Whether the defendant was identified by his street name of “Zee” with the place to be searched was unnecessary for nexus. Nexus essentially is proved by common sense. State v. Gleaves, 2010 Tenn. Crim. App. LEXIS 672 (August 13, 2010)*:

The justification for allowing the search of a drug dealer’s home is that, under some circumstances, one may reasonably infer that a drug dealer is storing evidence of his drug activity in his home. Saine, 297 S.W.3d at 206. Both common sense and the information commonly set forth by police applying for drug-related search warrants support this idea. In fact, as the officer in this case advised, drug sellers “very often” hide evidence of their drug transactions in “locations which they control.” In our view, therefore, one could reasonably infer that a drug dealer is storing drug-related material in a home he uses, though he may not formally reside in the home. We note that the alternative position, that an affidavit must clearly establish that the place to be searched is the dealer’s formal residence, would require law enforcement to acquire documentation connecting a dealer to a home. Acquiring this documentation would be impossible in some cases, e.g. where a dealer permanently lives in a home but is not mentioned in the title or lease pertaining to the home. Further, efforts by law enforcement personnel to obtain this information might inadvertently alert the dealer of their intent to obtain a search warrant of his home, leading the dealer to remove or destroy evidence. Another obvious ramification of this approach would be that drug dealers would operate out of the home of another without threat of police searching the home.

Defendant was found to have voluntarily come with the police to talk to them as a suspect in a capital murder case. She had her cell phone and car keys and was told that appearing was voluntary. She admitted enough to get charged as an accessory. Ervin v. State, 333 S.W.3d 187 (Tex. App. – Houston (1st Dist.) 2010),* Petition for discretionary review refused by In re Ervin, 2010 Tex. Crim. App. LEXIS 1694 (Tex. Crim. App., Dec. 15, 2010).

Here, the CI’s information and the police surveillance that the defendant probationer lived at the place searched was the defendant’s were not sufficient to provide probable cause, and the motion to suppress is granted. United States v. Gates, 745 F. Supp. 2d 936 (N.D. Cal. 2010)*:

Here, the undisputed facts show that the CI does not meet the standard required by Gates to establish probable cause. First, the informant’s basis of knowledge was never provided, and the information given about the 98th Avenue home (color, fencing, presence of dog in the yard) was consistent with what anyone walking by on the sidewalk would observe. Notably, the CI did not provide any specific information regarding the residence not known to the public. … Second, the information the CI provided with specificity (that T-Della Reese had guns and marijuana) was only corroborated after the search had taken place. Lastly, the Government has provided no evidence that this CI was “tested,” in that the CI had provided reliable information in the past. …

The person consenting to entry had apparent authority to consent to an entry because the officer knew that he’d seen her there before and he knew that she and her kids lived there. United States v. Jackson, 2010 U.S. Dist. LEXIS 114095 (E.D. Tenn. October 26, 2010), adopting 2010 U.S. Dist. LEXIS 114029 (E.D. Tenn. August 25, 2010).*

A trash pull at defendant’s residence produced drug sale records and marijuana residue and that was sufficient for probable cause for the search warrant. United States v. Seidel, 2010 U.S. Dist. LEXIS 114168 (D. N.D. October 15, 2010).*

Defendant was parked outside of a known drug house at 3 a.m. sitting in the car with the inside lights on. The officer had enough to at least pull up and stop to see what was going on and he parked in front of the car. At this point, defendant dropped drugs and ran. He was not illegally detained when he ran. United States v. Mabery, 2010 U.S. Dist. LEXIS 114249 (W.D. Mo. October 8, 2010).*

Motion for return of property seized from offices and computers under Rule 41(g) was really a suppression motion, so denial of the motion was unappealable because it was not a final order. In re Grand Jury, 635 F.3d 101 (3d Cir. 2011):

Our decision in United States v. Furina, 707 F.2d 82 (3d Cir. 1983), is also instructive. There, during a grand jury investigation, federal agents obtained and executed warrants to search the appellants’ residences; the agents seized various documents for presentation to the grand jury. Claiming that the search and seizure were invalid, the appellants filed a motion for return of the documents. The District Court denied the motion, and an appeal followed.

We dismissed the appeal. In doing so, we found it “very clear” that the appellants’ motion sought the suppression of evidence, not simply the return of property. Id. at 84. Indeed, the motion had been filed pursuant to what is now Rule 41(g), and, at the time, granting such a motion automatically resulted in suppression. That the appellants’ motion had sought not just the return of property but also the suppression of evidence was “enough under Di Bella to require that … the appeal be dismissed.” Furina, 707 F.2d at 84. We also stated that, “even though the appellants [we]re not under arrest or indictment,” a prosecution against them was nevertheless in esse for purposes of Di Bella, because they were subjects of an ongoing grand jury investigation. Id. (citing In re Grand Jury Proceedings, 604 F.2d at 806). We therefore held that the appellants did “not satisfy the [second] requirement of Di Bella that the motion [be] in no way tied to a criminal prosecution in esse against the[m].” Id. at 84.

