Officers were obtaining a search warrant for defendant’s house, and he left and those inside were looking out the windows. Officers decided to stop defendant because they hadn’t yet developed a plan for the search. Defendant’s stop was without legal justification, and the car search was invalid. State v. Okundaye, 2010 Ohio 6363, 2010 Ohio App. LEXIS 5282 (8th Dist. December 23, 2010).*

Defendant was stopped for speeding, and he made furtive movements, was extremely nervous, and there was masking odor. All of that was reasonable suspicion. State v. Franzen, 2010 ND 244, 792 N.W.2d 533 (2010).*

A telephone call from a citizen to the police said that two men were attempting to break into a bank’s night deposit drop. When the police approached men matching the description, they drove in a different direction. “This is not a case where a citizen’s report was the only factor supporting the magistrate judge’s probable cause determination. Bartz observed Datcu and Cipu in a location unusual for that day and time—parked in the evening in a concealed manner in an adjacent parking lot to the closed banks. Datcu’s all black outfit made him less visible from a distance, and both men changed course once they saw Officer Bartz, apparently seeking to elude him and to distance themselves from the concealed vehicle with out of state license plates.” United States v. Datcu, 627 F.3d 1074 (8th Cir. 2010).*

Defendant claimed that defense counsel was ineffective for not arguing that his consent to search his backpack in an airport was inherently coercive. Defendant’s consent was voluntary anyway. United States v. Davis, 406 Fed. Appx. 268 (10th Cir. 2010) (unpublished).*

Defendant had a cable installer at his house, and the cable installer suspected drugs on the premises and reported it to the police. The alleged falsehoods in the affidavit did not go to the probable cause but to the justification for a no-knock warrant, so the motion to suppress would not be granted. The cable installer was the CI and he testified at the suppression hearing. The questions about company policy of confidentiality concerning their work orders was not really pertinent to the Fourth Amendment question. United States v. Rodriguez, 2010 U.S. Dist. LEXIS 136155 (W.D. Mo. October 26, 2010).*

Under the circumstances, the possession of syringes the same as taken off another person just arrested at the same place was PC for drug paraphernalia, despite the legitimate uses of syringes. State v. Nimer, 2010 UT App 376, 246 P.3d 1194, 672 Utah Adv. Rep. 13 (2010).*

Defendant’s failure to object to the R&R means the motion to suppress is denied. United States v. Rodriguez, U.S. Dist. LEXIS 136150 (W.D. La. December 23, 2010).*

One plaintiff’s plea agreement included that she would not “pursue” any civil action, so this case was dismissed as to her, but not as to the co-plaintiffs. As to them, it failed under respondeat superior allegations. Robinson v. United States, 2010 U.S. Dist. LEXIS 136304 (M.D. La. November 9, 2010).*

Probable cause for search warrant of a drug house was shown by surveillance with short-term visitors coming and going, two having been stopped in possession of meth, and the smell of a meth lab in the house. The officers also conducted a knock and talk to see who was there. United States v. Gentry, 406 Fed. Appx. 274 (10th Cir. 2010) (unpublished).*

Defendant’s opening door during a knock and talk pointing a gun out the door was exigent circumstances for an immediate entry to disarm him. United States v. Butler, 405 Fed. Appx. 652 (3d Cir. 2010) (unpublished) [This case was pending 43 months.]

The off-site search of defendant’s computer for child pornography was not unreasonable because it would take too long. United States v. Botta, 405 Fed. Appx. 196 (9th Cir. 2010) (unpublished).*

Defendants were stopped for following too close and there was reasonable suspicion from the totality of the circumstances. The officer’s admittedly “friendly tone” was not constitutionally suspect. Consent to search led to a hidden compartment, and the consent was valid. United States v. Ramirez, 2010 U.S. Dist. LEXIS 137052 (W.D. Ark. December 15, 2010).*

Officers had an arrest warrant for the defendant, and the search of vehicle was justified by seeing a firearm in plain view, not search incident. United States v. Patterson, 405 Fed. Appx. 602 (3d Cir. 2010) (unpublished).*

Defendant was stopped for a headlight being out, and the officer could direct the defendant out of the vehicle for safety purposes. Once out of the car, the officer could see a handgun protruding from under the floormat in plain view, and it could be seized. United States v. Dixon, 405 Fed. Appx. 19, 2010 FED App. 0764N (6th Cir. 2010) (unpublished).

