Plaintiff is a city firefighter on medical leave. City officials became suspicious of his leave, and they started investigating, videotaping him buying building supplies, something not within the doctor’s restriction. They came to his house and requested consent to search it to see if the building supplies had been installed. He refused consent. Then they used the threat of firing him for insubordination if he did not bring the stuff out. On this threat, he brought out the stuff he bought to show that he had not installed it, and the investigation ended. He sued over the compelled entry into his home, which the court found violated the Fourth Amendment, but all the defendants but the investigator (not a city official) got qualified immunity. Delia v. City of Rialto, 621 F.3d 1069 (9th Cir. 2010):

Unable to obtain Delia’s consent to search his home, and alternatively, failing to persuade Delia to voluntarily retrieve the insulation from his home and place it in public view on his front lawn, Filarsky was stymied. It was only at this juncture that Filarsky’s final move was to hatch a plan to compel Delia to do indirectly what Filarsky and the City of Rialto officials knew they could not directly do without clearly violating the Fourth Amendment. Delia was ordered to go into his house and bring out the rolls of insulation for inspection. He was cautioned at the beginning of his interview that his failure to cooperate with the investigation could result in charges of insubordination and possible termination of his employment. As a result, Chief Wells’s order “convey[ed] a message that compliance with [his] request[ ] [was] required.” Florida v. Bostick, 501 U.S. 429, 435, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991). As this court has recognized in the situation where police demand entrance to a dwelling, “compliance with a [governmental] demand is not consent.” United States v. Winsor, 846 F.2d 1569, 1573 n.3 (9th Cir. 1988) (en banc) (internal quotations omitted). In Winsor, police officers decided to enter a hotel and go from room to room looking for a robbery suspect. Id. at 1571. “When the police knocked on the door [of the defendants’ room] and demanded that it be opened,” one of the defendants obeyed, at which point, the police officers recognized the suspect as the robber and found evidence of the robbery in plain view. Id. This court found that the defendant had opened the door in response to a claim of lawful authority, not voluntarily. Id. at 1573. Consequently, this court held that “the police did effect a ‘search’ when they gained visual entry into the room through the door that was opened at their command.” Id. Similarly, under the facts in this case, Delia was compelled to enter his own home and retrieve the insulation for public view by order of Chief Wells. Delia’s actions were involuntary and coerced by the direct threat of sanctions including loss of his firefighter position. Therefore, we hold that the warrantless compelled search of Delia’s own home, requiring him to retrieve and display the insulation in public view on his front yard, violated Delia’s right under the Fourth Amendment to be free from an unreasonable search of his home by his employer.

The officer approached the defendant to talk to him, and the officer could smell marijuana on the defendant’s person. That justified a search of the person, and, for Fourth Amendment purposes, it did not matter whether it was for an infraction or a misdemeanor. State law did not matter under the Fourth Amendment. United States v. Perdoma, 621 F.3d 745 (8th Cir. 2010):

Whether the offense was an infraction or a misdemeanor is irrelevant, however, because “‘if an arrest is otherwise reasonable, the fact that it is not for an “arrestable” offense [under state law] does not make it unconstitutional.’” See United States v. Burtton, 599 F.3d 823, 830 (8th Cir. 2010) (quoting Thomas v. City of Peoria, 580 F.3d 633, 637 (7th Cir. 2009)) (upholding an arrest for an infraction under Nebraska law); see also Virginia v. Moore, 553 U.S. 164, 176, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008) (“We conclude that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections.”). Because Eberle had probable cause to believe that Perdoma possessed marijuana in violation of Nebraska law, we conclude that the arrest did not violate the Fourth Amendment.

Defendant was shot and in the hospital getting morphine. He consented while under morphine. There is no per se rule that he could not consent, and “per se rules are anathema to the Fourth Amendment.” United States v. Montgomery, 621 F.3d 568, 2010 FED App. 0296P (6th Cir. 2010):

We sympathize with one legal premise of Montgomery’s argument but not another. It is no doubt the case that medication or intoxication may diminish the capacity to consent to the extent it undermines an individual’s grasp on the reality of what he is doing. When officers seek and obtain consent from a medicated or intoxicated individual, as is sometimes appropriate, they can expect a dispute about the voluntariness of any consent given and what often comes with it: attendance and testimony at a suppression hearing. And in some settings, the influence of drugs, prescribed or otherwise, or the influence of alcohol may tip the balance in favor of finding a lack of capacity to consent to the search.

