On ABAJournal.com: Prosecutors and Judges to Join Police at DWI Checkpoints to Enforce New ‘No Refusal’ Law:

In what is billed as a first-of-a-kind law enforcement effort in Jasper County, Mo., prosecutors and judges will be joining police at drunken-driving checkpoints, starting tonight, to enforce a new “no refusal” statute in the state.

If motorists who seem to be driving while intoxicated refuse to take a breath test, a warrant will issue on the spot authorizing a blood draw for a blood-alcohol test, according to KOAM {“Prosecutors and judges to be on site at DWI checkpoints”}.

The Columbia Daily Tribune says nine states including Missouri have such no-refusal initiatives. The others are Arizona, Florida, Idaho, Illinois, Kansas, Louisiana, Texas and Utah. The approach, which is encouraged by the U.S. Department of Transportation, apparently is a growing national trend.

KSPR says the new Missouri law authorizing no-refusal checkpoints has been in place since August.

The driver’s alleged consent to search was obtained after the stop was unreasonably extended for the 20 minutes of the stop without justification. There was no problem with his papers, and he should have been allowed to go on his way. There was no evidence in the record that driver’s papers were returned to him before consent was asked for, and the request for consent was directly stated to be about drugs, something that had nothing to do with the stop. Defendant was the passenger in the car who had standing under Brendlin, and he had to have standing or drivers could be stopped just to search passengers. Also, the driver was patted down without justification. State v. Jackson, 199 N.C. App. 236, 681 S.E.2d 492 (2009):

Such interrogation was indeed an extension of the detention beyond the scope of the original traffic stop as the interrogation was not necessary to confirm or dispel Bradley’s suspicion that Roth was operating without a valid driver’s license and it occurred after Bradley’s suspicion that Roth was operating without a license had already been dispelled. Accordingly, for this extended detention to have been constitutional, Bradley must have had grounds which provided a reasonable and articulable suspicion or the encounter must have become consensual. See Myles, 188 N.C. App. at 45, 654 S.E.2d at 755.

The State does not argue that Bradley had reasonable and articulable suspicion to extend the stop. Furthermore, the occupants of the vehicle had been cooperative with the officers throughout the stop, and Atkins confirmed “there were no problems with any of these folks” while the driver’s license issue was being resolved. In addition, there were no pending warrants for any of the vehicle’s occupants. Accordingly, there was no evidence which could have provided Bradley with reasonable and articulable suspicion to justify the extension of the detention.

Furthermore, there is no evidence that the encounter became consensual after Bradley’s suspicion that Roth was operating without a license was dispelled. …

The stop of defendant’s vehicle was justified by reasonable suspicion but the search of defendant’s bookbag, purse, and cooler bag was not justified by any reasonable suspicion that a weapon was present. Commonwealth v. Greenwood, 78 Mass. App. Ct. 611, 941 N.E.2d 667 (2011)*:

Officer Blicker’s hearing testimony established that, throughout the course of the investigative stop, the defendant acted in a cooperative manner. He made no furtive gestures, was not hostile towards the officers and did not attempt to flee. When coupled with the officers’ uncertainty regarding the precise nature of the criminal activity afoot, these facts do not give rise to an articulable risk to officer safety. [¶] Officer Blicker admittedly opened the purse in the conscientious exercise of his duties to ascertain the veracity of the defendant’s responses to his questioning. At no point was it his intention to search the purse for weapons. Nor would such an intrusion have been justified in light of our conclusion that the officers lacked any reasonable belief that the defendant was armed and dangerous.

Denial of summary judgment is affirmed on the basis for the defendant’s traffic stop. The facts were sufficiently in dispute that the officer could not get qualified immunity for the stop. The officer’s alleged mistake of fact was not reasonable. Liberal v. Estrada, 632 F.3d 1064 (9th Cir. 2011).*

On the credibility of the witnesses, the court finds that the consent was valid. United States v. Vidales, 2010 U.S. Dist. LEXIS 139932 (D. Kan. December 27, 2010).*

There was both reasonable suspicion and consent for defendant’s detention during the traffic stop. United States v. Hernandez-Lizardi, 2011 U.S. Dist. LEXIS 4784 (D. Kan. January 19, 2011).*

