In a “straight-forward application of Segura,” the police could enter the defendant’s apartment with probable cause to freeze the situation to preserve evidence and then get a search warrant. United States v. Etchin, 614 F.3d 726 (7th Cir. 2010):

The fact that police behaved illegally does not mean that the remedy of excluding evidence is necessarily appropriate. Herring v. United States, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009). In this case, a straight-forward application of Segura leads us to two conclusions: first, Detective Reitzler’s four-hour occupation of Etchin’s apartment did not add anything to the violation of the Fourth Amendment that had already occurred with the entry; and second, the drugs later found were admissible.

1. The Seizure of Etchin’s Apartment. Segura holds that officers who enter and seize a home to preserve the status quo while waiting for a search warrant do not commit an independently sanctionable violation of the Fourth Amendment as long as they had probable cause at the moment of entry and the seizure is not unreasonably long. 468 U.S. at 798. The Court reasoned that “the home is sacred in Fourth Amendment terms not primarily because of the occupants’ possessory interests in the premises, but because of their privacy interests in the activities that take place within,” and so a police occupation (which infringes on possession) is permitted even when a search (which implicates privacy interests) would be unreasonable. Id. at 810. The second of the Court’s concerns–duration–is not at issue here, as the seizure here was shorter than the one upheld in Segura. We therefore focus exclusively on the question whether the probable cause criterion was satisfied.

Defendant contended that the entry into his apartment based on the alleged exigency of his missing girlfriend whom he had beaten nearly to death and stuffed in a storage barrel to die violated the Fourth Amendment. Considering the victim survived and testified against him in his kidnaping and interstate domestic violence trial, any possible error was harmless beyond a reasonable doubt. United States v. Larsen, 615 F.3d 780 (7th Cir. 2010).*

The officer had a warrant for the defendant and saw him in a check-in line at a hotel with a gym bag in hand. When the defendant’s confederate saw the officer, he shouted out to the defendant who turned to look at him. Hotel security grabbed the confederate. The officer grabbed defendant to arrest him, and the defendant dropped the gym bag to his feet. Defendant was handcuffed, and the search incident of the bag on the spot was valid under Gant. United States v. Shakir, 616 F.3d 315 (3d Cir. 2010):

We held that this search was not lawfully incident to Myers’s arrest. In doing so, we quoted with approval an opinion of the Court of Appeals for the District of Columbia Circuit which suggested that a search under these circumstances would be valid as incident to the arrest “[a]bsent some objective basis upon which to conclude that the arresting officer had no reason to fear either the arrestee or the environment in which the arrest unfolded.” Id. at 267 (quoting United States v. Abdul-Saboor, 85 F.3d 664, 670, 318 U.S. App. D.C. 98 (D.C. Cir. 1996) (emphasis omitted)). We also acknowledged that “where, in the heat of an arrest, an officer concludes that a particular item is within the arrestee’s grasp, courts are extremely reluctant to subsequently determine that the officer’s conclusion was unreasonable and thereby suppress whatever evidence may have been found.” Id. at 273. Nevertheless, the facts of Myers’s case presented an objective basis to conclude that he was no longer dangerous when the search occurred: he was lying on the floor and guarded by two policemen, he had already been frisked for weapons, the bag that was searched was three feet away from him and zipped shut, and the searching officer had not seen the need to search the bag at the time of arrest, but instead went downstairs and interviewed a witness first. Id. Significantly for purposes of the instant appeal, we noted that, “[h]ad [the officer] searched the bag . . . before going downstairs, we would have a different set of circumstances to consider against the teachings of Chimel and its progeny.” Id. at 274. We also emphasized that the officer’s testimony suggested that he was not concerned about the possible presence of a weapon until after he opened the bag. Id. at 274.