Yet Montgomery apparently wants more. He wants what amounts to a per se rule that medication (or intoxication) necessarily defeats an individual’s capacity to consent, given that the only cognizable evidence on which he relies relates to the morphine injection. That is a bridge too far. As a general matter, per se rules are anathema to the Fourth Amendment, see Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996), a provision that speaks of “unreasonable” searches and seizures, U.S. Const. amend. IV, and a provision whose rights can be waived by consent, as measured by the “totality of all the circumstances,” Schneckloth, 412 U.S. at 227. Drug-induced impairment, moreover, is a matter of degree, making it appropriate to gauge the impact of drugs on a case-by-case basis and in view of other circumstances at play.

DNA sampling as a condition of pretrial release, 18 U.S.C. § 3142(b) and (c)(1), is upheld under the special needs test and every other challenge. The challenge of invasion of familial privacy is brushed off. United States v. Pool, 621 F.3d 1213 (9th Cir. 2010):

Addressing Pool’s concerns in inverse order, it is not clear that familial comparisons raise a constitutional privacy issue or, if they do, whose interests are violated. The concern with familial comparisons or partial matching is that a review of CODIS may disclose an individual whose DNA does not match precisely to crime scene DNA from a perpetrator, but is close enough to create a probability that the perpetrator is a close relative to the identified individual. The familial match is not implicated: by definition the match is not perfect, so the government knows that the match is not the perpetrator. It is questionable whether the rights of the perpetrator (if ultimately identified through the use of familial comparisons) are violated. This seems somewhat analogous to a witness looking at a photograph of one person and stating that the perpetrator has a similar appearance which leads the police to show the witness photos of similar looking individuals, one of whom the witness identifies as the perpetrator. It is questionable whether the person whose photograph helped focus the inquiry, or whose familial comparison helped focus the inquiry, has suffered any invasion of his or her constitutional right to privacy.

See Courthouse News Service.

Defendant was stopped for a traffic offense, and he had no documentation for the vehicle, and it was unregistered. The officer called for a tow and conducted an inventory. The inventory was valid under a PPD policy under Bertine and Wells, including opening a shoebox which was full of cocaine. United States v. Mundy, 621 F.3d 283 (3d Cir. 2010):

Mundy contends that, because the PPD Live Stop Policy does not specifically mention the opening of closed containers, officers may not search closed containers found during a vehicle inventory search. We disagree. Inventory searches are not “totally mechanical” procedures. Wells, 495 U.S. at 4. Standardized criteria or routine may adequately regulate the opening of closed containers discovered during inventory searches without using the words “closed container” or other equivalent terms. We decline to create a rule of constitutional dimension that requires an inventory search protocol to predict every conceivable scenario an officer may happen upon while conducting an inventory search, and to provide a formulaic directive for each and every one. Such a requirement would not only prove unworkable, but would run contrary to the letter and spirit of Bertine and Wells. See United States v. Andrews, 22 F.3d 1328, 1336 (5th Cir. 1994) (upholding inventory search involving an officer’s reading of incriminating evidence inside a notebook recovered pursuant to an inventory search, reasoning that neither Bertine nor Wells “requires a law enforcement agency’s inventory policy to address specifically the steps that an officer should take upon encountering a closed container”).

The Third Circuit follows the Ninth and Eleventh and holds that a broader jail strip search policy is reasonable. Florence v. Bd. of Chosen Freeholders of Burlington, 621 F.3d 296 (3d Cir. 2010):

Since Bell [v. Wolfish] was decided, ten circuit courts of appeals applied its balancing test and uniformly concluded that an arrestee charged with minor offenses may not be strip searched consistent with the Fourth Amendment unless the prison has reasonable suspicion that the arrestee is concealing a weapon or other contraband. Things changed in 2008, however, when the en banc Court of Appeals for the Eleventh Circuit reversed its prior precedent and held that a jail’s blanket policy of strip searching all arrestees upon entering the facility was reasonable even in the absence of individualized suspicion. Powell v. Barrett, 541 F.3d 1298, 1314 (11th Cir. 2008) (en banc). A year later, the en banc Court of Appeals for the Ninth Circuit also reversed its prior precedent and upheld a blanket policy of strip searching all arrestees before they enter San Francisco’s general jail population. Bull v. City and County of San Francisco, 595 F.3d 964, 975 (9th Cir. 2010) (en banc).

