A person under a no contact order has no standing when he’s found where he was ordered not to be there. United States v. Dye, 2011 U.S. Dist. LEXIS 47287 (N.D. Ohio April 27, 2011):

While not binding, the Court finds the decision in Morrison [Commonwealth v. Morrison, 429 Mass. 511, 710 N.E.2d 584 (1999)] to be instructive. It seems incredible that the defendant could maintain that he had a reasonable expectation of privacy in the home of a person with whom he had been ordered by the court to have no contact. At the motion hearing, defense counsel attempted to distinguish this persuasive authority on the ground that the protective order in this case did not prohibit the defendant from being present at the Fairlawn property, rather it merely prohibited contact with Ms. Butler. Counsel further noted that, even if this prohibition effectively meant that the defendant must not enter the Fairlawn property, “[t]he inability to be present at that point in time, [… did not] change the fact that that’s still his residence.” (TR at 45.) The fact remains, however, that the protection order prohibited contact with the owner of the Fairlawn residence, who resided at the Fairlawn residence with her son. Because the defendant’s presence in the Fairlawn residence was likely to bring him in contact with the subject of the no contact order, he was prohibited from being at the residence; this is particularly so because Butler was at the residence at all times relevant to the search. The Court therefore finds that, at the time of the search, the defendant did not have a reasonable expectation of privacy that society is prepared to recognize. As such, the defendant lacks standing to challenge the search.

The court also said:

The Court begins by noting that, in reviewing the defendant’s motion [to suppress], the facts must be viewed in a light most favorable to the government. United States v. Wellman, 185 F.3d 651, 654-55 (6th Cir. 1999); United States v. Williams, 962 F.2d 1218, 1221 (6th Cir. 1992); United States v. Oliver, 126 F. Supp. 2d 495, 500 (S.D. Ohio 2000).

This should be true only to the extent of which side carries the burden of proof. If there was a search warrant, the presumption of regularity applies. If there wasn’t, the government carries the burden of proof, so the facts should not be viewed most favorably to it in the motion.

An officer observed the defendant sitting in a car at 2 am behind a bar for five minutes, so the officer approached him and saw him put his hand under his leg. The officer asked for consent to search the car, got it, and found nothing. Then he asked for consent to search the defendant. Any reasonable suspicion was gone when the first consent search turned up nothing, and the defendant should have been released. The evidence should have been suppressed. State v. Cajka, 2011 Ohio 2080, 2011 Ohio App. LEXIS 1759 (6th Dist. April 29, 2011).*

Probable cause to stop came from defendant’s invalid vehicle tag and weaving. After the stop, the officer observed he was DWI. Murrell v. State, 2011 Ark. App. 311, 2011 Ark. App. LEXIS 344 (April 27, 2011).*

The evidentiary value of a gun was immediately apparent to the officers where defendant was a known felon. Therefore, its seizure was valid. United States v. Russell, 2011 U.S. Dist. LEXIS 46018 (E.D. Pa. April 27, 2011).*

Where officers have probable cause already, the failure of a drug dog to alert does not per se dissipate the probable cause. State v. Anderson, 2011 Ida. App. LEXIS 29 (April 28, 2011):