Reliance on one witness hearsay to prove exigency for hot pursuit of an armed robber was insufficient. In re K.H., 14 A.3d 1087 (D.C. 2011):

… Thus, although the District claims the police did not need a warrant to enter apartment three because they were in hot pursuit of an armed robber, it still bore the burden of proving the police had probable cause to believe the robber had entered that apartment minutes earlier.

In our view, the District did not carry that burden. Instead of offering the testimony of one of the officers who entered apartment three in pursuit of the fleeing robber, it relied exclusively on the hearsay testimony of Detective Thompson, a witness who possessed no personal knowledge of the entry. Trustworthy hearsay is admissible in a suppression hearing and may justify a finding of probable cause. However, Detective Thompson’s testimony was, on the essential point, too unreliable and uncertain to support such a finding. The detective could say only that it was his “understanding” the officers entered apartment three because they overheard “some talk [inside the apartment] about the police being outside” and some “mention of someone going to run or something like that.” The deficiencies in this testimony are glaring. Detective Thompson never identified the source (or sources) of his “understanding”; it is impossible to know whether the detective spoke to anyone with personal knowledge of what the police overheard or whether his account involved multiple levels of hearsay. Without such knowledge, one cannot reasonably conclude that the detective’s “understanding” of what the police heard was reliable. Moreover, and critically, Detective Thompson admittedly could not provide even a reasonably accurate account of what the police professed to have heard. What he reported was vague and unenlightening. By itself, the information that someone in apartment three said police were outside and “something about running” does not demonstrate that an officer of “reasonable caution” would have been warranted in believing the robber had gone into the apartment.

On WaPo: Texas lawmakers considering bill making invasive pat-downs a felony except for probable cause:

FORT WORTH, Texas — A former Miss USA’s tearful claim that she was groped during a pat-down at Dallas-Fort Worth International Airport could be a criminal matter under a bill gaining momentum in the Texas Legislature.

The proposed Texas law, aimed at people conducting security checkpoints at airports and public buildings, would make it a felony to intentionally touch someone’s private areas — even on top of clothing — unless the officer or agent has probable cause to believe the person is carrying something illegal.

The flat bed truck defendants were driving near the border had all the signs of a false compartment, and that was reasonable cause to stop it. The vehicle looked like it had been at a construction site nearby, and there was construction going on, but innocent explanations do not have to be explained away by the officer. Defendants’ nervousness after the stop made it worse. United States v. Leon, 2011 U.S. Dist. LEXIS 44866 (D. Ariz. March 4, 2011);* United States v. Lopez, 2011 U.S. Dist. LEXIS 45141 (D. Ariz. April 22, 2011).*

Defendant failed to give a specific objection to the search of his computer and cell phone, so the USMJ’s findings are sustained. United States v. Donaldson, 2011 U.S. Dist. LEXIS 45142 (N.D. Ga. April 26, 2011),* R&R 2011 U.S. Dist. LEXIS 45139 (N.D. Ga. April 14, 2011).*

Officers in defendant’s building saw marijuana in plain view on a desk, and they searched a cooler next to the desk finding more. Neither party addressed the search of the cooler except in the Objections to the R&R, so the case is remanded to the USMJ for findings on that. United States v. Bowser, 2011 U.S. Dist. LEXIS 44790 (W.D. Mich. April 26, 2011), R&R 2011 U.S. Dist. LEXIS 44791 (W.D. Mich. March 18, 2011).*

Federal pre-conviction DNA testing regulation does not violate the Fourth Amendment. [Seems like the USMJ doesn’t really like the outcome. Quoting another case: “This is a vexing case. The DNA profiling system at issue promises enormous potential as an investigatory tool, but its expansion or misuse poses a very real threat to our privacy. … [B]ut we must draw lines as best we can … [and are sometimes compelled to] leav[e] for another day difficult questions.”] United States v. Thomas, 2011 U.S. Dist. LEXIS 45333 (W.D. N.Y. February 14, 2011):

B.Application of the Special Needs Test

1. The Act Serves a Special Need: The first requirement of the special needs test is that the search and seizure be justified by a special need beyond the ordinary needs of normal law enforcement. Amerson, 483 F.3d at 80 (citing Griffin, 483 U.S. at 873). A “general interest in crime control” does not qualify as a special need. City of Indianapolis v. Edmond, 531 U.S. at 41-42. If crime control is one purpose of a programmatic search, however, “the program may nevertheless be reasonable under the special needs doctrine so long as crime control is not the program’s primary purpose.” Lynch v. City of New York, 589 F.3d 94, 102 (2d Cir. 2009), cert. denied, 131 S. Ct. 415, 178 L. Ed. 2d 344 (2010) (emphasis in original). “[T]he appropriate inquiry … [is] whether the search ‘serves as its immediate purpose an objective distinct from the ordinary evidence gathering associated with crime investigation.’” Amerson, 483 F.3d at 81 (quoting Nicholas v. Goord, 430 F.3d at 663).

