Officer had probable cause to search defendants’ vehicle, and the fact that it took place a couple of hours later at the police station did not make it unreasonable. Also, when there is PC for a search, it can be complete, and scope of search is not an issue. United States v. Hightower, 376 Fed. Appx. 60 (2d Cir. 2010) (unpublished).* [indexed as Pender; first party listed is Hightower]

The affidavit for the search warrant was “replete” with detail, so PC exists, and it was not “bare bones” such that the exception to the good faith exception would bar use of the evidence. United States v. Thompkins, 377 Fed. Appx. 292 (4th Cir. 2010) (unpublished).*

Defendant, arguing his appeal pro se, waived his search and seizure claim by not having raised it in the district court. United States v. Byrd, 377 Fed. Appx. 374 (5th Cir. 2010) (unpublished)* (he also argued the jury was incompetent to decide his case because it didn’t see his fraud his way).

N.C. school district’s random drug and alcohol testing of teachers was unconstitutional. Jones v. Graham County Bd. of Educ., 197 N.C. App. 279, 677 S.E.2d 171 (2009).

The opinion starts with Brandeis

“The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”fn1

fn1. Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 687, 109 S. Ct. 1384, 103 L. Ed. 2d 685, 716 (1989) (Scalia, J., dissenting) (quoting Olmstead v. United States, 277 U.S. 438, 479, 48 S. Ct. 564, 72 L. Ed. 944, 957 (1928) (Brandeis, J., dissenting)).

and goes downhill from there that the policy is a general search in violation of the state constitution:

We next consider whether Board employees have a reduced expectation of privacy by virtue of their employment in a public school system. Public employees may have reduced expectations of privacy if their employment carries with it safety concerns for which the employees are heavily regulated. Skinner, 489 U.S. at 627, 103 L. Ed. 2d at 666. By way of illustration, chemical weapons plant employees are heavily regulated for safety. Thomson v. Marsh, 884 F.2d 113 (4th Cir. 1989) (per curiam). There is no evidence in the record before us, however, that any of the Board’s employees are regulated for safety. We question whether the Board could produce such evidence. The Board errantly relies on the premise that “Fourth Amendment rights … are different in public schools than elsewhere; the ‘reasonableness’ inquiry cannot disregard the schools’ custodial and tutelary responsibility for children.” Vernonia, 515 U.S. at 656, 132 L. Ed. 2d at 576. The Board, however, fails to account for the explicit teaching of the Supreme Court that because “the nature of [the schools’ power over schoolchildren] is custodial and tutelary, [the schools’ power] permit[s] a degree of supervision and control [over schoolchildren] that could not be exercised over free adults.” Id. at 655, 132 L. Ed. 2d at 576. We are unable to conclude from this record that any of the Board’s employees have a reduced expectation of privacy by virtue of their employment in a public school system.

Finally, the record in the case at bar is wholly devoid of any evidence that the Board’s prior policy was in any way insufficient to satisfy the Board’s stated needs. The Board acknowledges that there is no evidence in the record of any drug problem among its employees. There is also a complete want of evidence that any student or employee has ever been harmed because of the presence of “a detectable amount of an illegal drug or of alcohol” in an employee’s body. We agree that the Board need not wait for a student or employee to be harmed before implementing a preventative policy. However, the evidence completely fails to establish the existence of a “concrete” problem which the policy is designed to prevent. The need to promote an anti-drug message is “symbolic, not ‘special,’ as that term draws meaning from [the decisions of the United States Supreme Court].” Chandler, 520 U.S. at 322, 137 L. Ed. 2d at 528.

Considering and balancing all the circumstances, we conclude that the employees’ acknowledged privacy interests outweigh the Board’s interest in conducting random, suspicionless testing. See T.L.O., 469 U.S. at 337, 83 L. Ed. 2d at 732 (“[E]ven a limited search of the person is a substantial invasion of privacy.”) (citing Terry v. Ohio, 392 U.S. 1, 24-25, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). Accordingly, we hold that the policy violates Article I, Section 20’s guarantee against unreasonable searches.