We have located no decisions with the precise facts presented here; however, numerous cases discuss the impact on a probable cause determination of a drug dog’s failure to alert. These courts generally hold that a drug dog’s failure to alert is but one factor to be considered. Illustrative of the cases is then–Judge Breyer’s opinion in United States v. Jodoin, 672 F.2d 232 (1st Cir. 1982), which holds that a “dog’s failure to react does not … destroy the ‘probable cause’ that would otherwise exist. It is just another element to be considered.” Id. at 234-236 (holding that officers’ actions did not violate the Fourth Amendment when, supported by probable cause, they held defendant’s suitcase for several days, even though “a detector dog sniffed the suitcase but the dog did not signal the presence of narcotics”). See also United States v. Ramirez, 342 F.3d 1210, 1213 (10th Cir. 2003) (“We will not require investigators to cease an otherwise reasonable investigation solely because a dog fails to alert, particularly when we have refused to require that a dog sniff test be conducted at all.”); United States v. Gill, 280 F.3d 923, 926 n.3 (9th Cir. 2002) (denying defendant’s suppression motion although a drug “dog did not alert” and noting that drug dogs “are not trained to detect PCP or methamphetamine due to the risk these substances pose to the dogs”); United States v. Glover, 104 F.3d 1570, 1577 (10th Cir. 1997) (“[Defendant] relies on a line of cases holding that probable cause is established once a drug dog alerts on a package for the mistaken proposition that absent such an alert, officers are not entitled to detain the package any further. Contrary to [defendant’s] assertion, drug-detecting dogs have not supplanted the neutral and detached magistrate as the arbiter of probable cause.”); United States v. Frost, 999 F.2d 737, 744 (3rd Cir. 1993) (“When one includes both the fact that the drug sniffing dog did not alert to the suitcase and the fact that drug couriers often mask the scent of drugs in suitcases so that a drug sniffing dog will not alert, the failure to alert to the suitcase is not inconsistent with the substantial probative thrust of information which [the officer] did include [in the warrant].”).

CBS New York Radio: Consumer Alert: TomTom Reportedly Sold GPS User Data To Police To Target Motorists:

NEW YORK (WCBS 880) – You know what your GPS device is telling you, but do you know how the company is using that information?

TomTom had admitted that it provided data to police in the Netherlands.

Jeff Bartlett of Consumer Reports says, “The police are using the information not only to determine traffic flows, but reportedly, they’re also using it to set up speed traps.”

After being caught, the company apologized and said individual privacy was never jeopardized. They also say this was not done in the United States.

Right.

And, unless you’ve been sleeping for the last three years, you know that GPS devices can be seized by the police and download one’s trips when it has been on.

It boggles the mind how the police can screw the public with technology. It boggles the mind more when the oddsmakers have a cert grant in Jones/Maynard at 3-2. I’m trying to be optimistic here.

Update: I made the oddsmakers stuff up.

A burned out license plate bulb justified the stop of defendants’ vehicle, and the stop was not so minor that the officers could not ask about travel plans. The situation ripened to reasonable suspicion. The dog sniff was a de minimus extension of the stop by one minute. United States v. Batista, 2011 U.S. Dist. LEXIS 46480 (D. Md. April 26, 2011)*:

While the stop was brief, the Defendants contend that the officers unnecessarily extended it by questioning the men. Their argument centers on the minor nature of the driving infraction. A burned out license plate light does not warrant questioning motorists about their travel plans, they posit. The Court disagrees. The “traditional incidents” test is designed in part to create a bright-line rule that avoids a minute inquiry into every question asked and every action taken. Moreover, there is no rule that requires the police to limit their inquiry in light of the infraction. A motor vehicle stop is a Terry stop entitling the police to ask routine questions such as who owns the car, where the men are going, and whether the driver has a license. See, e.g., United States v. Dunbar, 553 F.3d 48, 56 (1st Cir. 2009).

The Defendants also argue that the scan itself unreasonably extended the duration of the stop. The Court rejects this argument for several reasons. First, the short duration of the stop also dooms this theory. Second, the scan only extended the stop for one minute. Thus, any intrusion on the Defendants’ Fourth Amendment rights was de minimis. Third, by the time Cpl Arminger decided to scan the car, the officers suspected a serious drug violation and not merely a burned out bulb. Among other things, the officers had taken note of the unusual spraying of cologne, the lack of luggage, the contradictory answers of the men, and Batista’s criminal history. Taken together, these facts justified extending the stop so that the officers could investigate their suspicions. See United States v. Mason, 628 F.3d 123 (4th Cir. 2010).

Defendant’s RV crossed the fog line three times, and that justified his stop. During the stop, a few questions were asked about bicycles attached to the back, and they were consensual. Since the defendant was a man in his 70’s and traveling alone, the officer’s suspicions were aroused by the way the defendant answered. The defendant then consented to a search of the interior of the RV. United States v. Osborne, 2011 U.S. Dist. LEXIS 46777 (D. Kan. May 2, 2011).*

Former Miss USA says she feels “violated” by a TSA patdown. Video on CNN.com.