Portland OR police who working a vice detail were watching a woman who made eye contact with the defendant and he stopped and she got into his car did not have reasonable suspicion to stop him. United States v. Miller, 2010 U.S. Dist. LEXIS 133002 (D. Ore. December 15, 2010)*:

This is an unfortunate situation in which experienced vice officers had an ultimately correct hunch. However, the Constitutional right of the individual to be free from unreasonable search and seizure prevails. In sum, a single female, dressed in jeans and sweater, strolling in a high vice area at 3:30 p.m. who makes eye contact with a driver, looks at traffic, and enters a parked car, all in less than sixty seconds, does not raise a reasonable suspicion that she is engaged in prostitution activity. The evidence arising out of the illegal stop must be suppressed. United States v. Colin, 314 F.3d 439, 443-46 (9th Cir. 2003).

Officers with an arrest warrant for the defendant had at least a reasonable belief or probable cause to believe that the defendant was in the premises of a third person. Since the Sixth Circuit hasn’t spoken on this issue, the court does not have to decide which applies because the Fourth Amendment was complied with under either. United States v. Gibbs, 2010 U.S. Dist. LEXIS 132942 (W.D. Tenn. December 14, 2010),* overruling in part United States v. Gibbs, 2010 U.S. Dist. LEXIS 132944 (W.D. Tenn. July 21, 2010).*

Police were called to a domestic dispute, and one partner revealed that their fight was about the other viewing child pornography. Defendant was asked about the child porn, and he asked what was considered child porn. The police were justified in seizing the computer pending getting a search warrant for it because defendant knew they were looking for child porn. Hesrick v. State, 308 Ga. App. 363, 707 S.E.2d 574 (2011):

Viewing the evidence presented from the perspective of the officers at the time they were confronted with this rapidly developing situation, we find no error with the trial court’s conclusion that the warrantless seizure of the computers was authorized by exigent circumstances, specifically, the objectively reasonable concern that the seizure was necessary to prevent Hesrick’s imminent destruction of the computer images of child pornography, images that were vulnerable to quick destruction, irreplaceable, and essential to proving that a crime had been committed. Accordingly, the trial court did not err in denying Hesrick’s motion to suppress.

Police stopped defendant who matched the description of a suspected robber. The officer could see a gun in the hoody’s pocket, and that justified retrieving the gun because that was a violation of the law itself. After that defendant gave up drugs. “Under our construction of the statute, the elements of the offense are satisfied when the State proves at trial that a person possessed a pistol in a public place.” State v. Williams, 794 N.W.2d 867 (Minn. 2011).*

Defendant’s furtive movements justified a protective frisk of his person. The officer felt cylindrical objects in his shirt pocket which he knew were drugs containers. This was a valid search [and the court never says “plain feel”]. Commonwealth v. Simmons, 2011 PA Super 43, 17 A.3d 399 (2011).

The state did not raise inevitable discovery, so it was a “speculative inquiry” into whether it applied and the defendant likely was prejudiced by not getting to litigate the issue. Elliott v. State, 417 Md. 413, 10 A.3d 761 (2010):

Although appellate courts have some discretion in raising different justifications for lower court decisions, we may not use such discretion without restriction. In the present case, the record does not support a sua sponte holding of inevitable discovery. We are bound by the evidence presented at the suppression hearing. Unfortunately, in this case the record is not complete and cannot support a sua sponte finding of inevitable discovery. Even assuming arguendo that the evidence would inevitably have been discovered, the defense was unfairly prejudiced by the issue being raised for the first time in the appellate court. Further, any decision by the appellate court must be based on historical facts capable of easy verification, rather than speculation, which cannot be done in this case. See Williams, 372 Md. at 418, 813 A.2d at 250.