Confronted with a clear dichotomy between the en banc decisions of the Ninth and Eleventh Circuits on the one hand and the numerous cases that preceded them on the other, we must determine which line of cases is more faithful to the Supreme Court’s decision in Bell.

Like the Ninth and Eleventh Circuit Courts of Appeals, we conclude that the security interest in preventing smuggling at the time of intake is as strong as the interest in preventing smuggling after the contact visits at issue in Bell. We reject Plaintiffs’ argument that blanket searches are unreasonable because jails have little interest in strip searching arrestees charged with non-indictable offenses. This argument cannot be squared with the facts and law of Bell. First, the Bell court explicitly rejected any distinction in security risk based on the reason for detention. Bell, 441 U.S. at 546 n.28 (“There is no basis for concluding that pretrial detainees pose any lesser security risk than convicted inmates.”). Instead, the security risk was defined by the fact of detention in a correctional facility. See also, Fuentes v. Wagner, 206 F.3d 335, 347 (3d Cir. 2000) (“[I]t is impractical to draw a line between convicted prisoners and pretrial detainees for the purpose of maintaining jail security.” (citation omitted)).

Second, Bell did not require individualized suspicion for each inmate searched; it assessed the facial constitutionality of the policy as a whole, as applied to all inmates at MCC. Bell, 441 U.S. at 560 (bypassing concerns regarding abuses during particular searches to uphold policy as a whole, stating: “we deal here with the question whether visual body-cavity inspections as contemplated by the MCC rules can ever be conducted on less than probable cause. Balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates, we conclude that they can.”). MCC housed pretrial detainees, convicted inmates, and even non-offenders held as material witnesses, all of whom were included in the plaintiff class. See Bell, 441 U.S. at 524.

In sum, balancing the Jails’ security interests at the time of intake before arrestees enter the general population against the privacy interests of the inmates, we hold that the strip search procedures described by the District Court at BCJ and ECCF are reasonable. Accordingly, we will reverse the District Court’s grant of summary judgment on Plaintiffs’ Fourth Amendment strip search claim and remand for further proceedings consistent with this opinion.

FYI, three days ago in my local media, a newly admitted inmate at my county jail was found with a gun after other inmates complained. He was admitted to Gen Pop, apparently without a strip search.

The Ninth Circuit in United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162 (9th Cir. 2010), denied rehearing en banc and revised its opinion without the entire court of 24 acting. No further petitions for rehearing will be allowed. (Prior en banc opinion 579 F.3d 989 (9th Cir. 2009), posted here.)

Concluding Thoughts

This case well illustrates both the challenges faced by modern law enforcement in retrieving information it needs to pursue and prosecute wrongdoers, and the threat to the privacy of innocent parties from a vigorous criminal investigation. At the time of Tamura, most individuals and enterprises kept records in their file cabinets or similar physical facilities.

Today, the same kind of data is usually stored electronically, often far from the premises. Electronic storage facilities intermingle data, making them difficult to retrieve without a thorough understanding of the filing and classification systems used—something that can often only be determined by closely analyzing the data in a controlled environment. Tamura involved a few dozen boxes and was considered a broad seizure; but even inexpensive electronic storage media today can store the equivalent of millions of pages of information. Wrongdoers and their collaborators have obvious incentives to make data difficult to find, but parties involved in lawful activities may also encrypt or compress data for entirely legitimate reasons: protection of privacy, preservation of privileged communications, warding off industrial espionage or preventing general mischief such as identity theft.

Law enforcement today thus has a far more difficult, exacting and sensitive task in pursuing evidence of criminal activities than even in the relatively recent past. The legitimate need to scoop up large quantities of data, and sift through it carefully for concealed or disguised pieces of evidence, is one we’ve often recognized. See, e.g., United States v. Hill, 459 F.3d 966 (9th Cir. 2006).

This pressing need of law enforcement for broad authorization to examine electronic records, so persuasively demonstrated in the introduction to the original warrant in this case, see pp. 13944-45 supra, creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant. The problem can be stated very simply: There is no way to be sure exactly what an electronic file contains without somehow examining its contents—either by opening it and looking, using specialized forensic software, keyword searching or some other such technique. But electronic files are generally found on media that also contain thousands or millions of other files among which the sought-after data may be stored or concealed. By necessity, government efforts to locate particular files will require examining a great many other files to exclude the possibility that the sought-after data are concealed there.

