The encounter with the defendants started out consensual. Although the officer did not tell them they were free to leave, it was conversational. Once the officer had IDs in hand and walked to his police car to call them in, it was a seizure. “[A]s the Tenth Circuit has explained, no reasonable person having had his identification taken away would have felt free to terminate the encounter.” United States v. Lopez, 443 F.3d 1280, 1285 (10th Cir. 2006). Turning to reasonable suspicion, the court finds that defendant’s “actions” in a high crime area were reasonable suspicion [but, boy, is this really thin]. United States v. Matthews, 2010 U.S. Dist. LEXIS 116791 (N.D. Okla. November 1, 2010).

The court credits from the videotape that the driver understood English enough to consent to the search of his vehicle. And, the passenger in this case doesn’t have standing. United States v. Torres-Guzman, 2010 U.S. Dist. LEXIS 116878 (E.D. Ark. October 22, 2010).*

Defendant’s objections to the R&R are overruled. The officer had reasonable suspicion, and his grabbing the arm of the defendant was a seizure, but it was reasonable on these facts. United States v. Baker, 750 F. Supp. 2d 921 (W.D. N.C. 2010).*

Defendant was an overnight guest in an apartment and he had standing. He was wanted for murder, and the owner of the apartment let in the police to arrest him. They also had exigent circumstances. The time to get a search warrant could have thwarted the arrest entirely. State v. Ayala, 2011 WI App 6, 331 Wis. 2d 171, 793 N.W.2d 511 (2010).*

P18 When officers arrived at the Cervantes residence, they had probable cause to arrest Ayala for the Milford homicide and the three related armed robberies. 5 Various factors created probable cause: (1) there had been what appeared to be an intentional homicide using a gun; (2) officers had information from the other robbery/homicide participants that Ayala was the shooter; (3) Ayala was believed by officers to be a Latin Kings gang member; (4) the weapon used in the homicide had not been recovered, leading officers to believe Ayala might still have the gun in his possession; (5) the gun might be evidence of a crime; (6) if Ayala possessed the missing gun, it put the officers at risk of being shot by Ayala if they announced themselves or asked Ayala for consent to enter the bedroom; (7) the tavern below the apartment was frequented by Latin King members; (8) Rochelle operated the tavern below the apartment; and (9) because there were civilians in the apartment as well as the tavern below, all were at risk if Ayala began shooting while police procured a warrant.

The Alaska Supreme Court directed the Court of Appeals to reconsider an appeal under Gant which was decided in the interim. First, Gant is retroactive under Griffin v. Kentucky. Second, the search was valid as a search incident because she gave false information about her identity and her claim she did not have to be believed. Therefore, it was reasonable to believe that her driver’s license would be found in the car, so a search incident was valid. Deemer v. State, 244 P.3d 69 (Alaska App. 2010).*

The state could not establish that the “community caretaking function” entry into defendant’s house was justified. There was no indication that the home had to be entered for the protection of the homeowner. State v. Ultsch, 2011 WI App 17, 331 Wis. 2d 242, 793 N.W.2d 505 (2010).*

Defendant who was at the premises searched for only a short time for a drug deal who had no connection to the residents had no expectation of privacy that society was willing to recognize as reasonable. United States v. Rivera-Pabon, 2010 U.S. Dist. LEXIS 134800 (N.D. Ga. August 9, 2010).*

Defendant’s technical arguments over whether the affidavit in support of the warrant was sufficiently sworn or an affirmation fails. The affidavit did to have to refer to God to be valid. United States v. Scott, 2010 U.S. Dist. LEXIS 128847 (N.D. Ind. December 6, 2010):

The Defendant is correct that the Affidavit in this case does not explicitly reference God in a formal oath, expressly mention penalties of perjury, or directly state that Detective Cain believed the stated facts to be true. However, the Court finds that the Search Warrant Affidavit at issue in case was valid, that it was not deficient, and that it satisfied Fourth Amendment requirements. To invalidate the Search Warrant in this case on the grounds presented by the Defendant would require the Court to interpret the Affidavit in the sort of hyper-technical manner that the Supreme Court and the Seventh Circuit have instructed courts not to apply.