Officers had probable cause to search a truck for a ton of marijuana after a controlled buy. When the truck arrived at the drop point, the police had probable cause to stop and search a car that was driving with the truck that showed up with it. State v. Higuera, 2010 Ohio 4113, 2010 Ohio App. LEXIS 3487 (8th Dist. September 2, 2010).*

Defendant’s furtive movement from the floor to the console during a traffic stop (“frantically reach for something on the floor and place it in the center console”) was justification for a weapons frisk of the console, which produced scales and cocaine residue which supported a further search of the car. State v. Thomas, 2010 Ohio 4132, 2010 Ohio App. LEXIS 3501 (8th Dist. September 2, 2010).*

A CI’s consent to record the defendant does not make it unlawful. “[T]he fact that an informant benefits from aiding the police in an investigation does not make his consent involuntary.” United States v. Karbedeh, 2010 U.S. Dist. LEXIS 91476 (D. Minn. August 11, 2010).*

Defendant was under investigation for mortgage fraud, and when the arrest finally went down, the police could search his car for evidence of that crime. Gant was inapplicable. Grant v. State, 43 So. 3d 864 (Fla. 5th DCA 2010).*

An inventory search of a motor vehicle was unreasonable because the police improperly impounded the vehicle of a driver who was cited but not arrested for two misdemeanor traffic offenses when the only justification for impoundment was protection of property. The driver had requested permission to make reasonable alternative arrangements for the disposition of the vehicle. State v. Gauster, 752 N.W.2d 496 (Minn. 2008):

While the need for the police to protect the vehicle and its contents is often present when police officers arrest a driver, in this case Gauster was not arrested and therefore never relinquished control of his vehicle and had no need to leave it unattended. Further, the impoundment and towing statutes only authorize impoundment for safekeeping when the person in control of the vehicle is taken into custody. Minn. Stat. § 169.041, subd. 4(12); Minn. Stat. § 168B.04, subd. 2. Because Gauster had at least 4 hours to make the proper arrangements for the vehicle before it could be towed, Minn. Stat. §§ 168B.04, subd. 2(b)(1)(i), 169.041, subd. 3, and because he was available to and capable of making his own arrangements for the vehicle, we conclude that as was the case in Goodrich, the police had no legitimate “caretaking” purpose that justified impounding Gauster’s vehicle. Therefore, we hold that the district court did not err in concluding that the impoundment was improper because “there were no circumstances then existing which justified seizure of [Gauster’s] vehicle.”

Defendant had just been released from prison and he admitted to having a weapon on him, so a frisk was justified. State v. Martin, 146 Idaho 357, 195 P.3d 716 (App. 2008).*

Defense counsel was ineffective for waiving on the day of trial the motion to suppress defendant’s arrest. It was apparent that defendant would have prevailed on the motion, and it undermined confidence in the state’s case. People v. Givens, 384 Ill. App. 3d 101, 892 N.E.2d 1098 (2008),* but revd People v. Givens, 237 Ill. 2d 311, 934 N.E.2d 470(2010)* (court of appeals should not have reached the issue).

Defense counsel was not ineffective for not challenging the search of defendant’s packages that arrived at Memphis customs from Nigeria because it was a valid border search. Harkey v. United States, 2010 U.S. Dist. LEXIS 36960 (N.D. Tex. February 26, 2010).*

Defense counsel was not ineffective for withdrawing motion to suppress that would not have won. The court of appeals erred in concluding defendant would have won on the motion, an apparent authority to consent issue. People v. Givens, 384 Ill. App. 3d 101, 892 N.E.2d 1098 (2008). People v. Givens, 237 Ill. 2d 311, 934 N.E.2d 470 (2010).*

Defendant had no standing in the car he was arrested in as a passenger. People v. Johnson, 237 Ill. 2d 81, 927 N.E.2d 1179 (2010), affg People v. Johnson, 387 Ill. App. 3d 780, 327 Ill. Dec. 127, 901 N.E.2d 455 (2009) (posted here):