. . .

2. Nature of Privacy Interest and Degree of Governmental Intrusion:

Although the particular issue presented by this case appears to be one of first impression in this Circuit, the Second Circuit already has addressed the nature of the privacy interest involved in and the degree of government intrusion implicated by the collection of DNA samples by persons under probation supervision. Amerson, 483 F.3d at 83-87. While any analysis of privacy interests is “highly context specific,” id. at 87, much of the court’s reasoning and conclusions in Amerson nonetheless apply in the context presented by this case — the collection of DNA samples by indicted, rather than convicted persons. Indeed, for the reasons explained more fully below, I believe that Amerson’s holding and its underpinnings logically dictate the result in this case.

. . .

The second and “potentially much more serious invasion of privacy” is the “analysis and maintenance of [DNA] information” in CODIS. Id. at 85. According to the Second Circuit, this intrusion is “significant” considering the “vast amount of sensitive information that can be mined from a person’s DNA and the very strong privacy interests that all individuals have in this information.” Id. (emphasis added) (citing United States v. Kincade, 379 F.3d at 843 (Reinhardt, J., dissenting) (discussing concerns about the “profound social effects” of “allowing the government to collect and maintain private information about the intimate details of our lives”)). Despite concerns over the value of DNA information, the court determined that the statutes’s safeguards adequately “minimized” the privacy invasion occasioned by the DNA indexing. First, the court observed that the CODIS database stores only “junk DNA” sequences that are not “currently associated with any known physical or medical characteristics,” but rather “establish[] only a record of the [person’s] identity.” Id. Second, the court noted that the Act “severely limits” the purposes for which the samples can be used and imposes penalties for any misuse. Id. Finally, the court emphasized that the record contained no evidence of “misuse of the DNA samples” by the government or “scientific advances concerning the information that can be mined from the DNA footprint stored on the CODIS database.” Id. at 87. If it did, the court cautioned, “our analysis and ultimate conclusions might very well be different.” Id.

. . .

While the determination in Amerson that the privacy intrusion was “quite small” explicitly rested on the appellants’ “status as probationers,” 483 F.3d at 87, Thomas’s status as an indicted person should not alter that conclusion, in my estimation. After all, “when a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it.” Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992). Accord Boling v. Romer, 101 F.3d 1336, 1339-40 (10th Cir. 1996). See also Pool, 621 F.3d at 1220 (“it is doubtful that … any … individual having been indicted by a grand jury or having been subjected to a judicial determination of probable cause, has any right to withhold his or her true identification from the government”). Accordingly, I must conclude that the intrusion occasioned by DNA sample collection for indicted persons is also “quite small.”

3. The Government’s Interest: The Second Circuit has determined that “the government has a compelling interest in rapidly and accurately solving crimes and … having DNA-based records of the identity of as many people as possible … effectuates this interest.” Amerson, 483 F.3d at 87. Thus, the court in Amerson held that the “very broad societal interest” in having the “capacity to identify or exclude individuals, quickly, accurately, and at reasonable expense” outweighed the “relatively small” invasion of a probationer’s privacy. …

Consent obtained after threat to get a search warrant was still voluntary where there was a basis for concluding there was probable cause. United States v. Chavez, 2009 U.S. Dist. LEXIS 34217 (N.D. Ill. April 23, 2009):

. . . To determine whether a “threat” to obtain a search warrant is baseless, the reviewing court is not, contrary to Chavez’s assertions, required to determine whether probable cause actually existed at the time of the consent. Rather, in order to “know whether the statement was baseless or not,” the court must determine “whether there was probable cause (or a reasonable factual basis to believe there was probable cause).” United States v. Hicks, 539 F.3d 566, 571 (7th Cir. 2008) (emphasis supplied). The court announced this standard to avoid a situation where the officer seeking consent relies solely on the representations of another officer that probable cause is present, thus creating a “clean heart, empty head” loophole where the individual officer acts with a good faith belief that probable cause exists even where it does not. Id. at 572. Hicks holds that the officer seeking consent must have more than a good faith belief that he would obtain a search warrant; instead, he must have a reasonable factual basis to believe that probable cause exists–a standard more stringent than mere good faith, but less stringent than a determination that probable cause in fact existed. See id. So while the court has little trouble concluding that Agent Wood honestly believed that he could obtain a search warrant for Chavez’s residence, the court must also determine whether a reasonable factual basis existed that would support Wood’s honest belief.