Defendant was driving behind another vehicle with no headlights stopped by an officer, and defendant stopped, too. He got out of his vehicle and was ordered back to the car by the officer, and this was a seizure, but it was reasonable. State v. Reiss, 45 Kan. App. 2d 85, 244 P.3d 693 (2010)*:

But there are situations—based on concerns of officer safety and the safety of the public—in which a person may be detained without reasonable suspicion of wrongdoing. The United States Supreme Court has held in two similar situations that concerns for public or officer safety allow for some intrusion on the liberty of those who simply find themselves near an otherwise-authorized law-enforcement action; such an intrusion does not violate the Fourth Amendment.

The search warrant for weapons here was overbroad because evidence cannot be seized just to corroborate witnesses. United States v. Barnes, 749 F. Supp. 2d 1124 (D. Idaho 2010):

Here, Barnes challenges the specificity of the description of the items to be seized along with the probable cause to make the seizure. Barnes argues that there was insufficient probable cause to seize “knives or any other instrumentality of injury” as described in the search warrant. The Government concedes that there is merit to this argument. The Government acknowledges that Officer Vargas’ explanation that other weapons were to be seized “in order to corroborate [Atchinson’s] statements” has been recently rejected by the Ninth Circuit. Millender, 2010 WL 3307491, *10. (Holding that officers were not justified in searching for evidence that was not contraband or evidence of a crime for purposes of aiding their subsequent prosecution). The Court agrees.

. . .

In Millender, the Ninth Circuit determined that the officers had a precise description of the firearm used by the suspect in connection with the assault, and knew exactly what it needed and wanted. Therefore, the question of whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued cut against the validity of the warrant. Id. at *8.

This case is similar to Millender. With respect to the first question answered in determining whether a search warrant’s description is sufficiently specific to comply with the Fourth Amendment — whether probable cause exists to seize all items of a particular type described in the warrant — the Court concludes that it was not. Officer Vargas’ affidavit explains that three weeks earlier, Barnes obtained a handgun that was kept in the bedroom in a black, hard plastic case, and pointed it at Atchinson. Gov’t Ex. 2. The affidavit explains that Atchinson informed Officer Vargas that Barnes then pulled Atchinson’s head next to his and pointed the gun at his head and said: “see we could do this with one bullet and could get the both of us.” Id. Officer Vargas noted that Atchinson described a “revolver type handgun,” which was “silver and opening to the side to load the ammunition.” Id. Moreover, the search warrant affidavit specifically called for the search and seizure of this specific firearm. Id. The search warrant affidavit also described a sawed-off shotgun as being kept in the residence. Id.

Under these circumstances, there was probable cause to search for a specific, silver revolver type handgun — and perhaps a sawed-off shotgun. But there was nothing in the affidavit to form a basis for concluding there was probable cause to search and seize a generic class of firearms, knives and instrumentalities of injury.

News10.com: Dept of Education breaks down Stockton man’s door:

STOCKTON – A man and his children are dragged out of their home when the Department of Education served a search warrant for someone who didn’t live there anymore.

They used a SWAT team to arrest somebody who didn’t even live there anymore for a defaulted student loan. See story here.

The Fifth, Fourth, and Eleventh Circuits have held that using SWAT teams on administrative warrants is unreasonable under the Fourth Amendment.

NTY: Drug Bust by Charles Blow:

Friday marks the 40th anniversary of one of the biggest, most expensive, most destructive social policy experiments in American history: The war on drugs.

On the morning of June 17, 1971, President Richard Nixon, speaking from the Briefing Room of the White House, declared: “America’s public enemy No. 1 in the United States is drug abuse. In order to fight and defeat this enemy, it is necessary to wage a new, all-out offensive. I have asked the Congress to provide the legislative authority and the funds to fuel this kind of an offensive. This will be a worldwide offensive dealing with the problems of sources of supply, as well as Americans who may be stationed abroad, wherever they are in the world.”