In searching for junk cars, the Virgin Islands Waste Management Authority entered defendant’s backyard to search and photograph. The entry into the backyard, despite the observations from off the property, was without a warrant and unreasonable. Simmonds v. People, 53 V.I. 549 (2010):

But the salient question in this appeal does not concern the observations the officers made from the public road or from Simmonds’ front yard. Rather, at issue is the evidence gathered from Simmonds’ back yard: the observations the officers made after they entered the back yard and the photographs they took from that vantage point. Even if the officers, while standing in the public road or in Simmonds’ front yard, observed violations situated within Simmonds’ back yard, those observations would have merely provided probable cause, not authorization for a warrantless search of the curtilage. See United States v. Whaley, 781 F.2d 417, 419 (5th Cir. 1986) (“the mere observation of [marijuana plants] from the road or driveway would not justify entry into the home or curtilage to search or to seize property found there. That would have given probable cause to support a warrant.” (citation omitted)); Morgan v. State, 645 S.E.2d 745, 748) (Ga. Ct. App. 2007) (“the officer’s initial plain view observations from the driveway and road, in and of themselves, did not authorize the officer to then make a warrantless entry into Morgan’s backyard-a location undisputably [sic] within the curtilage surrounding the residence-and take steps culminating in the dogs there being seized and removed from the property.”).

Furthermore, even if the officers were armed with probable cause based on their permissible observations from outside the curtilage of waste in Simmonds’ back yard, a warrantless search or seizure within the back yard was “presumptively unreasonable” absent Simmonds’ consent or exigent circumstances. Karo, 468 U.S. at 717; 104 S.Ct. at 3304 (listing certain automobile searches, consensual searches and exigent circumstances as examples of the limited exceptions to the warrant requirement recognized by the Supreme Court); …. In this case, it is undisputed that Simmonds did not consent to the officers entering his back yard. In fact, prior to the warrantless entry, Simmonds told Officer Husband to leave his property. Thus, the warrantless entry into Simmonds back yard could only have been justified, if at all, by exigent circumstances. [And there wasn’t any.]

Officer responded to shots fired call, and defendant was stopped in a car that likely had a shooting victim in it. The officer patted down the defendant and found bullets in his pocket by feel, but did not go into the pockets. He told the defendant to empty his pockets. When the bullets were produced, that led to a frisk for a weapon which was invalid because the patdown was unjustified. People v. Phillip, 53 V.I. 25 (2010)*:

Justification for a “stop” does not necessarily provide justification to “frisk” or “pat down” an individual. The governmental interest in “frisking” is not crime prevention. The greater and more immediate governmental interest is to authorize steps to assure that the person whom law enforcement has “stopped” is not armed with a weapon that could unexpectedly and fatally be used against them. This is especially true given the increased percentage of law enforcement officers that are killed while discharging their duties. The Supreme Court best noted this unfortunate fact when it stated:

Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives. In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. Terry, 88 S. Ct. at 1881.

[Note: Usually these cases come out just the opposite. I don’t want to sound like a prosecutor because I try to be objective about the Fourth Amendment, but bullets are reasonable suspicion that a gun may be in the car, aren’t they? This guy was in a car leaving the scene of a shooting call. Much of all reasonable suspicion is commonsense based on fact and not hunches. A shooting call, a fleeing car, and bullets are more than a hunch because people usually don’t just carry bullets. I think this will get reversed.]

Open container and furtive movement under the seat was reasonable suspicion. State v. Ball, 2010 Ohio 714, 2010 Ohio App. LEXIS 587 (11th Dist. February 25, 2010).*

Defendant’s admission to possessing a knife justifies a patdown. State v. McConaughy, 2010 Tenn. Crim. App. LEXIS 182 (February 26, 2010).*

Case law provided no authority for the proposition that police inquiries during an unavoidable lull in a traffic stop had to be justified by independent reasonable suspicion. The officer’s request for consent to search occurred during an unavoidable lull in an ongoing traffic stop while the officer was attempting to ascertain and confirm defendant’s identity. Because the request for consent to search did not delay the stop, it was not unreasonable. Because it was authorized by Or. Rev. Stat. § 810.410, the request did not require independent reasonable suspicion or probable cause. State v. Jones, 239 Ore. App. 201, 245 P.3d 148 (2010).*

