The defendant was the target of a drive-by shooting in Tucson, and he gave chase to the vehicle involved, and stuff “spilled” out of the back of his pickup truck as he gave chase. After the chase was over, he and others were retrieving the stuff, and defendant claimed everything but a duffle bag. This constituted an abandonment. A higher state standard was rejected, which Arizona courts reserve for searches of the home. State v. Huerta, 223 Ariz. 424, 224 P.3d 240, 575 Ariz. Adv. Rep. 23 (2010)*:

P17 Finally, this is not a situation in which the status quo could have been maintained. Any reasonable person would anticipate that the police would not have left the unclaimed bag on the side of the street, but would have taken custody of it and routinely opened and inspected it for indications of ownership as well as safety considerations. By not claiming the duffle bag in these circumstances, Huerta effectively elected the latter option. See Nordling, 804 F.2d at 1470 (bag abandoned when “it was virtually certain” it would be opened, inspected, and given to authorities before defendant could reassert control). From the totality of the circumstances here, we can only conclude Huerta intentionally abandoned the bag and thereby sacrificed any privacy interest he had in it. That being so, the deputy’s search of the bag did not violate Huerta’s constitutional rights, and the trial court erred in suppressing the evidence. See Walker, 119 Ariz. at 126-27, 579 P.2d at 1096-97 (no standing to challenge search of abandoned property).

Arrest of the defendant by a Border Patrol agent away from the border was based on citizen’s arrest theory. However, since the defendant’s actions did not amount to a breach of the peace, the citizen’s arrest theory didn’t work, and the search incident to that arrest was invalid. State v. Garcia-Navarro, 224 Ariz. 38, 226 P.3d 407, 575 Ariz. Adv. Rep. 39 (Ariz. App. 2010).*

CBS New York: N.J. Town To Vote On Middle School Drug Tests / 6th, 7th & 8th Graders May Soon Be Treated Like High Schoolers:

A proposal to conduct random drug tests of young students in one New Jersey town is raising some eyebrows.

Students at Belvidere Elementary School could be adding drug testing to their list of lessons when they move into middle school.

The Board of Education will vote Wednesday on a plan to randomly test sixth, seventh and eighth graders to see if they are under the influence of drugs. School administrators said they were confident the proposal would pass.

Elementary School Principal Sandra Szabocsik said school officials want to use the testing “as a deterrent.”

Another clueless school district about to make a civil rights lawyer some money for a blatant Fourth Amendment violation.

The officer stopping defendant was told that he was a suspect in several shootings, including a homicide. That, and defendant’s slowness to respond to the officer’s commands to get out of the car, were justification for a vehicle frisk for a weapon, including the locked glove compartment. Parish v. State, 936 N.E.2d 346 (Ind. App. 2010):

At the time of the traffic stop, Parish was a suspect in several shootings, including a homicide, and the police were on high alert that Parish was armed. Indeed, a “gang unit” officer had warned other officers that Parish had threatened to kill the next police officer he encountered and was even taking drugs in preparation for a shootout with the police. In addition, when Officer Foster first approached Parish’s car and told him to step out of the vehicle, Parish did not immediately comply. He instead asked Officer Foster why she did not want to see his driver’s license and registration. Only when Officer Foster explained to Parish that she knew who he was and again told him to step out of the car did he slowly take off his seat belt and exit the car.

Under these facts and circumstances, a reasonably prudent person in Officer Foster’s position would be warranted in the belief that her safety was in danger. Officer Foster was therefore justified in searching the passenger compartment of Parish’s car, limited to those areas in which a weapon might be placed or hidden. …

A handgun in plain view on the floorboard of a car stopped by the police is justification for a search incident of the car under Gant. Johnson v. United States, 2010 D.C. App. LEXIS 666 (November 12, 2010).*

