Defendant was stopped because the car came back stolen from dispatch, but it wasn’t stolen. Under Herring, the stop was in good faith, and there would be no deterrence, so the exclusionary rule would not be applied. State v. Geiter, 2010 Ohio 6017, 190 Ohio App. 3d 541, 942 N.E.2d 1161 (8th Dist. 2010)*:

[*P42] “At its core, the good faith exception recognizes that the purpose of the exclusionary rule, to deter unlawful police conduct, cannot be furthered by excluding evidence seized by an officer who had reasonable grounds to believe the search warrant was properly issued. See Leon at 919, 923. Thus, ‘evidence should be suppressed only if it can be said that the law enforcement officer had knowledge, or may be properly charged with knowledge, that the search was unconstitutional under the Fourth Amendment.’ Herrings [sic], 129 S.Ct. at 701; Leon, 468 U.S. at 919.” (Emphasis added.)

[*P43] For purposes of this case, the word “stop” may be substituted for the word “search” in the foregoing opinions. In applying the relevant analysis, therefore, the trial court properly focused on Nan’s objective reliance on the information conveyed to him via police dispatch. Nan had no reason to question the reliability of the “local system’s” information, particularly to justify a minimally intrusive traffic stop. State v. Commins, Clinton App. Nos. CA2009-06-004 and 005, 2009 Ohio 6415; cf., State v. Jacob, supra.

[*P44] Applying the exclusionary rule under these circumstances would not deter “unlawful police conduct,” since Nan himself could not know his conduct in stopping a car to investigate possible criminal activity would subsequently prove to lack a foundation. In fact, Terry v. Ohio (1968), 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889, precisely permits such an action.

911 hang up call brought police to the defendant’s house. The officer knocked at the screen door, and no one answered. The officer could enter to check on the perceived emergency, and the motion to suppress drugs found all over the place was properly denied. State v. Hodge, 2011 Ohio 633, 2011 Ohio App. LEXIS 529 (2d Dist. February 11, 2011).*

A search warrant for footwear that had seven month old information was not stale because footwear, unlike drugs, are not commonly readily disposed of. Commonwealth v. Janda, 2011 PA Super 27, 14 A.3d 147 (2011).*

Defendant’s stop was justified by his license plate being partially obstructed by a trailer hitch ball. Consent after that was justified. Parks v. State, 2011 WY 19, 247 P.3d 857 (2011).*

The Kansas implied consent statute amended in 2006 does not require the defendant to knowingly or intelligently waive; it is statutorily implied. State v. Edgar, 246 P.3d 1013 (Kan. App. 2011).*

Defendant’s stepfather lacked actual authority to consent to a search of adult defendant’s room, but he had apparent authority as far as the officers were concerned. The Tenth Circuit would find he lacked actual authority, but that is not the determinative question. United States v. Romero, 743 F. Supp. 2d 1281 (D. N.M. 2010)* [One has to admire Judge Browning’s industriousness and completeness, but a 157 page opinion here was not necessary. (I judged a moot court with him about ten years ago in Santa Fe.)]

Defendant was on the parking lot of an apartment complex known for its violence and gang related activities. That alone would not be enough for an investigative stop, but the officer had knowledge that defendant had a record of violence and was in La Primera gang, one known for its violence. That was enough. United States v. Miranda, 393 Fed. Appx. 243 (5th Cir. 2010).*

Expansion of defendant’s stop was justified by the smell of burnt marijuana [as if that isn’t enough these days?] and defendant’s inconsistent answers to questions put to him. United States v. Linder, 2010 U.S. Dist. LEXIS 91558 (D. S.D. September 2, 2010).*

The fact an arrest with probable cause could have occurred for a search incident is not determinative—it is whether it did occur. State v. Ingram, 331 S.W.3d 746 (Tenn. 2011):