“The right to frisk is virtually automatic when individuals are suspected of committing a crime, like drug trafficking, for which they are likely to be armed.” State v. Evans, 67 Ohio St.3d 405, 413, 1993 Ohio 186, 618 N.E.2d 162 (1993). State v. Alcorn, 2011 Ohio 2058, 2011 Ohio App. LEXIS 1762 (2d Dist. April 29, 2011).

Defense counsel was ineffective for not objecting to a parole search where the parole condition was not properly imposed against the defendant. State v. Blackshear, 2011 Ohio 2059, 2011 Ohio App. LEXIS 1766 (2d Dist. April 29, 2011).*

An officer responding to a drive-by shooting report involving a silver car saw a silver car within three minutes of the report. The officer had defendant out of the car and wanted to “frisk” the car for a possible weapon, and, if no weapon was found, the defendant would have been free to go. No other silver cars were seen. The stop and “frisk” of the car was valid. State v. Carr, 2011 Ohio 2061, 2011 Ohio App. LEXIS 1776 (2d Dist. April 29, 2011).*

Defendant was stopped for a traffic offense, and his DL was suspended. Under Ohio law, his license plate was confiscated, and that led to impoundment of the vehicle and its inventory. State v. Grigsby, 2011 Ohio 2062, 2011 Ohio App. LEXIS 1777 (2d Dist. April 29, 2011).*

While “[m]uch of the reasoning in Maynard is attractive,” the court declines to require a search warrant to install a GPS on defendant’s vehicle, copping out to let a higher court [the Fourth Circuit? Ha! SCOTUS will get it first.] United States v. Narrl, 2011 U.S. Dist. LEXIS 45595 (D. S.C. April 27, 2011):

Much of the reasoning in Maynard is attractive. For example, in distinguishing Knotts, the court explained that protracted GPS monitoring of a vehicle’s movements from a computer provides law enforcement with vast amounts of information about a person’s life, by showing law enforcement all of that person’s movements over a long period of time. In contrast, the tracking device in Knotts was less intrusive as it was only useful as an aid to visual surveillance, because law enforcement needed to remain close by in order to receive the signal from the device. In other words, the idea of police attaching a tracking device to a person’s car, without a warrant, and monitoring that person’s movements for an extended period of time is more unsettling than the situation in Knotts where a tracking device is used as an aid to short term visual surveillance.

In addition to the concerns expressed by the Maynard court, law enforcement in this case could have gotten a warrant pursuant to S.C. Code Ann. section 17-30-140. That statute provides that “[t]he Attorney General or any solicitor may make application to a judge of competent jurisdiction for an order authorizing or approving the installation and use of a mobile tracking device ….” If the application includes certain information about why the tracking device is necessary, and probable cause exists, then the judge “must enter an ex parte order authorizing the installation and use of a mobile tracking device.” Id. While that statute did not require law enforcement to obtain a warrant before employing the GPS tracking device, it did provide a mechanism for them to obtain a warrant. The better practice in this case would have been to obtain a warrant.

However, even though this case presents a difficult decision, Knotts is clear that the use of a tracking device to track a person’s movements on public roads is not a violation of that person’s Fourth Amendment rights. Knotts was not limited to any particular technology and the tracking device in this case was only used to observe the vehicle’s movement on public roads. Therefore, no search in violation of the Fourth Amendment occurred.

The search of defendant’s car incident to his arrest on a failure to appear warrant, where he was already hooked up and in the police car, violated Gant, decided a year later. Gant is retroactive, and, noting the conflict in the courts, the good faith exception should not apply to case law. Here, the officer offered no reason why the car was searched, so it is assumed it was a search incident. State v. Frederick, 149 Idaho 509, 236 P.3d 1269 (2010):