Defendant was arrested for an open container and was handcuffed and put in a police car. Officers then searched a duffle bag that he had with him. The search incident of the duffle bag was unreasonable because the offense was complete and further evidence would not logically be found. The state’s alternative argument of probable cause for a vehicle search failed for the same reason, and the officer did not even take the beer can as evidence. The state’s next alternative of inventory fails because it did not even put on evidence to support inventory. State v. Brown, 389 S.C. 473, 698 S.E.2d 811 (2010).*

“Even assuming that the entry of the police officers into the residence located at 5330 Venus Street in New Orleans and initial security sweep of the premises occurred without exigent circumstances or consent and thus amounted to an illegal search of the dwelling, when officers have probable cause to believe that evidence of criminal activity is on the premises, they may temporarily secure the dwelling to protect themselves and to prevent the removal or destruction of evidence to preserve the status quo while obtaining a search warrant.” State v. Flores, 2010 La. LEXIS 1388 (June 18, 2010).*

The officer stopped defendant for a traffic offense and saw that he had an open container. Defendant was excessively nervous. When he opened the center console to get his DL, the officer saw two apparent bags of drugs. This was a valid plain view. State v. Flores, 996 A.2d 156 (R.I. 2010).*

The state showed a nexus for a search of a mobile home at space 23 because of a controlled buy heard on a wire. After the search warrant came up empty, the officer reasoned that his home, space 25, should be searched, and he reapplied to the magistrate for a search warrant for 25. No nexus was shown to 25 other than that defendant lived there, so there was no probable cause as to the home. State v. Belden, 2009 Ida. App. LEXIS 111 (November 16, 2009), substituted opinion State v. Belden, 148 Idaho 277, 220 P.3d 1096 (App. 2009):

While our standard of review requires us to afford deference to the magistrate’s decision, we conclude that Belden met his burden of proof in demonstrating that the search of space 25 was invalid for lack of a nexus between the place to be searched and the item to be seized. The evidence presented at the hearing pointed to space 23 as the location of the controlled drug buy. The evidence presented was considerable and included not only the CI’s account of the drug buy, but also an observing officer’s account and photographs. At the second hearing, space 25 was identified as Belden’s home, but no other evidence was presented to the magistrate to demonstrate a fair probability that contraband would be found there. This decision does not stand for the proposition that mistaken testimony at a warrant hearing cannot later be corrected. There may have been a reasonable explanation for the surveillance officer’s identification of space 23 as the location of the controlled drug buy. In this case, however, no explanation was offered and no additional evidence was presented to the magistrate except the fact that Belden resided at space 25. Therefore, the magistrate did not have a substantial basis for concluding that there was probable cause to search the residence at space 25.

The search of defendant’s car was valid as a search incident before Gant, but it was valid as an inventory. But, the inventory was not rendered invalid just because the officer went where defendant was reaching before he was arrested. That was the logical place to start and did not show it to be pretextual. United States v. Stitt, 382 Fed. Appx. 253 (4th Cir. 2010) (unpublished):

Stitt makes much of the fact that Officer Hawes testified that he believed when he began the search there was contraband in the center console of the Acura, arguing that this testimony proves that the search was for the purpose of obtaining incriminating evidence. Given the fact that Officer Hawes had observed Stitt appear to close the center console as he was being pulled over, as well as the fact that a search of the Acura incident to the arrest was permissible at the time of the arrest (i.e., before Arizona v. Gant, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009)), it is not at all surprising that the officer would have begun the search in the console. In any event, simply because Officer Hawes might have had additional legal grounds to search the Acura apart from the inventory search does not render the inventory search invalid. See, e.g., United States v. Matthews, 591 F.3d 230, 235 n.7 (4th Cir. 2009) (noting that an officer’s suspicion that contraband may be present in the vehicle does not invalidate an otherwise lawful inventory search); United States v. Stephens, 350 F.3d 778, 780 (8th Cir. 2003) (holding that the vehicle search “was properly conducted, both as an inventory search and a search incident to arrest”).