Defendant does not argue before this court that he had a legitimate expectation of privacy in Thomas’s vehicle, and we find that the record would not support such an argument. Defendant had been a passenger in the vehicle, and no evidence in the record suggests that defendant had any ownership or possessory interest in the vehicle. Similarly, defendant failed to provide any evidence that he had previously used the vehicle, that he could control others’ use of the property, or that he had any subjective expectation of privacy in the vehicle. On this record, we are compelled to conclude that defendant had no legitimate expectation of privacy in Thomas’s vehicle, and he therefore may not challenge the search of the vehicle.

The Allentown SWAT team executed a search warrant in a homicide case at a bar in a high crime area known for weapons possession and drug dealing. The defendant was a security guard at the bar who was kept outside away from the bar, and he admitted having a gun, but he was a felon. This was valid, solely on safety of the officers. (The warrant was to collect videotapes, no less.) United States v. Allen, 618 F.3d 404 (3d Cir. 2010):

The only law enforcement interest relevant to our case, and indeed the only part of the Summers Court’s reasoning that is applicable to the facts here, is minimizing the risk of harm to the officers. Indeed, the District Court relied solely on this interest in denying Allen’s motion to suppress. We conclude that it was correct to do so because, per Rettele, in certain situations safety concerns alone may authorize a brief detention of the occupants of an establishment during execution of a search warrant, and the distinction between a search for contraband and a search for evidence is largely immaterial.

There is no evidence that ICE violated the immigrant’s rights in a warrantless arrest. “In any event, warrantless arrests of suspected illegal aliens are permissible in some situations, see 8 C.F.R. § 287.3 (2010), and there is no evidence that the government violated procedures associated with such an arrest in a way prejudicial to the petitioner in this case. See Martinez-Camargo, 282 F.3d at 492 (‘[T]he Supreme Court has held that where an administrative regulatory violation does not adversely affect a petitioner’s substantive rights an exclusionary remedy is not available.’).” Gutierrez-Berdin v. Holder, 618 F.3d 647 (7th Cir. 2010).*

Consent to search a person includes his pockets, not just what he was carrying. United States v. Dinwiddie, 618 F.3d 821 (8th Cir. 2010):

Dinwiddie was observed exiting a house to which a controlled delivery of drugs had just been made. He was observed carrying what appeared to be a packing slip from the just completed drug delivery. Police officers approached him and asked him if he would consent to a search of his person. He agreed. In this context, a reasonable person would have understood his consent to include his pants pocket and the recently observed packing slip therein.

Dinwiddie disagrees, relying upon language in Siwek to argue that the scope of his consent was limited to the objects about which he was just questioned–weapons and drugs. At issue in Siwek was whether consent to an automotive search included “any part of the truck” where the contraband that the defendant had just been questioned about might be stored. 453 F.3d at 1085. Siwek did not hold that the defendant’s scope of consent was necessarily limited to only the items mentioned in the predicate questioning. Id. Rather, Siwek stated that the scope of consent included a thorough search for those items. Id. Accordingly, Siwek is inapposite.

Defendant’s wife had apparent authority to consent to a search of a safe found in her bedroom although she did not know the combination to the safe. Her passport and car title were inside. [Comes close to justifying a search by its product.] United States v. Santana-Cabrera, 2010 U.S. Dist. LEXIS 41895 (S.D. Ind. April 28, 2010)*:

Essentially, Flores-Lopez’s argument boils down to a claim that, because Juaquina did not have access to, or control of, the safe, she could not consent to its search. This argument is not persuasive. First, in addition to containing $53,000 in cash and several firearms, the safe also housed, among other things, Juaquina’s passport and the title to a vehicle owned solely by Juaquina. Second, the safe’s location — in Juaquina’s bedroom — further rebuts Flores-Lopez’s argument that Juaquina did not have access to, or control over, it. Although it is true that Juaquina did not know the safe’s combination, that alone does not convince the Court that the safe was solely her husband’s property. Based on the totality of the circumstances, the officers were justified in believing that Juaquina had authority to consent, and did indeed consent to the search of the safe. See Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990).

