Missouri refuses to follow United States v. McCane and apply a Gant good faith exception. State v. Kingsley, 2010 Mo. App. LEXIS 1090 (W.D. Mo. August 24, 2010):

However, it should be noted that the integrity of judicial review and constitutional adjudication outweighs officer reliance. To apply the good-faith exception to cases pending when Gant was published would contravene the Supreme Court’s clear expression that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.” Griffith, 479 U.S. at 328. The Griffith Court expressly considered the weight to be accorded to reliance of law enforcement officials and the burden on the administration of justice in its analysis. Id. at 326-27. It found those considerations outweighed by the necessity of adjudicating all currently pending cases according to constitutional law as it stands at the time of the adjudication and the necessity of treating similarly-situated defendants the same. Id. at 327-28. We further believe admitting unlawfully obtained evidence based on an officer’s reliance on his or her training would be setting a dangerous and unworkable precedent unjustified by the holdings in Leon and its progeny. Because we agree with the Johnson majority that the good-faith exception does not extend to police officers’ reliance on case law, the State’s sole point is denied.

The trial court denied the state’s motion to continue the suppression hearing because of its inability to get all its discovery together. “The judge’s disposition may have been severe but it was not abusive of discretion. It came after a series of postponements, applied the criteria of a standing rule, and rested upon the essential authority of the court to manage the schedule of its criminal sessions. He was uniquely positioned to assess the credibility and motives of counsel appearing in his session. We affirm his orders denying the Commonwealth’s motion to continue and allowing the defendants’ motion to suppress.” Commonwealth v. Burston, 77 Mass. App. Ct. 411, 931 N.E.2d 1019 (2010).*

Defendant consented to a search for a gun in her own house. She was not restrained or under arrest at the time of her interaction with the officers. United States v. Lewis, 2010 U.S. Dist. LEXIS 86431 (N.D. Ga. June 16, 2010).*

When a taxpayer challenged his assessment of real property, the state can get a court order to inspect the property without violating the Fourth Amendment. Bleoaja v. Dep’t of Revenue, 2010 Ore. Tax LEXIS 206 (July 19, 2010).*

A search warrant for “evidence of drug trafficking” permitted seizure of firearms. (§ 2255) United States v. Patterson, 2010 U.S. Dist. LEXIS 72785 (E.D. Pa. July 20, 2010).*

Defense counsel’s alleged failure to fully cross-examine the officer about the odor of marijuana in the car was not ineffective assistance of counsel where there was probable cause independent of that. (§ 2255) Mosby v. United States, 2010 U.S. Dist. LEXIS 72952 (C.D. Ill. July 20, 2010).*

Defendant was free to go after he got his warning, and the officer asked “I have another question for you, if you don’t mind?” Then he asked about drugs and whether he could “peek” in his trailer, and the defendant said he could. This was consensual. United States v. Garcia, 613 F.3d 749 (8th Cir. 2010).*

Getting in the defendant’s wife’s car with her without reasonable suspicion and having her drive to where the police were conducting their surveillance was a seizure. They used her to get consent to search their house. The district court clearly erred in finding attenuation between her detention and the consent, and the motion to suppress should have been granted. United States v. Fox, 600 F.3d 1253 (10th Cir. 2010).*

The CI’s story was sufficiently corroborated here by innocent details that the defendant’s car was being followed by two others. The CI had provided useful information in the past. United States v. Pineda, 370 Fed. Appx. 60 (11th Cir. March 22, 2010) (unpublished).*

The initial illegal search was independent of the decision to seek a search warrant, and there was sufficient independent probable cause to support it. United States v. Handberry, 372 Fed. Appx. 383 (4th Cir. 2010) (unpublished).*

In a Colorado criminal libel investigation against a college student’s website, the ADA issued a search warrant for the student’s house and his computers were seized. The DA’s office later refused to file a case against him, likely because the website was clearly protected speech. The search warrant violated the Fourth Amendment for lack of a discernable crime and any showing of particularity. Mink v. Knox, 613 F.3d 995 (10th Cir. 2010):

Because a reasonable person would not take the statements in the editorial column as statements of facts by or about Professor Peake, no reasonable prosecutor could believe it was probable that publishing such statements constituted a crime warranting search and seizure of Mr. Mink’s property.

Here, there was no reference anywhere in the warrant to any particular crime, much less to the Colorado criminal libel statute. See Ex. A. The only reference to a crime in the entire warrant was a citation to a portion of the Colorado Rule of Criminal Procedure 41(b), which specified generally:

A search warrant may be issued under this Rule to search for and seize any property:
(1) Which is stolen or embezzled; or
(2) Which is designed or intended for use as a means of committing a criminal offense; or
(3) Which is or has been used as a means of committing a criminal offense; or
(4) The possession of which is illegal; or
(5) Which would be material evidence in a subsequent criminal prosecution in this state or in another state …
Colo. R. Crim. P. 41(b) (2003) (emphasis added).