Plaintiff’s case against an officer for excessive force who was “pissed off” at plaintiff for allegedly being a drunk driver resulted in plaintiff being thrown to the ground and seriously manhandled and injured survives summary judgment and qualified immunity. Plaintiff was in hypoglycemic shock, which the officer was trained to recognize, and an EMT saw plaintiff’s medical alert bracelet and the officer then calmed down and removed the handcuffs from plaintiff’s bleeding wrists. McAllister v. Price, 615 F.3d 877 (7th Cir. 2010)*:

Claims that officers used excessive force in seizing a person are evaluated under the Fourth Amendment’s reasonableness standard. See Acevedo v. Canterbury, 457 F.3d 721, 724 (7th Cir. 2004). The dispositive question is whether, in light of the facts and circumstances that confronted the officer (and not 20/20 hindsight), the officer behaved in an “objectively reasonable” manner. See Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). The Supreme Court has directed lower courts to consider three factors in this inquiry: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of officers or others; and (3) whether the suspect is actively resisting arrest by flight. Id. at 396.

. . .

While we are hesitant to second-guess the snap judgments made by law enforcement personnel, McAllister has come forward with enough evidence so that a jury could infer that Price’s mistaken belief that McAllister was intoxicated was unreasonable. It was clear to Price, as it was to the other witnesses, that McAllister was impaired in some way during and after the accident. Thus, this is not a case like Estate of Phillips, where the plaintiff’s medical condition was completely hidden. Multiple eyewitnesses observed McAllister to be convulsing or twitching, and at least one concluded that McAllister was not intoxicated. Price was trained to ask if someone who appears unwell is diabetic, but did not do so before applying the challenged force. McAllister was wearing a medical alert necklace–something that Price was trained to look for–but Price made no attempt to check for it until this course of action was suggested by a witness. Finally, Price was trained to recognize people under the influence of alcohol and drugs; yet if we draw all reasonable inferences in favor of McAllister, Price did not follow that training and leapt to the conclusion that McAllister was intoxicated. For these reasons, the district court did not err in finding a genuine issue of material fact regarding McAllister’s diabetic condition.

Lower court opinion: McAllister v. Town of Burns Harbor, 693 F. Supp. 2d 815 (N.D. Ind. 2010).

Frisking defendant’s duffle bag that was partly unzipped for a weapon that the officers reasonably believed was in there was reasonable. He was wanted for bank robbery, and there was reason to believe he was armed. United States v. Walker, 615 F.3d 728, 2010 FED App. 0244P (6th Cir. 2010):

The directive to steer clear of “unreasonable” searches cannot be reduced to a “frisk first” or any other one-size-fits-all command, which is presumably why courts of appeals have declined to adopt a “frisk first” requirement for Terry searches. See, e.g., United States v. Shranklen, 315 F.3d 959, 963-64 (8th Cir. 2003); United States v. Thomson, 354 F.3d 1197, 1200-01 (10th Cir. 2003); United States v. Rhind, 289 F.3d 690, 693-94 (11th Cir. 2002); United States v. Brown, 133 F.3d 993, 998-99 (7th Cir. 1998). Other courts likewise have recognized that non-frisk search methods may be reasonable under the Fourth Amendment. See, e.g., United States v. Landry, 903 F.2d 334, 337 (5th Cir. 1990) (grabbing a bag and looking inside); People v. Jackson, 79 N.Y.2d 907, 590 N.E.2d 240, 241, 581 N.Y.S.2d 655 (N.Y. 1992) (shining a flashlight through a plastic bag). The courts’ job is to ask what was reasonable under the circumstances, not to poke and prod for lesser-included options that might not occur to even the most reasonable and seasoned officer in the immediacy of a dangerous encounter.

If it is a loaded gun that concerns the officer, moreover, it is by no means clear that poking and prodding the outside of a duffel bag is the most sensible way to find it. No doubt, the frisking of the outside of a bag intrudes less on the privacy of the suspect. But at what cost? Who looks for a gun by aimlessly grabbing and manipulating the outside of a large bag that may or may not contain the gun–and a loaded gun at that? That, we suspect, is not what gun-safety programs recommend. If Terry permits officers to open a closed container located in a car after a stop and after the officers have removed the passengers from the car, see Long, 463 U.S. at 1050-51, it surely permits an officer to unzip a duffel bag, one that is already partially unzipped, to see what is lying on top of it.