. . .

The advent of fast, cheap networking has made it possible to store information at remote third-party locations, where it is intermingled with that of other users. For example, many people no longer keep their email primarily on their personal computer, and instead use a web-based email provider, which stores their messages along with billions of messages from and to millions of other people. Similar services exist for photographs, slide shows, computer code and many other types of data. As a result, people now have personal data that are stored with that of innumerable strangers. Seizure of, for example, Google’s email servers to look for a few incriminating messages could jeopardize the privacy of millions.

It’s no answer to suggest, as did the majority of the three-judge panel, that people can avoid these hazards by not storing their data electronically. To begin with, the choice about how information is stored is often made by someone other than the individuals whose privacy would be invaded by the search. Most people have no idea whether their doctor, lawyer or accountant maintains records in paper or electronic format, whether they are stored on the premises or on a server farm in Rancho Cucamonga, whether they are commingled with those of many other professionals or kept entirely separate. Here, for example, the Tracey Directory contained a huge number of drug testing records, not only of the ten players for whom the government had probable cause but hundreds of other professional baseball players, thirteen other sports organizations, three unrelated sporting competitions, and a nonsports business entity—thousands of files in all, reflecting the test results of an unknown number of people, most having no relationship to professional baseball except that they had the bad luck of having their test results stored on the same computer as the baseball players.

Second, there are very important benefits to storing data electronically. Being able to back up the data and avoid the loss by fire, flood or earthquake is one of them. Ease of access from remote locations while traveling is another. The ability to swiftly share the data among professionals, such as sending MRIs for examination by a cancer specialist half-way around the world, can mean the difference between death and a full recovery. Electronic storage and transmission of data is no longer a peculiarity or a luxury of the very rich; it’s a way of life. Government intrusions into large private databases thus have the potential to expose exceedingly sensitive information about countless individuals not implicated in any criminal activity, who might not even know that the information about them has been seized and thus can do nothing to protect their privacy.

It is not surprising, then, that all three of the district judges below were severely troubled by the government’s conduct in this case. …

. . .

This guidance can be summed up as follows:

1. Magistrate judges should insist that the government waive reliance upon the plain view doctrine in digital evidence cases. Pp. 13962-63 supra; see maj. op. at 13949-50.

2. Segregation and redaction of electronic data must be done either by specialized personnel or an independent third party. Pp. 13964-65 supra; see maj. op. at 13945-48, 13950-52. If the segregation is to be done by government computer personnel, the government must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.

3. Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora. Pp. 13963-64 supra; see maj. op. at 13944-45, 13957-58.

4. The government’s search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents. Pp. 13964-65 supra; see maj. op. at 13950-52.

5. The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept. P. 13965 supra; see maj. op. at 13952-56.

* * *

This guidance is hardly revolutionary. It’s essentially Tamura’s solution to the problem of necessary over-seizing of evidence. Just as Tamura has served as a guidepost for decades, the procedures outlined above should prove a useful tool for the future. Nothing any appellate court could say, however, would substitute for the sound judgment that magistrate judges must and, I am confident will, exercise in striking this delicate balance.

I suspect a cert petition, but it’s not a given that it would be granted.

See Law.com:

The 9th U.S. Circuit Court of Appeals today backtracked from a sweeping set of data privacy guidelines issued last year in connection with the federal investigation of steroids in baseball. The guidelines in Chief Judge Alex Kozinski’s majority opinion a year ago are now relegated to a nonbinding concurring opinion.

The guidelines in the original en banc opinion were aimed at protecting traditional Fourth Amendment rights in the age of electronic data, and had the apparent support of seven other judges.