Officer drove onto defendant’s rural property for a knock-and-talk, and they saw a barn 80′ from a house and 700-800′ from where defendant lived. They went to the barn, and defendant came out of a door. He was handcuffed and consented. The barn was not within the curtilage of the house. United States v. Diaz, 404 Fed. Appx. 381 (11th Cir. 2010) (unpublished).*

The officers had sufficient reasonable suspicion to stop defendant because of his suspicious conduct, and he then consented to a search of the bag on the front seat of his car. United States v. Scott, 2010 U.S. Dist. LEXIS 128668 (M.D. Pa. December 6, 2010).*

Defendant’s computer was subjected to a private search, and child porn was delivered to the police, which they used to get a search warrant for the computer. United States v. Muhlenbruch, 634 F.3d 987 (8th Cir. 2011):

… Klaas then went to the Marshalltown Police Department and reported to Officer Curtis Hansel that Muhlenbruch possessed child pornography on his computer. When Officer Hansel told Klaas that more information was needed before the police could take action, Klaas gave Officer Hansel the CDs containing files from Muhlenbruch’s computer. Officer Hansel reviewed the images on the CDs and believed, based on his training and experience, that the images constituted child pornography.

Soon after Officer Hansel reviewed the CDs, he began to prepare a search warrant for Muhlenbruch’s apartment. Meanwhile, an officer was assigned to conduct surveillance on Muhlenbruch’s apartment and to prevent entry while the search warrant was being processed.

Officers stopped defendant because of excessive window tint and no seatbelt, but he was also seen frequenting a drug house. The officer then recognized his name as coming from a CI as one who delivered drugs to the drug house in the past. Defendant was shaking uncontrollably. The officer had reasonable suspicion to prolong the stop. State v. Webb, 2011 Tenn. Crim. App. LEXIS 101 (February 11, 2011).*

City’s transfer of seized money to the federal government did not deprive the state court of jurisdiction to hear an action for return of the money. The federal government could return the money to the state court at the conclusion of federal proceedings. Green v. City of Montgomery, 55 So. 3d 256 (Ala. Civ. App. 2009), Released for Publication February 1, 2010.

At the suppression hearing, the CI’s handler has to testify to what the CI knew so the search does not become merely ratified by the officer’s conclusion that the CI was believable. Here, just the officer conducting the search based on another officer’s relaying of information from the CI was the only witness. Parsons v. United States, 15 A.3d 276 (D.C. App. 2011):

The problem in the present case is that, even applying the collective knowledge doctrine, there was no testimony from which the trial court could have judged the informant’s credibility. Detective Humberson was not the confidential informant’s handler; in fact he had never dealt with the informant prior to the day of Parsons’s arrest. Detective Freeman, who was the handler, presumably could have testified at Parsons’s trial as to the informant’s track record and the existence of other virtuous qualities, but he did not. It appears from the record that the trial court “simply rel[ied] on [Detective Humberson’s] conclusory assertions in deciding whether [his search of Parsons] was justified” and did not, as required by our case law, “evaluate the facts underlying those assertions.” Milline, 856 A.2d at 619; see also Sanders, 751 A.2d at 955 (reversing and remanding because the “tipster’s track record was thinly developed in the trial court”).

Officer’s utter failure to really do a complete inventory showed that the search was investigatory and not a valid inventory. The motion to suppress should have been granted. United States v. Taylor, 636 F.3d 461 (8th Cir. 2011):

Here, the police did not comply with KCPD standardized procedures. KCPD procedures not only require officers to create a detailed, itemized inventory when any vehicle is towed, they also specifically require officers to create the same inventory when a vehicle containing a large quantity of valuable items is towed. At the time of the inventory search, Taylor, a handyman, had two toolboxes that each contained over a hundred items, including pliers, wrenches, screwdrivers, and drill bits. He also had two additional toolboxes, several chains, a hydraulic jack, a crate, lug wrenches, a paint roller, a flashlight, a shingle remover, a band clamp, an electric chainsaw, and an electric circular saw, among other things. Given the hundreds of valuable tools in Taylor’s truck, Officer Gillespie’s description of “misc. tools” does not constitute a detailed, itemized inventory.