A marijuana spotter from the air for more than 20 years with an asserted 3% error rate who said he saw a marijuana grow operation was probable cause for a search warrant for the property. [The question is, after all, only probability. Dogs can be less reliable and there still be probable cause.] State v. Fronterhouse, 239 Ore. App. 194, 243 P.3d 1208 (2010).*

A burglary in progress call of a white male in a dark coat being involved that led to defendant’s detention was without reasonable suspicion. It was too generic to base a stop. Segar v. State, 937 N.E.2d 917 (Ind. App. 2010).*

A multi-agency warrant task force, including defendant’s parole officer, arrived at a house where they believed defendant would be staying. The householder granted consent for the officers to enter, and that was valid. State v. Jason, 53 So. 3d 508 (La. App. 1st Cir. 2010).*

Police got a tip through a school counselor that a seven year old reported marijuana where he lived. They came for a knock and talk, and arrested the defendant for an uninsured pit bull. That did not justify a warrentless entry into the house. State v. McGuire, 2010 Ohio 6105, 2010 Ohio App. LEXIS 5145 (2d Dist. December 10, 2010).*

The fact that the officer did not tell the search warrant’s issuing magistrate that the CI was paid was not material under Franks, considering the detail. State v. Williams, 53 So. 3d 669 (4th Cir. 2010).*

Odd travel plans with a rented car going 1000 miles each way in 48 hours was enough to ask questions, resulting in conflicting stories about travel plans. Defendant’s mother was his passenger and he said she rode with him, but she said he drove to pick her up. He was excessively nervous. That was reasonable suspicion for a longer detention. United States v. Shelby, 2010 U.S. Dist. LEXIS 132064 (E.D. Tex. November 23, 2010).*

Illinois holds that there is a state constitutional right of privacy in bank records, deciding that the state constitution is not interpreted in lockstep with the Fourth Amendment, and Miller would not be followed. People v. Nesbitt, 405 Ill. App. 3d 823, 938 N.E.2d 600, 345 Ill. Dec. 161 (2010):

Further, as the privacy clause of our state constitution expands upon the protections offered by the federal constitution, it also expands upon the rights guaranteed by our own search and seizure provision. The court in Caballes
noted that our constitution’s privacy clause provides protection in addition to its search and seizure clause and that it is broadly written, with no definition limiting the types of privacy intended to be protected. Caballes, 221 Ill. 2d at 317. Moreover, the court noted that, when the 1970 constitution was adopted, the privacy clause was added for the purpose of creating an additional right applicable to situations not covered by the search and seizure provision. Caballes, 221 Ill. 2d at 318-19. Therefore, while the two may overlap, whether a search or seizure violates the privacy clause of article I, section 6, is an inquiry separate and apart from whether it violates that article’s search and seizure clause.

Having clarified the distinction between our constitution’s privacy and search and seizure provisions, it is clear that the privacy clause of the Illinois Constitution protects an individual’s bank records. We disagree with the State that the privacy clause protects electronic and data entry records but not “traditional” records. Preliminarily, we note that, in today’s society, banking records and electronic records are not mutually exclusive. Moreover, the court in Caballes, in interpreting the privacy clause and considering the scope of its protection, drew no distinction between the various forms that private records may take, recognizing instead that “[t]he privacy clause is also implicated if, in the course of a criminal investigation, the state seeks access to medical or financial records that are within the scope of the protections of article I, section 6.” (Emphasis added.) Caballes, 221 Ill. 2d at 330. The court further noted its prior decision in In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 604 N.E.2d 929, 178 Ill. Dec. 406 (1992), where it recognized protection for individual privacy rights in “books and records” and where it held that it is reasonable for an individual to expect that his or her “private records” will not be exposed to public view or that his or her personal characteristics will not be scrutinized absent a valid reason. Caballes, 221 Ill. 2d at 320-21, 330, citing Will County Grand Jury, 152 Ill. 2d at 391-92, 396.

. . .

