Plain view inadvertency requirement abolished under state constitution as to drugs, weapons, and other items “dangerous in themselves.” State v. Nieves, 160 N.H. 245, 999 A.2d 389 (2010):

Some state courts have followed Horton and completely abolished the inadvertency requirement. See, e.g., State v. Loh, 914 P.2d 592, 600 (Mont. 1996); State v. Julius, 408 S.E.2d 1, 7 (W. Va. 1991). Hawaii and Massachusetts have declined to follow Horton and continue to require inadvertency. See Com. v. Balicki, 762 N.E.2d 290, 298 (Mass. 2002); State v. Meyer, 893 P.2d 159, 165 n.6 (Haw. 1995). A few courts have recognized the exception for objects that are “contraband,” “stolen,” or “dangerous in themselves” set out in Coolidge, 403 U.S. at 471. See, e.g., State v. Eady, 733 A.2d 112, 116 n.7 (Conn.), cert. denied, 528 U.S. 1030 (1999); State v. Nieves, 782 A.2d 203, 207 n.6 (Conn. App. Ct. 2001); Com. v. LaPlante, 622 N.E.2d 1357, 1361 n.9 (Mass. 1993) (inadvertency requirement does not apply to stolen goods). But see Balicki, 762 N.E.2d at 298 (finding that inadvertency requirement “continues to protect the possessory interests conferred on our citizens by” state constitution).

We hold today that, with respect to drugs, weapons, and other items “dangerous in themselves,” there is no longer an inadvertency requirement under our State Constitution. Coolidge, 403 U.S. at 471; see Eady, 733 A.2d at 116 n.7; Com. v. Hason, 439 N.E.2d 251, 256 (Mass. 1982). Thus, we need not consider the State’s argument that we should adopt Horton.

At a border checkpoint, defendant was stopped and referred to a secondary checkpoint area. The car was sniffed by a dog and she consented to an x-ray of the car. A large quantity of meth was found, and the DEA was called in because of the size of the find. They showed up nearly four hours later because of the long drive, and defendant then was found to have consented to a search of her cell phone. United States v. Velderraint, 2010 U.S. Dist. LEXIS 44025 (S.D. Cal. May 5, 2010).*

The Virginia Court of Appeals today upheld GPS tracking of a suspected serial rapist’s car against a Fourth Amendment and a state constitutional challenge. Merely placing the GPS device on the defendant’s truck bumper in a public place was not a seizure and neither was monitoring it. Foltz v. Commonwealth, 57 Va. App. 68, 698 S.E.2d 281 (2010):

The GPS system did not take pictures nor allow the police to hear any conversations. It could not track particularly well “in a covered parking area,” but could provide general information in any place with cell phone service and could send a signal through glass and plastic. The system archived the information that it collected, but the police could also track the GPS device in real time.

The police had no policy regarding the use of GPS devices, in part because the devices were not used particularly often. The police did not predetermine how long they would track appellant. The police also did not develop a policy to avoid following the van into private areas.

. . .

The police did not examine any data from the GPS until the afternoon of February 5, 2008, when they observed, in real time via a computer screen with a map, that the van was driven in and out of various neighborhoods. This pattern of driving concerned the officers, who characterized the pattern as hunting behavior. The officers watched the data stream for about 30 to 40 minutes – as the van was driving around.

On the evening of February 5, 2008, another sexual assault occurred. The police checked the GPS log to determine if appellant’s work van was in the area at the time of the attack. They discovered that the van was parked about a block or two away from the scene of the attack at the time it occurred. The police decided to follow appellant themselves on February 6, 2008, the next day.

While actually following appellant on February 6, 2008, the police observed him park his vehicle, get out, and put on a jacket and gloves. Two officers then followed appellant on foot. They observed him run, grab a woman who was walking down the street, and knock her to the ground. Appellant then pulled his victim under a tree, pinned her down, and tried to unbutton her pants. The police stopped the assault and arrested appellant.

. . .

In the case before this Court, as in McIver [9th Cir. 1999] and Garcia [9th Cir. 2007], the installation of the GPS device in no way interfered with appellant’s ability to operate the vehicle. The police did not damage the van by installing the GPS device in the bumper. No private information was exposed by the act of simply installing the device. In addition, as noted supra, appellant’s possessory interest in the vehicle was limited, as the van belonged to his employer, not to him. We, therefore, conclude that any interference with appellant’s limited possessory interest in the van was not a “‘meaningful interference’” by the police. Karo, 468 U.S. at 712. Thus, the installation in this case did not constitute a seizure for Fourth Amendment purposes.

. . .

Appellant claims that he manifested a subjective expectation of privacy with his “hunting” behavior, i.e., by driving around in the van looking for victims. While we believe that appellant wanted this behavior to remain undetected, this “hunting” behavior on the public streets did not indicate a subjective expectation of privacy. See Class, 475 U.S. at 114.