Window tint violation led to officer smelling marijuana which was probable cause. United States v. Barnett, 2009 U.S. Dist. LEXIS 127287 (M.D. Fla. January 14, 2009).*

Defendant’s truck and fifth wheel camper were stopped for a missing front license plate required in the state the truck was from. After the paperwork was completed, the officer told the defendant that he was not free to leave until the drug dog completed his work, and the dog arrived just as he said that. The stop was not extended more than a minute or so by sniff, and that was not unreasonable. State v. Overbey, 2010 SD 78, 790 N.W.2d 35 (2010)*:

[*P24] Defendant’s final argument is that the detention exceeded the scope of the stop because it went beyond the time required to conduct a computer check, verify documents, examine vehicle equipment, and issue a citation. Without indicating what Officer Langenfeld should or should not have done during the stop, it is difficult to ascertain the essence of Defendant’s argument. Defendant appears to be arguing that Officer Langenfeld should not have called for the drug dog because it impermissibly extended the time it took to conduct the necessary steps for the traffic stop. However, the trial court found that when Officer Langenfeld told Jason that only a warning ticket would be issued, Langenfeld also told Jason he would not be free to leave until after the drug dog conducted a sniff of the vehicle’s exterior. At that exact moment, Trooper Severyn and Cas arrived and the drug sniff was conducted immediately. Within three minutes the drug sniff was completed and the law enforcement officers called dispatch to report that they would be conducting a vehicle search.

A baggie of drugs protruding from the defendant’s waistband during a traffic stop was in plain view. State v. Prude, 2010 Ohio 4892, 2010 Ohio App. LEXIS 4138 (8th Dist. October 7, 2010).*

Defendant juvenile didn’t come home the night before, and he was reported as a runaway. The school resource police officer found him and another asleep in a car on the high school parking lot. A knife was seen in the back seat, and the school had a no tolerance police for weapons on school grounds. The owner of the car also consented to a search of the car. Defendant’s claim of a need for exigent circumstances under T.L.O. is different than in general. State v. Brown, 158 Wn. App. 49, 240 P.3d 1175 (2010):

An emergency under the school search exception is not the same as the exigent circumstances exception to the general requirement for a warrant. See Slattery, 56 Wn. App. at 823 (listing exceptions separately). An exigency under the school search exception is any threat to the order and discipline of a school. McKinnon, 88 Wn.2d at 81. An exigent circumstance under the exigent circumstances exception, however, is a true emergency. State v. Hinshaw, 149 Wn. App. 747, 754, 205 P.3d 178 (2009). It requires swift action to prevent danger to life, a suspect’s imminent escape, or destruction of evidence. Id.

Repeated drug sales as probable cause to search a house also shows a lack of staleness. Wagner v. State, CR10-372 (Ark. October 21, 2010).*

Swabbing a cheek to procure a DNA sample constitutes a search under the Fourth Amendment and Wash. Const. art. I, § 7, and a search warrant is required. Assertions of an ASA during a hearing are not evidence, and the order for the DNA sample was not issued with probable cause. State v. Garcia-Salgado, 170 Wn. 2d 176, 240 P.3d 153 (2010).*

Defendant failed in his burden of showing that the police lacked probable cause to arrest him without a warrant. People v Bulgin, 2010 NY Slip Op 20290, 29 Misc. 3d 286, 908 N.Y.S.2d 817 (Bronx Co. 2010):

At a suppression hearing, it is the People’s burden to demonstrate the legality of the police conduct in the first instance, but defendant bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him and that the police lacked probable cause to arrest him. People v Thomas, 291 AD2d 462, 463 (2d Dept 2002); People v Sidhom, 204 AD2d 150 (1st Dept), lv denied, 84 NY2d 832 (1994).

The court is manifestly allocating the burden of proof to the wrong party under the Fourth Amendment. But, NY case law doesn’t help any. This is the train of citations (Sidhom is not pertinent):

Thomas (2002):

The defendant, however, bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him (see, People v Berrios, supra at 367; People v Baldwin, 25 NY2d 66, 70; People v Whitehurst, 25 NY2d 389, 391; Nardone v United States, 308 US 338, 341-342), and that the police lacked probable cause to arrest him (see, People v Milhouse, 246 AD2d 119).