[And why doesn’t it?]

Assuming the confrontation clause applies in a suppression hearing [don’t assume that], a signed consent to search form is not hearsay; it is an admission of a party opponent. United States v. Molina-Alfonso, 377 Fed. Appx. 850 (11th Cir. 2010) (unpublished).*

The evidence showed that defendant’s wife did not have express authorization to consent to a search, so the government bore the burden of showing she had common authority, which it did. She shared the computer, it was located in a separate room they called the “computer room,” and her access was unlimited. United States v. Smith, 2010 U.S. Dist. LEXIS 47553 (D. Ariz. April 19, 2010).*

Defendant’s furtive movements during her stop justified reasonable suspicion for a frisk. State v. Morgan, 348 Ore. 283, 230 P.3d 928 (2010).*

The record supports the conclusion that defendant’s consent was voluntary. Defendant’s own suppression testimony did not even touch on consent. United States v. Clark, 377 Fed. Appx. 451, 2010 FED App. 0290N (6th Cir. 2010) (unpublished).*

The government waived the argument presented on appeal by not first presenting the issue to the District Court. Also, citing a case for one proposition does not include any other argument that might flow from it. United States v. Dupree, 617 F.3d 724 (3d Cir. 2010):

As the Government recognized at oral argument, simply citing a case in the District Court is not sufficient to raise all arguments that might flow from it. See Nee, 261 F.3d at 86. To preserve the argument that it now makes on appeal, the Government had to do more than broadly reference Hodari D. Instead, it had to give the District Court the opportunity to consider the argument it now makes, i.e., whether the policies underlying the exclusionary rule demonstrate that it should apply where, as here, an illegally seized defendant breaks free and discards evidence while fleeing. Because it did not do so, the Government failed to preserve its argument for appeal.

. . .

In this appeal, the Government proffers two alternative bases for reversing the District Court’s suppression of Dupree’s firearm. The Government’s principal argument reflects a thoughtful consideration of the Supreme Court’s more recent exclusionary rule jurisprudence. We undoubtedly will have occasion to consider that argument in the future, but not in a case, such as this one, where it was never presented to the District Court. For the reasons stated herein and in Judge Fisher’s concurring opinion, we will affirm the District Court’s orders granting Dupree’s motion to suppress and denying the Government’s motion for reconsideration.

Officers who were arresting the defendant could search his pants before he put them on. United States v. Hull, 2010 U.S. Dist. LEXIS 86472 (E.D. Pa. August 19, 2010).*

911 hang up call was sufficient for a police entry in this § 1983 case. Johnson v. City of Memphis, 617 F.3d 864, 2010 FED App. 0259P (6th Cir. 2010) (unpublished)*:

We hold that the combination of a 911 hang call, an unanswered return call, and an open door with no response from within the residence is sufficient to satisfy the exigency requirement. The district court was correct in finding that the police were justified in entering the home to sweep for a person in need of immediate assistance under the emergency aid exception. The whole point of the 911 system is to provide people in need of emergency assistance an expeditious way to request it. Indeed, in many communities, the use of 911 for any purpose other than to report an emergency or to request emergency assistance is at least a misdemeanor offense.

The multiple blood draws of plaintiff who was involuntarily committed were to be governed by a Fourth Amendment analysis, but they were justified by special needs, were necessary, and were reasonably conducted under all the circumstances. Marcus v. Miraglia, 2010 U.S. Dist. LEXIS 86461 (S.D. N.Y. August 18, 2010),* on remand from Makas v. Miraglia, 300 Fed. Appx. 9 (2d Cir. 2008).