The court concludes that such a reasonable factual basis existed. …

Defendant’s presence in a high-crime area, his known gang affiliation, past criminal conduct, proclivity to carry a firearm, and probationary status were sufficient in totality to establish the reasonable suspicion. CI was discounted. When confronted by the officers, defendant’s hand was thrust into his pocket and that justified his patdown. United States v. Samnang Am, 564 F.3d 25 (1st Cir. 2009).*

Officer had reasonable supsicion for a patdown: “Camacho’s unusual positioning of his hands in front of his waist in an apparent attempt to shield his groin area could have reasonably been interpreted by an officer with Sousa’s experience as a defensive posture foreshadowing an armed attack.” “I conclude that suppression of the gun is neither called for nor appropriate. I do so for the following reason. The gun was seized only after Camacho shoved Sousa and only after the officers succeeded in wrestling Camacho to the ground and placing him under arrest. The acts of shoving Officer Sousa and resisting arrest were intervening crimes giving the officers independent grounds to arrest Camacho.” United States v. Camacho, 608 F. Supp. 2d 178 (D. Mass. 2009).*

Technology is changing faster than the law. Cell phone location data is subject to the Fourth Amendment because it can reveal information from within the home. Indeed, cell phone location data is more invasive than GPS tracking. In re Application of the United States of America for Historical Cell Site Data, 747 F. Supp. 2d 827 (S.D. Tex. 2010):

Five years ago the first reported decisions on government acquisition of cell site information from telephone companies appeared. 4 The focus of those early decisions was the appropriate legal standard for obtaining prospective location information under the Electronic Communications Privacy Act (ECPA). Thereafter, a handful of decisions addressed the related problem of law enforcement access to historical cell site data collected and maintained by providers over time. A few courts have held that such requests triggered the Fourth Amendment warrant requirement, 5 but most courts to date have granted government access to such information under the SCA, which imposes a less-than-probable cause standard. 6

4 See In re Application of U.S., 384 F. Supp. 2d 562 (E.D.N.Y. 2005), on reconsideration, 396 F. Supp. 2d 294 (E.D.N.Y. 2005) (Orenstein, M.J.); In re Application of U.S., 396 F. Supp. 2d 747 (S.D. Tex. 2005) (Smith, M.J.); In re Application of U.S., 402 F. Supp. 2d 597 (D. Md. 2005) (Bredar, Mag.); In re Application of U.S., 407 F. Supp. 2d 132 (D.D.C. 2005) (Facciola, M.J.); In re Application of U.S., 405 F. Supp. 2d 435 (S.D.N.Y. 2005) (Gorenstein, M.J.).

5 See In re Application of U.S., 534 F. Supp. 2d 585 (W.D. Pa. 2008) (Lenihan, M.J.), aff’d No. 07-524M, 2008 WL 4191511 (W.D. Pa. Sep. 10, 2008) (McVerry, D.J.), vacated __ F.3d ___, 2010 WL 3465170 (3d Cir. Sept. 7, 2010); In re Application of U.S., Nos. 1:06-MC-6, 1:06-MC-7, 2006 WL 1876847 (N.D. Ind. July 5, 2006) (Lee, D.J.).

6 See 18 U.S.C. § 2703(d); In re Application of U.S., 509 F. Supp. 2d 76 (D. Mass. 2007) (Stearns, D.J.), reversing 509 F. Supp. 2d 64 (D. Mass. 2007) (Alexander, M.J.); United States v. Suarez-Blanca, No. 1:07-CR-0023-MHS/AJB, 2008 WL 4200156 (N.D. Ga. Apr. 21, 2008) (Baverman, M.J.);United States v. Benford, No. 2:09CR86, 2010 WL 1266507 (N.D. Ind. Mar. 26, 2010) (Moody, D.J.).

Several weeks ago U.S. Magistrate Judge James Orenstein, who authored the very first cell site opinion, suggested in a new opinion 7 that courts re-examine the constitutionality of historical cell site requests in light of recent appellate court decisions, such as that of the District of Columbia Court of Appeals in United States v. Maynard. 8 As if to underscore his point, two weeks later the Third Circuit became the first federal appellate court to issue an opinion dealing with government access to historical cell site data. 9 Rather than definitively resolving the Fourth Amendment issue, the court remanded the case to the district court, concluding that the factual record was insufficient to resolve whether such records “could encroach upon … citizens’ reasonable expectations of privacy regarding their physical movements and locations.” 10

7 In re Application of U.S., No. 10-MJ-00550(JO), 2010 WL 3463132 (E.D.N.Y. Aug. 27, 2010) (holding that historical cell site information is protected by the warrant requirement of the Fourth Amendment).

8 615 F.3d 544 (D.C. Cir. 2010).

9 In re Application of the United States for an Order Directing a Provider of Electronic Communication Service to Disclose Records, __ F.3d ___, 2010 WL 3465170 (3d Cir. Sept. 7, 2010).