Motion to suppress granted. Officers created their own exigency for this entry by approaching the property in the first place. They had no warrant. United States v. Willis, 711 F. Supp. 2d 683 (E.D. Tex. 2010), Adopted by, Objection overruled by, Findings of fact/conclusions of law at 2010 U.S. Dist. LEXIS 45905 (E.D. Tex., May 10, 2010):

Turning to the present case, the Court finds that if exigent circumstances existed, the exigency was caused by the officers’ conduct. Despite somewhat contradictory testimony, the Court credits the officers’ belief they were in danger when positioned on Defendant’s property. See Rico, 51 F.3d at 501 (finding it reasonable to believe officers were in danger when standing in front yard and residence’s occupants were thought to be armed). Based on the officers’ testimony, however, the Court fails to find any conduct or actions on the part of individuals on Defendant’s property that prompted the officers’ decision to approach the residence. Compare id. at 505-06 (finding suspects’ actions created exigent circumstances justifying officers’ approach of residence) with Vega, 221 F.3d at 800 (finding officers’ approach of residence not justified “by an absence of time to secure warrant or by any other reasonable predicate”); Munoz-Guerra, 788 F.2d at 298 (finding officers’ unprovoked approach of residence created exigent circumstances). Rather, the officers’ approach into a dangerous situation without a warrant was without a reasonable predicate. Moreover, with the tip as to Creson’s whereabouts coming early in the afternoon on a weekday, officers had the opportunity to obtain a warrant prior to approaching the house. Compare Menchaca-Castruita, 587 F.3d at 294 (finding “‘the amount of time necessary to obtain a warrant’ likely would be minimal, as the incident took place early on a weekday afternoon – as opposed to late in the evening or on a weekend when officers might not have had ready access to a magistrate”) with Rico, 51 F.3d at 503 (concluding officers’ approach was reasonable because there was inadequate time to obtain a warrant). There appears to have been no reason why surveillance could not have been conducted while another officer quickly obtained a warrant. Indeed, the officers were able to obtain a warrant for Defendant’s residence within two hours of executing the initial warrantless search, see DEF.’S MOT. at EX. 1, and, as Officer Wingo testified, the risk to the officers would not have increased had they waited for the warrant. See Munoz-Guerra, 788 F.2d at 298 (finding “no basis, on these facts, for believing that resort to a magistrate would have created risks of a greater magnitude than these, which are present in any case where the police has probable cause but delay pending receipt of a warrant”).

In a case of first impression, a 17-year-old in control of the house while her parents were away had sufficient control over the premises to consent to a search of the premises, surveying many cases. Allen v. State, 44 So. 3d 525 (Ala. Crim. App. 2009), Released, Released for Publication August 2, 2010, Rehearing denied, 2009 Ala. Crim. App. LEXIS 206 (Ala. Crim. App., June 5, 2009). Lexis overview:

[A] minor child could provide valid third-party consent to a police request to search the house of the minor child’s parents when no parent was present when the Atkins test was met. The court found that the test was satisfied: 1) the 17-year old daughter lived there; 2) she had the right of access to the house and the right to invite others there–although the computer in her parents’ bedroom was password-protected, they entered the password so that she could access the Internet while they were away; 3) it was reasonable for the officers to conclude that she had sufficient control over the house to consent; and 4) she exercised sufficient discretion to freely consent to the warrantless search.

Defendant’s arrest months after an offense, timed to protect the identity of an informant, was without a warrant, and there was no justification for doing without one. The prior offense was used as the reason for the current stop, and the product of that arrest is suppressed. State v. VanNoy, 2010 Ohio 2845, 188 Ohio App. 3d 89, 934 N.E.2d 413 (2d Dist. 2010):

[*P26] According to the record, Detective Bell’s testimony at the suppression hearing established that VanNoy was stopped in order to effectuate an arrest for drug trafficking offenses that had occurred several months before. Although Bell further testified that the delay was necessary to protect the identity of his confidential informant, nothing in Bell’s testimony explains why the detective did not obtain an arrest warrant once he decided that he could arrest VanNoy without endangering his informant. Although VanNoy was the subject of an on-going investigation, Bell indicated that three months elapsed between the last alleged criminal activity and the stop. There was no suggestion that VanNoy’s immediate, warrantless arrest on July 31, 2008, was necessary to protect the informant, to prevent VanNoy’s fleeing, or for some other urgent reason.

Defendant was accosted by officers as a trespasser on housing authority property and he fled. He was not seized when he fled under Hodari D. State v. Roark, 2010 Ohio 2841, 2010 Ohio App. LEXIS 2328 (2d Dist. June 18, 2010).*

If the rent on a room is unpaid, the occupant has no reasonable expectation of privacy in it. The officers conducted a knock-and-talk to evict defendant for noise and unpaid fees, and the officers smell burnt marijuana and could see scales from the door. He admitted to smoking marijuana in the room. People v. Hardy, 2010 NY Slip Op 6382, 77 A.D.3d 133, 907 N.Y.S.2d 244 (2d Dept. 2010).