Although the Government contends that it would be “absurd” to expect Officer Gillespie to accurately identify and itemize the tools in Taylor’s truck, the constitutionality of an inventory search does not rise and fall on the abilities of a particular police officer—the inquiry is whether, under the totality of the circumstances, the inventory search was reasonable. Rowland, 341 F.3d at 779. In this case, Officer Gillespie did not write down even general descriptions of the commonplace tools and equipment in Taylor’s truck, such as toolbox, screwdriver, chainsaw, or flashlight. Nor did she take any other steps in an attempt to create a detailed inventory, such as seeking assistance in identifying the tools or photographing them in lieu of identifying them. See Garner, 181 F.3d at 991 (explaining that an officer used photographs to supplement the written list in recording the contents of the defendant’s vehicle). These circumstances, combined with the specificity of the applicable standardized procedure and the quantity of items in the vehicle, make the officer’s description of “misc. tools” insufficient to remove the inference that the search was investigatory.

A patdown was a reasonable response to a man holding a woman at gunpoint. A sharp object was found, and that permitted the officer to go into the pocket. State v. Cunningham, 2011 Ohio 1172, 2011 Ohio App. LEXIS 1020 (7th Dist. March 8, 2011).*

Plaintiff was handcuffed and arrested by police after a pawnshop operator called them to say that plaintiff was selling bogus high-end watches. The watches were real, and the officer arrested without any investigation, just on the pawnshop operator’s word. Plaintiff stated a claim and the officer had no qualified immunity. El-Ghazzawy v. Berthiaume, 636 F.3d 452 (8th Cir. 2011).*

In a pro se post conviction matter, state habeas is not the method of challenging a search warrant after a guilty plea. Deakins v. State, 2011 Tenn. Crim. App. LEXIS 188 (March 11, 2011).*

Officers at defendant’s door to arrest him on a warrant made a valid plain view of marijuana plants in the front room. United States v. Jackson, 2011 U.S. Dist. LEXIS 38704 (D. V.I. April 8, 2011).*

A 911 call about a suspicious man brought four officers to the Bronx who stopped defendant. The tip was not specific enough to justify defendant’s stop and his actions were not “furtive or evasive” to show reasonable suspicion of criminal activity. He did not abandon his bookbag that was with him where the gun was found. The motion to suppress is granted. United States v. Jackson, 2011 U.S. Dist. LEXIS 39416 (S.D. N.Y. April 12, 2011).*

“[A] motion to dismiss the forfeiture complaint is not the proper vehicle for challenging probable cause for the seizure of property; the alleged illegality of the seizure has no bearing on the sufficiency of the complaint.” United States v. $1,111,120.00 in United States Currency, 2011 U.S. Dist. LEXIS 39541 (S.D. Ohio April 12, 2011).*

Defendant’s Fourth Amendment claim is summarily denied on appeal. United States v. Adkins, 636 F.3d 432 (8th Cir. 2011).*

Just because a motion to suppress is granted under Franks v. Delaware, the defendant does not ipso facto prove entitlement to attorneys fees under the Hyde Amendment. “The intent of the Hyde Amendment is to deter prosecutorial misconduct, not prosecutorial mistake. United States v. Bowman, 380 F.3d 387, 391 (8th Cir. 2004).” United States v. Monson, 636 F.3d 435 (8th Cir. 2011):

Monson first contends that his prosecution was vexatious or frivolous because the district court ruled that the search warrant violated Franks v. Delaware. We reject Monson’s contention that a favorable Franks ruling necessarily means that a prosecution against a defendant was frivolous or vexatious. A favorable Franks ruling constitutes a finding that law enforcement deliberately lied or recklessly disregarded the truth when they included information in an affidavit used to obtain a warrant. Franks, 438 U.S. at 171. A Franks ruling does not necessarily mean that government prosecutors (assuming they did not participate in the preparation of the affidavit) deliberately lied or acted with a reckless disregard for the truth. Instead, when a district court finds that a search warrant violates Franks, rather than automatically concluding that the prosecution against the defendant was frivolous or vexatious, we must consider the individual facts of the case. This analysis requires considering whether the falsehoods producing the Franks violation were deliberately or recklessly made and whether (and to what extent) prosecutors participated in the preparation of the challenged warrant.