A sexual assault victim who worked at a convenience store and was robbed and sexually attacked there was later arrested by the police for a false police report. The officer inexplicably believed that she made a false report to cover up her own theft, after the police were on notice that she was the victim of a serial rapist. The court held that the district court erred in concluding there was no fact question for trial. There was a fact question whether the officer could reasonably believe that she committed a crime of making a false statement in the face of later information that she was attacked by a serial rapist. The officer also lacked qualified immunity. Reedy v. Evanson, 615 F.3d 197 (3d Cir. 2010):

For the reasons described above, it must be said that, viewing the evidence from Reedy’s perspective, “no reasonably competent officer would have concluded that a warrant should issue” when it did for her arrest for making a false report of the rape, for theft, and for receiving stolen property. See Grant v. City of Pittsburgh, 98 F.3d 116, 122 (3d Cir. 1996) (“[Crucial to the resolution of any assertion of qualified immunity is a careful examination of the record … to establish, for purposes of summary judgment, a detailed factual description of the actions of each individual defendant viewed in a light most favorable to the plaintiff.”) (internal punctuation omitted). The District Court thus erred in granting summary judgment on the basis of qualified immunity.

She also consented only to a blood draw for the rape kit, and the officer violated the Fourth Amendment by getting a search warrant for the blood. She tested positive for diazepam and marijuana, and the officer considered that illegal drug use. She had a reasonable expectation of privacy in the blood draw violated by the officer:

As in Ferguson I and Ferguson II, an important inquiry about the blood samples at issue here is whether Reedy understood that her blood was being tested for the law enforcement purpose of obtaining incriminating evidence against her. The answer seems plainly to be no. She consented to having her blood drawn in the context of a rape kit examination. She had just been sexually assaulted and was being tested for sexually transmitted diseases and for potential evidence concerning her assailant. She indisputably had a reasonable expectation of privacy in her blood when it was drawn, and she did nothing to forfeit that expectation. The Fourth Amendment protects against unreasonable government intrusion into the personal and private aspects of life. There is little that is more personal than an individual’s bodily integrity. See Schmerber, 384 U.S. at 772 (“The integrity of an individual’s person is a cherished value of our society.”) Consequently, Evanson’s warrantless search of Reedy’s blood for drug use, without Reedy’s consent, violated the Fourth Amendment. The District Court’s conclusion to the contrary was error.

This case belongs in the annals of the “adding insult to injury” category of Fourth Amendment cases.

Hat tip to Litigation and Trial‘s Third Circuit Reinstates Civil Rights Suit Of Rape Victim Arrested For Telling The Truth which also discusses amicus briefs in the case.

A probation search was not governed by Gant. United States v. Lee, 2009 U.S. Dist. LEXIS 104590 (W.D. Mo. November 10, 2009).

Defendant’s stop was based on a traffic violation, and the meth lab ingredients in his car were in plain view. State v. Gibson, 152 Wn. App. 945, 219 P.3d 964 (2009).*

There is no claim for a prison cell search. Tindell v. Beard, 351 Fed. Appx. 591 (3d Cir. 2009) (unpublished).*

The fact a fact was missing from an affidavit for SW does not make it false for Franks purposes. Here, it was omission of a reference to ammunition in a felon in possession case, which was not a violation of state law being investigated by state officers, and relevance to the state officers was the explanation for the missing fact. United States v. Wilson, 2009 U.S. Dist. LEXIS 104392 (D. Nev. September 29, 2009).*

A Miranda warning is not required before consent is sought. Arrington v. State, 286 Ga. 335, 687 S.E.2d 438 (2009).*

Defendant’s patdown, assumed to be lawful, did not permit plain feel of a single pill found in his pocket. The other person in the car had marijuana on him. In re C.C., 2009 VT 108, 186 Vt. 474, 987 A.2d 1000 (2009).

Anonymous caller was corroborated by a controlled buy and a lot of independent police work. United States v. Webster, 2009 U.S. Dist. LEXIS 105321 (C.D. Ill. November 10, 2009)* (not even close).