Gant should not be retroactive to a search that occurred before it was decided because there is no deterrent effect on officers. United States v. Tschacher, 2010 U.S. Dist. LEXIS 81092 (D. Neb. May 20, 2010).*

Defense counsel can choose the issues to appeal, and the record shows that the decision not to appeal a search claim was justified because defendant would not have prevailed because probable cause was shown. United States v. Thao, 2010 U.S. Dist. LEXIS 82260 (D. Minn. August 12, 2010)* (considering Gates’s “soft standard” of probable cause, it would take a really bad case to win on appeal).

There was reasonable suspicion for defendant’s stop for DUI because of his touching the fog line 16 times. State v. Mohl, 2010 ND 120, 2010 N.D. LEXIS 118 (June 30, 2010).*

Officers had an arrest warrant for a man at the defendant’s location, and he let them in, even though he claimed not to live there. The warrant was valid under Steagald, and this case was similar to Conception. Defendant’s constructive possession was shown. Commonwealth v. Muniz, 2010 PA Super 160, 5 A.3d 345 (2010).*

Maryland applies Gant good faith to a search that was valid at the time it happened but not now. The stop was based on a DMV return showing that the vehicle was not properly registered, and it was not up to the state to prove that the underlying record was correct [all in the context of whether the exclusionary rule should apply]. McCain v. State, 194 Md. App. 252, 4 A.3d 53 (2010).*

Where dispatch reports that the vehicle was not properly registered in the state of its LP, a stop is justified. Defendants then consented. United States v. Collier, 2010 U.S. Dist. LEXIS 92418 (W.D. Ark. August 9, 2010).*

Defendant tried to enter a club with a cocked loaded gun that club security relieved him of. Police were called. When defendant did not identify himself, it was permissible for the police to frisk him for his ID. State v. Hollins, 789 N.W.2d 244 (Minn. App. 2010).

“In sum, we conclude that Allen had a subjective expectation of privacy in his cell-phone conversation with Golie and that our society is willing to recognize that expectation as reasonable. Accordingly, Golie’s recording of the conversation at the behest of law enforcement constituted a search under Article II, Sections 10 and 11 of the Montana Constitution.” Thus, two party consent is required under the state constitution. State v. Allen, 2010 MT 214, 357 Mont. 495, 241 P.3d 1045 (2010).*

Defendant abandoned his jacket, where his cell phone was found, when he slipped out of the jacket to get away from a Wal-Mart loss prevention employee who was trying to stop him. Thus, the cell phone was abandoned, too. State v. Dailey, 2010 Ohio 4816, 2010 Ohio App. LEXIS 4068 (3d Dist. October 4, 2010):

[*P16] In this particular case, we believe that it was clear that Dailey voluntarily abandoned his cell phone when he slipped out of his coat and left it and its contents behind in order to escape being detained by a Wal-Mart store employee. When Stafford reached Dailey at the Wal-Mart sliding doors, Dailey turned around and tried to elbow him in the face. A physical altercation ensued between the two, which eventually spilled into the store’s parking lot. At one point, Stafford grabbed Dailey’s jacket, but Dailey managed to maneuver his way out of the jacket and quickly ran off, leaving his jacket in Stafford’s possession. At no time thereafter did Dailey request his jacket or any of its contents be returned to him.

A 911 cell phone call about a possible drunk driver did not support defendant’s stop because there was no showing of any connection to defendant’s vehicle and the call. State v. Renzulli, 935
N.E.2d 200 (Ind. App. 2010).*

The victim of an armed robbery gave a description to an officer who told other officers. Defendant matched that description, and that was reasonable suspicion for his patdown. Brooks v. State, 934
N.E.2d 1234 (Ind. App. 2010).*

Overwhelming number and odd collection of air fresheners is reasonable suspicion. State v. Richards, 2009 UT App 397 (December 31, 2009):

¶1 This appeal presents the issue of whether a police officer had a reasonable, articulable suspicion that criminal activity was afoot so as to justify the investigatory detention of Defendant Heather Richards when the officer was confronted with the overwhelming smell of air fresheners and saw multiple odor masking agents such as orange rinds, Lysol, and Armor All. We conclude that the odd combination of odor masking agents and strong smells emanating from defendant’s vehicle are objective facts that gave rise to a reasonable, articulable suspicion that
Defendant was involved in drug trafficking.