Predictably, this tension has led to sharply divergent results from the courts that have considered this question. A number of courts have applied the exception, recognizing that there is a distinction between recognizing the constitutional violation and providing an appropriate remedy for the violation and concluding that the deterrent purpose underlying the exclusionary rule is not advanced when officers have relied on existing case law. See People v. Henry, Cal. Rptr. 3d , 184 Cal. App.4th 1313 (Cal. App. 1 Dist. 2010); United States v. Davis, 598 F.3d 1259 (11th Cir. 2010); State v. Baker, 2010 UT 18, 229 P.3d 650 (Utah 2010); State v. Riley, 154 Wn. App. 433, 225 P.3d 462 (Wash. App. Div. 1 2010); United States v. McCane, 573 F.3d 1037 (10th Cir. 2009); United States v. Gray, 2009 U.S. Dist. LEXIS 113436, 2009 WL 4739740 (D. Neb. Dec. 7, 2009) (noting the Ninth, Seventh, and Sixth Circuits have refused to apply the good faith exception while the Fifth and Tenth Circuits have held Leon’s good-faith exception applies to warrantless searches considered lawful under the case law existing when the search was performed); Brown v. State, 24 So.3d 671, 680-82 (Fla. App. 5th Dist. 2009).

Other courts have found the tension resulting from application of the good faith exception to be “untenable” and accordingly declined to apply the exception. People v. McCarty, 229 P.3d 1041 (Colo. 2010); State v. Harris, 154 Wn. App. 87, 224 P.3d 830 (Wash. App. Div. 2 2010); United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009) rehearing and rehearing en banc denied, 598 F.3d 1095 (9th Cir. 2010).

Yet other courts have recognized that retroactivity rules do not automatically exclude application of the good faith exception, yet have declined to apply the exception because the scope of Belton was not sufficiently defined as to warrant a finding of objective good faith by the law enforcement officials conducting the search. The Court of Appeals for the District of Columbia concluded that the scope of permissible searches of automobiles was not “settled law” and therefore declined to apply Leon. United States v. Debruhl, 993 A.2d 571 (D.C. 2010). Similarly, the Michigan Court of Appeals declined to apply the exception in the context of the search of an automobile pursuant to the arrest of a passenger in the vehicle, finding the question of extension of Belton to such circumstances to be a question of first impression. People v. Mungo, 2010 Mich. App. LEXIS 610, 2010 WL 1461620 (Mich. App. Apr. 13, 2010).

It is our view that retroactivity rules do not preclude application of the good faith exception when an officer relies on case law. We note, however, that the Supreme Court has emphasized that the good faith described in United States v. Leon “must be objectively reasonable.” 468 U.S. at 922. The burden of proving that such objectively reasonable good faith reliance existed is on the State. State v. Smith, 144 Idaho 482, 485, 163 P.3d 1194, 1197 (2007) (holding that “[t]he burden of proof is on the state to show that the search … fell within one of the well-recognized exceptions to the warrant requirement.”) In this case, the State has failed to meet that burden.

Defendant was parked in a park after hours, and an officer approached him to talk to him. The defendant had bloodshot and glassy eyes, and the officer ordered him out of the car. At that point, the encounter became a stop governed by Terry. This was with reasonable suspicion. State v. Grigg, 149 Idaho 361, 233 P.3d 1283 (2010), review denied by State v. Grigg, 2010 Ida. LEXIS 135 (Idaho, July 6, 2010):

Our appellate courts have not decided the issue of whether glassy bloodshot eyes, eye tremors, and reddening of the conjunctiva are enough to establish reasonable suspicion of criminal activity. Generally, cases in Idaho that involve bloodshot eyes as evidence of alcohol or drug use are coupled with some other evidence. … However, bloodshot eyes alone are not enough to establish reasonable suspicion that a crime is being committed. …

In this case, not only did Grigg have bloodshot eyes, but his eyes were also glassy. In addition, the officer testified that Grigg’s glassy bloodshot eyes were coupled with reddening of the conjunctiva of his eyes and eyelid tremors. The officer further testified that, based on his training and experience, such characteristics indicate that a person is under the influence of a controlled substance. Therefore, based on the totality of the circumstances, the officer had a reasonable and articulable suspicion that Grigg was under the influence of drugs. 2 As a result, it was reasonable for the officer to briefly detain Grigg outside of his vehicle in order to investigate further. Grigg’s encounter with the officer was a reasonable investigative detention under Terry and did not violate the Fourth Amendment.