10 Id. at *6.

Though significant, the caselaw developments have been outstripped by advancing technology. Recently, committees in both the House and Senate have conducted hearings on proposals to update ECPA, the 1986 statute establishing the regulatory regime governing electronic communications. Expert testimony at those hearings reveals that regulatory and market forces have produced dramatic advances in location technology over the past half-decade. As will be shown, this new technology has altered the legal landscape even more profoundly than the new caselaw.

. . .

Conclusions of Law

A. Under Current Location Technology, Cell Site Information Reveals Non-Public Information About Constitutionally Protected Spaces

. . .

Even if an exact latitude and longitude is not yet ascertainable or recorded for every single mobile call, network technology is inevitably headed there. As the Supreme Court observed in Kyllo v. United States regarding the ongoing research and development of radar surveillance devices:

While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or development.

533 U.S. 27, 36 (2001). Like the thermal imaging devices in Kyllo, the cellular location technology in use or development today crosses the “firm but also bright” Fourth Amendment line that the Supreme Court has drawn at the entrance to the house. Id. at 40. Accordingly, the cell site records generated by that technology are subject to constitutional protection.

B. Historical Cell Site Records Are Subject to Fourth Amendment Protection under the Prolonged Surveillance Doctrine of United States v. Maynard

It is true that cell site records for a single day may not always reveal particularly intimate details about the user’s private life but merely that the user’s cell phone (like the Karo beeper) was present in the home at a particular time. Nevertheless, as Justice Scalia has observed, “[i]n the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.” Kyllo, 533 U.S. at 37 (emphasis in original). In this case, the records sought by the Government are likely far more intrusive — not a single snapshot at a point in time, but a continuous reality TV show, exposing two months’ worth of a person’s movements, activities, and associations in relentless detail.

In his decision denying warrantless access to historical cell site information, Judge Orenstein relied most heavily on the recent decision of the Court of Appeals for the District of Columbia in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). In light of the technological developments noted above, reliance on the Maynard precedent is not essential to the ruling here. Even so, Maynard‘s treatment of month-long GPS surveillance is instructive, and provides additional support and alternative grounds for this decision.

. . .

In several respects, the historical cell site records sought here are more invasive than the GPS data revealed in Maynard. The duration and volume of information sought is more than doubled — 60 days as opposed to 28 days of movement. As we have found, the level of detail provided by cell site technology now approaches that of GPS, and its reliability in obtaining a location fix actually exceeds that of GPS. 79 Moreover, as Judge Orenstein points out, cell phone tracking is likely more revealing than a GPS device attached to a car, because the cell phone is carried on the person. 80 It will also inevitably be more intrusive, because the phone can be monitored indoors where the expectation of privacy is greatest. By contrast, the GPS device in Maynard revealed no information about the interior of a home or other constitutionally protected space.

This case also has a simple and insightful discussion of today’s cell phone technology.

[I’ve looked online this morning for a free copy of this case. S.D. Tex., EFF, and EPIC don’t have it posted yet. If somebody sees it free online, please forward me the link.]

Update: The ACLU provided me the link to the case. Thanks, ACLU.

Defendant fails in his Franks burden where the court can conclude that the part of the affidavit that offends him was “hastily included” in the affidavit and was not intentional or even reckless. United States v. Nedd, 2010 U.S. Dist. LEXIS 130618 (E.D. N.C. December 9, 2010)*:

On this prong, Nedd fails to carry his burden. Other than pointing to Officer Monroe’s mistaken inclusion of a reference to a “confidential informant” Nedd puts forth no evidence tending to establish that the officer’s reference was anything other than a hastily included mistake. Nothing in the record supports a finding that Monroe acted intentionally or even recklessly in including the reference to the confidential informant.

An officer heard a radio report of a robbery, and he stopped a car which he thought could have been involved in the robbery for a broken taillight. There were several in the car, and he ordered them all out of the car so he could watch them, and they were nervous, had inconsistent stories, and had bulging pockets. The stop and patdowns were reasonable, as was the detention. State v. Cooper, 55 So. 3d 873 (La. App. 2d Cir. 2010).*

The state showed that the defendant’s consent to a blood draw at the hospital after an accident was voluntary, so the blood test results were properly admitted. Irby v. State, 49 So. 3d 94 (Miss. 2010).*

Officers had reasonable suspicion to support their initial approach to defendant based on information that he was in the United States illegally and was wanted in Mexico for homicide. Defendant’s actions when he was told to raise his hands, but put them in front of his waistband gave rise to probable cause for arrest. His search produced a gun there. His wife validly consented, and all that was used to get a search warrant. United States v. Ochoa, 402 Fed. Appx. 478 (11th Cir. 2010) (unpublished).*

A bankruptcy case recognized the doctrine of collateral estoppel from a criminal conviction, noting that Allen v. McCurry, 449 U.S. 90, 95-96 (1980), is a collateral estoppel bar to relitigating a search claim in federal court that the state court has already affirmed. Williams v. Meyer (In re Williams), 438 B.R. 679 (10th Cir. BAP 2010).*