So began a war that has waxed and waned, sputtered and sprinted, until it became an unmitigated disaster, an abomination of justice and a self-perpetuating, trillion-dollar economy of wasted human capital, ruined lives and decimated communities.

Not to mention the Fourth Amendment becoming a casualty in the War on Drugs. When I was younger, I equated it with a casualty by friendly fire. On reflection, it was a result of “fragging,” which is “to kill or wound (a fellow soldier or superior officer) deliberately with an explosive device,” so fittingly from the Vietnam War. “Fragging” is technically “friendly fire,” in that it wasn’t the enemy. It is still a murder.

SCOTUS approves Gant good faith exception where officers followed Belton, and were not culpable in any way. Davis v. United States, 2011 U.S. LEXIS 4560 (June 16, 2011) (7-2). The syllabus:

While conducting a routine vehicle stop, police arrested petitioner Willie Davis, a passenger, for giving a false name. After handcuffing Davis and securing the scene, the police searched the vehicle and found Davis’s revolver. Davis was then indicted on charges of being a felon in possession of a firearm. In a suppression motion, Davis acknowledged that the search of the vehicle complied with existing Eleventh Circuit precedent interpreting New York v. Belton, 453 U.S. 454, but Davis raised a Fourth Amendment challenge to preserve the issue on appeal. The District Court denied the motion, and Davis was convicted. While his appeal was pending, this Court announced, in Arizona v. Gant, 556 U.S. ___, ___, a new rule governing automobile searches incident to arrests of recent occupants. The Eleventh Circuit held, under Gant, that the vehicle search at issue violated Davis’s Fourth Amendment rights, but the court declined to suppress the revolver and affirmed Davis’s conviction.

Held: Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule. Pp. 6-20.

(a) The exclusionary rule’s sole purpose is to deter future Fourth Amendment violations, e.g., Herring v. United States, 555 U.S. 135, 141, and its operation is limited to situations in which this purpose is “thought most efficaciously served,” United States v. Calandra, 414 U.S. 338, 348. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh the rule’s heavy costs. Under a line of cases beginning with United States v. Leon, 468 U.S. 897, the result of this cost-benefit analysis turns on the “flagrancy of the police misconduct” at issue. Id., at 909, 911. When the police exhibit “deliberate,” “reckless,” or “grossly negligent” disregard for Fourth Amendment rights, the benefits of exclusion tend to outweigh the costs. Herring, supra, at 144. But when the police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence, the deterrent value of suppression is diminished, and exclusion cannot “pay its way.” See Leon, supra, at 909, 919, 908, n. 6; Herring, supra, at 137. Pp. 6-9.

(b) Although the search in this case turned out to be unconstitutional under Gant, Davis concedes that the officers’ conduct was in strict compliance with then-binding Circuit law and was not culpable in any way. Under this Court’s exclusionary-rule precedents, the acknowledged absence of police culpability dooms Davis’s claim. Pp. 9-11.

(c) The Court is not persuaded by arguments that other considerations should prevent the good-faith exception from applying in this case. Pp. 11-19.

(1) The argument that the availability of the exclusionary rule to enforce new Fourth Amendment precedent is a retroactivity issue, not a good-faith issue, is unpersuasive. This argument erroneously conflates retroactivity with remedy. Because Davis’s conviction had not become final when Gant was announced, Gant applies retroactively in this case, and Davis may invoke its newly announced rule as a basis for seeking relief. See Griffith v. Kentucky, 479 U.S. 314, 326, 328. But retroactive application of a new rule does not determine the question of what remedy the defendant should obtain. See Powell v. Nevada, 511 U.S. 79, 83, 84. The remedy of exclusion does not automatically follow from a Fourth Amendment violation, see Arizona v. Evans, 514 U.S. 1, 13, and applies only where its “purpose is effectively advanced,” Illinois v. Krull, 480 U.S. 340, 347. The application of the good-faith exception here neither contravenes Griffith nor denies retroactive effect to Gant. Pp. 12-16.