The police tracked appellant as he drove a van that was emblazoned with his employer’s logo, which helped advertise the company’s name to people who observed the van going by them on the public streets. The van itself, therefore, suggested that people would observe its movements. Appellant did nothing to minimize the visibility of the logo or the van in general. In addition, nothing in this record suggests that appellant attempted to hide the movement of the van or “sneak” it down the road. He did nothing to prevent people from observing him as he drove on the public streets. In fact, the officers described his “hunting” behavior as driving slowly through the same areas, repeating a pattern – actually making it easier rather than harder for someone to observe the van’s movements. This kind of behavior does not indicate that appellant actually attempted to prevent people from observing his actions. Compare Katz v. United States, 389 U.S. 347, 352 (1967) (explaining that when an individual enters a phone booth, closes the door, and pays to make a call, the individual has evidenced an expectation that his conversation will not be heard by an “uninvited ear”). Appellant did not exhibit a subjective expectation of privacy while he was driving the work van down public streets.

Bad cases make bad law. The court’s description of this guy’s behavior that warranted them following him is really creepy. But, all defense lawyers have represented creepy people before. My friend John Zweiling’s office was on the brief.

Officer conducting a driver’s license roadblock saw defendant making furtive movements, and they looked for a weapon, not finding one. Asking for ID had to be related to the purposes of the stop, and here it wasn’t. Reversed. State v. Waldrup, 2010 Mo. App. LEXIS 529 (April 27, 2010):

To allow the grounds for reasonable suspicion that Mr. Waldrup had a weapon to also support reasonable suspicion that he was a “threat” to public safety after no weapon was found, as the sole justification for requesting his identification, would erode Fourth Amendment protections. The police are not entitled to a suspect’s identification during a Terry stop unless it is related to the circumstances justifying the stop. Thus, different grounds for reasonable suspicion were needed to justify the identification request from Mr. Waldrup and the subsequent identification check. Because Mr. Waldrup’s identity did not relate to the circumstances justifying the stop, Trooper Primm’s request for Mr. Waldrup’s identification and Trooper Isringhausen’s check of the identification constituted an unlawful seizure.

The fact a search was invalid under state law is irrelevant to the Fourth Amendment analysis. United States v. Ramsey, 376 Fed. Appx. 968 (11th Cir. 2010), cert. denied, 2010 U.S. LEXIS 7134 (U.S., Oct. 4, 2010) (unpublished).*

Officers who handcuffed a man having a seizure violated clearly established rights and had no qualified immunity. McKenna v. Edgell, 617 F.3d 432, 2010 FED App. 0249P (6th Cir. 2010), prior appeal, McKenna v. City of Royal Oak, 469 F.3d 559 (6th Cir. 2006):

We conclude that whether the officers were entitled to qualified immunity depends on whether they acted in a law-enforcement capacity or in an emergency-medical-response capacity when engaging in the conduct that McKenna claimed violated the Fourth Amendment. If the officers acted as medical-emergency responders, then McKenna’s claim would amount to a complaint that he received dangerously negligent and invasive medical care. Under a function-dependent view of Peete, if any right to be free from such unintentional conduct by medical-emergency responders exists under the Fourth Amendment, it is not clearly established. Peete, 486 F.3d at 219. If the defendants acted in a law-enforcement (e.g., investigative or prosecutorial) capacity, however, McKenna’s claim does not “look[] like a medical malpractice claim,” id. at 222; rather, his claim is that he was subject to an unreasonable seizure and search. It is certainly clearly established that police violate the Fourth Amendment when they handcuff people whom they neither suspect of criminal wrongdoing nor believe to be a danger to themselves or others. See United States v. Davis, 514 F.3d 596, 607, 610 (6th Cir. 2008) (noting that an arrest is valid only if based on probable cause that defendant committed a crime); Monday v. Oullette, 118 F.3d 1099, 1102 (6th Cir. 1997) (“The Fourth Amendment requires an official seizing and detaining a person for a psychiatric evaluation to have probable cause to believe that the person is dangerous to himself or others.”); cf. Marvin v. City of Taylor, 509 F.3d 234, 248 (6th Cir. 2007) (“[I]t is clearly established that handcuffing an arrestee in an objectively unreasonable manner is a Fourth Amendment violation.”). Likewise, a person has a clearly established right to be free from unreasonable searches, including a warrantless search in the absence of exigent circumstances or some other warrant exception. See United States v. Purcell, 526 F.3d 953, 960 (6th Cir. 2008).