When a drug buy is arranged from the defendant by a CI and the defendant leaves his residence to go to the place for the buy, it is reasonable to infer that the drugs are kept in the residence. Commonwealth v. Bookman, 77 Mass. App. Ct. 546, 932 N.E.2d 824 (2010).*

Officers were patrolling an area because of a shooting death two days earlier and a fear of high emotions and retaliation. They approached defendant for a pat down who fled. Only one of six officers saw the defendant supposedly try to secure the gun before flight, and the others didn’t, so the court finds there was no reasonable suspicion in the first place. United States v. Thompson, 2010 U.S. Dist. LEXIS 90386 (W.D. Ky. June 14, 2010).*

The IRS search warrant here for records was not overbroad. The unlocked unmarked office within the place to be searched that was also searched did not indicate that it was another corporate office. United States v. Aguirre, 368 Fed. Appx. 979 (11th Cir. 2010) (unpublished).*

Automobile exception applies even though the officers had the keys and the defendant was in custody. United States v. Young, 371 Fed. Appx. 358 (4th Cir. 2010) (unpublished).*

Defendant’s conversation with the officer showed that he understood enough English to converse about several things, so there was a factual basis for a finding of his consent. United States v. Gamez-Acuna, 375 Fed. Appx. 809 (10th Cir. 2010) (unpublished).*

The fact a gun was unaccounted for was not sufficient for a “community care taking” entry of defendant’s house on only a possible ordinance violation. Trotter v. State, 933 N.E.2d 572 (Ind. App. 2010).*

Defendant waived any particularity issue because it was not raised until the trial was underway. Three years passed between the search and the original denial of the motion. “[N]o good cause exists for the failure to raise the issue of the warrant’s particularity.” Even on the merits, defendant would lose because there was no way the officers would know there was a Garrison-type problem with the location until they got there, and it is not apparent that there was. “The Court believes Trooper Thompson acted reasonably and that he was not confronted with a multi-unit building.” United States v. Kaplan, 2010 U.S. Dist. LEXIS 94987 (E.D. Pa. September 13, 2010).*

USMJ finds that the police justification for the stop of defendant’s tractor trailer was not based on “defective equipment” since nobody could say what that was. They all admitted the DEA wanted the truck stopped. United States v. Moore, 2010 U.S. Dist. LEXIS 95047 (E.D. Mich. July 14, 2010).*

Defendant was sought out by officers for a warrant for failure to pay child support and failure to appear. They found him by his 18 wheeler, and they knew he usually carried a gun. That justified a search of the truck under Gant, which the court would not apply under the good faith exception if it couldn’t. State v. Brown, 42 So. 3d 458 (La. App. 2d Cir. 2010).*

Officers encountered defendant parked in a high crime area, and talked to him. They had no reasonable suspicion of any crime. When they asked for his driver’s license, they turned what would have been a consensual encounter into a seizure without reasonable suspicion. State v. Jones, 2010 Ohio 2854, 188 Ohio App. 3d 628, 936 N.E.2d 529 (10th Dist. 2010).*

The officer did not stop the defendant. He approached her parked car because he suspected she might be in distress. He parked behind her such that her path was not blocked, and his blue lights were not on, just amber flashing lights. He was acting in a community caretaking function when he determined that defendant might be DUI. State v. Tindell, 2010 Tenn. Crim. App. LEXIS 528 (June 22, 2010).*

Defendant by his own admission abandoned property at his campsite in Tennessee in flight from a murder, and the hosts called the police because the valuable things appeared to them to have been stolen. [No conflict of laws issue, and result would be the same in a Tennessee court; decided on Fourth Amendment.] Twilegar v. State, 42 So. 3d 177, 35 Fla. L. Weekly S 13 (2010).*

In response to a shooting call, defendant and his victim were found lying in a pool of blood. The entry and view were reasonable. State v. Plauche, 32 So. 3d 852 (La. App. 3d Cir. 2010).*

Officers saw an occupant of a car urinate in public and get back in the car and throw a can out of it. They approached and saw marijuana in plain view. On questioning, defendant admitted he had a gun. The stop was valid. People v Wright, 2010 NY Slip Op 19, 2010 N.Y. App. Div. LEXIS 19 (3d Dept. January 7, 2010).*