Dealing with prior authority that both sides argued supported their case, the Pennsylvania Supreme Court holds that an apparent hand-to-hand drug deal in a high crime area at night was probable cause for a stop. The officer’s experience alone is not enough. Commonwealth v. Thompson, 604 Pa. 198, 985 A.2d 928 (2009):

Because we have determined that a police officer’s experience may be fairly regarded as a relevant factor in determining probable cause, and due to the presence of additional factors in support of Officer Ortiz’s conclusion that he was witnessing a drug transaction, we find no error in the Superior Court’s conclusion that probable cause was present in this case. We do not base our decision solely on Officer Ortiz’s experience and the connection he articulated between that experience and what he observed. We also rely on the fact that the transaction at issue occurred in the nighttime hours, on the street, in a neighborhood that the police department selected for the “Operation Safe Streets” program. We conclude that the Superior Court properly upheld the denial of suppression in this case and properly affirmed the judgment of sentence.

Dissent 1; Dissent 2.

Defendant got off a highway to avoid a ruse checkpoint, and she did not signal her turn until after she stopped. This was a violation of Nebraska law and that justified her stop. United States v. Adler, 2009 U.S. App. LEXIS 28755 (8th Cir. December 31, 2009).*

The question for the legality of the stop is what the officer knew at the time of the stop, not what he learned after. Here, the officer admittedly lacked justification for the stop. Reversed. Carmichael v. Village of Palatine, 360 Fed. Appx. 686 (7th Cir. 2010)*:

Our earlier discussion should make clear–but we pause to emphasize–that our focus on the facts Officer Sharkey knew at the time that he decided to stop the vehicle, as evidenced by the defendants’ admission and Officer Sharkey’s own statements, should not be misread as adopting a subjective standard that focuses on Officer Sharkey’s motivations. See Williams, 509 F.3d at 398-99. Indeed, this case involves a straightforward application of the objective test set forth by the Supreme Court in Whren, which requires us to evaluate probable cause from the perspective of a reasonable officer who saw what Officer Sharkey saw and heard what he heard. See United States v. Parra, 402 F.3d 752, 764 (7th Cir. 2005). The objective perspective dictated by Whren and its progeny prevents courts from eschewing objective facts in favor of evaluating the subjective motivations of a particular officer; however, it is not meant to give an arresting officer the added benefit of any facts that come to light after a relevant Fourth Amendment decision has been made. See Devenpeck, 543 U.S. at 153, 154 (noting the purposes of the objective test, including its assurance “that the constitutionality of an arrest under a given set of known facts” will not vary “from place to place and from time to time” (internal quotation marks omitted)).

The officer’s trash search at defendant’s house corroborated the informant who said that he saw marijuana in the house just before. The search warrant was issued with probable cause. Flores v. State, 319 S.W.3d 697 (Tex. Crim. App. 2010).*

A juvenile has no Randolph veto power—his mother could consent despite his objection to the search. In re D.C., 188 Cal. App. 4th 978, 115 Cal. Rptr. 3d 837 (1st Dist. 2010):

Appellant contends evidence of the stolen goods should have been suppressed because (1) his mother did not have the authority to consent to a search of his bedroom and (2) his objection to the officers’ entry to the apartment precluded a consensual search under Georgia v. Randolph (2006) 547 U.S. 103 (Randolph). While the arguments appellant raises might have prevailed were he an adult, we conclude his mother, as the parent of a minor child, had the authority to consent to a search of his bedroom and to override any objection he raised to the search of her apartment.

In a child pornography case, the defendant had no reasonable expectation of privacy in files shared with other computers by LimeWire. The defendant even argued the government had the burden on the question of reasonable expectation. R&R modified in part. United States v. Norman, 2010 U.S. Dist. LEXIS 100572 (M.D. Ala. September 24, 2010),* R&R 2010 U.S. Dist. LEXIS 100889 (M.D. Ala. July 6, 2010).

Officers arrested a suspect outside a house. They had a reasonable belief that others were inside, but no reason to believe that they posed any kind of threat. A protective sweep of those inside could have been valid if there were articulable reasons for it, but here there were none. Diaz v. State, 34 So. 3d 797 (Fla. App. 4DCA 2010) (good discussion of protective sweep doctrine).