. . .

Accordingly, the People satisfied their burden in the first instance to prove the legality of the police conduct. By contrast, the defendant failed to establish his ultimate burden by a fair preponderance of the credible evidence that there was no probable cause for his arrest.

Milhouse (1998):

At a suppression hearing, the burden of proof is on the defendant to show, by a preponderance of the evidence, that the officer lacked probable cause to arrest (People v Abdullah, 164 AD2d 260, 262).

Abdullah (1990) (without citation of authority):

After the Mapp hearing, at which Officer Reynolds was the only witness, the suppression court denied the motion to suppress finding: “the People met their burden of going forward, but the defendant did not meet his burden of proving *** by a preponderance of the evidence that the marijuana and the marijuana cigarette were unlawfully taken from his person”.

If Mapp is authority, that was with a search warrant, so the rule is different.

How many times do we have to point this out to the Fourth Amendment-impaired? Under the Fourth Amendment, the burden is always on the government to prove that a warrantless arrest or search is valid.

Defendant’s wife consented to a search of a gun safe that she did not have the key to (the key was on defendant’s person), but which she otherwise had apparent authority to enter. After her consent, the police retrieved the key from defendant’s pocket while he was locked in the back of the police car. The police also had no duty to ask him for consent under Randolph. United States v. Amratiel, 622 F.3d 914 (8th Cir. 2010):

Hibdon contends that the officers’ reliance on Ms. Hibdon’s apparent authority over the gun safe was unreasonable. Here, the available facts would “warrant a person of reasonable caution in the belief that the consenting party had authority over the [gun safe].” James, 353 F.3d at 615. At the time of consent, the officers knew: (1) the safe was in a common area, the garage; (2) Ms. Hibdon knew where the keys were (on Hibdon’s person) and how to unlock the safe (she unlocked it herself); (3) she never indicated that she had no access to the safe or that it was for Hibdon’s exclusive use; (4) as the officers removed the weapons, Ms. Hibdon identified one of the handguns as hers. Contrary to Hibdon’s contention, possession of a key is not the sole factor whether a third party has authority over a locked space. This court does “not accept [defendant’s] argument that a key is necessary to establish authority over the premises.” Iron Wing v. United States, 34 F.3d 662, 665 (8th Cir. 1994). Compare United States v. Backus, 349 F.3d 1298, 1304-05 (11th Cir. 2003) (estranged wife, a domestic abuse victim, who co-owned a home with her husband could consent to a search after her husband changed the locks), and United States v. Brannan, 898 F.2d 107, 108 (9th Cir. 1990) (wife who had moved out of a house she co-owned with her husband could consent to a search after her husband changed the locks), with United States v. Block, 590 F.2d 535, 541 (4th Cir. 1978) (police acted unreasonably in forcing open a locked footlocker where the mother gave consent to search her son’s room, but specifically disclaimed any right of access to the footlocker), and United States v. Infante-Ruiz, 13 F.3d 498, 505 (1st Cir. 1994) (police acted unreasonably in opening a locked briefcase when the party who consented to the search said specifically that he did not have access to it). While it may be possible for a spouse to maintain exclusive control over some private areas of the home, this is not such a case. See Almeida-Perez, 549 F.3d at 1172 (explaining that to rebut the presumption of a spouse’s authority to consent to a search, “the nonconsenting spouse must show that police had reason to know the area or container was off-limits to the consenting spouse.”).

Hibdon’s failure to object when the police took the keys from him is further evidence that the officers acted reasonably. Although Hibdon testified that he objected to the search, this court defers to the district court’s determination that because Hibdon’s testimony was inconsistent, bizarre and self-serving, he was not credible. See United States v. Tucker, 243 F.3d 499, 506 (8th Cir. 2001).