“We agree with the District Court that the parole agents clearly possessed reasonable suspicion to conduct the searches, and we therefore need not decide whether the Supreme Court’s decision in United States v. Samson, 547 U.S. 843 (2006), otherwise permits suspicion-less searches in the current circumstances.” United States v. Henry, 360 Fed. Appx. 395 (3d Cir. 2010) (unpublished).*

Violation of state law on the territorial jurisdiction of officers has already been held not to be a constitutional violation since 1980, so defendant’s stop outside the officer’s jurisdiction was not subject to suppression. This is also consistent with Virginia v. Moore. State v. Jones, 2010 Ohio 1600, 187 Ohio App. 3d 478, 932 N.E.2d 904 (6th Dist. 2010), Decided, Motion granted by, 125 Ohio St. 3d 1511, 2010 Ohio 3331, 930 N.E.2d 330 (2010).*

The state’s efforts to have plaintiff’s child get a psychological test is not a Fourth Amendment claim. Gomez v. Noble County Children Servs., 2010 Ohio 1538, 2010 Ohio App. LEXIS 1287 (7th Dist. March 31, 2010).*

Defendant was arrested for trespassing at a housing project in violation of “No Trespassing” signs, and that justified a search incident. This was not a Terry patdown. State v. Thomas, 2010 Ohio 1548, 2010 Ohio App. LEXIS 1289 (7th Dist. March 30, 2010).*

Defendant who installed a hard drive in another person’s computer, and claimed ownership of the hard drive [a “unique issue”] assumes the risk of disclosure by the owner of the computer. Also, diverging with the Ninth Circuit, Randolph only applies to real property, not personalty (there is a detailed anaylsis of this issue). United States v. King, 604 F.3d 125 (3d Cir. 2010):

Because Randolph does not apply to personal effects, King’s suppression argument necessarily fails. A computer is a personal effect, see, e.g, Andrus, 483 F.3d at 718-20 (analogizing a computer to a container). Therefore, we apply the Matlock rule and ask whether King relinquished his privacy in the hard drive with respect to Larkin. Here, King placed his hard drive inside the computer Larkin owned and that the two of them shared, without any password protection. As a result, he assumed the risk that Larkin would consent to its seizure. Accordingly, the District Court did not err in holding that the seizure of Larkin’s computer did not violate the Fourth Amendment and evidence derived therefrom was admissible against King.

CI’s information showed probable cause for the search of defendant’s car. United States v. Dewar, 375 Fed. Appx. 90 (2d Cir. 2010) (unpublished).*

Courthouse screening did not deny the defendant his right to a public trial. Screening is necessary for safety. State v. O’Connor, 155 Wn. App. 282, 229 P.3d 880 (2010).*

The record supports the trial court’s finding that the defendant consented despite his claim that there was a language barrier. Yes, arrest is somewhat coercive, but defendant still consented. United States v. Silva-Arzeta, 602 F.3d 1208 (10th Cir. 2010):

Thus, the basis of Mr. Silva-Arzeta’s claim of coercion amounts to simply his being arrested and handcuffed. We recognize that arresting and handcuffing are coercive acts. But the consent of a handcuffed arrestee may well be voluntary. See Dozal, 173 F.3d at 796 (“Supreme Court and Tenth Circuit precedent establishes that consent to search may be voluntary even though the consenting party is being detained at the time consent is given.” (brackets and internal quotation marks omitted)); Carpenter v. United States, 463 F.2d 397, 401 (10th Cir. 1972) (consent voluntary after being arrested and handcuffed); United States v. Strache, 202 F.3d 980, 986 (7th Cir. 2000) (voluntary consent by defendant who had been handcuffed for 20 minutes). We affirm the district court’s ruling that Mr. Silva-Arzeta’s consent to the search was valid.