Pulling up a defendant’s saggy pants that came down to his knees when he assumed the position outside his car [either because he wore them that way or because of the gun in his pocket weighing them down] was a “wardrobe assist” and not a search. State v. Wiggins, 788 N.W.2d 509 (Minn. App. 2010):

This case requires us to determine the constitutionality of a novel police procedure which, as far as we can tell, has never been reviewed on appeal by this court or any other. An officer investigating a suspected drug deal directed appellant Frank Wiggins from a car, ordered him to raise his hands high overhead, and then discovered a handgun in his pocket when she hoisted up his sagging pants that had dropped to hang around his knees. Wiggins appeals from his conviction of possession of a firearm by an ineligible person. We must decide whether the unique wardrobe assist was a search subject to constitutional regulation and, if not, whether it was the kind of seizure-related contact otherwise prohibited by the Fourth Amendment. Because we hold that the officer’s tactic was neither a search nor an unreasonable touching during a lawful investigative detention, we affirm.

Under a probation search condition, officers could search a safe located in a bedroom she shared with her boyfriend. The officers could reasonably assume that the bedroom’s occupants shared the safe as well, and living with a probationer is, essentially, assumption of the risk of loss of some privacy rights in the home. Destruction of the safe to open it did not make it an unreasonable search. State v. Adams, 2010 ND 184, 788 N.W.2d 619 (2010):

[*P13] Here, prior to the search, the police officers did not ask to whom the safe belonged. The safe was located in the bedroom, which Adams does not dispute was a common area to which the probationer had access. Adams does, however, dispute that the probationer had access to the safe itself. The stipulated facts state that Adams did not state the safe belonged to him at the time of the search, although he did state the items found inside were his after the safe was opened. The record does not reflect that the probationer at any point told the officers that she either did or did not have access to the safe. The district court’s decision that the safe was searched on the basis of Adams’ roommate’s probationary status is not contrary to the manifest weight of the evidence. A reasonable officer could believe both residents of a household have access to a safe located in a shared bedroom. Under the probationer’s warrantless search condition, officers could, without a warrant or probable cause, search areas used exclusively by the probationer, areas within the “common authority” of the probationer and Adams, and areas to which the probationer “normally had access.” See Hurt, 2007 ND 192, P 19, 743 N.W.2d 102 (quoting People v. Pleasant, 123 Cal. App. 4th 194, 19 Cal. Rptr. 3d 796, 798 (Cal. Ct. App. 2004)).

. . .

[*P17] Adams voluntarily chose to live with a probationer, and he assumed the risk that he too would have diminished Fourth Amendment rights in areas shared with her. See Hurt, 2007 ND 192, P 19, 743 N.W.2d 102. Because of the terms of her probation, the probationer and Adams had a lessened expectation of privacy in their dwelling and shared possessions. Breaking open the safe may have been outside the scope of general consent and thus unreasonable in a consent search. See Odom, 2006 ND 209, P 16, 722 N.W.2d 370 (“General consent ‘to search does not include permission to inflict intentional damage to the places or things to be searched.’”). The standards for a reasonable probation search under a court-ordered warrantless search condition, however, are less than those for an ordinary consent search. The consent for the search in this case arose by operation of law, through the probation order. We hold that searching locked boxes reasonably accessible by law enforcement is within the scope of this statutory consent. The safe was opened within ten to fifteen minutes using common household tools. To conclude the search was unreasonable would give probationers the ability to effectively render warrantless probation searches meaningless, because probationers could avoid warrantless searches merely by securing items in a locked box.

Officer safety justified a search incident of defendant’s car even though he was not right near it because he spoke to others in a foreign language, and the others were not secured. United States v. Salamasina, 615 F.3d 925 (8th Cir. 2010).

Defendant’s stop was not unconstitutionally extended, and defendant consented: “If you’d like to. I mean, I’m fine.” United States v. $231,930.00 in United States Currency, 614 F.3d 837 (8th Cir. 2010) (not on court’s website):

Also, the presence of three officers, alone, does not make the encounter a seizure, and Sergeant Vance had no duty to tell Kupczyk that he could deny the request to search. “There is no per se requirement that an officer inform a citizen of his right to refuse consent, and there is no presumption that consent is invalid where given without an explicit notification of the right to refuse.” United States v. Vera, 457 F.3d 831, 835 (8th Cir. 2006).

Conflicting statements from the defendant and his wife justified prolonging the detention [which could have been argued was consensual by the government, but it didn’t have to]. United States v. Bracamontes, 09-3897 (8th Cir. August 5, 2010).*

In a conspiracy investigation also with some wiretaps, it was developed that a certain car likely was involved, and there was probable cause to believe that there was drug evidence in the car. United States v. Williams, 616 F.3d 760 (8th Cir. 2010).*

A probationer who completed his probation who had DNA taken for his false statements offense had no right to keep the government from ever using his DNA. However, the court leaves open the possibility that other, more intrusive, uses of DNA may be actionable. Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010).*

We recognize, as we did in Weikert, the possibility that the government may eventually seek to put Boroian’s retained DNA profile to uses that go beyond the mere matching of identification records, thereby making the fingerprint analogy less powerful and providing the basis for an argument that a new search has occurred. For example, “scientific advances might make it possible to deduce information beyond identity from the junk DNA” that forms the thirteen-loci profiles stored in CODIS. Weikert, 504 F.3d at 12-13. Future government uses of the DNA profiles in CODIS could potentially reveal more intimate or private information about the profile’s owner and depart from the uses for which the profiles were originally lawfully created and retained.