The State urges us to decide differently, noting that our supreme court has not explicitly weighed in on Miller’s applicability to our state constitution’s privacy provision. However, as previously mentioned, our supreme court has cited Jackson with approval. In addition, this court, in People v. DeLaire, 240 Ill. App. 3d 1012, 610 N.E.2d 1277, 183 Ill. Dec. 33 (1993), cited Will County Grand Jury, 152 Ill. 2d at 390, for the proposition that the Illinois Constitution exceeds the federal constitution’s privacy guarantees. DeLaire, 240 Ill. App. 3d at 1019. Further, we cited with approval Jackson’s conclusions that the Illinois Constitution’s privacy clause extends protection to bank records and that, because our state constitution provides greater protection for bank records than does the federal constitution, Miller does not control. DeLaire, 240 Ill. App. 3d at 1020. We see no compelling reason to depart from this line of reasoning. Accordingly, we reject the State’s argument that there is no right to privacy in bank records under article I, section 6, of the Illinois Constitution.

A car was stopped at night on the shoulder of the road along the Mississippi River. It had been there for about ten minutes when the officer stopped to inquire. The driver rolled down the window and said he was waiting for a friend. Even assuming that the use of lights made this a seizure, it was reasonable under the community caretaking doctrine to see if any aid was required. The driver was found under the influence. People v. McDonough, 239 Ill. 2d 260, 940 N.E.2d 1100 (2010), rev’g 395 Ill. App. 3d 194, 917 N.E.2d 590, 334 Ill. Dec. 764:

Second, Brunnworth’s assumed seizure of defendant was reasonable because it was undertaken to protect public safety. Based on the objective and specific facts of record, it was reasonable for Brunnworth to approach defendant’s vehicle to offer any aid required under the circumstances. The public has a substantial interest in ensuring that police offer assistance to motorists who may be stranded on the side of a highway, especially after dark and in areas where assistance may not be close at hand.

Two guys that were likely faking raking the yard of a drug house that rode in another vehicle in tandem with a probable drug delivery were subject to arrest on probable cause. “[T]he existence of possible innocent explanations for the individual circumstances or even for the totality of the circumstances does not necessarily negate probable cause.” People v. Rodriguez-Chavez, 405 Ill. App. 3d 872, 938 N.E.2d 623, 345 Ill. Dec. 184 (2010).*

Defendant was stopped for a window tint violation, and he promptly consented to the search of his car. The stop was not prolonged by the question considering that the officer was handing back the paperwork as he asked the question. United States v. Stokes, 2010 U.S. Dist. LEXIS 122501 (M.D. Fla. October 27, 2010) [Note: The court does not inquire whether the defendant would feel free to leave.]

Officer had an anonymous tip from a CI that a meth lab was in defendant’s house. He pulled into the driveway and heard music from the closed garage. He did the knock and talk on the garage door, and it was valid. State v. Birdsall, 2010 Ohio 2382, 2010 Ohio App. LEXIS 1959 (6th Dist. May 28, 2010)*:

[*P16] Ruskey testified that as he pulled into appellant’s driveway, he saw the garage directly in front of him. The house was located five feet to the left. He testified that appellant’s driveway was standard sized, approximately 25 feet long. He approached the garage because he heard music coming from inside and he thought that someone might be there. There is no evidence of an enclosure around the garage and there is no evidence that the garage was hidden from street view. Ruskey, in entering appellant’s property and knocking on the garage door was acting much like any “reasonably respectful citizen” would. The fact that Ruskey was there based on information he received from an uncorroborated anonymous tip is irrelevant for our purposes here. Accordingly, appellant’s sole assignment of error is found not well-taken.

Defendant consented to a search of his car, but, before the search occurred, the defendant admitted he had drugs in the car. That was probable cause. State v. McClure, 53 So. 3d 169 (Ala. Crim. App. 2010).*

Particularity description of “weapons and any and all illegal items or substances used in the commission of burglary, theft, arson or any other felonies or proceeds thereof” was sufficiently particular here. The police were looking for stolen property, and they found a stolen camera which alternatively was in plain view. Green v. State, 2010 Ala. Crim. App. LEXIS 46 (May 28, 2010).*