Note: The style of the case is United States v. Rachel Amratiel, f/k/a Thomas Hibdon, Defendant-Appellant.

Plaintiffs’ farm was the site of a four day search warrant execution after probable cause was shown to search the property in 2004 for bodies missing since 1971. The cattle bolted from the arrival of the police, and plaintiffs complained that the cattle lost weight. Also, they were not permitted in the house until the police were done and the stove was left on and their cat gave birth and some kittens died. While execution of a warrant is subject to reasonableness, this was not unreasonable under these facts. Lykken v. Brady, 622 F.3d 925 (8th Cir. 2010):

Courts may properly probe the manner in which law enforcement executes a warrant to ensure compliance with the Constitution. See Hummel-Jones v. Strope, 25 F.3d 647, 650 (8th Cir. 1994) (“The manner in which a warrant is executed is always subject to judicial review to ensure that it does not traverse the general Fourth Amendment proscription against unreasonableness.”). Although the Fourth Amendment protects against unnecessarily destructive searches and seizures, see Ginter v. Stallcup, 869 F.2d 384, 388 (8th Cir. 1989) (per curiam), the execution of a search warrant does occasionally require damage to property, see Dalia v. United States, 441 U.S. 238, 258, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979). We review appellees’ conduct for objective reasonableness, ignoring appellees’ subjective intent. See Anderson, 483 U.S. at 641 (applying objective standard to qualified immunity analysis).

No constitutional violation is to be found with respect to the Lykkens’ cattle. …

Similarly, denying Esther’s entry into her house to turn off the stove and check on her cat would not appear unreasonable to an officer at the scene. While we sympathize with Esther’s feelings about her cats, we cannot agree with the district court “that Brady and Devaney’s refusal to allow Esther to enter the house for the amount of time it would have taken to turn off the stove and check on her cats was unnecessary and unreasonable.” Perhaps denying Esther entry into her house could be considered unreasonable if the officers were searching only for large objects which could not be secreted within the house. But the search warrant demanded a search for more than just the missing vehicle. The warrant also identified small objects, such as a ring, a watch, photographs, and papers, which could potentially be removed, destroyed, or hidden. Moreover, in the circumstances of this case, the fact that probable cause existed for the search could lead a reasonable officer to suspect the occupants of the house might attempt to conceal the objects of the search if the Lykkens were allowed unfettered access to the house. Denying Esther access to her house during the pendency of the search was therefore not unreasonable.

Defendant had no reasonable expectation of privacy in a package in a controlled delivery anticipatory search case where the package was addressed to an alias that defendant did not use. The package came from a source city in the hands of FedEx, and it was subjected to a dog sniff en route. A warrant was issued when it arrived at the delivery city, and 1.3 lbs of cocaine was found inside. An anticipatory warrant was issued for the house for the controlled delivery. All the warrants were valid, and the good faith exception would apply anyway. United States v. Barker, 2010 U.S. Dist. LEXIS 113559 (W.D. Ark. October 14, 2010).*

The officer here had ample reasonable suspicion for defendant’s stop based on a prior drug deal and surveillance. The district court’s findings are supported by the record, and, on de novo review, it showed reasonable suspicion. United States v. Bailey, 622 F.3d 1 (D.C. Cir. 2010).*

Defendant was stopped with PC for a traffic violation, and, when defendant was out of the car, the officer saw a bulge in defendant’s waistband, which he asked about. Defendant reached for it, and the officer did, too, in case it was a weapon. It was a cigar box with a cellophane side which had marijuana in plain view. United States v. Alston, 2010 U.S. Dist. LEXIS 113529 (D. S.C. October 25, 2010).*

A 911 domestic violence call from a child who left the home to call from nearby was exigency for entry. [Responding to domestic violence cases are where a significant number of cops get killed.] The female let the police in and consented to a search. While “there is no ‘domestic violence’ exception” to the warrant requirement, almost. (The court suggests the 911 call can also provide probable cause.) People v. Chavez, 240 P.3d 448 (Colo. App. 2010), cert. denied 2010 Colo. LEXIS 642 (Colo., Aug. 30, 2010):