It is not sufficient that an arrest could have been made; the arrest must have been made roughly contemporaneously to the search in order for it to justify the search as incident to an arrest. In Crutcher, we “decline[d] to hold that a search may be upheld as a search incident to arrest merely because a lawful custodial arrest ‘could have’ been made,” 989 S.W.2d at 301 n.8, and emphasized that “we are not prepared to hold that the police may conduct a warrantless search merely because they have probable cause to arrest the suspect.” Id. at 302; see also Knowles, 525 U.S. at 115-16 (rejecting Iowa Supreme Court’s “reasoning that so long as the arresting officer had probable cause to make a custodial arrest, there need not in fact have been a custodial arrest”); Belote v. State, 411 Md. 104, 981 A.2d 1247, 1257 n.7 (Md. 2009) (rejecting state’s position “that law enforcement, in order to effect a custodial arrest, only needs probable cause and detention of the suspect”); People v. Evans, 43 N.Y.2d 160, 371 N.E.2d 528, 531, 400 N.Y.S.2d 810 (N.Y. 1977) (concluding that “[t]o adopt the proposition that the search was valid because there was probable cause to arrest puts the cart before the horse. An arrest is an essential requisite to a search incident”).

. . .

In summary, we agree with the Court of Criminal Appeals’ conclusion that the officers did not take such action “that would indicate to a reasonable person that he or she is under arrest” as required by Crutcher. Id. at 302. Accordingly, we conclude that the trial court erred in denying the Defendant’s motion to suppress the fruits of the warrantless search of his person — the four $20 bills used by the CI to make the first controlled drug buy from Ms. Hampton. We also agree with the intermediate appellate court’s conclusion that although the State provided other evidence connecting the Defendant to the first controlled buy at Ms. Hampton’s house, the Defendant’s “possession of these twenty-dollar bills was particularly damning.” Ingram, 2009 Tenn. Crim. App. LEXIS 889, 2009 WL 3400694, at *9. Accordingly, we are not persuaded beyond a reasonable doubt that the admission of this evidence did not contribute to the jury’s decision-making in finding the Defendant guilty of the sale of .5 grams or more of cocaine and conspiracy to sell .5 grams or more of cocaine to the CI. See State v. Brown, 311 S.W.3d 422, 434 (Tenn. 2010); State v. Rodriguez, 254 S.W.3d 361, 371-72 (Tenn. 2008). Accordingly, the erroneous admission of this evidence was not harmless. See Tenn. R. App. P. 36(b). The Defendant’s convictions for the sale of .5 grams or more of cocaine and conspiracy to sell .5 grams or more of cocaine are reversed, and the case is remanded for a new trial on those charges.

A Mirandized coconspirator whispered to the officers that there was a “trap” (hidden compartment) in defendant’s car with drugs and a gun inside, and that made the search of the car valid under the automobile exception, even if it was searched elsewhere. United States v. Polanco, 634 F.3d 39 (1st Cir. 2011).*

The government presented three different traffic offenses justifying defendant’s stop, and none of them was sufficient, and the court would not remand for further factfinding. Motion to suppress should have been granted. United States v. Raney, 633 F.3d 385 (5th Cir. 2011)*:

At the suppression hearing, the government presented evidence to establish that Raney committed three traffic violations: (1) driving in the wrong lane of traffic, (2) disobeying an officer directing traffic, and (3) reckless driving. The government bears the burden of proving that the stop was constitutional when, as here, the stop and search were conducted without a warrant. See United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001). Thus, the suppression hearing provided the government the opportunity and obligation to present evidence establishing the validity of the traffic stop. Although the district court did not make specific findings on failure to obey and reckless driving, the record has nonetheless been developed as to these arguments. We will not afford the government a second opportunity to present evidence to the district court in an attempt to meet their burden of proof. Because the government failed to establish the necessary objective basis justifying the traffic stop, we need not remand on these grounds.

Defendant’s actions when seen in a stopped car did not amount to suspicious circumstances. The officer’s learning that defendant was under investigation for drug trafficking did not lessen his Fourth Amendment rights, and it added nothing to the reasonable suspicion calculus. United States v. Foster, 634 F.3d 243 (4th Cir. 2011):

The Government then points to Detective Ragland’s conversation with Sergeant Darnell, which seemed to confirm that Foster was under investigation for drug trafficking, to show that a reasonable officer would have had some grounds to believe that Foster was engaged in drug activity. However, a person’s Fourth Amendment rights cannot be lessened simply because he or she is “under investigation” by the police. Just as an officer’s knowledge of a suspect’s past arrests or convictions is inadequate to furnish reasonable suspicion; so too is knowledge that a suspect is merely under investigation, which is an even more tentative, potentially innocuous step towards determining criminal activity. Cf. Sandoval, 29 F.3d at 542 (“[E]ven knowledge of a person’s prior criminal involvement (to say nothing of a mere arrest) is alone insufficient to give rise to the requisite reasonable suspicion.”).