The Third Circuit does not have to decide the standard of appellate review of denial of a Franks hearing. Defendant here would lose under either standard. United States v. Heilman, 377 Fed. Appx. 157 (3d Cir. 2010) (unpublished)*:

We also need not decide today what standard of review to employ when reviewing the District Court’s refusal to permit a Franks hearing. Normally, we review the denial of a motion for suppression for clear error as to the underlying facts and exercise plenary review as to its legality. See United States v. Agnew, 407 F.3d 193, 196 (3d Cir. 2005). We have not stated a precise standard of review where a District Court denied a Franks hearing, and other circuits are split on this matter. See United States v. Stewart, 306 F.3d 295, 304 (6th Cir. 2002). Three circuits employ clear-error review, United States v. Skinner, 972 F.2d 171, 177 (7th Cir. 1992), United States v. Hadfield, 918 F.2d 987, 992 (1st Cir. 1990); United States v. One Parcel of Property, 897 F.2d 97, 100 (2d Cir. 1990); two circuits review de novo, United States v. Hornick, 964 F.2d 899, 904 (9th Cir. 1992); United States v. Mueller, 902 F.2d 336, 341 (5th Cir. 1990); and one circuit reviews for abuse of discretion, United States v. Fairchild, 122 F.3d 605, 610 (8th Cir. 1997). Because the most demanding standard articulated by any court is de novo, and because the de novo standard of review is satisfied here, we need not determine the applicable standard today.

Even when reviewing the District Court’s refusal to hold a Franks hearing de novo, it is clear the court did not err because neither Napoli nor Johnson made the requisite preliminary showing. See Franks, 438 U.S. at 155-56. …

Defendant was stopped more than 12″ from the curb with somebody leaning through the passenger window talking to him. That gave a basis for a stop. When the officer approached defendant he could smell alcohol and saw open containers in the vehicle. He ordered the defendant out of the vehicle and saw a bulge, and defendant would not keep his hands out of his pockets. This justified a patdown. United States v. Ferrell, 2010 U.S. Dist. LEXIS 39605 (W.D. Wis. April 6, 2010), adopted 2010 U.S. Dist. LEXIS 39602 (W.D. Wis. April 22, 2010).*

Defendant’s invitation to “check” the car (“Morgan then asked whether the defendant had anything ‘illegal’ in the Altima. The defendant replied that all he had in the car was some beer on the floor by the passenger seat, and told Morgan that he could ‘go ahead and check. You can check if you want.’”) was a consent to search. Also, two questions did not unduly prolong the stop in this case. The court also [fell for the trap and] applied Meuhler v. Mena to a traffic stop to justify the questions, rejecting other state’s cases. There were only two questions, and they were not unreasonable [anyway]. State v. Jenkins, 298 Conn. 209, 3 A.3d 806 (2010) [with two dissents here and here] (revg State v. Jenkins, 104 Conn. App. 417, 934 A.2d 281 (2007)):

Post-Jimeno case law makes clear that, on the basis of the exchange between Morgan and the defendant, Morgan reasonably could have understood the defendant’s invitation to “check” the Altima as an invitation to search the interior of the car and unlocked compartments therein, including its center console. First, Morgan’s question about the presence of “anything illegal” in the car reasonably is understood as directing the defendant’s attention to contraband such as narcotics or weapons, despite the fact that he did not mention those items specifically. See United States v. Canipe, 569 F.3d 597, 606 (6th Cir.) (“[w]hen [the investigator] asked [the defendant] whether he had anything in his vehicle that might be unlawful or about which he should know, his questioning placed [the defendant] on notice that any unlawful item would be the subject of his search”), cert. denied, ___ U.S. ___ , 130 S. Ct. 655, 175 L. Ed. 2d 499 (2009); United States v. Snow, 44 F.3d 133, 135 (2d Cir. 1995) (“[i]t is self-evident that a police officer seeking general permission to search a vehicle is looking for evidence of illegal activity”); cf. State v. McConnelee, 690 N.W.2d 27, 31 (Iowa 2004) (“[c]onsidering their conversation was limited to the nature of the leafy substance that was in plain view, we think it unlikely that the defendant would respond to the officer’s comments with an unsolicited invitation to the officer to ‘search the whole car’”). Moreover, a general consent to search a vehicle “reasonably include[s] permission to search any container that might have held illegal objects.” United States v. Canipe, supra, 606; see also United States v. Snow, supra, 135 (“[i]t is just as obvious that such evidence [of illegal activity] might be hidden in closed containers”); United States v. Harris, 928 F.2d 1113, 1118 (11th Cir. 1991) (“the defendant knew the officer was looking for drugs; therefore, both [the] defendant and the officer would reasonably interpret the consent as constituting consent to search in places where narcotics would reasonably be hidden”); cf. United States v. Neely, 564 F.3d 346, 351 (4th Cir. 2009) (per curiam) (containers “physically part of” area to be searched are included within scope of consent, but consent limited to trunk does not “physically encompass the interior of [a] vehicle”).

