. Rollins, 2011 U.S. Dist. LEXIS 32424 (W.D. Mo. February 15, 2011).*

People v. Short, 289 Mich. App. 538 (2010):

A disputed search of defendant’s vehicle after defendant was arrested and placed in the back of a police car raises a Fourth Amendment issue of first impression under Michigan law left unresolved by our Court’s recent opinion in People v Mungo, ___ Mich App ___; ___ NW2d___ (2010). In light of the United States Supreme Court’s decision in Arizona v Gant, 556 U.S. ___, 129 S Ct 1710, 173 L Ed 2d 485 (2009), which abrogated the well-established rule in New York v Belton, 453 U.S. 454; 101 S Ct 2860; 69 L Ed 2d 768 (1981) and its progeny, we must consider whether an officer’s good faith reliance on case law that is later overturned may form a proper basis to avoid the operation of the exclusionary rule. For the reasons explained below, and pursuant to the reasoning and rationale of rulings from the Tenth and Eleventh federal circuits, we hold that the good faith exception applies and the trial court correctly denied defendant’s motion to suppress.

The officer had reasonable suspicion to stop defendant’s car. Defendant saw the officer and then pulled off the interstate and parked on the off ramp, so the officer pulled up behind him. Defendant was excessively and progressively more nervous, and he said he’d been to Atlanta (a source city) but didn’t know how long he’d been there. Meanwhile, a BMW slowed and stopped about 75 yards behind them for about two minutes. It left and then the cell phone in the car started ringing. The officer asked for consent, and defendant said that he could not give consent because it was not his car, but he would have if it was his. “While none of these items independently amounts to a reasonable suspicion of criminal activity, blending each of these ‘tiles’ into the ‘entire mosaic’ of the totality of the circumstances, we believe Crompton had reasonable suspicion to detain Wallace while he walked the drug dog around the car.” State v. Wallace, 392 S.C. 47, 707 S.E.2d 451 (2011), quoting United States v. Whitehead, 849 F.2d 849, 858 (4th Cir. 1988).

Smell of burnt marijuana discovered during a traffic stop was probable cause for a search of the car. United States v. Brown, 634 F.3d 435 (8th Cir. 2011).*

Defendant consented to entry of his car to get his coat because he was cold and nodded toward his car to point it out. This request showed that he was not intimidated. He also consented to a general search of the car. United States v. Edwards, 2010 U.S. Dist. LEXIS 132690 (N.D. Ga. October 13, 2010)*:

At the same time, a defendant’s lack of knowledge of what the officer is searching for does not change the effect of a “general consent.” United States v. Snow, 44 F.3d 133, 135 (2d Cir. 1995) (interpreting Jimeno). The Snow Court concluded that it is self-evident that a police officer seeking general permission to search is looking for evidence of illegal activity. Id. It further noted that if the consent to search is entirely open-ended, a reasonable person would have no cause to believe that the search will be limited in some way.

There was probable cause for issuance of search warrants for defendant’s email accounts in extortion plot. United States v. Rosetter, 2010 U.S. Dist. LEXIS 132393 (D. Minn. October 1, 2010).*

Defendant’s mother had apparent authority, as far as the police were concerned, to consent to the search of a lock box because she knew where it was and had the key. The police came to the house to collect videos of sexual indecency with a child, and, informed of that, she went to the box and opened it without prompting. Valdez v. State, 336 S.W.3d 330 (Tex. App. — San Antonio 2010).*

Buying a one-way bus ticket with cash going from Las Vegas to Des Moines was hardly reasonable suspicion. The defendant’s encounter was without reasonable suspicion and his consent was not voluntary. [Essentially, the government confronts the defendant, gets him nervous, and then claims nervousness is a factor in reasonable suspicion. Defense counsel showed how consent was invalid.] United States v. Correa, 753 F. Supp. 2d 934 (D. Kan. 2010)*:

The court finds that the encounter most resembles a Terry-type investigative detention and the government’s contention that it was consensual does not make it so. The facts on which the officers relied to single out the defendant for questioning do not furnish the reasonable, articulable grounds for suspicion of criminal activity required to justify the detention of the defendant. The officers’ targeting of the defendant was based only on the facts that he purchased his ticket with cash shortly before departure and was traveling from Las Vegas to Des Moines. This rationale is troubling. The officer’s reliance on the defendant’s purchase of a one-way ticket for cash shortly before departure is no cause for suspicion. Absent some evidence that it is unusual for bus travelers to do so, the court can draw no inference from the defendant’s cash purchase. Bus tickets are generally less expensive than airplane tickets, and common sense dictates that bus transportation is more likely to be used by people who do not have credit cards. There is no evidence that the ground transportation industry provides any incentive to purchase a ticket early, as the airline industry does. Officer Scott’s reliance on the trip’s origination in Las Vegas is similarly meaningless. Because of the widespread availability of drugs and the prevalence of cross-country drug-trafficking, virtually every major metropolitan area in the United States can be identified as either a source or destination city, or both, for the illicit drug trade.