Defendant’s not lying, but none of his testimony can be credited. He says he is not involved in drug sales, but he has too much expensive stuff without a job. Doesn’t make sense. United States v. Glenn, 2007 U.S. Dist. LEXIS 99206 (S.D. Tex. August 20, 2007).*

A DUI blood draw by an EMT at the scene was reasonable. The officer’s holding defendant’s wrists because he was uncooperative during the process was not unreasonable. State v. Wheeler, 149 Idaho 364, 233 P.3d 1286 (2010),* Review denied by State v. Wheeler, 2010 Ida. LEXIS 134 (Idaho, July 6, 2010):

The trial court correctly concluded that the blood draw was administered in a medically acceptable manner without unreasonable force. The person that drew Wheeler’s blood was part of an ambulance crew and stated he was authorized to draw blood. Wheeler provided no evidence to the contrary. The evidence presented at the suppression hearing does not show that the location of the blood draw or the procedure was medically unacceptable. Further, the officers’ holding of Wheeler’s wrists was reasonable because he refused to cooperate in less-intrusive tests, protested the blood draw, and flexed his hand in an attempt to prevent it, and because it provided stability for the blood draw.

Noting a conflict in the cases, the Nebraska court concludes that the magistrate issuing the search warrant does not have to see the alleged child pornography, and the judge can rely on the “conclusion” from the description by the officer. State v. Nuss, 279 Neb. 648, 781 N.W.2d 60 (2010):

We now hold as a matter of first impression that, while copies of images obtained during a law enforcement investigation may be used to establish probable cause to search for evidence of crimes involving visual depiction of sexually explicit conduct involving minors, they are not absolutely required. Probable cause may also be established by a detailed verbal description of the conduct depicted in such images. Under this standard, the affidavit in this case was insufficient to establish probable cause.

The trial court credited the officer’s testimony at the suppression hearing despite an inconsistency with the preliminary hearing testimony as to when the search occurred. This was binding on the appeals courts, and the court of appeals erred in reversing on that ground. State v. Munoz, 149 Idaho 121, 233 P.3d 52 (2010), reh’g denied 2010 Ida. LEXIS 85 (May 13, 2010).*

Defendant’s arrest for DUI justified a search incident under Gant or Belton for evidence of the DUI. State v. Cantrell, 233 P.3d 178 (Ida. App. 2010), review denied 2010 Ida. LEXIS 105 (June 10, 2010).*

The defendants were stopped for weaving, and the officer noticed they were nervous and gave inconsistent versions of their trip. He got a drug dog out to sniff the car while they were stopped, and that was not unreasonable. Shelton v. State, 45 So. 3d 1203 (Miss. App. 2010).*

Defendant was stopped for a window tint violation, and the officer saw marijuana crumbs on the console. The defendant’s DL was suspended. The officer searched the vehicle for towing and found marijuana, which was validly seized. State v. Dudley, 2010 ND 39, 779 N.W.2d 369 (2010).*

Defendant discharged a gun in his house, and he was in custody. The police had no reason to believe there was anyone else in the house, let alone injured in the house, so the suppression order was affirmed. United States v. Espinoza, 403 Fed. Appx. 239 (9th Cir. 2010) (unpublished):

The government’s argument is not supported by the record. At the time of the entry into Espinoza’s house, Espinoza was in custody and detained in the back of a police car. Neighbors had reported that Espinoza lived alone, and no one reported seeing or hearing anyone besides Espinoza inside the house. When the police arrived, they did not see anyone enter the house or hear any other voices coming from inside. In short, there were no facts upon which an officer could base a reasonable belief that an emergency existed after Espinoza was in custody. See United States v. Gooch, 6 F.3d 673, 679 (9th Cir. 1993) (holding that warrantless search of a shooting suspect’s tent was unreasonable because suspect was in custody and there was no actual ongoing threat despite the recent discharge of a firearm).