There was ample probable cause of the issuance of the search warrant in this murder case, and the appellate court (2007 PA Super 181, 928 A.2d 1054 (2007)) erred in holding otherwise. Moreover, a search warrant may be used as an investigative tool. Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649 (2010), cert. denied, 131 S. Ct. 110, 178 L. Ed. 2d 32 (U.S. 2010):

In coming to our conclusions, we must reject Jones’s argument that a warrant can never be used as an investigative tool. Jones cites case law that purportedly supports his argument. Appellee’s Brief at 5-6. However, such case law is readily distinguishable and relates to instances where the police only have a mere suspicion that a crime has been committed and/or where the police are unable to describe the items to be searched for “as is reasonably possible.” See In re Casale, 512 Pa. 548, 517 A.2d 1260, 1263 (Pa. 1986) (stating that a search warrant “is not available as a general investigatory tool to be used in place of a grand jury.”) (emphasis added); Commonwealth v. Smith, 511 Pa. 36, 511 A.2d 796, 801 (Pa. 1986) (stating that “mere suspicions” of a possible crime “do not constitute probable cause to support a search warrant”); Commonwealth v. Bagley, 408 Pa. Super. 188, 596 A.2d 811, 815 (Pa.Super. 1991) (quoting Casale, and determining that the police could not execute a warrant to search the home of the decedent and her surviving husband for unspecified evidence that might shed light on her death in order to determine whether a crime had been committed). Here, there was no question that a crime had been committed and that the police could, with fair probability, expect to find evidence related to that crime in what was reasonably believed to be the dead victim’s dormitory room, including evidence concerning the positive identification of the victim and any persons with whom the victim may have had recent contact or with whom he may have been involved.

Pursuant to our Rules of Criminal Procedure, a search warrant may be used as an investigative tool, under the appropriate circumstances. Rules 200-211 govern the issuance of search warrants. Relevantly, Rule 201 defines the purposes of a search warrant as follows:

Rule 201. Purpose of Warrant
A search warrant may be issued to search for and to seize:
(1) contraband, the fruits of a crime, or things otherwise criminally possessed; or
(2) property that is or has been used as the means of committing a criminal offense; or
(3) property that constitutes evidence of the commission of a criminal offense.

Pa.R.Crim.P. 201.

Notable is the third enumerated purpose: to search for “property that constitutes evidence of the commission of a criminal offense.” Pa.R.Crim.P. 201(3). The “comment” to Rule 201(3) references Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). In Warden, the United States Supreme Court reversed case law holding that only contraband and the fruits of a crime can be seized pursuant to the Fourth Amendment, but not “mere evidence.” The Court determined that nothing in the Fourth Amendment supports a distinction between contraband and “mere evidence,” concluding that evidence of a crime is clearly subject to search and seizure under the Fourth Amendment. The Court held that it is reasonable under the Fourth Amendment to conduct otherwise permissible searches for purpose of obtaining evidence that would aid in apprehending and convicting criminals. Id. at 306-07; see also Commonwealth v. Butler, 448 Pa. 128, 291 A.2d 89, 90 (Pa. 1972) (holding that a search and seizure may be for “purely evidentiary items” when there is a “nexus between the items to be seized and the suspected crime,” citing and quoting Warden, supra at 307).

Therefore, under Rule 201(3), we recognize that a search warrant may be issued to search for and seize property that may constitute “mere evidence” concerning a crime that has been committed. Thus, the Superior Court’s holding is additionally troubling for the reason that the court appears to have substituted its judgment for that of the police with respect to the direction of the unfolding investigation. The police necessarily should have, within all applicable constitutional and legal limits, the widest possible latitude in determining the manner in which to conduct investigations without a reviewing court making a determination that an aspect of the investigation, based on probable cause, was unnecessary.