Defendant raised a search issue in a suppression motion and then pled to the charge, so he waived the suppression motion and he does not show that it was ineffective not to have. United States v. Sterling, 2010 U.S. Dist. LEXIS 81285 (W.D. La. August 5, 2010).*

The illegal immigrants in this case consented to give officers information about their immigration status, so the exclusionary rule does not apply to this immigration proceeding. The alleged violation of Fourth Amendment rights would have to be egregious for exclusion to apply, and this was not. Martinez-Medina v. Holder, 616 F.3d 1011 (9th Cir. 2010).*

Officer’s pointing a gun at an arrestee was not unreasonable. Handcuffing another who was cooperative with the police was unreasonable. Lundstrom v. Romero, 616 F.3d 1108 (10th Cir. 2010)*:

As an initial matter, the use of a gun does not in and of itself make an encounter an unlawful seizure. See United States v. Copening, 506 F.3d 1241, 1248 (10th Cir. 2007). “[T]he use of guns in connection with a stop is permissible where the police reasonably believe the weapons are necessary for their protection.” United States v. Neff, 300 F.3d 1217, 1220 (10th Cir. 2002) (internal quotation marks omitted). “[T]he pointing of firearms should[, however,] be predicated on at least a perceived risk of injury or danger to the officers or others, based upon what the officers know at that time.” Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010) (ellipsis and internal quotation marks omitted). In determining whether the use of weapons was reasonable, we look to the totality of the circumstances as viewed from the perspective of a reasonable officer on the scene. See Holland, 268 F.3d at 1188.

. . .

On these facts, when Officer Romero briefly pointed her gun at Lundstrom, she effectuated a reasonable seizure since she had a reasonable concern about her safety. See United States v. Perdue, 8 F.3d 1455, 1462-63 & n. 5 (10th Cir. 1993) (holding that effectuating an investigative detention by pointing guns at an individual was reasonable where the officers had reason to fear for their safety and noting officers need not be absolutely certain the individual is armed because the issue is whether reasonably prudent persons in the circumstances would be warranted in the belief that their safety is at risk). The encounter was limited in time and scope; Romero lowered her gun as soon as she saw Lundstrom’s hands.

A swearing match between a citizen and an officer over the use of excessive force by using a take down move and slamming him to the floor seriously injuring him was enough to deny summary judgment. The law was well settled at the time. Shannon v. Koehler, 616 F.3d 855 (8th Cir. 2010).*

Police responding to a shooting call found a man matching the description of the shooter. That was reasonable suspicion for his stop and frisk. Blyden v. People, 2010 V.I. Supreme LEXIS 41 (July 7, 2010).*

The CI in this case admitted to smoking marijuana with the defendant shortly before talking with the officer about what led to the search warrant. The CI’s statement was sufficiently reliable to base a search warrant. Moss v. State, 2010 Ark. App. 613, 2010 Ark. App. LEXIS 654 (September 22, 2010).*

In a case GVR’d by SCOTUS in light of Gant, on remand, the search was invalid as a search incident but valid under the automobile exception because there was probable cause. Meister v. State, 933
N.E.2d 875 (Ind. 2010), affg Meister v. State, 912 N.E.2d 412 (Ind. Ct. App. 2009).*

Pirtle v. State, 323 N.E.2d 634 (Ind. 1975), which requires that a person be advised of his right to refuse a consent search of his person, does not apply to a patdown based on reasonable suspicion. Wilkerson v. State, 933
N.E.2d 891 (Ind. App. 2010).*

The officer had reasonable suspicion defendant was DWI, so his stop was justified. United States v. Gossitt, 2010 U.S. Dist. LEXIS 97374 (N.D. Iowa September 16, 2010).*

Defendant’s stop was based on reasonable suspicion of a traffic offense, and simple questions produced reasonable suspicion of drugs. The officer called for a drug dog which took 38 minutes to arrive. This was a reasonable time under Circuit law. The passenger had no standing to challenge the search of the car. United States v. Hill, 2010 U.S. Dist. LEXIS 97314 (E.D. N.C. September 16, 2010).*

LA: There is a federal reasonable expectation of privacy in one’s drug prescription records requiring a search warrant for access. State v. Skinner, 10 So. 3d 1212 (La. 2009) [just on Lexis]:

More importantly, the Court’s decision holding the regulatory scheme was not facially unconstitutional was explicitly based upon the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, Whalen, 429 U.S. at 604, 97 S.Ct. at 878; the Court explicitly distinguished Fourth Amendment privacy interests from Fourteenth Amendment privacy interests. Whalen, 429 U.S. at 598 n.23, 97 S.Ct. at 876; 429 U.S. at 599 n. 24, 97 S.Ct. at 876. The Court noted that the right of the individual to be free in his private affairs from governmental surveillance and intrusion is a constitutional right directly protected by the Fourth Amendment. Whalen, 429 U.S. at 600 n.24, 97 S.Ct. at 876. In response to the Roe plaintiffs’ argument that their Fourth Amendment privacy interest was invaded by New York’s regulatory statute, the Court explicitly declined to extend the Fourth Amendment’s privacy interest to that situation which did not involve “affirmative, unannounced, narrowly focused intrusions into individual privacy during the course of criminal investigations.” Whalen, 429 U.S. at 604 n.32, 97 S.Ct. at 878.