The Supreme Court stated in Michigan v. Fisher that officers do not require “ironclad proof of ‘a likely serious, life-threatening’ injury to invoke the emergency aid exception.” 130 S. Ct. 546, 549, 175 L. Ed. 2d 410 (2009). There, the police encountered a crazed, bleeding man barricaded inside his house throwing objects and shouting obscenities at the police. Id. at 547. The Court ruled that under those circumstances, even though it was doubtful that the man was seriously injured, a reasonable officer could have believed that the man or someone else inside might have needed immediate medical attention or faced imminent harm. Id. at 548-49. We do not read that fact-specific opinion to hold broadly that warrantless entry into a home is always justified where the police cannot confirm that there are no injured victims inside a house. We recognize the need for police officers to investigate and respond to credible threats of injury. Nothing in Michigan v. Fisher, however, indicates that the mere discharge of a firearm inside a house vitiates the protections of the Fourth Amendment when the shooting suspect is in custody and there are no circumstances suggesting that anyone else was present, much less injured.

Defendant claimed that he had a reasonable expectation of privacy not to have a government planted GPS hooked up to the wiring of his car. The trial court did not decide this issue, and it is remanded for another hearing. State v. Dalton, 2009 Ohio 6910, 2009 Ohio App. LEXIS 5804 (9th Dist. December 30, 2009):

[*P15] In his motion to suppress, Dalton argued that he had a reasonable expectation of privacy in the electrical system of his vehicle and that his “right to be free from unreasonable search and seizure was violated when police wired the GPS tracking device into his vehicle’s electrical system in order to gain information on the travels and locations of the vehicle.” Therefore, Dalton was not only arguing that the information gathered from the GPS device amounted to an unlawful search and seizure, but also that the warrantless placement of the GPS device on his car was unconstitutional. Although, as we further explain below, we conclude that there is a second prong to the argument in Dalton’s motion to suppress that the trial court did not consider, we note that this argument is not drafted as clearly as it could have been. Dalton does not fully delineate before the trial court the distinction between placement of the GPS and the collection of the information from the device. In any event, the nuance has important legal implications and the trial court neglected to consider the second prong of Dalton’s argument.

Defendant was in jail on a child sex offense for four months when his wife discovered on their computer inappropriate pictures and a video clip. She took it to the police who searched it and charged defendant with video voyeurism in the making of the video clip. She had joint access or control, and there were no limitations on her usage. State v. Aschinger, 149 Idaho 53, 232 P.3d 831 (2009), review denied, 2010 Ida. LEXIS 86 (Idaho, May 11, 2010).*

Officer’s personal observation of defendant in a hallway after a call that a man with a gun was beating on the door led him to ask whether defendant had a gun. He said he did and reached for it, and the officer pulled his weapon. Terry was complied with. United States v. Savage, 677 F. Supp. 2d 756 (E.D. Pa. 2009)*:

Here, police saw Savage just moments after receiving a report of a woman complaining of an armed man banging on her door. Savage was the only person in the hallway, and he was exactly where the woman indicated that he would be located, doing exactly what the woman indicated that he would be doing. The officer’s personal observation of Savage’s banging on the door and the corroboration of the informant’s tip established reasonable suspicion to conduct a Terry stop. Also relevant is the fact that the woman was reporting a crime in progress. This allowed the officers to arrive quickly enough to witness the complained of activity (Savage banging on the door).

Choice of law question (Kansas where search occurred or Mississippi where the trial occurred) was essentially irrelevant where neither party argues in their briefs that the outcome would be different. There was probable cause for defendant’s arrest. Gillett v. State, 56 So. 3d 469 (Miss. 2010).

Touching the fog line 16 times was reasonable suspicion for a stop. State v. Mohl, 2010 ND 120, 2010 N.D. LEXIS 118 (June 30, 2010).*

The stop of the defendant was justified by reasonable suspicion that he was involved in a murder. “The only police conduct that fairly may be characterized as coercive was the action undertaken by the officers in blocking the defendant’s vehicle to ensure that he would not leave the area before they could speak to him. In light of the defendant’s attempt to leave almost immediately after he pulled up to his house, we agree with the trial court that blocking the defendant’s vehicle likely was the most efficacious way to maintain the status quo so that the police could gain the defendant’s attention.” State v. Courchesne, 296 Conn. 622, 998 A.2d 1 (2010)* (argued March 19, 2008).