(2) Nor is the Court persuaded by the argument that applying the good-faith exception to searches conducted in reliance on binding precedent will stunt the development of Fourth Amendment law by discouraging criminal defendants from attacking precedent. Facilitating the overruling of precedent has never been a relevant consideration in this Court’s exclusionary-rule cases. In any event, applying the good-faith exception in this context will not prevent this Court’s review of Fourth Amendment precedents. If precedent from a federal court of appeals or state court of last resort upholds a particular type of search or seizure, defendants in jurisdictions where the question remains open will still have an undiminished incentive to litigate the issue, and this Court can grant certiorari in one of those cases. Davis’s claim that this Court’s Fourth Amendment precedents will be effectively insulated from challenge is overstated. In many cases, defendants will test this Court’s Fourth Amendment precedents by arguing that they are distinguishable. And at most, this argument might suggest that, in a future case, the Court could allow a petitioner who secures a decision overruling one of this Court’s precedents to obtain suppression of evidence in that one case. Pp. 16-19.

See Law.com: In sharp tones, Court curbs the exclusionary rule:

The Supreme Court on Thursday took direct aim at the exclusionary rule, with a 7-2 majority saying that evidence collected during a police search can be used against a defendant, even if the search is of a type that is later found unconstitutional.

New justices Elena Kagan and Sonia Sotomayor joined in the majority’s hostile approach toward the exclusionary rule, leading a dissenter to wonder if the rule — already weakened by recent decisions — might be on life support.

“If the Court means what it says, what will happen to the exclusionary rule?” asked Justice Stephen Breyer in a dissent joined by Justice Ruth Bader Ginsburg.

The trial court mistakenly (with the aid of defense counsel) put the burden of proof on the defendant to prove that a warrantless search was invalid. However, applying de novo review to the motion to suppress, the search was still valid under all the facts before the trial court because, if the correct burden were applied, the state still would have won. Danner v. State, 931 N.E.2d 421 (Ind. App. 2010).*

Defendant was not seized by just following him and then his flight. State v. Jamison, 2010 Ala. Crim. App. LEXIS 64 (July 30, 2010).*

Holding on to defendant’s driver’s license while a warrants check was run for 5-10 minutes was not unreasonable. State v. Hummons, 225 Ariz. 254, 236 P.3d 1201, 587 Ariz. Adv. Rep. 4 (Ariz. App. 2010).*

Defendants were tearing a building down, and local environmental officers went in and discovered that defendants were in violation of federal EPA law in not doing proper asbestos abatement before demolition. The defendants did not manifest a reasonable expectation of privacy in the building being torn down because of no fences, no signs, no nothing. Alternatively, the building was a “open field” subject to anybody coming in. The entry was reasonable. United States v. Fillers, 2011 U.S. Dist. LEXIS 63311 (E.D. Tenn. June 14, 2011):

Defendants also contend they had a manifest and legitimate expectation of privacy arising from Chattanooga City Ordinance § 4-16, which requires APCB agents to obtain a warrant before conducting a search. This argument, however, “is no less than a suggestion that concepts of privacy under the laws of each State are to determine the reach of the Fourth Amendment,” a suggestion the Supreme Court has flatly rejected. California v. Greenwood, 486 U.S. 35, 43 (1988); see also United States v. Wright, 16 F.3d 1429, 1437 (6th Cir. 1994) (“[T]he appropriate inquiry for a federal court considering a motion to suppress evidence seized by state police officers is whether the arrest, search, or seizure violated the Fourth Amendment. The fact that the arrest, search, or seizure may have violated state law is irrelevant ….”).