Defendant prison official had qualified immunity for threatening force to obtain a DNA sample which plaintiff concedes he could obtain from him. Rendelman v. Scott, 378 Fed. Appx. 309 (4th Cir. 2010) (unpublished).*

Defendant denied living at the place searched; he only stored a couch there. He lacked a reasonable expectation of privacy there. All he had there was a couch he was storing. United States v. Perry, 379 Fed. Appx. 888 (11th Cir. 2010) (unpublished).*

The landlord of a rented house came by to check on it, and he saw three cars he did not recognize parked outside, broken windows, and a security door that he did not put there. He knocked on the door, announcing that he was “property management” but nobody came out. He parked nearby and watched. A woman who was not the tenant came out who he talked to and she denied any knowledge of anything going on there. The landlord could smell burnt marijuana. He called the police who came, and the landlord entered with the police. Inside, three men were found, one sleeping, and everybody denied living there or any connection to the property. Drugs and firearms were in plain view. The defendants had no standing to contest the search of a common “drug house,” so the trial court’s suppression order of the house is reversed. Defendant’s car was impounded and inventoried and drugs were there, too. That suppression order is affirmed. State v. Carter, 305 Ga. App. 814, 701 S.E.2d 209 (2010):

Here, the defendants failed to demonstrate that they had a legitimate expectation of privacy in the house. White told the officers that the house belonged to his girlfriend, but there was no evidence that his girlfriend was Smith, the woman who rented the house. There was no evidence regarding how long he and the other two defendants had been at the house, that the renter had authorized them to be there, or that they were overnight guests. The house, which police described as a “drug house,” contained very little furniture, including a small couch, a kitchen table, a large television, an air mattress, and a PlayStation game console. The police found no clothing or other indication that a woman lived there, and although they found men’s clothing, there was no evidence that it belonged to any of the defendants. Based on the record, we conclude that the defendants failed to demonstrate that they had standing to contest the search, and therefore, the trial court erred by granting the defendants’ motion to suppress the evidence found in the house.

Officers had reasonable suspicion to stop defendant for alleged trespassing when he was seen on posted property. When stopped he was asked where he lived, which was somewhere else, and he could provide no justification for being there. During the emptying of pockets, he became evasive about the watch pocket, and he was detained. On the totality, it was with justification. Jones v. State, 194 Md. App. 110, 3 A.3d 465 (2010).*

Maryland holds that the smell of burnt marijuana gives probable cause to search the passenger compartment and trunk, analyzing the cases from other jurisdictions and the interests involved and the “burnt-raw” odor and “user-dealer” distinctions. Wilson v. State, 138 Wn. App. 29, 156 P.3d 246 (2007):

To adopt appellant’s argument, the trunk, or any other area outside of the passenger compartment, becomes a safe harbor for the transportation of drugs for both users and traffickers who use drugs. n8 We are not persuaded that a Fourth Amendment reasonableness analysis dictates that result. Probable cause is “a flexible, common-sense standard” to be applied in a “practical” and “non-technical” manner. Davis, 172 Md. App. at 89. The result we reach meets that standard because it eliminates the need to distinguish between burnt, burning, or raw marijuana and avoids speculation over whether a person is a user or a trafficker and, depending on which he or she is, where, within a vehicle, he or she would conceal any additional marijuana.

Officers had probable cause to believe that defendant’s vehicle was an instrumentality of crime, so it was searchable under the automobile exception. United States v. Timmons, 233 Fed. Appx. 206 (4th Cir. 2007)* (unpublished).

State’s failure to raise standing in trial court waives it for appeal. The evidence supported the trial court’s finding of consent. Brownfield v. State, 44 So. 3d 1, (Ala. Crim. App. 2007), Released, As Corrected May 6, 2008, Released for Publication August 2, 2010.Affirmed by Ex parte Brownfield, 2009 Ala. LEXIS 334 (Ala., Dec. 23, 2009)*

Consent to search pockets for weapons does not authorize the officer to search further. Here, officer felt neither weapons nor contraband and went into the pocket. Foster v. State, 285 Ga. App. 441, 646 S.E.2d 302 (2007).*

Defendant’s admission he had a gun in the car was sufficient basis for a vehicle frisk, and that led to a plain view. State v. Parker, 183 N.C. App. 1, 644 S.E.2d 235 (2007).*