[Meuhler v. Mena is a search warrant case and a detention of a person at the search. A search under a warrant is far different than a highway stop without prior judicial authorization. To me, that makes all the difference. See the dissents.]

Defendant was arrested on a warrant, and somebody yelled out “It’s in his crotch!” The situation was tense, and the officers conducted a strip search to recover what was there. It was indoors and not unreasonable under all the circumstances. Commonwealth v. Marshall, 319 S.W.3d 352 (Ky. 2010):

Here, the search was performed after the officers: recognized that Appellee might be subject to a bench warrant; witnessed him conceal something near his groin; faced a potentially dangerous, ongoing fracas; heard an individual scream “It’s in his crotch!”; knew that he sometimes carried a weapon; and became immediately aware that Appellee was harboring drugs on his person. We find that because of the need for officer and public safety and the need to preserve evidence, there existed ample justification to conduct this search.

. . .

Finally, we turn to the last Bell factor and consider the location in which the police conducted the search. Of all the factors considered thus far, we find this factor most troubling, yet ultimately conclude that it was reasonable under the circumstances. See Polk v. Montgomery Co., 782 F.2d 1196, 1201-02 (4th Cir.1986) (whether the strip search was conducted in private is especially relevant in determining whether a strip search is reasonable under the circumstances). We recognize that strip searches are necessary for a plethora of reasons, and we understand that in order to preserve the safety of officers, of the public and of evidence, they must sometimes be employed. But we also take this opportunity, as did the United States Supreme Court, to issue a caveat: these interests “hardly justify disrobing an arrestee on the street.” Illinois v. Lafayette, 462 U.S. 640, 645 (1983). Indeed some courts have suppressed evidence where police officers, in an attempt to recover evidence, have exposed an arrestee’s most private anatomy to the public. However, most of those cases involved searches conducted outside of four walls. [citations omitted] We do not have that here.

Here, while it is true that Appellee was strip searched in a room with a partially opened door it is also true that no one was in the line of sight during the search and that only the officers were in the room. And while the Court of Appeals was concerned with the possibility that someone might be able to peer into the room where the search was taking place, the evidence is to the contrary. We refuse to suppress evidence based upon the unsupported assertion that the search was conducted in a manner potentially exposing Appellate to prospective onlookers. Where a search is conducted unnecessarily exposing an arrestee’s naked body to the public, we will suppress absent the most extraordinary and bizarre circumstances–but conjecture without evidence will not be considered.

Ultimately, because Appellee was strip searched within four walls and because he was not exposed to anyone not involved with the search, we conclude that the place in which the search was conducted was reasonable.