While the President signed a 1982 Convention on the Law of the Seas treaty authorizing the U.S. to exercise jurisdiction out twenty-four miles rather than twelve, the President in 1999 signed an executive proclamation approving that distance as a “contiguous zone.” The appearance of defendant’s boat off Puerto Rico in rough seas with the crew claiming they were testing a boat that had been repaired just didn’t wash with the Coast Guard since they ignored radio contact, so they boarded it. It was a legal boarding and search, and defense counsel was not ineffective for not challenging it. Delgado-Negrón v. United States, 2011 U.S. Dist. LEXIS 30925 (D. P.R. March 24, 2011).*

Defendants were indicted for staging a traffic stop to steal drugs. The fact they had probable cause for their stop of the victims is no defense, and “quite simply, nonsense.” United States v. Torres-Sobrado, 733 F. Supp. 2d 325 (D. P.R. 2010)*:

The arguments made by the defendants, first, that no property was unlawfully seized because the property in question consisted only of illegal substances and, second, that the defendants had probable cause to conduct the fateful traffic stop and therefore, presumably, that the resulting search and seizure were lawfully conducted is, quite simply, nonsense. Even if the property taken from the victim is property that is not constitutionally protected, and even if the movants were accompanied during the traffic stop by a “real” member of the Puerto Rico Police Department acting on a tip from a reliable source, the defendants’ stop, detention, and search of Andrades were illegal according to the allegations in Count Six. Defendants are charged with staging a false traffic stop, motivated not by any attempt on the part of real law enforcement officers to enforce real laws, but motivated by a goal to procure drugs for resale and profit. For the defendants to argue that they had probable cause for the actions they are charged with, despite the fact that they are charged with staging that stop, despite the fact that neither is a real law enforcement official, despite the fact that they allegedly dressed up as law enforcement officials, is stunningly irrational and baseless. The Court rejects these arguments outright.

In an eyewitness ID case, it was IAC for defense counsel to fail to object to the prosecutor’s eliciting that defendant refused to consent to taking DNA evidence and then argue in it close. The other IAC claims are moot by the granting of a new trial. State v. Banks, 2010 WI App 107, 328 Wis. 2d 766, 790 N.W.2d 526 (App. 2010).

Changing lanes without signaling is not a violation of the law unless other cars are nearby such that it would be a hazard. Therefore, defendant’s stop was without probable cause. State v. Feaster, 2010 Tenn. Crim. App. LEXIS 603 (July 21, 2010).*

A dog sniff at the open window of his car was not a violation of the Washington Constitution’s protection of privacy. “The trial court correctly concluded that Hartzell did not have a reasonable expectation of privacy in the air coming from the open window of the vehicle. Hartzell was not in the SUV when the dog sniffed from a lawful vantage point outside the vehicle. The sniff was only minimally intrusive. The trial court did not err when it denied Hartzell’s motion to suppress the evidence.” State v. Hartzell, 2009 Wash. App. LEXIS 3318 (November 16, 2009).*

The affidavit used the phrase “within the last 48 hours,” and it wasn’t clear whether that meant when the CI reported it or saw it. The trial court read it narrowly, but that was not faithful to the “canons of construction” that affidavits for search warrants get a common sense reading with a purpose of deferring to search warrants to encourage officers to get search warrants. State v. Lyons, 160 Wn. App. 100, 247 P.3d 797 (2011):

¶13 This analysis would be appropriate and helpful if the court were analyzing a contract, where the language was the product of negotiation by business people and their lawyers. … But this is not a contract between business people and their lawyers. Mr. Lyons and the police did not sit down with lawyers and draft the language of this affidavit. Indeed, the affidavits are prepared by police officers, not lawyers, on short notice, and sometimes without any input by lawyers at all. State v. Patterson, 83 Wn.2d 49, 57-58, 515 P.2d 496 (1973). So both the superior court and this court, sitting in an appellate capacity, must give great weight to a magistrate’s determination that probable cause exists, and doubts are to be resolved in favor of the warrant. O’Connor, 39 Wn. App. at 123.