A majority of the federal Circuit Courts of Appeals have concluded the constitutional right to privacy extends to medical and/or prescription records. Douglas v. Dobbs, 419 F.3d 1097, 1102 (10th Cir. 2005) (constitutional right to privacy in prescription drug records), cert denied, 546 U.S. 1138, 126 S.Ct. 1147, 163 L.Ed.2d 1001 (2006); Herring v. Keenan, 218 F.3d 1171, 1175 (10th Cir. 2000), cert, denied, 534 U.S. 840, 122 S. Ct. 96, 151 L. Ed. 2d 56 (2001); Doe v. Southeastern Pennsylvania Trans. Auth., 72 F.3d 1133, 1137 (3d Cir. 1995), cert, denied, 519 U.S. 808, 117 S. Ct. 51, 136 L. Ed. 2d 15 (1996) ; Anderson v. Romero, 72 F.3d 518, 522 (7th Cir. 1995); Doe v. New York, 15 F.3d 264, 267 (2d Cir. 1994); Doe v. Attorney General of the United States, 941 F.2d 780, 795-796 (9th Cir. 1991), vacated on other grounds sub nom. Reno v. Doe, 518 U.S. 1014, 116 S.Ct. 2543, 135 L.Ed.2d 1064 (1996); see also Harris v. Thigpen, 941 F.2d 1495, 1513 (11th Cir. 1991)(assuming such right exists). Contra Jarvis v. Wellman, 52 F.3d 125, 126 (6th Cir. 1995) (holding that constitutional right of privacy does not apply to medical records). As noted by the United States Tenth Circuit Court of Appeals, information contained in prescription records may not only reveal facts about what illnesses a person has, but may reveal information relating to procreation, such as fertility medication or contraceptives. Douglas, 419 F.3d at 1102.

We are cognizant that the issue of whether a warrant is required to conduct an investigatory search of prescription records, in contrast to the regulatory disclosures at issue in Whalen, is one that has not been settled. Douglas v. Dobbs, 419 F.3d 1097, 1103 (10th Cir. 2005). Nevertheless, we do not find that Whalen’s upholding of a regulatory scheme for the monitoring of prescriptions for controlled substances diminishes a person’s Fourth Amendment privacy interest to permit warrantless governmental intrusion during the course of a criminal investigation.

Considering the federal jurisprudence and Louisiana’s constitutional requirement of a heightened privacy interest for its citizens, we find that the right to privacy in one’s medical and prescription records is an expectation of privacy that society is prepared to recognize as reasonable. Therefore, absent the narrowly drawn exceptions permitting warrantless searches, we hold a warrant is required to conduct an investigatory search of medical and/or prescription records. We are not prepared to extend Whalen, which balanced the individual’s privacy interest against the state’s reasonable exercise of its regulatory power, to find Louisiana allows warrantless searches and seizures of its citizens’ medical and pharmacy records for criminal investigative purposes.

FL1 holds that any privacy interest in records is not sufficient to require suppression of a statutory request for production of pharmacy records. HIPAA is not a bar either. State v. Carter, 2009 Fla. App. LEXIS 18194 (Fla. App. 1st DCA November 30, 2009):

Finally, article I, section 23 of the Florida Constitution does not support the suppression order on appeal. Patients right to privacy in their medical records is not absolute. Such privacy rights “Will yield to compelling government interests and “the control and prosecution of criminal activity is a compelling state interest. State v. Johnson, 814 So. 2d 390, 393 (Fla. 2002). Regulation of the sale and distribution of dangerous drugs has been recognized as a “vital interest of the state. Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977). Other jurisdictions with statutes similar to section 893.07, Florida Statutes, have uniformly held that persons filling prescriptions for controlled substances have “a limited expectation of privacy in pharmacy records. Murphy v. State, 115 Wn. App. 297, 62 P. 3d 533, 539 (Wash. Ct. App. 2003); see also State v. Russo, 259 Conn. 436, 790 A. 2d 1132 (Conn. 2002) (warrantless seizure of pharmacy records valid due to statutory provision for same); State v. Welch, 160 Vt. 70, 624 A.2d 1105 (Vt. 1992) (warrantless survey of pharmacy records authorized by statute). In an appeal of administrative proceedings against a licensed oral surgeon for improperly prescribing controlled substances, Florida’s Third District Court of Appeal held that the surgeon “had no reasonable expectation of privacy with respect to the completed prescriptions in the possession of the pharmacy and was thus precluded from challenging the warrantless search of the pharmacy’s records. Cushing v. Dep’t of Prof’l Regulation, 416 So. 2d 1197, 1198 (Fla. 3d DCA 1982) (search pursuant to 893.07(4), Fla. Stat.). In Cushing, the Court concluded: “we regard as frivolous the appellant’s argument that the result as to either the search or the evidentiary issue is changed or even affected by the right of privacy provision of the Florida Constitution. Article I, Section 23, Florida Constitution (1980). Id.