Ultimately, regardless of any subjective expectation buried within Defendants’ hearts, no expectation of privacy was made manifest, that is, made apparent to any reasonable outside observer. Defendants knowingly exposed the Watkins Street Property and its contents to public view and intrusion. Accordingly, the Magistrate Judge properly concluded the lot was not a subject of Fourth Amendment protection, thus the intrusion thereupon and search by Schultz and Jones did not violate Defendants’ Fourth Amendment rights. See Katz v. United States, 389 U.S. at 351.

USMJ’s R&R: United States v. Watkins St. Project, 2010 U.S. Dist. LEXIS 143271 (E.D. Tenn. October 28, 2010).

Defendant was in a van that stopped on the street, and something was handed to a person who approached the window, and the van drove off. While the officer suspected a hand-to-hand drug transfer, there was no evidence that was what happened, and stopping defendant’s van was without reasonable suspicion, and the motion to suppress was properly granted. State v. Carmichael, 2011 Ohio 2921, 2011 Ohio App. LEXIS 2479 (8th Dist. June 16, 2011).*

Defendant was seen in a car that matched the description of one allegedly involved in a string of robberies. After the car stopped, he fled and avoided the officer. All this was reasonable suspicion. State v. Penn, 2011 Ohio 2918, 2011 Ohio App. LEXIS 2449 (8th Dist. June 16, 2011).*

Defendant’s motion to suppress only raised the lawfulness of his investigative stop, and that was a waiver of the issue of the search of the vehicle. State v. Hill, 2011 Ohio 2968, 2011 Ohio App. LEXIS 2500 (2d Dist. June 17, 2011).*

Officers tried to stop defendant for a traffic offense, and he crashed his car into a police car. Defendant’s search incident claim was not properly preserved for appeal. State v. Lattimore, 2011 Ohio 2863, 2011 Ohio App. LEXIS 2441 (1st Dist. June 15, 2011).*

Time.com: New Patriot Act Controversy: Is Washington Collecting Your Cell-Phone Data? by Mark Benjamin, Friday, June 24, 2011

The U.S. Senate Intelligence Committee is weighing fresh concerns about the sweeping nature of domestic spying using one controversial section of the Patriot Act. This particular part of that law is notable because it has been divisive for years — and because during those years President Obama has quietly moved from being a Senator skeptical of the provisions to being an enthusiastic spy chief whose Administration embraces them.

Last Tuesday the committee met to consider the worries of some members, mostly Democrats, who say the Justice Department has drafted a breathtakingly broad interpretation of Section 215 of the Patriot Act.

While the items sought in the search warrant were generic in nature, there still was probable cause for the search and the affiant showed sufficient reason to get access to it in an identity theft case. United States v. Okeayainneh, 2011 U.S. Dist. LEXIS 65900 (D. Minn. May 13, 2011) (R&R), adopted 2011 U.S. Dist. LEXIS 65435 (D. Minn. June 20, 2011):

Defendant Okeayainneh argues that Attachment B covers almost anything that could be found in most households in the United States. Although that may be true, the argument is without merit because it fails to focus on what the warrant authorizes. The officers were limited in their search by the fact that the objects seized had to be identifiably related to the listed violations. The officers executing the search warrant could not predict the form in which relevant data would appear. Therefore, the warrant sought a variety of evidence directly related to the identity-theft and bank-fraud investigation. Although true that the category “any and all other documents, records items, items or other materials evidencing violations of Title 18, U.S.C. … sections 371, 473, 1028, 1028A, 1341, 1343, 1344, 1956, 1957 and 2113(b); and Title 31 U.S.C., section 5324” is broad in nature, this Court believes that the statement is sufficiently related to identity theft and bank fraud to satisfy the particularity requirement of the Fourth Amendment and to allow the officers to recognize and seize the materials described.

Defendant’s reliance on Oregon law in his motion to suppress in federal court is unavailing. United States v. Pulido-Aguilar, 2011 U.S. Dist. LEXIS 65512 (D. Ore. June 20, 2011).*

Daily Kos:

The Fourth Amendment is at risk and along with it the continuation of our liberal democracy. If you have any doubt, I strongly urge you to read Free to Search and Seize, an op ed in today’s New York Times by David K. Shipler.