¶14 This affidavit certainly could be read as Mr. Lyons and, ultimately, the superior court judge read it. But the standard of review (abuse of discretion) and canons of construction (nontechnical reading, commonsense reading, with great deference to the magistrate, with doubts resolved in favor of the warrant) would require a reading in favor of the warrant. When so viewed, we conclude the language can be read to support both the observation and the reporting of that observation within 48 hours and therefore we conclude this warrant passes constitutional muster.

TSA random search of a suitcase at Pensacola airport for swabbing of exterior and contents for explosives resulted in a “plain view” of child pornography. Nothing was suspicious at all about defendant or his luggage. The TSA officer was permitted to look through papers rather than swab them [sounds like a search not in good faith to me]. The court distinguished two federal cases that found criminal searches by TSA unreasonable. Higerd v. State, 54 So. 3d 513 (Fla. App. 1st DCA 2010):

This is an issue of first impression; our independent research has not revealed any case directly deciding whether a purely administrative, physical search of checked luggage violates the Fourth Amendment. See United States v. Fofana, 620 F. Supp. 2d 857, 861-62 n.2 (S.D. Ohio 2009) (noting United States Supreme Court has not directly ruled on reasonableness of domestic airport checkpoint searches); cf. United States v. McCarty, 672 F. Supp. 2d 1085, 1091 (D. Hawaii 2009) (examining administrative physical search of passenger’s checked luggage where suspicion was aroused by x-ray of the luggage). …

Administrative searches in airports are an established exception. See United States v. Aukai, 497 F.3d 955, 959 (9th Cir. 2007) (“airport screening searches … are constitutionally reasonable administrative searches because they are ‘conducted as part of a general regulatory scheme’”) (quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)). In 1980, the Florida Supreme Court held that a person attempting to board an airplane may be searched without probable cause within the security area of an airport as long as the search is reasonable and conducted solely for the purpose of discovering an immediate threat to air commerce. Shapiro v. State, 390 So. 2d 344, 350 (Fla. 1980).

Consent is not required to conduct an airport screen search, if the search is otherwise reasonable and conducted pursuant to statutory authority. McCarty, 672 F. Supp. 2d at 1096. …

TSA’s protocol required officers to physically open a certain number of randomly selected bags, swab the inner contents, and test the swabs in one of the explosive detection machines. The TSA officer’s testimony was that she discovered several photographs while thumbing through a large file. TSA’s protocol reveals that the TSA officer had the discretion to flip through the papers found in Appellant’s bag while conducting the open bag search in lieu of swabbing every piece of paper. …

Recently, two federal district courts determined similar administrative airport searches were unreasonable because they were not confined, in good faith, to searching for weapons or explosives. See Fofana, 620 F. Supp. 2d at 863-64; McCarty, 672 F. Supp. 2d at 1096. These opinions are distinguishable but instructive.

Unlike the officers in McCarty and Fofana, the TSA officer’s testimony in this case demonstrates her search remained confined, in good faith, to the purpose of searching for explosives or weapons. The TSA officer’s testimony was simple and unwavering: She was required to open a certain number of bags; Appellant’s bag was the next randomly selected bag; she was required to thumb through the contents of the accordion-type file folder found in Appellant’s bag, under TSA protocol; and she saw the photographs as soon as she opened the folder. She immediately stopped the search and contacted a supervisor. “The mere fact that a screening procedure ultimately reveals contraband other than weapons or explosives does not render it unreasonable, post facto.” United States v. Marquez, 410 F.3d 612, 617 (9th Cir. 2005). Unlike the officers in Fofana and McCarty, the TSA officer’s testimony here did not hint that she was intentionally looking for evidence of criminal behavior.

Note: So, where is all the outrage about TSA frisks now?

Defendant’s waiver of probable cause for issuance of warrant issue in the district court not subject to plain error appellate review. United States v. Burke, 633 F.3d 984 (10th Cir. 2011):

Burke filed a timely pretrial motion to suppress evidence, and the district court held an evidentiary hearing before denying the motion. The briefs and the oral arguments at the hearing focused exclusively on whether the warrant lacked sufficient particularity to guide the police in their search of Burke’s property. At no time did Burke argue the affidavit was insufficient to provide the magistrate with probable cause. That contention appears for the first time on appeal, and we thus consider it waived.

. . .