Defendant’s stop for speeding was valid despite the fact the police car did not have a certified speedometer. United States v. Rowls, 402 Fed. Appx. 467 (11th Cir. 2010) (unpublished).*

The police had an invalid warrant for defendant’s arrest. When they knocked at the door, he fled out a window. Therefore, the arrest was in a public place. State v. Brown, 205 N.J. 133, 14 A.3d 26 (2011).*

Defendant did not abandon his truck by parking it and walking across the street. He had the keys in his pocket. He also had standing. The search was valid based on probable cause under the automobile exception. United States v. Ollervides-Sanchez, 2010 U.S. Dist. LEXIS 140440 (N.D. Ga. December 29, 2010).*

Defendant by statute was required to put the state on notice of the issues to be tried in the motion to suppress, and his motion did by stating that there was a lack of probable cause. The state did show probable cause. Glenn v. State, 2010 Ga. LEXIS 946 (January 24, 2010).*

Defendant’s stop on private property was justified for suspicion of DUI because the officer saw him first on a road and not in good control of his vehicle. State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011).*

Defendant’s vehicle was stopped for suspicion of being involved in an armed robbery. When the officers approached, they had guns drawn and opened the door because of the dark tinting of the windows, and they could not see inside. When the door was opened, they could see the handle of a gun. All this was reasonable under the Fourth Amendment. United States v. Jones, 2010 U.S. Dist. LEXIS 140419 (E.D. N.Y. October 21, 2010).*

Unlawful entry here was only to the extent of step into the threshold and asking defendant to come out. Once outside defendant consented. This was not so flagrant the exclusionary rule should be applied. United States v. Ramirez-Martinez, 2010 U.S. Dist. LEXIS 126902 (E.D. Wis. December 1, 2010)*:

I agree with the magistrate judge that the government met its burdens here. First, while it is true that the officers obtained the consents of defendant’s mother and girlfriend shortly after the unlawful entry, the nature of that misconduct was minimal. This was not a case in which multiple officers broke down the door and entered with guns drawn. Cf. Robeles-Ortega, 348 F.3d at 680-81. Rather, Arzaga briefly and minimally entered the house and redirected defendant back outside. Further, neither defendant’s mother or girlfriend were unlawfully seized; nor were they even present inside the house when Arzaga unlawfully entered it. Defendant’s mother witnessed the encounter at close quarters, but as the magistrate judge noted, a reasonable layperson in her position may not have even understood that anything improper occurred. For her part, it is unclear whether Stephanie, who encountered Hansen in the backyard, observed Arzaga unlawfully enter the house and seize defendant. Thus, it is hard to see how the unlawful entry and seizure may have tainted her later consent.

When an officer stops a car and smells burnt marijuana, the entire car and its containers are subject to search. United States v. Ford, 2010 U.S. App. LEXIS 24549 (4th Cir. November 30, 2010) (unpublished).*

The proof in the District Court showed that defendant was lawfully seized with reasonable suspicion, and then he voluntarily consented to a search of his place. The evidence supports both conclusions on de novo review. United States v. Ward, 400 Fed. Appx. 991, 2010 FED App. 0747N (6th Cir. 2010) (unpublished).*

As a part of a drug conspiracy, defendant transferred a suitcase from one car to a co-conspirator’s car. He lost any reasonable expectation of privacy in the suitcase by transferring it to another car and out of his control. United States v. Ocampo, 402 Fed. Appx. 90, 2010 FED App. 0701N (6th Cir. 2010) (unpublished).*

The informant’s information was detailed and specific, and it was corroborated by a phone call with the defendant the police were listening in on. State v. Butler, 2010 Tenn. Crim. App. LEXIS 951 (November 12, 2010).*

A state search warrant for a stolen birth certificate was issued and served. Officers opened a folded document that appeared to be a birth certificate, but it was a death certificate that turned out to be evidence of insurance fraud. It was lawfully seized. United States v. Jenkins, 2010 U.S. Dist. LEXIS 121358 (S.D. N.Y. November 9, 2010).*

“[A]n officer has reasonable suspicion to initiate an investigatory stop of a vehicle to investigate whether the driver has a valid driver’s license when the officer knows the registered owner of the vehicle has a suspended license, and the officer is unaware of any evidence or circumstances indicating the registered owner is not the driver of the vehicle.” State v. Vance, 790 N.W.2d 775 (Iowa 2010).*

The exclusionary rule does not apply to evidence obtained by police who acted in objectively reasonable reliance upon K.S.A. 22-2501(c) prior to the United States Supreme Court’s decision in Arizona v. Gant under Illinois v. Krull. The statute had previously been held to violate Gant. State v. Daniel, 291 Kan. 490, 242 P.3d 1186 (2010).*