Focusing on the prosecutors’ conduct, we first reject Monson’s argument that the prosecution against him was vexatious. A prosecution is vexatious if it is “without reasonable or probable cause or excuse.” Porchay, 533 F.3d at 711 (internal quotation marks omitted). Pursuant to this standard, if the government had sufficient evidence to have probable cause to believe that Monson committed the crimes charged, the prosecution against him was not vexatious. Id. We have no trouble concluding that the government possessed sufficient evidence to show probable cause to believe that Monson committed the crimes charged. Nebraska law enforcement seized thirty-three firearms, sixty-seven pounds of marijuana, and 266 marijuana plants from Monson’s home. At a preliminary hearing shortly after Monson was charged with possessing marijuana with intent to distribute and possessing a firearm during a drug-trafficking crime, a federal judge concluded there was probable cause to believe Monson committed the crimes charged. Thus, we reject Monson’s argument that the district court abused its discretion by finding that the prosecution against him was not vexatious.

Where the defendant did not request a late check out and housekeeping entered the room and found drugs and called the police, defendant had waived his expectation of privacy. If he had requested a late checkout, he would have retained it. United States v. Lanier, 636 F.3d 228, 2011 FED App. 0093P (6th Cir. 2011):

The starting point is that a hotel guest has a periodic right to occupy a room, not a permanent one. “Once a hotel guest’s rental period has expired or been lawfully terminated, the guest does not have a legitimate expectation of privacy in the hotel room or in any article therein of which the hotel lawfully takes possession.” United States v. Allen, 106 F.3d 695, 699 (6th Cir. 1997) (internal quotation omitted). “[A] hotel guest’s right to a room is limited to a predetermined period of occupancy,” and it is reasonable to presume as a general matter “that hotel guests will check out at the designated time and their right in the premises does not automatically continue for some indefinite period.” United States v. Washington, 573 F.3d 279, 285 (6th Cir. 2009). Other circuits see it the same way. …

Yet a hotel’s practices and communications with the guest may modify the general rule. “[T]he policies and practices of a hotel may result in the extension past checkout time of a defendant’s reasonable expectation of privacy.” United States v. Dorais, 241 F.3d 1124, 1129-30 (9th Cir. 2001); … As relevant here, these practices often take two forms: giving a guest permission to stay until a later check-out time or generally acquiescing in allowing a guest to stay until a later check-out time.

Larson, Gill and Dorais illustrate the first form. In each case, the defendants asked, and received permission, to stay beyond the check-out time. They therefore had reasonable expectations of privacy in their hotel rooms through the extensions, though not when, as turned out in each case, they stayed beyond the new check-out time. …

Watson, Owens and Kitchens illustrate the second form. In Owens and Watson, the hotels on previous nights had allowed the defendants to stay beyond the check-out time and to pay after check-out time for continued occupancy. … The defendants therefore reasonably believed that the hotels would allow them to do so again, permitting them to retain a privacy interest in their rooms. … In Kitchens, because the defendants had no “pattern or practice of staying past check-out time” that would give rise to an expectation of privacy after the expiration of their rental period, the Fourth Circuit held that they lacked a privacy interest in their rooms after the customary check-out time. …

The general rule, not the exceptions, applies to Lanier.

Defendant’s encounter with the police at the New Orleans Amtrak station was not a seizure under Bostick and Mendenhall. He admitted having marijuana on his person. State v. Spells, 56 So. 3d 1073 (La. App. 4th Cir. 2011)*:

Narcotics detective Harry Stovall of the New Orleans Police Department was working at that city’s Union Passenger Terminal with Detective Raymond Delvalle of the Amtrak Police Department, checking passengers who were arriving in New Orleans by bus or train in order to determine whether they were in possession of illegal or dangerous substances. Det. Stovall explained that they approached individuals, explained what they were doing, and asked for their identification and ticket, as well as asking whether they would voluntarily consent to having their luggage searched.