When read alone, both Rule 52(b) and Rule 12 appear applicable to pretrial suppression motions. When considered together, however, Rule 12’s waiver provision must prevail:

The latter is much more specific than is Rule 52(b); while Rule 52(b) states generally that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention,” Rule 12(e) singles out motions to suppress, stating that a “party waives any [suppression] defense, objection, or request not raised by the [pretrial] deadline the court sets.” (Emphasis added.) In this context, “we apply the well-settled maxim that specific statutory provisions prevail over more general provisions.” Chavarria v. Gonzalez, 446 F.3d 508, 517 (3d Cir. 2006) (internal quotation marks omitted). Thus we avoid “applying a general provision when doing so would undermine limitations created by a more specific provision.” Varity Corp. v. Howe, 516 U.S. 489, 511, 116 S. Ct. 1065, 134 L. Ed. 2d 130 (1996).

Rose, 538 F.3d at 182-83. Thus, under the plain text of the rules, Rule 12’s absolute waiver controls.

Defendant’s girlfriend with whom he lived mistakenly believed she was his wife, but he wasn’t yet divorced from his first wife. Nevertheless, she had common authority to consent to a seizure and search of his computers. He was not present so Randolph-type revocation did not apply. Defendant’s claim that the government acted unreasonably in waiting three months to search the computer was undercut by the fact he didn’t ask for return of the hard drives for 18 months. United States v. Stabile, 633 F.3d 219 (3d Cir. 2011)*:

Here, Deetz had authority to consent and voluntarily consented. Deetz had common authority to consent to a search of the house because, as a cohabitant, she mutually used the property along with Stabile and exercised joint access and control over the house. See Matlock, 415 U.S. at 172 n.7. Deetz’s mistaken belief that she was married to Stabile does not alter the analysis because an unmarried cohabitant has authority to consent to a search of shared premises. See id. at 176. Finally, we note that at the time Deetz granted consent, Stabile was not present. Stabile’s absence distinguishes this case from Georgia v. Randolph, which applies only when a “physically present resident” refuses consent. 547 U.S. at 120. Therefore, because Deetz exercised her access and control over the premises absent any contemporaneous refusal by a co-resident, she had authority to consent at the time of the search. [¶] We also conclude that Deetz’s consent was voluntary. …

[Note: Of course an absent defendant is going to object after evidence of a crime is found. Randolph would be a nullity with the exception that the defendant sought to impose here.]

Officers had an objective belief that there were shooting victims in a locked room, so the police were justified in entering the room. They were already lawfully in the house on exigency. People v. Troyer, 51 Cal. 4th 599, 51 Cal. 4th 599, 246 P.3d 901 (2011):

Accordingly, some courts have held that any probable cause requirement is automatically satisfied whenever there is an objectively reasonable basis for believing that an occupant is in need of emergency aid. … Other courts have reasoned that the concept of probable cause simply has no role in the analysis of a warrantless entry into a residence under the emergency aid exception. … We decline to resolve here what appears to be a debate over semantics. Under either approach, and in light of the fact that “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’” our task is to determine whether there was an objectively reasonable basis for believing that an occupant was seriously injured or threatened with such injury. (Brigham City v. Stuart, supra, 547 U.S. at p. 403; …

The record amply supported an objectively reasonable belief that one or more shooting victims could be inside the house. Police dispatch stated that shots had just been fired “at” 9253 Gem Crest Way, and, indeed, Sergeant Albright’s observations of the blood at the scene indicated that a shooting had occurred “mere feet [from] or within the doorway area.” Bloodstains on the door signaled that a bleeding victim had come into contact with the door, either by entering or by exiting the residence. …

[Note: Numerous cases are omitted.]

Officers executing a search warrant in an aggravated assault and false imprisonment case saw a pair of tennis shoes with apparent blood on them. The bloody shoes were in plain view for a seizure. Bryant v. State, 304 Ga. App. 456, 696 S.E.2d 439 (2010).*

Defendant turned off his flashers and was driving on the shoulder when the officer stopped him. The stop was still reasonable under the community caretaking function. State v. Organ, 225 Ariz. 43, 234 P.3d 611, 585 Ariz. Adv. Rep. 10 (App. 2010)*:

P18 Based on the facts known to Officer Lamb at the time of the stop, it was reasonable for him to believe Defendant was having some emergency or trouble, that Defendant may have needed assistance and that a welfare check was necessary. Although Defendant’s vehicle was no longer at a complete stop, because Defendant was driving slowly on the shoulder of the road for some distance, Officer Lamb’s cause for concern was not alleviated. He could reasonably believe that Defendant had a continuing problem and needed help.