Everybody was ordered out of the car and they were handcuffed. A search incident at that point was not lawful because nobody could get to the car to conceal or destroy evidence. State v. Chesley, 158 Wn. App. 36, 239 P.3d 1160 (2010).*

An officer saw members of a gang chasing after others, the defendant with a brick in his hand apparently planning on using it on somebody. Based on what he saw and heard, he had probable cause to arrest the defendant for possession of a deadly weapon. In re J.G., 188 Cal. App. 4th 1501, 115 Cal. Rptr. 3d 912 (4th Dist. 2010).*

Defendant sought a supervisory writ over pretrial suppression issues, and the denial of the writ precludes appellate review of the same issue. State v. Marinello, 49 So. 3d 488 (La. App. 3d Cir. 2010).*

The Mississippi DOC’s legal mail rules for signing and sealing outgoing legal mail is reasonable and serves legitimate penological interests. Returning mail to him that was noncompliant was not a seizure of the mail in violation of the Fourth Amendment. Weatherspoon v. Ferguson, 398 Fed. Appx. 7 (5th Cir. 2010) (unpublished).*

The emergency search of defendant’s house because of the smell of animal feces was not justified under the Fourth Amendment. The police had been in contact with the defendant before, and, on the day in question, there was a few days of mail, cars parked outside, and dogs barking inside. While there certainly was probable cause for a warrant, there was no showing of an immediate threat. State v. Demarco, 124 Conn. App. 438, 5 A.3d 527 (2010).*

The court found that Cobb had previously had contacts with the defendant as a result of numerous complaints from his neighbors relating to his keeping of dogs, a notice from animal control that was left by Cobb was on the floor on the front porch when Cobb returned ten days later, there was mail overflowing from the mailbox, the defendant’s neighbor had not seen him in a few days, the house smelled terribly, there were dogs barking and there were multiple vehicles parked on the premises. None of these facts, either individually or cumulatively, suggests that the defendant or the dogs were in immediate danger or that an objectively reasonable police officer would believe that a dangerous situation existed, such that it necessitated an emergency entry.

A controlled buy with a CI captured on video three days earlier provided probable cause for the search warrant. United States v. Smith, 2010 U.S. Dist. LEXIS 108639 (D. S.C. October 12, 2010).*

The search of defendant’s car would not be justified under Gant, but marijuana was seen in plain view in the car and that justified a search under the seat that produced a gun. United States v. Hall, 397 Fed. Appx. 860 (4th Cir. 2010) (unpublished).*

Given that there was reasonable suspicion that the occupants of the car might be armed and dangerous, the fact the glove compartment had just been locked did not mean that it could not be subjected to a Long-type frisk for a weapon. The keys were available to anyone in the car, and it could still be opened. Commonwealth v. Graham, 78 Mass. App. Ct. 127, 935 N.E.2d 370 (2010).

Given that defendant’s vehicle was lawfully seized with probable cause after it and he matched a 911 call about a violent crime, the vehicle was lawfully searched under the automobile exception 2 ½ hours after the stop at the impound lot. Cars on the lot were not sufficiently protected from access by outsiders to remove exigency, and officers validly waited for a specially trained officer to arrive to search for hidden compartments. Commonwealth v. Bell, 78 Mass. App. Ct. 135, 935 N.E.2d 380 (2010).

In an ICE raid on a home occupied by persons who entered illegally, the fact they paid rent to the co-occupant did not dissipate the co-occupant’s ability to consent to entry against them. Escobar v. Holder, 398 Fed. Appx. 50 (5th Cir. 2010) (unpublished).*

The search incident in this case occurred before Gant but the suppression hearing was after Gant, and the search was lawful when it happened but violated Gant. The Sixth Circuit, in a long opinion, concludes that the exclusionary rule would not be applied because the officers acted in good faith. United States v. Buford, 632 F.3d 264, 2011 FED App. 0043P (6th Cir. 2011):

The Supreme Court’s jurisprudence is clear: “Whether the exclusionary sanction is appropriately imposed in a particular case … is ‘an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.’” Leon, 468 U.S. at 906 (quoting Illinois v. Gates, 462 U.S. 213, 223 (1983)); see also Masters, 614 F.3d at 242 (“[T]he Supreme Court has … emphasized that the decision to exclude evidence is divorced from whether a Fourth Amendment violation occurred.”). The latter was decided by Gant; the former was not. Thus, “[t]he issue before us … is not whether the Court’s ruling in Gant applies to this case, it is instead a question of the proper remedy upon application of Gant to this case.’” McCane, 573 F.3d at 1044 n.5. That remedy is governed by the Supreme Court’s decisions in Leon, Evans, Krull, and Herring.