By seeking a reassessment, taxpayers were not waiving Fourth Amendment rights against an entry by the tax assessor. Matter of Yee v Town of Orangetown, 2010 NY Slip Op 5017, 76 A.D.3d 104, 904 N.Y.S.2d 88 (2d Dept. 2010):

The JHO [“Judicial Hearing Officer”] distinguished such a situation, holding that a homeowner makes a limited, revocable waiver of Fourth Amendment rights and consents to an assessor’s inspection by commencing a SCAR [“Small Claim Assessment Review”] proceeding. This was error. A waiver of Constitutional rights must be knowing and intelligent (see Fiore v Oakwood Plaza Shopping Ctr., 78 NY2d 572, 581, 585 N.E.2d 364, 578 N.Y.S.2d 115, cert denied 506 U.S. 823, 113 S. Ct. 75, 121 L. Ed. 2d 40; People v Leftwich, 134 AD2d 371, 520 N.Y.S.2d 849). Nothing about commencing a SCAR proceeding, with its informal nature and lack of disclosure, puts the homeowner on notice that the assessor must be allowed into the residence for an inspection or the proceeding will be dismissed.

In Schlesinger v Town of Ramapo (11 Misc 3d 697, 807 N.Y.S.2d 865), a tax certiorari proceeding, the Supreme Court held that the town did not have a right to send an appraiser to perform an inspection of the premises without the homeowner’s permission and that the requested inspection was an unreasonable search. Citing the Fourth Amendment prohibition on unreasonable searches and the opinion of ORPS that an assessor may not enter a private residence without permission, the court held that the requested inspection was unreasonable. …

If homeowners do not waive their right to refuse access by commencing a tax certiorari proceeding, where rules of disclosure apply (see RPTL 700[2]), then it follows that they do not waive such right by commencing a more informal SCAR proceeding, an argument persuasively raised by the petitioners herein.

A 14-year-old passenger who got out of a car after the driver was stopped for being under the influence “assumed the position” without being told to, so the officer frisked her. That was not a showing of true consent because of age and inexperience. E.J. v. State, 2010 Fla. App. LEXIS 11284 (4th DCA August 4, 2010).

Detention from stop to arrest was less than 7 minutes, and it was reasonable in length. United States v. Benson, 2010 U.S. Dist. LEXIS 78472 (E.D. Tenn. June 18, 2010).*

Defendant’s stop was valid because officers had reasonable suspicion, and, as the circumstances compounded, it got worse for the defendant. Seizure of drugs from the back of his SUV was based on plain view, and the officers were justified following defendant into the bathroom at Wendy’s and keeping him from flushing drugs. State v. Mann, 203 N.J. 328, 2 A.3d 379 (2010).*

The motion to suppress is granted without a hearing because the parties’ submissions show no material differences of fact. Given the undisputed facts, the entry into defendant’s back yard was without probable cause or exigent circumstances, and they violated the curtilage. All the government showed was that the defendant did not want to talk to the police. United States v. Puerta-Cazares, 707 F. Supp. 2d 695 (W.D. Tex. 2010)*:

Indeed, the Government argues that the officers entered the yard “out of concern for their own safety and the safety of the community.” Gov’t’s Supp. Resp. 2. “In evaluating exigency, we ‘consider the appearance of the scene of the search in the circumstances presented as it would appear to reasonable and prudent men standing in the shoes of the officers.'” Maldonado, 472 F.3d at 393 (quoting United States v. Rodea, 102 F.3d 1401, 1405 (5th Cir. 1996)). The situation as it initially appeared to the officers as they approached the house was simply this: a man was seeking to avoid police attention in a back yard of a residence. The man (Defendant) was not involved or implicated in any way with the incident to which the officers initially responded and investigated. Additionally, he did not appear to be armed. The Court concludes that this set of circumstances did not present an immediate danger to the lives of the officers or other individuals in the neighborhood that required the officers’ warrantless entry.

Defendant’s failure to respond to the officers’ announcement of their presence at the gate also did not present a danger to the officers or the community. It is neither unusual nor alarming that an individual would be curious about police activity in his neighborhood, but also want to conceal his presence from the officers at the scene. Furthermore, under the circumstances, the officers might have reasonably and safely chosen other methods of investigation.