P19 Further, the officer’s action in stopping the vehicle was “suitably circumscribed to serve the exigency which prompted it.” Ray, 981 P.2d at 937. It was only after the officer noticed other suspicious behavior while performing the welfare check that his inquiry changed from ascertaining if Defendant needed assistance into a potential criminal investigation.

There is a Griswold constitutional right of privacy in medical and psychiatric records which can only be disclosed when there is a compelling state interest, which the court finds here in a SVP case. People v. Gonzales, 192 Cal. App. 4th 152, 120 Cal. Rptr. 3d 911 (6th Dist. 2011):

Given Lifschutz and the weight of federal and state authority cited above, we too find that the notion of substantive due process in general, and the notion of constitutionally protected zones of privacy in particular encompass a right to privacy that independently protects information generated in confidence between a patient and psychotherapist from unwarranted and unjustified intrusions by the government. We further find, however, that the constitutional protection is not absolute but may yield where disclosure serves competing state interests that outweigh the degree of intrusion disclosure would cause. More particularly, Lifschutz teaches that compelling the disclosure of otherwise privileged psychotherapy records under an exception does not violate the right to privacy where the exception promotes an important state interest, limits disclosure to what is reasonably necessary to achieve the purpose of the exception, and contains, and/or is subject to, safeguards that protect against the unwarranted and unnecessary disclosure.

Here, the court compelled the disclosure of privileged information under the dangerous-person exception. (Evid. Code, § 1024.) In light of the analysis of patient-litigant exception in Lifschutz, our discussion of the dangerous-patient exception—i.e., its purpose, nature, and limited scope—supports a finding that the exception is narrowly focused and justified by a compelling state interest in safety. Therefore, on its face the exception, like the patient-litigant exception, does not appear to violate the right of informational privacy.

The officer ran defendant’s vehicle tag through DMV records, and it came back expired. There was a temporary tag in the window, but the officers had no way to determine whether it cured the expired tag. The stop was objectively reasonable. People v. Greenwood, 189 Cal. App. 4th 742, 117 Cal. Rptr. 3d 60 (2d Dist. 2010).*

The arrest warrant gave authority to enter the premises of the person named in it. Defendant’s actions at the door only supported the belief that the person was inside, so they came in. Drugs were found in plain view. People v Paige, 2010 NY Slip Op 7629, 77 A.D.3d 1193 (3d Dept. October 28, 2010).*

Defendant was observed on casino surveillance doing a probable drug deal, and they called the police. The police saw the video and security pointed him out. Defendant was approached and consented to a pat down, and the drugs were found in a plain feel. The search was valid. State v. Ahumada, 225 Ariz. 544, 594 Ariz. Adv. Rep. 10, 241 P.3d 908 (App. 2010).*

Defendant conceded that the videocamera was lawfully seized, so defense counsel was not ineffective for not challenging the lack of a search warrant to view the videotape inside it. Mayes v. State, 2010 Tenn. Crim. App. LEXIS 209 (March 9, 2010).*

Gunshots from a field at night and then seeing the lights of a vehicle come on and depart justified a stop of the car with reasonable suspicion and a search for the weapons. United States v. Guerrero-Heredia, 2010 U.S. Dist. LEXIS 21823 (D. Ariz. February 24, 2010).*

Arrival of drug dog “soon after” traffic stop that was targeting defendant anyway was not unreasonable. West v. State, 53 So. 3d 990 (Ala. Crim. App. 2010).*

A witness not called at the suppression hearing was called in the PCR hearing, but he couldn’t remember anything, so that didn’t entitle petitioner to relief. The suppression issue was litigated and appealed, and pursued on PCR with a different focus. Adams v. State, 2010 Tenn. Crim. App. LEXIS 214 (March 9, 2010).*

The defendant was detained because he looked like the suspect they wanted. When they found out he was not the right guy, they should have released him and not took him in for questioning because that violated his Fourth Amendment rights. On this record, however, this violation was harmless. State v. Kinney, 225 Ariz. 550, 594 Ariz. Adv. Rep. 6, 241 P.3d 914 (App. 2010):

P15 Here, the officers had received a tip that Balentine, for whom there was an outstanding felony arrest warrant, was at a particular address. Officers found Kinney at that location and he somewhat matched Balentine’s physical description. Based upon the totality of the circumstances, the officers had reasonable suspicion that Kinney might be Balentine and, therefore, was involved in criminal activity. Accordingly, the officers’ initial investigatory detention was permissible. See Aguirre, 130 Ariz. at 56, 633 P.2d at 1049.