“Fernau’s driveway was not within the curtilage and the officers were permitted to conduct an investigatory stop in the driveway.” The stop was otherwise with reasonable suspicion. State v. Fernau, 2010 Iowa App. LEXIS 907 (August 25, 2010).*

When the defendant’s car was stopped for a traffic offense, the officer could smell burnt marijuana coming from the car. The subsequent search was valid under the automobile exception, not the search incident doctrine, and Gant did not apply. The trial court erred in granting suppression. State v. Williams, 43 So. 3d 145 (Fla. 3d DCA 2010).*

In a construction wire fraud case, the affidavit for the search warrant for the defendant’s office/law office was based on statements from a co-conspirator tax preparer who came to the FBI with documents that believed he was involved in preparation of false documents. The FBI corroborated details before they sought issuance of the warrant, so the search warrant was issued with probable cause. United States v. Clay, 09-3134 (8th Cir. August 27, 2010).*

Exigency for an automobile only applies to its seizure, not its search. Chambers v. Maroney, 399 U.S. 42, 51-52 (1970), rejected under the NJ Constitution. State v. Minitee, 415 N.J. Super. 475 (2010). Lexis overview:

Defendants’ conviction arose from a series of armed robberies of massage parlors. The appeal challenged the warrantless search of a vehicle that served as the alleged getaway car. The court held that one defendant, who was an occupant of the vehicle at issue, had standing to challenge the propriety of the search because he had a participatory interest in the vehicle where the items seized by police were found as a result of having been an occupant. The court held that the warrantless search of the motor vehicle was constitutionally impermissible because the vehicle had been impounded and, once impounded, the police were required to obtain a search warrant since no exigent circumstances existed. In its opinion, the court harmonized the seemingly inconsistent holdings in State v. Martin, 87 N.J. 561 (1981) and State v. Pena-Flores, 198 N.J. 6 (2009), by finding that the exigent circumstances that existed at the scene only permitted the police to seize the vehicle. The court also construed a United States Supreme Court’s opinion, permitting warrantless searches of vehicles impounded by the police, to constitute binding authority only under the Fourth Amendment, U.S. Const. amend. IV.

Nexus shown to defendant’s house where there was no other place that the defendant could have been keeping the drugs he was repeatedly selling the CI. Grant of suppression reversed. Commonwealth v. Young, 77 Mass. App. Ct. 381, 931 N.E.2d 494 (2010):

In this search and seizure drug case, we are faced with the knotty issue of nexus. Here, a confidential informant (CI) repeatedly 1 purchased drugs (once by way of a controlled buy) from the defendant, Sammy Young, always within walking distance of the defendant’s apartment. It is difficult to discern, on this record, where else other than his apartment the drugs that the drug dealer peddled could have been stored. As such, we reverse the allowance of his motion to suppress.

Defendant was arrested for disorderly for a “loud altercation” with somebody who ordered him off his property. The officer was justified asking for consent for a patdown for weapons. State v. Gant, 237 Ore. App. 74, 239 P.3d 269 (2010).*

Defendant juvenile’s mother and stepfather consented to the search of his bedroom. The consent was truly voluntary despite the threat to get a search warrant, which was not baseless because the officers had probable cause. State v. Reed, 2010 Tenn. Crim. App. LEXIS 715 (August 31, 2010).*

Indian casino security officer was invited into the hotel room by the registered guest, and that was a valid entry. United States v. Walker, 2010 U.S. Dist. LEXIS 92244 (D.S.D. August 17, 2010).*

Defendant was stopped for reckless driving in a National Forest for cutting donuts with his car in the snow. The officer smelled burnt marijuana while standing at the car window, and that justified the search of the car. United States v. Chelgren, 2010 U.S. Dist. LEXIS 91818 (E.D. Cal. August 9, 2010).*

Defendant and his girlfriend lived together in a hotel room. She was on probation and had previously signed blanket consent to search. When the PO came to the motel room to search, defendant did not specifically object to it. Randolph was not violated by his body language when he did not specifically object. State v. Tarasuik, 160 N.H. 323, 999 A.2d 409 (2010):

The defendant argues that he presented non-verbal cues that he was uncomfortable with the search, and if either officer had asked him for consent to search, he would have refused. Even if we assume that the defendant’s body language implied that he did not consent to the search, the defendant’s argument under Randolph fails. Randolph applies only when an occupant “expressly refuses to consent,” which did not occur here. Id. at 106. Additionally, the Supreme Court has acknowledged that officers do not have to ask all potential objectors whether they are willing to consent to the search:

[W]e have to admit that we are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.