Because the stop of the vehicle led to everything else, the defendant passenger has standing to challenge the stop. While the officer’s subjective motivations were challenged, there was nothing to contradict his testimony that there was an objective basis for the stop, so it was reasonable. United States v. Jackson-Bey, 2010 U.S. Dist. LEXIS 37491 (C.D. Ill. March 4, 2010).*

The police lacked probable cause to enter the defendant’s home on the totality of circumstances. There was a valid justification for officer safety, so the entry and plain view inside is not suppressed. Pace v. State, 318 S.W.3d 526 (Tex. App. – Beaumont 2010)* [TX website under maintenance today]:

We conclude the totality of the circumstances in this case did not give the officer probable cause to enter the residence. Officer Clack knew about the residence and its occupants. The police had responded to harassment and noise calls there in the past. Other than the allegation from an unidentified source of drug use in front of children in the home, there was no specific information regarding appellant’s current possession of drugs. See State v. Hoffman, 293 S.W.3d 633, 636 (Tex. App.–San Antonio 2009, pet. ref’d) (citing Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)); see also United States v. Scroggins, 599 F.3d 433, 444 (5th Cir. 2010) (“[T]he government cites no authority to support the proposition that police may stop and frisk an individual in his own home based on the same indications of criminality that would allow the detention elsewhere. The Terry doctrine was developed to determine when police could ‘detain individuals on the street.'”) (quoting United States v. Michelletti, 13 F.3d 838, 840 (5th Cir. 1994)). Moreover, after the officer talked with Ms. Pace by telephone, he knew that the child was with her in her vehicle and not at the residence. Appellant’s retreat into the residence was legally insufficient to establish probable cause that the instrumentality of a crime or evidence of a crime would be found in the residence. See Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). “At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.” Id.

. . .

A reasonable, articulable suspicion of danger may justify a limited, cursory inspection to dispel the suspicion. See United States v. Scroggins, 599 F.3d at 444-45. The trial court’s finding that the officer entered the bedroom to ensure his safety is supported by testimony in the record; the officer had a right to be there. Having followed appellant for the purposes of dispelling the suspicion of danger, the officer observed the evidence in plain view. See Randolph, 547 U.S. at 118; Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000) (citing Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990)) (Under the “plain view” doctrine, law enforcement must have a right to be where they are, and it must “be immediately apparent that the item seized constitutes evidence, that is, there is probable cause to associate the item with criminal activity.”). The trial court did not abuse its discretion in denying the motion to suppress.

The request for consent during this traffic stop came as soon as the officer asked the defendants out of the car, so the request for consent did not prolong the stop. Conceding that the passenger has the ability to indirectly challenge the search of the car if the stop is unlawful, this stop wasn’t. Baker v. State, 306 Ga. App. 99, 701 S.E.2d 572 (2010).*

Defendant was riding in a truck that stopped at a truck stop. Defendant was inside when the truck was searched in the parking lot. As a mere passenger, defendant did not show any standing in the truck searched two hours earlier. State v. Redding, 2010 Ohio 4286, 2010 Ohio App. LEXIS 3633 (9th Dist. September 13, 2010).*

Defendant’s search incident of his car violated Gant, and there is no good faith exception to warrantless searches in Washington, again, following State v. Afana, 169 Wn.2d 169, 233 P.3d 879 (2010). State v. Adams, 169 Wn. 2d 487, 238 P.3d 459 (2010).*

Officers had search warrants and were on a drug sweep. That knocked on one door, and defendant ran out the back carrying a backpack. The officers were justified in stopping him and searching the backpack for a weapon. He got on the ground when directed, and the officers were not obliged not to look in the backpack just because he stopped. When stopped, he disclaimed ownership in the bag. That was not a pure abandonment, but he did not show a subjective expectation of privacy in the backpack. United States v. Carlisle, 614 F.3d 750 (7th Cir. 2010):

While we ultimately agree with the government’s position, this case is closer to the line than it appears at first glance. Although Carlisle disclaimed ownership of the bag, there is no dispute that Carlisle was legitimately in possession of the property. This distinguishes Carlisle’s situation from that of Rawlings, where Cox was in possession of the purse at the time of the search, and Peters, who was not near the car at the time of the search. Carlisle also indicated that he intended to maintain privacy in the bag by holding onto it as he left the house and by keeping it closed. The issue of exclusivity is murkier. From the testimony, it appears that at the time he was in possession of the bag, he had the right to exclude all others from the bag except Chapman. This factor distinguishes this case from Amaral-Estrada, where Amaral-Estrada expected others to take things from and leave things in the car while he was entrusted with it. What makes it questionable that Carlisle had exclusive control is the appellant’s own testimony that he did not know what was in the bag or who was using the bag immediately prior to his taking it. This testimony strongly cuts against any claim of exclusive control and makes Carlisle’s situation similar to Rawlings’s situation where he lacked control over who had access to the searched property prior to the search. What pushes this case fully over the line is the complete lack of testimony that Carlisle had any subjective expectation that the bag would remain free from governmental invasion. Carlisle bears the burden of proving that he had a subjective privacy interest in the bag sufficient to challenge the search. See Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619. The record lacks any evidence of this subjective expectation and Carlisle’s testimony cuts against a finding of any subjective expectation of privacy in the bag since he disclaimed ownership or even knowledge of its contents. Therefore, we find that Carlisle did not have a reasonable expectation of privacy in the backpack sufficient to allow him to challenge the search. Because Carlisle cannot validly assert a Fourth Amendment challenge to the search of the backpack, we do not reach the merits of whether the search was proper.