P16 Once the officers determined that Kinney was not Balentine, however, they no longer had reasonable suspicion that he was wanted in connection with the arrest warrant and therefore were required to end Kinney’s detention. See Teagle, 217 Ariz. 17, P 32, 170 P.3d at 275. By detaining Kinney longer than necessary to determine whether he was Balentine and continuing to question him, the officers exceeded the permissible scope of the initial investigatory detention. See id. The trial court properly suppressed the statements Kinney made at the scene after officers learned he was not Balentine. See Florida v. Royer, 460 U.S. 491, 501 (1983) (noting “statements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention”); In re Maricopa County Juv. Action No. JT30243, 186 Ariz. 213, 215-16, 218, 920 P.2d 779, 781-82, 784 (App. 1996) (confession resulting from illegal detention properly suppressed). And the court could have suppressed the statements at the station, had it been requested to do so.

Defendant’s disabled pickup truck had a gun in it, and it was visible. Officers could enter the vehicle to seize it under the public safety exception to protect against its theft or use. This is not the same as Quarles’s public safety exception to Miranda. State v. Mendoza-Ruiz, 225 Ariz. 473, 240 P.3d 1235, 587 Ariz. Adv. Rep. 6 (Ariz. App. 2010):

P12 Here, the officers entered the cab of the pickup and removed the gun because of their legitimate concern for public safety. At the suppression hearing, Officer J.M. said that the gun was clearly visible from outside the cab of the vehicle. She testified that the area where the truck was parked was busy because of a nearby restaurant and nightclub. She also testified that the restaurant where the truck was parked was a “location of high crime, shootings, [and] aggravated assaults.” As the Supreme Court did in Cady, we conclude it was reasonable for Officers N.D. and J.M. to enter the vehicle and secure the firearm to protect public safety. In fact, the public danger here was even more pressing than in Cady, in which the firearm was not visible because it was in the trunk, and the car was crashed on the side of a rural road, rather than in a busy, high-crime neighborhood.

P13 We also reject defendant’s argument that the community caretaker doctrine is “interchangeable” with the public safety exception to Miranda v. Arizona, 384 U.S. 436 (1966), and therefore only relates to the admissibility of statements and not physical evidence. The public safety exception was most notably expressed in New York v. Quarles, 467 U.S. 649, 655-56 (1984), in which the Court held that Miranda did not require suppression of a defendant’s answer when questioned by a police officer about where he hid a gun while being pursued in a grocery store because the question was “reasonably prompted by a concern for the public safety.” But the two doctrines are not interchangeable because they pertain to two entirely different rules. Quarles allowed a public safety exception to the general rule that a suspect’s statement made during custodial interrogation is not admissible unless he is first informed of his Fifth Amendment rights. Id. at 655-56. The community caretaker function as applied in Cady concerns the admissibility of physical evidence under the Fourth Amendment. 413 U.S. at 441.

The USMJ issuing a search warrant for defendant’s stuff after a traffic stop struck out the words “electronic equipment,” and the officer searched the images on defendant’s cell phone anyway. This issue was not timely raised in the District Court, and it is waived for appeal. United States v. Jean-Claude, 400 Fed. Appx. 384 (10th Cir. 2010) (unpublished).*

Defendant’s traffic stop was valid, and the officer directed him out of the car. He left the door open, and the officer could see the grip of a handgun in plain view. United States v. Montes, 400 Fed. Appx. 390 (10th Cir. 2010) (unpublished).*

State inmate is denied a certificate of appealability (COA) for his habeas appeal of his Fourth Amendment claim because “we are not persuaded that reasonable jurists could disagree with the district court’s conclusion that his Fourth Amendment claim was fully and fairly litigated in the Colorado state courts.” Abram v. Milyard, 400 Fed. Appx. 380 (10th Cir. 2010) (unpublished)* [in my circuit, you would not even get an opinion on the denial of the COA].