Det. Stovall noticed Mr. Spells as he disembarked from a train, because he stopped his approach to the terminal and watched while they conducted a check of another individual; Mr. Spells appeared to be concerned over the officers’ presence. Det. Stovall found the defendant’s behavior suspicious because the majority of people exiting the train continued their approach to the terminal without stopping. Because he was in plainclothes, Det. Stovall identified himself to Mr. Spells as Mr. Spells approached, and the detective presented his badge, which was around his neck.

Det. Stovall asked Mr. Spells for his identification and his ticket stub because he wanted to ascertain whether the identification and the name on the ticket were in the same name. As Mr. Spells handed over his information, Det. Stovall saw that his hand was shaking. Det. Stovall explained to Mr. Spells that they were checking passengers as they entered the city to ensure that people were not bringing illegal or dangerous items with them. Det. Stovall explained that they were conducting “voluntary, consensual” searches, and that Mr. Spells had the right to refuse. Det. Stovall then asked him whether he was in possession of anything he should not have.

[Note: If he had only just walked off ….]

The exclusionary rule does not apply in child protection cases (citing a lot of cases from various jurisdictions). Idaho Dep’t of Health & Welfare v. Doe, 244 P.3d 247 (Idaho App. 2010).

Defendant’s implied consent was still valid despite the officer’s comment that if she didn’t comply with giving a breath test, a blood test would occur. State v. Leclercq, 149 Idaho 905, 243 P.3d 1093 (App. 2010)*:

Here, Trooper DeBie informed LeClercq of his intention to obtain a blood draw should she refuse to comply with the breath test. The unpleasantness of the available options did not render the officer’s statement coercive. The magistrate determined that while the officer’s use of the word “force” to describe what would happen if LeClercq refused the breath test was troubling, under the totality of the circumstances, the officer’s actions were permissible. Informing a suspect that refusal of a breath test will result in a “forcible” blood draw may not be an advisable practice. However, Trooper DeBie’s statement, in light of all of the circumstances, did not amount to coercion such that it rendered LeClercq’s implied consent involuntary.

The officer came upon defendant asleep at the wheel of his car with the engine running in a shopping center parking lot. Telling the defendant to turn off the engine was a seizure. There was no reasonable suspicion. Gentles v. State, 50 So. 3d 1192 (Fla. App. 4th DCA 2010):

Similarly, in this case, Officer Horn’s direction for the defendant to turn off his engine constituted a show of authority which restrained the defendant’s freedom of movement. An order to shut off one’s car is as much a restraint on movement as an order to step out of the car. Both orders constitute a seizure because they convey to a reasonable person under the circumstances that he or she must comply and is not free to end the encounter and drive away. See Taylor v. State, 658 So. 2d 173, 173 (Fla. 5th DCA 1995) (holding that when an officer pulled up behind the defendant, who was parked in a driveway with the motor running, and ordered him to turn off his motor and produce his driver’s license, the defendant was improperly seized and the search that followed was illegal).

Other vehicle-related police conduct found by Florida courts to constitute a seizure or detention include: using a police car to block the path of a car, Stennes v. State, 939 So. 2d 1148, 1149 (Fla. 4th DCA 2006); shining a flashlight or spotlight on a defendant’s car, Leroy v. State, 982 So. 2d 1250, 1252 (Fla. 1st DCA 2008); displaying a weapon or physically touching the person, State v. Dixon, 976 So. 2d 1206, 1209 (Fla. 4th DCA 2008); ordering a driver in a stopped vehicle to roll down his window, Greider v. State, 977 So. 2d 789, 792-93 (Fla. 2d DCA 2008); and directing a defendant to remove his hand from his pocket, Delorenzo, 921 So. 2d at 876.