The record supported the trial court’s finding that defendant consented. His post-arrest statements supported the finding of consent. United States v. Grant, 375 Fed. Appx. 79 (2d Cir. 2010) (unpublished).*

Defense counsel was not ineffective for not appealing the search issue. Defendant was passed out at the wheel of his car in a traffic lane when the light turned green. The officer could open the door to see what was going on since defendant did not respond to him, and the crack cocaine was in plain view. United States v. Jackson, 2010 U.S. Dist. LEXIS 40917 (E.D. Pa. April 27, 2010).*

“Adam, open the door” was not a demand where the police did not come in. Defendant consented to the entry. The court distinguishes another case where the police yelled “Fort Worth Police: Open the door.” That was different because the police there rushed in. United States v. Longoria, 370 Fed. Appx. 481 (5th Cir. 2010) (unpublished).*

Questioning defendant for 45-90 seconds about immigration status was not unreasonable. The district court’s conclusion that the drug dog alerted was supported by the evidence. United States v. Clayton, 374 Fed. Appx. 497 (5th Cir. 2010) (unpublished).*

The defendant was found to have consented to the search. The officer spoke with him in Spanish, so there was no mistake about what was said. United States v. Madrigal-Negrete, 2010 U.S. Dist. LEXIS 24103 (E.D. Mich. March 16, 2010).*

State’s changing theories of the justification for the warrantless search of the defendant’s person after the proof closed denied the defendant a fair opportunity to litigate the search issue. “We hold that the suppression hearing ruling, based on an unraised, undeveloped, and unargued Fourth Amendment theory, was in error and that the physical evidence should, therefore, have been suppressed.” Then, the lifting of defendant’s shirt after the frisk exceeded the scope of the frisk, and it violated the Fourth Amendment. Epps v. State, 193 Md. App. 687, 1 A.3d 488 (2010):

Directing the appellant to lift his shirt went beyond the limited scope of a frisk. It revealed “a small, clear plastic baggie … protruding from the top of his pants.” A pat-down of the appellant would not have permitted the recovery of that baggie. It was not a hard metallic object that could have been mistaken for a weapon. Although, to the touch through clothing, it might have aroused suspicion, it by no means communicated probable cause as per the “plain feel doctrine” of Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). A properly limited frisk of the appellant would not have produced the cocaine, for the possession of which the appellant is now facing 25 years of imprisonment without the possibility of parole.

The suppression hearing judge reasoned, sua sponte, that the lifting of the shirt was reasonable because it was less intrusive than a pat-down would have been. The degree of intrusiveness, however, is not the controlling criterion. Nor is the duration of the intrusion. Nor is the degree of embarrassment that the intrusion might cause. The critical limitation is that the intrusion must be only that which is necessary to detect the presence of a weapon — and nothing more. In this case, the alternative intrusion self-evidently detected something other than the presence of a weapon and the appellant is paying a heavy price for that incremental revelation.

Seventeen minutes from a traffic stop to a dog alert was not an unreasonable amount of time for the stop. Wallace v. State, 2009 WY 152, 2009 Wyo. LEXIS 170 (December 14, 2009)*:

[*P16] Here, Wallace does not dispute the validity of the initial stop and, typically, that leads us to the second prong of the analysis under Terry (i.e., were the officer’s actions during the detention reasonably related in scope to the circumstances that justified the interference in the first instance). Damato, P 9, 64 P.3d at 705. However, in this case, we need not look beyond the initial stop because Wallace admits that it was lawful, and also because the record is clear that no improprieties occurred so as to violate Wallace’s constitutional rights. The record shows precisely how many minutes Wallace had been detained before the drug dog alerted to drugs at the scene — just over seventeen minutes elapsed from the time Deputy Stinson stopped the vehicle until the dog alerted. The district court was persuaded that the deputy did not drag his feet in order to allow for the canine unit to arrive. In fact, the district court concluded that the brief period of detention lasted no longer than was necessary to achieve the purpose of the stop, inasmuch as the sniff was concluded before the deputy had finished issuing the citations. We agree.