A warrantless entry may be justified by investigative exigencies or emergencies. Brigham City, 547 U.S. at 403. The “exigent circumstances” and “emergency” exceptions are technically distinct: for example, the former requires traditional probable cause while the latter requires an objectively reasonable basis for believing immediate aid is required inside. … Ultimately, however, “[t]he ’emergency doctrine’ exception to the warrant requirement is but a specific example of the exigent circumstances doctrine.” People v. Thompson, 770 P.2d 1282, 1285 (Colo. 1989). And “[i]n domestic violence cases, the distinction between the two doctrines often collapses because the same facts that give rise to the exigency also provide probable cause of a suspected crime.” Amanda Jane Proctor, Breaking into the Marital Home to Break Up Domestic Violence: Fourth Amendment Analysis of “Disputed Permission”, 17 Am. U.J. Gender Soc. Pol’y & Law 139, 142 (2009).

In evaluating reasonableness under the Fourth Amendment, courts have “‘accorded great latitude'” to officers responding to emergency reports of ongoing domestic violence. … Case law recognizes that “[w]hen officers respond to a domestic abuse call, they understand that ‘violence may be lurking and explode with little warning.'” … Another reason “[d]eference” to officers’ “[o]n the spot reasonable judgments” is “particularly warranted in domestic disputes” is that “[t]he signs of danger may be masked” by a battered victim’s fear or dependence. …

. . .

Defendant argues — and we agree — “there is no ‘domestic violence’ exception to the Fourth Amendment.” See United States v. Black, 482 F.3d 1035, 1040 (9th Cir. 2007) (“we have stopped short of holding that ‘domestic abuse cases create a per se exigent need for warrantless entry'”) (quoting Brooks, 367 F.3d at 1136); United States v. Davis, 290 F.3d 1239, 1244 (10th Cir. 2002) (declining to “grant[] unfettered permission to officers to enter homes, based only upon a general assumption domestic calls are always dangerous”) (emphasis in original). But in reviewing police responses to emergency reports of ongoing domestic violence, courts must be cognizant of the difficulties such cases present for officers.

Officer’s overseizure of “things of value” during execution of a search warrant was not flagrant disregard of the warrant. The officer consulted a local DA as to what to do, and the DA said to seize “things of value.” United States v. O’Campo, 381 Fed. Appx. 974 (11th Cir. 2010) (unpublished)*:

Although some improper seizures occurred here, we conclude that the executing officers did not flagrantly disregard the terms of the search warrant. The executing officer, Slade McCullogh, testified that he seized these items, in part, because they were items of value and could indicate ill-gotten gains or living above one’s means; but the warrant authorized seizure of things of value only if those things were in close proximity to controlled substances. That the executing officer may not have fully understood what the warrant covered is insufficient to support a conclusion of flagrant disregard. McCullough attempted to stay within the boundaries of the warrant by contacting the District Attorney’s Office to inquire about what items could be seized. The DA’s office advised McCullough that he was authorized to seize electronic equipment and other things of value. Thus, McCullough exercised some discretion in executing the warrant and did not simply seize all things of value. We cannot say that McCullough’s misunderstanding of the warrant or lack of judgment demonstrated flagrant disregard warranting total suppression.