We have been unable to find a case on all fours with this one. …

Defendant consented to the taking his fingerprints and DNA. Puglisi v. State, 56 So. 3d 787 (Fla. App. 4th DCA 2010).*

Defendant’s landlord suspected a water leak in his apartment, and he entered to look. Inside, he saw marijuana plants, and he called the police. A police officer arrived, and the landlord took him inside. With that information, the officer sought a search warrant. The entry tainted the search warrant, and there were no exceptions to the warrant justifying the entry. State v. Callan, 2011 Ohio 2279, 2011 Ohio App. LEXIS 1936 (8th Dist. May 12, 2011):

[*P18] In the present case, Officer Rebraca entered and searched appellant’s apartment without a warrant at the invitation of the building’s property manager. However, it is well-established that a landlord cannot consent to a search of a tenant’s apartment for Fourth Amendment purposes. Chapman v. United States (1961), 365 U.S. 610, 616-618, 81 S.Ct. 776, 5 L.Ed.2d 828. Thus, Officer Rebraca’s search of appellant’s apartment was unlawful unless it fell within one of the above exceptions to the search warrant requirement.

Employees in a fast food restaurant saw a car parked outside with the motor running, and they were concerned, so they called the police. On arrival, the officer found the occupants extremely drunk and arrested the driver for disorderly conduct. A search incident of the car produced drug paraphernalia which was properly admitted at his trial. State v. Ramsier, 2011 Ohio 2295, 2011 Ohio App. LEXIS 1955 (5th Dist. May 10, 2011).*

Defendant was arrested and his cell phone was seized. The police waited 21 days to get a search warrant for the cell phone, but the delay was not unreasonable under the circumstances, the court distinguishing the cell phone and computers, including the fact defendant did not ask for return of the phone in the meantime. United States v. Lowe, 2011 U.S. Dist. LEXIS 50792 (S.D. Tex. May 12, 2011):

… In Mitchell, a twenty-one day delay in obtaining a search warrant for the defendant’s computer was held unreasonable, but the only reason the agent gave for the delay in applying for the warrant was that he “didn’t see any urgency of the fact that there needed to be a search warrant during the two weeks that [he] was gone” and that he “felt there was no need to get a search warrant for the content of the hard drive until [he] returned back from training.” Mitchell, 565 F.3d at 1351.

In this case, Agent Oliver gave a detailed account of his actions in the days between Lowe’s arrest and the signing of the search warrant. In addition to drafting the warrant for the phone company and the phones themselves, agents were investigating bank account information found in Iba Lowe and his codefendant and brother Netfa Lowe’s possession in order to prevent further losses to potential victims. Finally, prior to the search warrant being obtained, Lowe never asked for the return of his cell phone. There is therefore no reason to believe that the defendant’s possessory interests in the cell phone were substantially interfered with. Unlike the extensive information that can be stored on a personal computer, the information stored on a cell phone is far more limited. The Court finds that the Government’s interests in preventing further theft and obtaining evidence to prosecute the case outweigh the temporary interference with stored phone numbers that could have been obtained by other means, text messages that had already been read, and digital photos.

Motion for return of property under Rule 41(g) filed six years after the search was outside the limitations period. “‘Motions raised under Fed. R. Crim. P. 41(g) after criminal proceedings … have concluded are subject to a six-year statute of limitations.’ United States v. Sims, 376 F.3d 705, 708-709 (7th Cir. 2004).” United States v. Lorello, 2011 U.S. Dist. LEXIS 50660 (N.D. W.Va. May 11, 2011).

Officers had reasonable suspicion for defendant’s stop, and they developed reason to conduct a Long frisk of the interior, which produced drugs and paraphernalia. United States v. Jones, 2011 U.S. Dist. LEXIS 51233 (D. Minn. May 12, 2011), R&R 2011 U.S. Dist. LEXIS 51175 (D. Minn. February 10, 2011).

The CI here was identified and made apparent admissions against penal interest, and there was probable cause on the totality of circumstances. United States v. Ford, 2011 U.S. Dist. LEXIS 51247 (N.D. Iowa May 12, 2011).*

The USMJ held that deceiving a rental car agency as to who would be driving the car means that the driver has no reasonable expectation of privacy in the rental car. The USDJ, however, declines to follow it and adopts a totality test as more reasonable, finding that the driver had a reasonable expectation of privacy in the car he borrowed (but he loses on the merits of the search). United States v. Murray, 2011 U.S. Dist. LEXIS 50390 (S.D. Ga. May 11, 2011), R&R 2011 U.S. Dist. LEXIS 50391 (S.D. Ga. March 16, 2011):

Therefore, the Court will apply the only remaining framework of analysis, the totality of the circumstances test, because it best conforms with both the policy announced by the Supreme Court and principles of prior Eleventh Circuit decisions. Under this analysis, the Court will consider whether (1) Defendant could legally operate the vehicle and the status of his license; (2) Defendant was able to present the rental agreement and provide sufficient information about the vehicle; (3) Defendant was related to the renter or otherwise had an “intimate relationship;” (4) Defendant had permission of the authorized driver to use the rental car, and, finally; (5) Defendant had a business relationship with the rental car company and the nature thereof. Smith, 236 F.3d at 586-87.