Officers found marijuana plants in defendant’s back yard, although 20 yards from the back of the house. They were still on the curtilage under Dunn’s four factor test. Among other factors, he mowed the area, and that indicates habitation. United States v. Garrott, 745 F. Supp. 2d 1206 (M.D. Ala. 2010), rejecting R&R 2010 U.S. Dist. LEXIS 77029 (M.D. Ala. July 6, 2010).*

Officers responded to a 911 call about gunfire. At the defendant’s house, they saw bullet holes in the outside wall and the person inside was extremely distraught and talking on the telephone and unsure whether anyone else was home. That was exigent circumstances for an entry in case somebody was shot inside. United States v. Parton, 2010 U.S. Dist. LEXIS 77015 (E.D. Tenn. July 2, 2010).*

Court notes that the protective sweep in this case was “questionable” (actually it looked really bad; court was just being nice), but it led to no evidence. One defendant “very short cut-off jeans” was really unlikely to be armed for a frisk under Terry. “The evidence also did not establish ‘“specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant[ed]” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.’ See United States v. Graham, 483 F.3d 431, 438 (6th Cir. 2007). As such, neither Terry or a danger exigency justified the search.” The search of the car in this case was, however, with probable cause. United States v. Redmond, 2009 U.S. Dist. LEXIS 129352 (E.D. Ky. February 9, 2009).*

The affidavit for the search warrant in a stabbing case established probable cause to search defendant’s home for evidence of the crime when they were looking for bloodstained clothing, DNA, and the weapon. [Nexus not mentioned, but that’s what the court is referring to.] Gang related information was properly included in the affidavit because of what the assailant said during the attack. United States v. Guevara, 745 F. Supp. 2d 1039 (N.D. Cal. 2010):

Here, the warrant was not overbroad as there was probable cause to seize all items described in the warrant — a DNA sample, a knife or similar cutting instrument (the suspect weapon), bloodstained clothing that may have been worn during the stabbings, and items related to Mara Salvatrucha. The Lau affidavit specified that Mission Female Victim identified Mr. Guevara as the male assailant and Mission Witness No. 1 stated Mr. Guevara resembled the male assailant. From this, Judge Kahn reasonably concluded that there was a fair probability that evidence of the stabbings would be found at Mr. Guevara’s residence, in his vehicle, or on his person. Additionally, unlike Millender v. County of Los Angeles, __ F.3d __, 2010 U.S. App. LEXIS 17673, 2010 WL 3307491 (9th Cir. Aug. 24, 2010), the affidavit established probable cause that Mr. Guevara’s suspected gang-affiliation was directly related to the stabbings. The Lau affidavit explained that the male assailant yelled “MS” and “Mara Salvatrucha” during the stabbings, indicating the stabbings were likely gang-motivated.

Defendant was arrested in his RV at an RV park, and it was his home requiring a warrant or exigent circumstances to enter, neither of which the police had. His consent was obtained when he was facedown in handcuffs and the officer likely had his hand on his gun, so the consent was vitiated. However, officers got a search warrant based on probable cause of identity theft and only one paragraph of many involved the consent. Removing reference to that still showed probable cause, and the search warrant was valid and the product of the consent was thus valid under inevitable discovery. United States v. Kapis, 2010 U.S. Dist. LEXIS 107637 (D. Ore. October 7, 2010).*

Procedural default applies to the state in failing to raise standing in the trial court such that it cannot raise standing for the first time on appeal. State v. Rhinehart, 333 S.W.3d 154 (Tex. Crim. App. 2011):

To summarize, in this case, we apply ordinary rules of procedural default to decide that the State, as the losing party in the criminal district court, could not raise for the first time on appeal a claim that there was no valid basis for the criminal district court to have quashed the indictment. We decline to apply, in this case, the Fourth Amendment standing rule of Rakas which, in any event, does not clearly support the proposition that the State should be permitted to raise this claim for the first time on appeal, particularly since the State chose to litigate only the due-diligence issue in the criminal district court thus, in effect, conceding that this might be a valid basis for quashing the indictment. See Steagald, 451 U.S. at 209-11. Appellee’s first ground for review is sustained.