When this case is properly viewed in that context, it is apparent that suppression is not warranted. Although the Supreme Court has not yet directly addressed the question presently before this court, its review of comparable issues is instructive. In Leon, the Court declined to require suppression when an officer reasonably relied on an invalid warrant to conduct the search because “[p]enalizing the officer for the [court’s] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” 468 U.S. at 920-21. The same holding applies when an officer relies on a statute later declared invalid, Krull, 480 U.S. 340, 359-60; on judicial records that erroneously reflect an outstanding warrant, Evans, 514 U.S. at 14-16; or on the police’s own warrant database that, through police negligence, erroneously contains a withdrawn warrant. Herring, 129 S. Ct. at 704.

Applying the governing legal principles of these decisions to the facts of the case before us, we join the Fifth, Tenth, and Eleventh Circuits in holding that exclusion is not the appropriate remedy when an officer reasonably relies on a United States Court of Appeals’ well-settled precedent prior to a change of that law. See Peltier, 422 U.S. at 542 (“[U]nless we are to hold that parties may not reasonably rely upon any legal pronouncement emanating from sources other than this Court, we cannot regard as blameworthy those parties who conform their conduct to the prevailing statutory or constitutional norm.”). The fact that appellate precedent is later overturned is not enough to justify suppression, since the “exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges[,]” Leon, 468 U.S. at 916, and there is “no meaningful distinction” between relying on an invalid search warrant issued by a court and relying on settled precedent that, at the time of the search, held such warrantless searches to be lawful. Davis, 598 F.3d at 1266.

Defendant was stopped at a DL checkpoint, and he did not have one and appeared really nervous. He consented to a search of his person producing cocaine, and that led to a “limited protective search” of his car, which would have been valid under the automobile exception. United States v. Nixon, 396 Fed. Appx. 1 (4th Cir. 2010),* cert. den. 2011 U.S. LEXIS 1519 (U.S., Feb. 22, 2011).

The stop of defendant’s vehicle was valid because the police recognized the passenger and had a warrant for him. Defendant’s minor questioning while waiting for the paperwork to be verified led to an admission that the car was going to a drug deal, and that supported a search. United States v. Savath, 398 Fed. Appx. 237 (9th Cir. 2010) (unpublished).*

The question of exigent circumstances for the police entry into defendant’s home was irrelevant because nothing of any consequence was found and nothing from that entry was used at trial. The fact it was a potentially dangerous situation was essentially moot and abstract. United States v. Escobedo, 397 Fed. Appx. 205 (7th Cir. 2010).*

Plaintiff claimed that IRS agents executing search warrant stole $2,000 from him between the seizure and turning it in. However, “there was no clearly established law holding that a theft of money during the execution of a valid search warrant violates the Fourth Amendment.” Springer v. Albin, 398 Fed. Appx. 427 (10th Cir. 2010)*:

We conclude that there was no clearly established law holding that a theft of money during the execution of a valid search warrant violates the Fourth Amendment. “The relevant dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was lawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001), overruled in part on other grounds by Pearson, 129 S.Ct. at 818.

. . .

Furthermore, neither the Tenth Circuit nor the Supreme Court had case law on point in September 2005 establishing that a theft by federal agents of lawfully seized currency during the execution of a valid search warrant violated the Fourth Amendment. Other circuits, however, had considered a similar issue by September 2005. Those circuits split on the Fourth Amendment issue.

Three of the four cases that had addressed the failure to return lawfully seized property had held that there was no Fourth Amendment violation. In Shaul v. Cherry Valley-Springfield Central School District, 363 F.3d 177, 179 (2d Cir. 2004), a school teacher filed a § 1983 action against school officials for unreasonably searching his classroom and taking certain items. He contended that the failure to return the items was an unreasonable seizure of them. Id. at 187. Because the initial seizure was reasonable, the Second Circuit held that the defendants’ failure to return property did “not, by itself, state a separate Fourth Amendment claim of unreasonable seizure.” Id.

So, theft by an officer during a seizure is not an “unreasonable seizure”? If not, is it then “reasonable”? To just say it sounds idiotic.