After a review of the facts of this case, the Court finds that Defendant both had a subjective expectation of privacy in the vehicle and that the expectation was one that society was prepared to recognize. …

An unfair labor practices subpoena duces tecum to a union did not exceed the NLRB’s authority nor did it violate the Fourth Amendment. It is reasonable under the circumstances of the investigation. NLRB v. Sheet Metal Workers Int’l Ass’n, Local 293, 2011 U.S. Dist. LEXIS 50186 (D. Haw. May 10, 2011).

Common law right to resist what the homeowner reasonably believes to be an unlawful police entry into the home, dating from the Magna Carta, has been abrogated by modern law. Barnes v. State, 82S05-1007-CR-343 (Ind. May 12, 2011) (3-2):

Barnes contests that his tendered jury instruction should have been given because it was a correct statement of a viable legal defense supported by the facts and because that defense was not covered by the other instructions. We acknowledge that the Court of Appeals followed its own precedents in its analysis. Now this Court is faced for the first time with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers. We conclude that public policy disfavors any such right. Accordingly, the trial court’s refusal to give Barnes’s tendered instruction was not error.

The English common-law right to resist unlawful police action existed for over three hundred years, and some scholars trace its origin to the Magna Carta in 1215. Craig Hemmens & Daniel Levin, Not a Law at All.: A Call for the Return to the Common Law Right to Resist Unlawful Arrest, 29 Sw. U. L. Rev. 1, 9 (1999). The United States Supreme Court recognized this right in Bad Elk v. United States, 177 U.S. 529, 535 (1900): “If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest.” The Supreme Court has affirmed this right as recently as 1948. United States v. Di Re, 332 U.S. 581, 594 (1948) (“One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases.”).

In the 1920s, legal scholarship began criticizing the right as valuing individual liberty over physical security of the officers. Hemmens & Levin, supra, at 18. One scholar noted that the common-law right came from a time where “resistance to an arrest by a peace officer did not involve the serious dangers it does today.” Sam B. Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942). The Model Penal Code eliminated the right on two grounds: “(1) the development of alternate remedies for an aggrieved arrestee, and (2) the use of force by the arrestee was likely to result in greater injury to the person without preventing the arrest.” Hemmens & Levin, supra, at 23. In response to this criticism, a majority of states have abolished the right via statutes in the 1940s and judicial opinions in the 1960s. Id. at 24–25.

Further, we note that a warrant is not necessary for every entry into a home. For example, officers may enter the home if they are in “hot pursuit” of the arrestee or if exigent circumstances justified the entry. E.g., United States v. Santana, 427 U.S. 38, 42–43 (1976) (holding that retreat into a defendant’s house could not thwart an otherwise proper arrest made in the course of a hot pursuit.); Holder v. State, 847 N.E.2d 930, 938 (Ind. 2006) (“Possible imminent destruction of evidence is one exigent circumstance that may justify a warrantless entry into a home if the fear on the part of the police that the evidence was immediately about to be destroyed is objectively reasonable.”). Even with a warrant, officers may have acted in good faith in entering a home, only to find later that their entry was in error. E.g., Arizona v. Evans, 514 U.S. 1, 11 (1994); United States v. Leon, 468 U.S. 897, 922–25 (1984). In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment. As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance. …

In sum, we hold that Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law. Accordingly, the trial court’s failure to give Barnes’s proffered jury instruction on this right was not error.

Dissent:

But the common law rule supporting a citizen’s right to resist unlawful entry into her home rests on a very different ground, namely, the Fourth Amendment to the United States Constitution. Indeed, “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585 (1980). In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.