Id. at 121. Here, the officers were not required to ask the defendant for his permission to search the hotel room.

[The larger question unanswered here is whether a cotenant of a person on probation or parole is subject to searches under the probationer’s or parolee’s consent or can the cotenant veto consent. This case answers this question purely as a matter of pre-given third party consent. If the defendant was going to object, it had to be express. If, however, he did expressly object, was this good enough under Randolph? In Randolph, the defendant refused consent, effectively vetoing it before the police asked his girlfriend. If she grants consent first and he is found there, is his objection valid at all? Maybe not, but, again, this case does not answer that precise question.]

The question at the time of arrest is probable cause, not convictability. The fact defendant was acquitted on the underlying traffic offense does not mean that there was no probable cause. State v. Zervos, 2010 Ohio 1998, 2010 Ohio App. LEXIS 1663 (6th Dist. May 7, 2010).

The continuation of defendant’s stop was not consensual, and the officers said so. Also, the CI was not corroborated, so there was no probable cause. State v. McCord, 2010 Ohio 1979, 2010 Ohio App. LEXIS 1637 (8th Dist. May 6, 2010)

[*P12] In the case before us, the stop was not consensual. At the suppression hearing, Officer Taylor testified that although the Hummer was not “pinned” in, there was no question the occupants of the car were not free to leave. Where it is not a consensual encounter, the Fourth Amendment requires that the officers possess a reasonable and articulable suspicion that criminal activity is occurring. In this case, the officers’ suspicion was based on an anonymous tip as well as knowledge of a prior conviction.

. . .

[*P17] We do not mean to suggest that McCord and the men with him that day are necessarily innocent of the charges brought against them by the state. Nor do we fail to appreciate the pressure the police are under to keep our streets safe and crime-free. Quite the contrary. Their search uncovered heroin, ecstasy, and cocaine; the officers knew of an earlier arrest McCord had for a drug-related offense. Nevertheless, the Fourth Amendment does not permit officers to conduct searches and seizures on any person known to have a criminal record without corroborating information that that same person is presently involved in criminal activity.

When stopped, defendant said that he had the baseball bat in the backseat for protection. That was sufficient to look for a weapon. He was frisked and a folding knife was found. The officer asked if he had “anything else on his person.” “The defendant stated, ‘To the best of my knowledge, I don’t have anything.’ Wilmot replied, ‘What does that mean?’ and the defendant said, ‘There shouldn’t be anything.’ … Wilmot asked again, ‘What, if anything, you know, do you have on you?’ The defendant then admitted that he had drugs and produced two diazepam tablets wrapped in cellophane from the coin pocket on his right hip.” The diazepam was lawfully found. State v. Michelson, 160 N.H. 270, 999 A.2d 372 (2010).*

Search warrant for medical records, in the future, requires the record holder to produce in camera to protect doctor-patient privilege so the patient can object to the disclosure. This case was decided under the court’s supervisory powers. In re Search Warrant for Med. Records of C.T., 160 N.H. 214, 999 A.2d 210 (2010):

Accordingly, we exercise our supervisory powers to provide guidance to trial courts and parties as to a uniform and fair process to be applied in future cases. … We instruct that, henceforth, any search warrant for privileged medical records shall order the hospital or medical provider to comply within a reasonable time by producing the records under seal for in camera review by the trial court. The trial court shall then determine the manner by which the patient shall be provided notice that such records were produced and shall give the patient and hospital or medical provider an opportunity to object to their disclosure. Upon objection, the State must demonstrate “essential need” for the information contained in the record, i.e., the State must prove both that the information is unavailable from another source and that there is a compelling justification for its disclosure. Cf. Payne, 150 N.H. at 442.