The search warrant was not issued on “a paucity of fact”; there were two controlled buys from the premises, and that was probable cause. United States v. Young, 2011 U.S. Dist. LEXIS 22606 (M.D. Fla. February 18, 2011).*

Exigent circumstances for a warrantless entry when, during a knock-and-talk, a man ran from the residence and they could smell marijuana. United States v. Rodriguez-Gonazalez, 2011 U.S. Dist. LEXIS 22750 (W.D. Mo. February 15, 2011).*

The person with authority to enter defendant’s house to feed defendant’s cat on only three days obviously had no apparent common authority to consent to a search of the house. State v. Huntington, 2010 Ohio 3922, 190 Ohio App. 3d 711 (6th Dist. 2010).*

A hotel security guard’s report to the police that defendant had a gun on him was justification for a patdown. United States v. Montague, 2010 U.S. Dist. LEXIS 86179 (S.D. Fla. July 27, 2010).*

The officers had no reasonable suspicion for this stop, admittedly based on a hunch. United States v. Marcelino, 736 F. Supp. 2d 1343 (N.D. Ga. 2010)*:

The Government argues that the agents had the requisite reasonable suspicion to justify a Terry stop of the defendant based on three factors: (1) the officers were patrolling a well-known, high crime gang area; (2) the defendant was wearing loose, baggy clothing in colors that indicated gang membership; and (3) when the agents approached them, the two men immediately walked away and, when spoken to a second time by the agents, continued to walk away, this time even faster.

Defendant’s stop was justified by the officer’s inability to read the license plate, and he validly consented to a search of the car. State v. Bayliff, 2010 Ohio 3944, 2010 Ohio App. LEXIS 3340 (3d Dist. August 23, 2010).*

The use of a jackhammer to conduct a search for a body under concrete was reasonable. There is no “least possible destructive means” standard for conducting the search. Johnson v. Manitowoc County, 635 F.3d 331 (7th Cir. 2011) (unpublished):

We begin with Johnson’s claim that his Fourth Amendment rights were violated when the officers used a jackhammer in their effort to collect evidence in accordance with the search warrant. The Fourth Amendment guarantees that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” “The touchstone of Fourth Amendment inquiry is reasonableness, a standard measured in light of the totality of the circumstances and determined by balancing the degree to which a challenged action intrudes on an individual’s privacy and the degree to which the action promotes a legitimate government interest.” Green, 420 F.3d at 694 (internal citations omitted). The reasonableness requirement extends to the manner in which the search is conducted. Id. at 694-95. It is “generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant.” Dalia v. United States, 441 U.S. 238, 257, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979). The test is whether “the officers executing the warrant employ[ed] a methodology that is, in light of the values protected by the Fourth Amendment and the exigencies of the situation, a reasonable one.” United States v. Jones, 54 F.3d 1285, 1292 (7th Cir. 1995).

Johnson argues that the officers’ use of the jack-hammer violates the reasonableness standard of the Fourth Amendment. He contends that the officers should have used a diamond or carbide-bladed saw, which would have resulted in less damage to the garage floor. Perhaps Johnson is correct, but the use of the jackhammer looks to be reasonable under the circumstances. Reasonableness, of course, is judged from the perspective of the officer at the time of the search, not with the benefit of 20/20 hindsight. Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Although another device, here a diamond or carbide saw, might well have done the job a little cleaner, use of the jackhammer under the circumstances was not unreasonable. Johnson cites, and we find, no cases requiring that officers use the least possible destructive means to execute a search warrant. Rather, “so long as the officer’s conduct remains within the boundaries of reasonableness, an officer has discretion over the details of how best to proceed with a search warrant’s execution.” Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir. 1997).

. . .

Johnson also tries, rather unconvincingly, to distinguish United States v. Becker, 929 F.2d 442 (9th Cir. 1991), a case where the Ninth Circuit held that the use of a jackhammer to remove portions of a concrete slab during a search was reasonable. …