Appellant’s property was way off the road and his yard was not visible from the road or any neighboring properties. Based on a CI of unknown reliability, officers decided to do a knock and talk, admitting that they did not get a warrant because of the unknown CI. Officers approached and defendant saw them from the window, but he did not come out. When defendant disappeared from the window, one officer went around to the back for “officer safety,” but there was no indication that defendant was armed or dangerous–he was in his mid-sixties. The defendant had a reasonable expectation in his back yard from the police entering on the property. Denial of motion to suppress reversed. Cooksey v. State, 2011 Tex. App. LEXIS 3487 (Tex. App.—San Antonio May 11, 2011):

Here, although appellant’s backyard is not enclosed by a fence, and we accept as true the sheriff’s officers’ testimony that there was not a “no trespassing” sign posted anywhere on the property, several factors support appellant’s reasonable expectation of privacy in his backyard and back steps. First, as in Pool, appellant’s home is located in a secluded, wooded area, and there are no neighbors within several hundred yards. Also, the mobile home is not visible from the main road, and appellant’s backyard and back steps are not visible from the private driveway, from the front of the home, or from any neighboring properties. Because appellant’s backyard and back steps would not be visible to anyone on the main road, on the driveway, or on the usual pedestrian pathway to the mobile home’s front door, we believe appellant had a reasonable expectation of privacy in both. In addition, the back steps on which Deputy Isley observed the potted marijuana plants are physically attached to the mobile home. Therefore, we conclude appellant’s backyard and back steps are curtilage of his home and constitutionally protected against unreasonable search.

. . .

As stated previously, the State argues the entry into appellant’s backyard was justified to ensure “officer safety,” but it is unclear whether the State argues “officer safety” rose to the level of exigent circumstances or warranted a protective sweep. Turning to the State’s first possible argument, the existence of exigent circumstances, we must first determine whether probable cause existed for entry into appellant’s backyard. See McNairy, 835 S.W.2d at 106 (absent probable cause, exigent circumstances alone cannot justify a warrantless entry). At the time Deputy Isley entered appellant’s backyard, the sheriff’s officers had no information that appellant was engaged in any illegal activity, other than a confidential informant’s tip, which was related through an officer from another jurisdiction. Lieutenant Hill testified he did not feel comfortable seeking a search warrant for appellant’s home based exclusively on the word of the informant, whom he did not know and never spoke to. Also, it was not until appellant was about to reenter his home through the back door that Deputy Isley entered the backyard, and it was only after Deputy Isley entered appellant’s backyard without appellant’s consent that he observed the potted marijuana plants on the mobile home’s back steps. According to Deputy Isley: “I noticed [the plants] after [appellant] actually pointed [them] out to me[;] again, I was more focused on [appellant] than I was the contraband.” Based on these facts, we conclude the sheriff’s officers did not have probable cause to believe the instrumentality of a crime or evidence of a crime would be discovered in appellant’s home or its curtilage. Therefore, the officers did not have probable cause to enter appellant’s backyard.

Even assuming probable cause existed, there also were not exigent circumstances such that obtaining a warrant was impracticable. …

Hat tip to a reader who sent this in.

While the Louisiana seatbelt statute does not permit a search of a car based on a stop for that, there were other justifications for the officer having reasonable suspicion defendant might be armed and justifying a frisk of the car. United States v. Wiley, 2011 U.S. Dist. LEXIS 49135 (M.D. La. May 6, 2011).*

Chicago PD officers got a call from an unknown informant that there was an armed security guard at a store who was not permitted to carry a gun. They went to the store and talked to the defendant security guard and asked for ID. He said it was in the back and he’d go get it. He “bladed” which is copspeak for turned his body like he was concealing a weapon, which they are trained to respond to. That was reasonable suspicion for a patdown. United States v. Dorsey, 2011 U.S. Dist. LEXIS 48989 (N.D. Ill. May 5, 2011).*

A vehicle that looked “overburdened,” like it had a full trunk, likely of undocumented aliens, which refused to stop when the officer turned on his lights was properly stopped. United States v. Diaz-Hernandez, 2011 U.S. Dist. LEXIS 49401 (S.D. Fla. April 15, 2011).*