Further, the court attaches no significance to the defendant’s explanation of the purpose of his trip. It is neither suspect nor inconsistent to describe the place where a person grew up or where his family lives as “home.” Also, the fact that the defendant carried only a small piece of luggage and acted nervous does not give rise to suspicion. Traveling light is conduct that is typical of many innocent travelers, as is nervousness in the face of interrogation in a confined space by presumably armed law enforcement officers. Given the method of law enforcement’s encounter in this matter, the court has little doubt that these officers fully expected to obtain acquiescence to search from any passenger they chose.

The court next finds that the government has not sustained its burden of showing that the defendant’s consent to search was voluntary. There is nothing in the record to support the conclusion that the defendant was of average intelligence and could reasonably comprehend the situation. Scott testified that he did not know the defendant’s nationality, level of education or criminal history. The conversation lasted only a few minutes and included short responses, pointing and gesturing. The contention that the consent was a product of free and unconstrained choice is further undermined by the evidence of the defendant’s “defeated” demeanor when asked for permission to search the jacket. The defendant’s demeanor could be easily interpreted as reluctance to consent and at most shows a mere acquiescence to a claim of lawful authority.

An officer searching a car with probable cause saw a bill partially hidden in the weatherstripping. It did not violate Arizona v. Hicks for the officer to pull out the bill, look at it, and discover that it was counterfeit. This case has an interesting discussion of the scope of Hicks. United States v. Ewing, 638 F.3d 1226 (9th Cir. 2011):

Despite its unusual factual circumstances, Hicks does not state a particularly novel principle of law. The proposition that the justification for a search defines its permissible scope is well established. For example, if a law enforcement officer has probable cause to search a vehicle, that probable cause extends to all contents in the vehicle that could be connected to the suspected criminal activity. See Wyoming v. Houghton, 526 U.S. 295, 302, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999) (“When there is probable cause to search for contraband in a car, it is reasonable for police officers … to examine packages and containers without a showing of individualized probable cause for each one.”); United States v. Ross, 456 U.S. 798, 825, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982) (“If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”).

Hicks holds that a law enforcement officer may examine an item unrelated to the initial object of a search if the item is in plain view and if the officer has probable cause to believe that the item is connected to criminal activity. 480 U.S. at 326. The case does not set forth a rule that police officers must justify, on a molecular level, the manner in which they examine every object within the scope of a valid search. Therefore, the central question facing us is not whether unfolding the bills produced a new invasion of Mr. Ewing’s privacy interest but, instead, whether the justification for the search of the car extended to the bills.

The Fourth Amendment requires, as a general matter, that police procure a warrant before searching or seizing property. Arizona v. Gant, __ U.S. ___, 129 S. Ct. 1710, 1716, 173 L. Ed. 2d 485 (2009). “Under the automobile exception to the warrant requirement,” however, “police may conduct a warrantless search of a vehicle if there is probable cause to believe that the vehicle contains evidence of a crime,” Brooks, 610 F.3d at 1193, and “the vehicle is readily mobile,” Davis, 530 F.3d at 1084 (internal quotation marks omitted). An officer has probable cause “when, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. (internal quotation marks omitted).

We agree with the district court that the circumstances presented a fair probability that the money was involved in drug trafficking and that a search of Vera’s car would have revealed evidence of a crime. …

On discovering a large cache of stuff in defendant’s house on execution of a search warrant for stolen property, it was not unreasonable for the police to bring an alleged victim there to identify what was his. And, even if it was unreasonable, it would not really lead to suppression of the evidence. United States v. Gregoire, 638 F.3d 962 (8th Cir. 2011):

In Wilson v. Layne, 526 U.S. 603, 611-12, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999), the Supreme Court noted: “Where the police enter a home under the authority of a warrant to search for stolen property, the presence of third parties for the purpose of identifying the stolen property has long been approved by this Court and our common-law tradition.” That is precisely what happened in this case. Citing no supporting authority, Gregoire argues the principle should not apply because the Arnolds’ presence was not needed to identify the specific items named in the warrant. But this is not a constitutional prerequisite. When the police entered Gregoire’s home to execute the warrant, they discovered a massive cache of items that appeared to fall within the universe of the suspected thefts. It was objectively reasonable for the officers to turn to the Arnolds, owners and managers of Reed’s, a theft victim, for help in confirming which items there was probable cause to believe had been stolen. “The general touchstone of reasonableness which governs Fourth Amendment analysis … governs the method of execution of the warrant.” United States v. Ramirez, 523 U.S. 65, 71, 118 S. Ct. 992, 140 L. Ed. 2d 191 (1998). The execution of the warrant to search Gregoire’s home was constitutionally reasonable. 1

1 We further agree with Magistrate Judge Raymond Erickson that, even if the presence of the Arnolds violated the Fourth Amendment as construed in Wilson v. Layne, this would not require suppression of the evidence seized. See United States v. Hendrixson, 234 F.3d 494, 496-97 (11th Cir. 2000).