Search incident of closed containers in a car without probable cause was invalid as a search incident. The defendant was handcuffed and in a police car at the time, and there was no exigency. United States v. Maddox, 614 F.3d 1046 (9th Cir. 2010):

Contrary to the dissent’s opening description, this was not a search of Maddox’s person incident to arrest. Maddox’s person was handcuffed in the back of the squad car, incapable of either destroying evidence or presenting any threat to the arresting officer. While the key chain was within Maddox’s immediate control while he was arrested, subsequent events—namely Officer Bonney’s handcuffing of Maddox and placing Maddox in the back of the patrol car—rendered the search unreasonable. In Turner, we found valid the search of baggies found after the defendant was handcuffed and taken into the next room because of a legitimate concern for the officers’ safety: “they had already discovered a concealed weapon beneath the bedding.” Id. at 888; accord United States v. Hudson, 100 F.3d 1409, 1420 (9th Cir. 1996) (search of bedroom valid search incident to arrest even after defendant had been arrested and removed from the room, where “[w]hen Hudson was called out of his bedroom and arrested, one of the arresting officers noticed a rifle case near his feet”). No such weapon or threat was found here, and Maddox’s demeanor, as the dissent argues, see Dissenting Op., at 11445 n.1, did not provide such legitimate concern for Officer Bonney’s safety, as after initially yelling, Maddox subsequently cooperated with the officer and the arrest. Mere temporal or spatial proximity of the search to the arrest does not justify a search; some threat or exigency must be present to justify the delay. See United States v. Chadwick, 433 U.S. 1, 15 (1977), overruled on other grounds by California v. Acevedo, 500 U.S. 565, 571 (1991) (“warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the search is remote in time or place from the arrest, or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.”) (internal quotations and citations omitted). With Maddox handcuffed in the backseat of the patrol car, no possibility of Maddox concealing or destroying the key chain and the items contained therein, and no sighting of weapons or other such threats, Officer Bonney’s search of Maddox’s key chain was not a valid search incident to arrest.

Officers shot at a burglar who shot at them, hitting him, but he fled the scene. He was apprehended three days later. The use of deadly force against him was not a seizure since he was not seized. Brooks v. Gaenzle, 614 F.3d 1213 (10th Cir. 2010):

Following Hodari and Lewis, the Supreme Court again considered what constitutes a seizure by summarizing, “[a] person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement, through means intentionally applied.” Brendlin v. California, 551 U.S. 249, 254, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007) (internal quotation marks and citations omitted and emphasis added). As to Hodari and Lewis, it further clarified, “[a] police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise there is at most an attempted seizure, so far as the Fourth Amendment is concerned.” Id. As to what constitutes actual “submission,” the Supreme Court explained it depends on ‘the totality of the circumstances — the whole picture,” United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981), and, as the Brendlin Court offered, “what may amount to submission depends on what a person was doing before the show of authority; a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away.” 551 U.S. at 262.

Not only have we applied these same principles in considering seizure situations, but none of our holdings suggest the mere use of physical force or show of authority alone, without termination of movement or submission, constitutes a seizure. For instance, in Reeves, we determined two individuals were not “seized” for the purpose of a Fourth Amendment violation when law enforcement officers pointed their guns at them and ordered them not to move, but they failed to submit to their assertions of authority. See 484 F.3d at 1248-50, 1253-54 & n.17. In Latta v. Keryte, 118 F.3d 693 (10th Cir. 1997), we held an officer did not seize a suspect during an interstate pursuit, even though he shot out two of the suspect’s tires, given it “did not cause [him] to submit to … authority or succeed in stopping him.” Id. at 700. Likewise, in Bella, we determined a seizure did not occur when a law enforcement officer shot at and struck a helicopter operated by an innocent hostage. 24 F.3d at 1254-56. We concluded that while the shots constituted an intentional assertion of authority, they did not cause the hostage to submit or otherwise succeed in stopping him, and therefore, it did not constitute a seizure within the meaning of the Fourth Amendment. Id. at 1255-56. Similarly, in this case, the intentional use of deadly force in shooting Mr. Brooks neither prevented his freedom of movement nor otherwise succeeded in stopping him.