Extended border search in Calexico was reasonable despite the fact a Customs drug dog did not find 37½ lbs of cocaine [the dog was fired; n.1]. The CI’s tip did not pan out exactly as to the defendant’s actions, but the stops likely caused that to happen. There was reasonable suspicion based on defendant’s actions. United States v. Villasenor, 608 F.3d 467 (9th Cir. 2010).*

Officers came to defendant’s bar with a writ of execution to levy on a judgment. It authorized seizure of cash on the premises or defendant’s person. When defendant was pulling cash from his pocket, a baggie of meth fell out. Officers called for a drug dog which alerted on defendant’s car. They got a search warrant and more was found. The search on the writ was legal because defendant had the opportunity to defend the civil case that led to its issuance. The search was reasonable. State v. Sittingdown, 2010 OK CR 22, 240 P.3d 714 (2010):

[*P13] Because a civil order or writ is court process, the resulting seizure’s constitutionality is subject to the “ultimate standard” of “reasonableness.” Soldal, 506 U.S. at 71, 113 S.Ct. at 549; quoting Camara, 387 U.S. at 539, 87 S.Ct. at 1736. In Soldal the Supreme Court noted that where officers were acting pursuant to a court order, a showing of unreasonableness in the execution of the civil process would be a “laborious task indeed.” Soldal, 506 U.S. at 71, 113 S.Ct. at 549.

[*P14] The seizure in the present case was reasonable. The seizure was conducted solely pursuant to the civil writ of execution. The writ has not been shown to be unreasonable on its face. No challenge was made to the writ in the District Court. Furthermore, the officer’s actions did not go outside the authority of the writ. The writ was executed as it was presented to the officer.

[*P15] The writ of execution authorized the officer to assume control and dominion over the contents of Appellee’s pockets. A writ of execution is a command to the officer, to whom it is directed, to collect the money specified in the writ from the goods and chattels of the debtor. …

Defendant left a handgun and documents in somebody else’s house, which he almost certainly didn’t have standing to contest. But, aside from the lack of standing, the person with authority over the premises consented to the search. United States v. Garcia-Arcos, 2010 U.S. Dist. LEXIS 100487 (W.D. Wis. August 26, 2010).*

There was no state constitutional prohibition against an officer running a LP number just to see if the driver matches the car based on the DL information. State v. Davis, 237 Ore. App. 351, 239 P.3d 1002 (2010).*

Defendant was placed under arrest, and she had a wallet in her hand. She put the wallet down on the hood of the police car, and she was handcuffed. The wallet was then not subject to search incident under the Oregon Constitution. State v. Nell, 237 Ore. App. 331, 240 P.3d 726 (2010).*

Defendant was lawfully stopped for a traffic offense, and a request for consent was sought before defendant’s paperwork was returned to him. This unlawfully prolonged the stop. [The state argued that Muehler v. Mena permitted extending the stop, and the state court to its credit did not fall for it.] People v. Burei, 2010 Ill. App. LEXIS 1051 (September 30, 2010):

While the initial seizure of the defendant in this case was lawful, it became unlawful when it was prolonged beyond the time reasonably required to complete its purpose, namely, to issue the appropriate traffic citations. Long after the detention should have ended, Officer Tienstra continued to question the defendant during which time he consented to the search. While contrary to the defendant’s assertion, the trial court found that he consented to the search, and the court further found and, we agree, that the defendant’s consent to search was tainted by the unlawful detention.

Defendant Thompson parked his RV in defendant’s driveway and hooked up to power and water. They claimed they didn’t see each other much after that. A search warrant was executed on the house, and Thompson’s RV. Defendant Jevarjian had no standing in Thompson’s RV. State v. Jevarjian, 124 Conn. App. 331, 4 A.3d 1231 (2010); State v. Thompson, 124 Conn. App. 353, 5 A.3d 513 (2010).

Illegal detention led to invalid consent. Defendant showed the necessary minimal connection, and the state could not show that it did not exploit that illegality. State v. Ayles, 348 Ore. 622, 237 P.3d 805 (2010).*

Defense counsel was not ineffective for not challenging the search of defendant because there was probable cause for his arrest. Brown v. State, 3 A.3d 1096 (Del. 2010).*

Defendant drove past a police officer who knew that there was a warrant for his arrest. He was followed to a convenience store where he was arrested. A police officer shined a flashlight into the car and saw a baggy of crack in plain view, and that justified an automobile exception search of the car. Suppression order reversed. State v. Sarden, Ga. App. 587, 699 S.E.2d 880 (2010).*