Defendant’s weaving within her own lane and touching the center line was sufficient basis for a stop. Drummer v. State, 42 So. 3d 563 (Miss. App. 2009), cert. denied, 2010 Miss. LEXIS 452 (Miss., Aug. 26, 2010).*

The officer had reasonable suspicion to detain defendant for DUI after he was found slumped behind the wheel of his vehicle after a one-vehicle accident and there was an odor of alcohol. State v. Meador, 2009 Tenn. Crim. App. LEXIS 1013 (December 11, 2009).*

Plaintiff’s claim that an order not to practice law without a license was subject to abstention. (Somehow he came up with a Fourth Amendment claim, which is indicative, perhaps, of why he’s not practicing law anymore.) Feingold v. Office of Disciplinary Counsel, 2009 U.S. Dist. LEXIS 116806 (E.D. Pa. December 14, 2009).*

The search of defendant’s car for a weapon was not justified by any articulable facts. Lewis v. State, 2010 Ind. App. LEXIS 1366 (July 27, 2010).*

Dog sniff of the air from outside a car did not violate the state constitutional protection of “private affairs.” State v. Hartzell, 156 Wn. App. 918, 237 P.3d 928 (2010).*

The officer received a report of a potential drunk driver in defendant’s car. The officer was free to approach defendant’s garage to attempt to talk to him, and defendant’s admission that he was driving plus his condition was reasonable suspicion of DUI. The Fourth Amendment was not implicated until a second officer arrived for a field sobriety test. Banda v. State, 317 S.W.3d 903 (Tex. App. — Houston (14th Dist.) 2010).*

Defendant was weaving slightly in his lane, and the court finds that there was no probable cause nor reasonable suspicion for his stop for impaired driving. Defendant’s consent thereafter was a product of this illegal stop, and it is suppressed. United States v. Magallanes, 2010 U.S. Dist. LEXIS 79272 (D. Neb. August 3, 2010).*

A 10 year CI called to say that defendant was selling drugs from his SUV. Police set up surveillance and saw three apparent hand to hand transactions. They arrested him and drove his vehicle to the police station where a dog alerted and a search warrant was obtained. The removal of the car was with probable cause and was not unreasonable. The search warrant depended on nothing from the moving of the vehicle. Commonwealth v. Williams, 2010 PA Super 141, 2 A.3d 611 (2010),* following Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978).

Defendant’s consent was found to be voluntary. On the question of credibility of the witnesses, the court finds the officer credible, and the defendant did not testify, only submitting an affidavit to raise the search issue. United States v. Thompson, 2010 U.S. Dist. LEXIS 78694 (S.D. N.Y. July 28, 2010).*

Defendant was found to have consented to seizure of the portable hard drive to his computer after police asked him about child pornography on it, based on reports from another having seen it when he showed him. The “preview search” of the computer without a warrant violated the Fourth Amendment, but the search was permissible by inevitable discovery because of defendant’s admissions there was child pornography on the hard drive. The full forensic examination of the computer was with a warrant, and, excluding the preview search from the affidavit, the warrant would have been granted anyway. State v. Nadeau, 2010 ME 71, 1 A.3d 445 (2010).* (This case has a helpful analysis of applying the exclusionary rule or not under inevitable discovery, and the court finds that applying the exclusionary rule here would not advance Fourth Amendment interests.)

The search of defendant’s briefcase at the time of his arrest would have violated Gant, but it was valid as inevitable discovery because it would have been searched at book-in. United States v. Miles, 2010 U.S. Dist. LEXIS 76725 (E.D. Pa. July 29, 2010).*

One defendant consented to the officers entering the house to look for an alleged runaway, and the court of appeals did not properly consider the audio of the occurrence from one officer’s body recorder where he asked “may I.” Valtierra v. State, 310 S.W.3d 442 (Tex. Crim. App. 2010), revg Eduardo Valtierra v. State, 293 S.W.3d 725 (Tex. App.-San Antonio 2009); Heriberto Valtierra v. State, 293 S.W.3d 697 (Tex. App.-San Antonio 2009).

Defendant’s stop led to questions simultaneous with the paperwork which led to consent. “Although the results of the questioning led to a police-citizen encounter that was longer than it would have been without the questioning, that fact is not relevant.” State v. Gomes, 236 Ore. App. 364, 236 P.3d 841 (2010).*