An apartment complex did not state a Fourth Amendment claim against the city that limited parking around the complex for stadium events. Six tenants decided to move out of the 348 unit complex because of “traffic” issues, but the apartment complex could not assert their Fourth Amendment seizure rights. And, this asserted limitation on use of the property does not amount to a Fourth Amendment seizure anyway. Enclave Arlington Assocs., L.P. v. City of Arlington, 401 Fed. Appx. 936 (5th Cir. 2010) (unpublished).*

One Florida appellate district follows Hudson not suppressing a violation of knock-and-announce while recognizing that another does not (Cable v. State, 18 So. 3d 37 (Fla. 2d DCA), review granted, 22 So. 3d 539 (Fla. 2009)), certifying the conflict to the Florida Supreme Court. State v. Fernandez, 50 So. 3d 37 (Fla. App. LEXIS 17683 (Fla. 3d DCA November 17, 2010).*

Officers entered with exigent circumstances to make defendant’s arrest for assault, and then brought him out. The officers wanted to go back in and defendant objected. The victim could not consent under Randolph because defendant already objected. The re-entry was without justification and the observations were suppressed. State v. Driggers, 306 Ga. App. 849,
702 S.E.2d 925 (2010).*

Defendant was on parole, so he had an even lesser expectation of privacy than a probationer. The officers had reasonable suspicion for a home search based on his glassy eyes. United States v. Justiniano, 401 Fed. Appx. 595 (2d Cir. 2010)* (unpublished).

It is possible for somebody to have two residences, and then the court must decide whether Payton or Steagald applies if a third party is involved. Here, the officers had a reasonable belief defendant would be found in the place they entered under Steagald. United States v. Thompson, 402 Fed. Appx. 378 (10th Cir. 2010) (unpublished):

The Payton/Steagald distinction does not lend itself to resolving the situation where a suspect lives in more than one dwelling. Here, for example, the officers had information suggesting that, on the one hand, Thompson lived at 2213 N. Kelham and, on the other, that he lived at 4619 Creek Court. Can officers reasonably believe that a suspect lives at two or more places? The language in Payton suggests the answer is yes. Justice Stevens, writing on behalf of the Court, stated that, “an arrest warrant founded on probable cause carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) (emphasis added). The use of the indefinite article “a” before “dwelling” suggests the “dwelling” need not be a specific dwelling. See Bryan A. Garner, Garner’s Modern American Usage (3rd ed. 2009) (“Each of these [indefinite articles] points to a non-specific object, thing, or person that is not distinguished from the other members of a class.”) The members of this class — as suggested by the language in Payton — would be the various dwellings in which the suspect lives. Had the Court contemplated a particular dwelling, that is, had the Court limited the reach of its rule to one dwelling per suspect, then it would have used the definite article “the,” which refers to a particular thing, in this case, a particular dwelling. See id. Given the Court’s choice of the indefinite article in writing “a dwelling,” the Court must have contemplated that a suspect can live in more than one dwelling. See also, e.g., United States v. Risse, 83 F.3d 212, 217 (8th Cir. 1996) (“We have found no authority to support [the defendant’s] implicit assumption that a person can have only one residence for Fourth Amendment purposes.”).

We conclude, then, that Payton does not void as “unreasonable” an officer’s belief that a suspect lives in a given dwelling merely because that suspect also “lives” in another. Here, although police may have reasonably believed Thompson lived at 2213 N. Kelham, it was also reasonable for them to believe he lived at 4619 Creek Court. This point is underscored by this court’s gloss on Payton. In Valdez v. McPheters, we stated that “[t]he rule announced in Payton is applicable so long as the suspect ‘possesses common authority over, or some other significant relationship to,’ the residence entered by police.” Valdez v. McPheters, 172 F.3d 1220, 1225 (10th Cir. 1999) (quoting United States v. Risse, 83 F.3d 212, 217 (8th Cir. 1996)). We acknowledge the term “significant relationship” lacks ideal utility. At what point, for example, does a suspect’s relationship with a residence become “significant” such that he or she can be said to be living there? This question could flummox law enforcement. We trust, however, that law enforcement will take the plain meaning of the word “significant” — important, notable — and not abuse this admittedly permissive standard. Whether they do so, unfortunately, we must address on a case-by-case basis. In any event, given the totality of the information the officers had in this case, we find that the officers reasonably believed Thompson had a “significant relationship” with the 4619 Creek Court address. Accordingly, under this analysis the officers did not require a search warrant to enter that residence.