He begins by recounting a number of the things that have, despite the lessons we had in theory learned in the 1970s, limited the reach of the Fourth Amendment, actions by all three branches of government. He then offers these words, which I urge you to read carefully: …

Obviously none of these people ever read this website.

Reason.com: Rick Scott Scales Back His Urine Demands by Jacob Sullum, June 23, 2011:

In response to a Fourth Amendment lawsuit, Florida Gov. Rick Scott is retreating from his demand for the urine of state employees and job applicants. The ACLU of Florida, which brought the suit, has posted a June 10 memo (PDF) in which Scott defends his executive order while dramatically scaling it back: …

In Business Week and elsewhere: Vt. Supreme Court hears police e-privacy case:

The Fourth Amendment to the U.S. Constitution protects citizens from unwarranted searches and seizures of their “persons, papers, houses and effects,” but it doesn’t mention computers, iPads, smartphones and other electronic devices.

The state Supreme Court was faced Wednesday with the challenge of adapting the federal and state constitutions to the digital age in an electronic privacy case.

The state complained that a lower court judge placed too many restrictions on a search warrant Burlington police got for a man’s computer and other devices as they investigated allegations of identity theft. It’s a case being watched closely by national groups devoted to studying how the law should be applied in cyberspace.

Udpate: Trial one: Criminal case, sexual abuse in the first degree alleging “sexual contact” (touching outside the clothes) between a 28 year old and a 12.9 year old daughter of my guy’s meth supplier. Defense is denial. Never happened, and we have witnesses for 98% of the time it allegedly happened. She had also been told to quit her flirting with my guy by his girlfriend because she was generally inappropriate. In a DHS intake report is a throw away line of the alleged victim’s mother saying she “heard” my guy had a similar complaint involving a 15 year old that never went anywhere. At the Monday pretrial, the trial judge grants my motion in limine they can’t go there: (1) no proof there ever was an investigation, (2) my guy never heard of such an investigation [so he sure couldn’t lie about it], (3) more prejudicial than relevant under 403, and (4) no 404(b) notice of this alleged investigation. State concedes Monday they won’t bring it up.

Eight questions into cross, the state asks about it. Only once before in my life have I moved for a mistrial [and that was granted]. I come out of my chair shouting and pointing at the state: “I move for a mistrial! This is in bad faith and beyond the pale. You already ruled this out because there is no evidence of it.” My tone of voice, I’m sure, was complete anger, all in front of the jury, and I never get angry in front of a jury.

The judge told us to approach, and he was staring at the prosecutor with the “if looks could kill” look as we came up. They said my guy opened the door by denying this crime by the way he did it. I said his denial of this crime did not open the door, and even if it did, it still violated the pretrial order because he has no knowledge of an investigation to lie about it and there is no good faith basis to ask and no 404(b) notice because they have no good faith basis. No admonition can cure this taint.

The jury was sent out, and we listen to the audio of the last five minutes of direct. We make argument again, and I put in the report with the one sentence. Direct violation of the order on the motion in limine; no 404(b) notice, no nothing; more prejudicial than relevant; no cure possible; this was not just negligent because they agreed not to ask about it on the motion in limine, and they had no evidence of such an investigation and no good faith basis for even asking about it because all they would get is a denial, but the taint is there. Most importantly, the prosecutor now concedes defendant did not open the door, and this was just a good faith mistake on his part.

Mistrial granted at 6:30 pm. When we empaneled the jury, they were warned we’d be there past 8 pm. We were already going to go to 9, probably. And we were doing well in this trial, but getting f’ed over in front of the jury like that was like the 404(b) kiss of death in trial.

Next will come the motion under Oregon v. Kennedy, actually under the state court opinion on remand which is better, that this prosecutor caused mistrial is a double jeopardy bar.

As I have said before, “A trial is a series of unanticipated events.”

Time magazine today, One Document, Under Siege By Richard Stengel Thursday, June 23, 2011.