Defendant’s consent was attenuated from the illegal stop by time, clear advice of a right to refuse the search by underlining the portion of the consent form so stating, and the officers’ conduct not being flagrant. United States v. Blackburn, 398 Fed. Appx. 453 (11th Cir. 2010) (unpublished).*

Officers assisting in an arrest that they are not told is without a warrant are entitled to qualified immunity where they reasonably believed it was with a warrant. Shepard v. Hallandale Beach Police Dep’t, 398 Fed. Appx. 480 (11th Cir. 2010)* (unpublished).

The credibility determination of the USMJ was not based on status, but correctly noted defendant’s interest in the case as a factor. It was not clearly erroneous. United States v. Griffith, 397 Fed. Appx. 613 (11th Cir. 2010).*

The Eighth Circuit finds the District Court’s finding of reasonable suspicion for a traffic violation to be clearly erroneous and contradicted by the videotape of the stop. The defendants’ car exited a Nebraska freeway to avoid a ruse checkpoint. United States v. Prokupek, 632 F.3d 460 (8th Cir. 2011):

The district court’s factual finding that “Prokupek failed to signal his turn before turning from the exit ramp on to the county road” is supported only by the court’s determination that Trooper Estwick’s testimony at the suppression hearing to that effect was credible. Because Trooper Estwick’s testimony at the hearing is so clearly and affirmatively contradicted by his own statement at the time of the events, in the absence of any explanation for this contradiction that is supported by the record, we conclude that Trooper Estwick’s after-the-fact testimony at the suppression hearing is “implausible on its face,” Anderson, 470 U.S. at 575, and we are left with the “firm and definite conviction that a mistake has been made,” United States v. Pickar, 616 F.3d 821, 827 (8th Cir. 2010) (quoting United States v. Hines, 387 F.3d 690, 694 (8th Cir. 2004)). We therefore hold that the district court’s finding that Prokupek failed to signal the turn on to the county road is clearly erroneous. Cf. United States v. Streater, 70 F.3d 1314, 1321 (D.C. Cir. 1995) (“We conclude that the district court clearly erred in crediting [the witness’s] testimony … when [the witness’s] documented contemporaneous statements show the contrary.”).

The Government proffers no alternative justification for the traffic stop. Therefore, the stop violated the Fourth Amendment, see Prouse, 440 U.S. at 653, and the drugs and drug paraphernalia that eventually were seized are tainted fruit of this violation and must be suppressed, see Wong Sun v. United States, 371 U.S. 471, 488 (1963). Accordingly, we reverse the district court’s denial of the motions to suppress ….

[Note: The most telling part of this case is the obvious perversion of the facts by the District Court to achieve the result it wanted; keeping the convictions intact.]

Defendant had no standing in a desk at work where there was no real control over who had access to it, distinguishing Mancusi and O’Connor. United States v. Asad, 739 F. Supp. 2d 1127 (C.D. Ill. 2010):

The cases cited by Qattoum to support his standing to challenge the search hold only that an employee of a business can have a reasonable expectation of privacy under some circumstances. See O’Connor, 480 U.S. at 718-19, 726-28 (doctor had reasonable expectation of privacy in his desk and file cabinets which were located in his private office; however, question remained whether search by employer was reasonable); Mancusi, 392 U.S. at 368-69 (union official had standing to challenge seizure of records where he had custody of papers at the moment of their seizure and papers were located in private office he shared with other union officers). In this case, this court concludes that Qattoum has not established that he had a legitimate expectation of privacy in the area searched.

This court concludes that Qattoum did not show that he had an actual or subjective expectation of privacy in the area which was searched. The documents seized were located in an unlocked desk in an office area which did not have a door and through which all employees of the store had to go to reach the rest room. While Qattoum has argued that only three employees were working in the back area of the store at the time of the search, no evidence was presented about the number of employees employed by Price Rite who would have had access to the office area and the documents in the unlocked desk. In any case, at least three employees besides Qattoum had access to the area where the unlocked desk was located, as well as Abdallah, the owner of Price Rite. This court additionally notes that Qattoum presented no evidence that he made any efforts to conceal and keep private the documents which were the subject of the search. As noted, the desk was not locked and was located in an open area accessible to Abdallah and the other employees. Qattoum therefore cannot challenge the search and his Motion to Suppress (#76) is DENIED.