Because of the jealous protection of the home, the evidence of the officers’ need to enter the home in a “potential … domestic violence” situation was just not sufficient. As far as officers knew, the situation had not reached the point of near violence. State v. Schultz, 170 Wn. 2d 746, 248 P.3d 484 (2011) (dissent here) (revg State v. Schultz, 146 Wn. App. 1057, 2008 Wash. App. LEXIS 2342 (2008)):

¶24 We recognize a few jealously guarded exceptions to the warrant requirement. State agents need no warrant to provide emergency aid. Courts may consider that an entry is made into a home in the context of a domestic violence threat in considering the reasonableness of officers’ actions under the emergency aid exception. However, the State still has the burden of establishing facts to justify a warrantless search. The evidence that domestic violence was likely to occur in this case may be summarized as follows: (1) a report of a couple yelling, (2) the officers heard “raised voices” and a man say he wanted to be left alone and needed his space, (3) when Schultz answered the door she appeared agitated, and (4) she reported that no one was there before a man appeared from the bathroom. That is not enough. We reject the trial court’s and the Court of Appeals’ conclusion that Schultz consented by acquiescence because she failed to object when the police walked into her apartment. The State has failed to establish an exception to the warrant requirement applies. The evidence that Schultz possessed illegal drugs was obtained without authority of law. Schultz was entitled to have her motion to suppress the evidence granted. We reverse the courts below and remand for any further proceedings consistent with this opinion.

Silent acquiescence was not consent here:

¶17 Thus the police, the trial court, and the Court of Appeals seem to be of the view that the protections of article I, section 7 against warrantless intrusions into private affairs and homes are easily waived by silent acquiescence. We disagree. Individuals do not waive this constitutional right by failing to object when the police storm into their homes. Nor do they waive their rights when the police enter their homes without their consent just because they are too afraid or too dumbfounded by the brazenness of the action to speak up. The right not to be disturbed in one’s home by the police without authority of law is the bedrock principle upon which our search and seizure jurisprudence is grounded. Wash. Const. art. I, § 7; Ferrier, 136 Wn.2d at 112 (citing Young, 123 Wn.2d 185).

The officer got a CI’s tip that defendant was seen by him in possession of cocaine. Defendant was sitting in his truck and was acting like he was hiding something. The officer talked to defendant sitting in his truck, and the defendant became nervous and then upset when asked about drugs. This corroborated the CI. State v. Coger, 2011 Ohio 54, 2011 Ohio App. LEXIS 36 (10th Dist. January 11, 2011).*

Defendant had not been Mirandized when he was arrested, and the officer asked him whether there was anything in his room that the officer should know about, and he consented to a search without being asked. The search was valid by consent. Cadoree v. State, 331 S.W.3d 514 (Tex. App. – Houston (14th Dist.) 2011).*

Under a Franks claim, an officer is not required to conduct a complete investigation of the alleged crime under investigation before seeking a search warrant. The statement that the property in question did not appear to have a business justifying the high electrical usage was not recklessly made. United States v. Thoms, 2011 U.S. Dist. LEXIS 2853 (D. Alaska January 11, 2011)*:

Alternatively, Thoms argues that, assuming the truth of Investigator Young’s statement that there was nothing visible at the residence that would suggest it being used for business purposes to justify the higher electrical rate, nevertheless, Young’s statement was misleading. “Franks protects against omissions that are designed to mislead, or that are made in reckless disregard of whether they would mislead, the [issuing judge].” Colkley, 899 F.2d at 301 (italics in original).

The statement on its face is not misleading. The fact that a subsequent administrative subpoena(s) to MEA disclosed that there were four electrical accounts associated with the property and that three of those accounts were in the names of businesses does not render Young’s statement incorrect or misleading.

Once reasonable suspicion for the initial stop has dissipated, the officer acts unreasonably by detaining the defendant for a weapons frisk. This turned into a fishing expedition. The subsequent frisk was not by consent. State v. Figueroa, 2010 NMCA 48, 148 N.M. 811, 242 P.3d 378 (2010), cert. granted, 148 N.M. 584, 241 P.3d 182 (2010):

[*26] Having found no reason to investigate further and no reason to detain Defendant, Officer Mullins told Defendant he was free to leave. This constituted a recognition that his suspicion about Defendant’s involvement in the domestic issue had been dispelled, and it ended his authority to detain Defendant or to investigate further. See Forfeiture, 1998 NMCA 29, PP 16-18. However, instead of letting Defendant leave, Officer Mullins successfully detained Defendant for a weapons check, even though there was no reasonable suspicion for his question about weapons and even though he articulated no danger to the officers.

[*27] His decision to continue questioning Defendant about weapons crossed the line into an impermissible fishing expedition and was not reasonable. Officer Mullins had already had contact with the woman who was complaining that her brother was harassing her, had knowledge that Defendant had not been identified in any way as being a part of the problem, and had received no report at any time that weapons had been a part of whatever was going on between the brother and sister. Drugs had not been mentioned by the sister, there was no reasonable suspicion that drugs played any part in the ongoing domestic issue, nor was there any other reasonable suspicion of drug activity. Consequently, we conclude that there was no evidence to support Officer Mullins’ interest in weapons or drugs or to support his continued questioning of Defendant. For these reasons, we hold that Officer Mullins illegally expanded the scope of the initial investigatory stop.