The search of defendant’s car did not violate Gant where he fought with the officer and fled from the car as the officer attempted to handcuff him, leaving the door open. This was an abandonment. Johnson v. State, 305 Ga. App. 635, 700 S.E.2d 612 (2010).*

Defendant was stopped for reckless driving, and the officer smelled marijuana coming from the car. Defense counsel was not ineffective for not challenging the search. Mason v. State, 42 So. 3d 629 (Miss. App. 2010).*

Subjective intent of the officer is usually irrelevant, except for inventory search. This inventory clearly was a criminal investigative search under the pretext of an inventory. The community care taking function was not served by this search. People v. Torres, 188 Cal. App. 4th 775, 116 Cal. Rptr. 3d 48 (4th Dist. 2010):

Just as inventory searches are exceptions to the probable cause requirement, they are also exceptions to the usual rule that the police officers’ “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” (Whren, supra, 517 U.S. at p. 813.) We have “never held, outside the context of inventory search … that an officer’s motive invalidates objectively justifiable behavior under the Fourth Amendment.” (Id. at p. 812, italics added.) Instead, courts will explore police officers’ subjective motivations for impounding vehicles in inventory search cases, even when some objectively reasonable basis exists for the impounding. In Opperman, supra, 428 U.S. 364, the police impounded a car that had been “illegally parked for an extended period” (id. at p. 375) and contained “a number of valuables inside” (id. at pp. 375–376) “in plain view” (id. at p. 375). Yet the court stressed “there is no suggestion whatever” that the inventory search “was a pretext concealing an investigatory police motive.” (Id. at p. 376.) In Bertine, the police impounded a van after arresting the driver for driving under the influence. (Bertine, supra, 479 U.S. at p. 368.) The alternative of parking and locking the van was not feasible. (Id. at p. 376.) Still, the court noted “there was no showing that the police … acted in bad faith or for the sole purpose of investigation” (id. at p. 372) and “no showing that the police chose to impound [the] van in order to investigate suspected criminal activity” (id. at p. 376).

Thus, as the U.S. Supreme Court has explained, inventory search cases apply “the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory. The individual police officer must not be allowed so much latitude that inventory searches are turned into ‘a purposeful and general means of discovering evidence of crime.’” (Florida v. Wells (1990) 495 U.S. 1, 4 [109 L. Ed. 2d 1, 110 S. Ct. 1632] (Wells) [evidence in suitcase in impounded car should be suppressed because state highway patrol lacked standardized policy on opening closed containers found in inventory searches].)

Prior cases in conflict with Gant are overruled. Defendant was handcuffed in the back of a police car, so it was not possible for him to gain access to the car he was taken from. The search incident was invalid. Rose v. Commonwealth, 322 S.W.3d 76 (Ky. 2010) (revg Commonwealth v. Rose, 2007 Ky. App. LEXIS 6 (Ky. Ct. App., Jan. 12, 2007), which court notes was decided before Gant):

In this case, at the time of the search, Appellant was secured in the back of Hardy’s cruiser. As a result, there was no possibility Appellant could have gained access to the vehicle to destroy evidence or to access a weapon. Therefore, in light of the Supreme Court’s ruling in Gant, we hold the search unconstitutional. To the extent that our decisions in Rainey, Henry, Penman, or any other cases promulgated by this Court conflict with Gant, they are expressly overruled.

With regard to Gant‘s alternative rule–that an officer may search a vehicle even when the arrestee is secured if he has a reasonable suspicion that the vehicle harbors evidence of the crime of arrest–we are satisfied that Hardy did not possess the requisite reasonable suspicion. As the record reveals, Hardy directly testified that he was not searching the vehicle in an attempt to locate evidence relating to the two warrants. Thus, we cannot conclude that the search satisfies constitutional muster under Gant‘s alternative analysis. Therefore, we hold that the search in this case was unconstitutional and the evidence procured the fruit of a poisonous tree.