The warrant authorized the search and seizure of all computer and noncomputer equipment and written materials in Mr. Mink’s house, without any mention of any particular crime to which they might be related, essentially authorizing a “general exploratory rummaging” through Mr. Mink’s belongings for any unspecified “criminal offense.” See Campos, 221 F.3d at 1147; see also Cassady, 567 F.3d at 637 (holding that a warrant permitting “search for all evidence of any crime [is] invalid.”). No paragraph tied the listed items to any particular crime. The warrant was therefore clearly invalid under the particularity clause of the Fourth Amendment.

Prior opinion: Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007), cert. denied, 128 S. Ct. 1122 (2008) (no prosecutorial absolute immunity for participating in issuing a search warrant).

Defendant had an expectation of privacy in the pillow case he carried from a bank robbery, but it was not an expectation that society was prepared to recognize as reasonable considering it was stained from the dye pack such that its “outward appearance” belied its contents. United States v. Epps, 613 F.3d 1093 (11th Cir. 2010):

In this case, considering the totality of the circumstances, the fact that the pillowcase contained dye packs and possibly other items associated with the bank robbery could “be inferred from [its] outward appearance.” Sanders, 442 U.S. at 764 n.13, 99 S. Ct. at 2593 n.13; see also United States v. Williams, 41 F.3d 192, 197 (4th Cir. 1994) (“[T]he circumstances under which an officer finds the container may add to the apparent nature of its contents.”). Deputy Kent saw Mr. Epps with a white bag in his hand, running away from a blue Cavalier parked at an angle with its driver’s door open. The deputy knew that a blue Cavalier had been carjacked, and he believed that the carjacking was related to a bank robbery that had taken place in the same area just minutes before. After being directed to stop, the fleeing individual pointed a gun at the deputy. Upon closer inspection, the white bag was found to be a pillowcase with pink stains on it. Tellers frequently give bank robbers dye packs, which are designed to explode after the robbery and permanently mark the bills with ink. See United States v. King, 842 F.2d 311, 312 (11th Cir. 1988) (“Although [Officer] Morton was not aware of the … robbery, he knew that bank tellers frequently insert red dye bombs in packages during bank robberies.”); United States v. Gidley, 527 F.2d 1345, 1348 & n.1 (5th Cir. 1976) (discussing detective’s awareness that “dye stained money often is a result of the explosion of a dye bomb planted during a bank robbery,” and finding it “unlikely” that “the other officers were unaware of the significance of stained money”).

Because the pillowcase’s contents could be inferred from its outwardly visible stains and the circumstances under which the police obtained it, the pillowcase was one of those containers that “by [its] very nature cannot support any reasonable expectation of privacy.” Sanders, 442 U.S. at 764 n.13, 99 S. Ct. at 2593 n.13. The pillowcase therefore fell outside the protective ambit of the Fourth Amendment, and the police did not violate Mr. Epps’s constitutional rights when they opened the pillowcase without first obtaining a warrant.

The search for premises mentioned a specific vehicle. It did not mention a motorcycle found parked in the garage. The search of the motorcycle saddlebag producing the murder weapon was permissible under the search warrant for the premises. State v. Stout, 2010 MT 137, 356 Mont. 468, 237 P.3d 37 (2010).

Defendant’s conditional release expired before he was arrested, so the search could not be justified by his release status. The government’s position that reasonable suspicion alone justified an entry into his house is rejected. There was no evidence at the time to justify a protective sweep of the house. However, the entry to seize firearms visible through the window was with probable cause and was valid as exigent circumstances. United States v. Franklin, 721 F. Supp. 2d 1229 (M.D. Fla. June 22, 2010),* R&R 2010 U.S. Dist. LEXIS 61993 (M.D. Fla. March 29, 2010).*

Officer’s alleged violation of Minnesota law was not even relevant to the legality of the search and seizure in federal court. United States v. Gaulden, 2010 U.S. Dist. LEXIS 62468 (D. Minn. June 14, 2010).*

Stepping in front of defendant’s bicycle saying that there was a warrant for his arrest was a stop. The officer remembered from reading a warrant list from the previous two weeks that defendant had a warrant. That was with reasonable suspicion. After the stop, the officer verified there was a warrant. (The “escape rule” did not apply where defendant failed to show for sentencing but then later did and was in custody for the appeal.) State v. Johnson, 316 S.W.3d 390 (Mo. App. 2010).*

Defendant’s reaching movements inside the car was reasonable suspicion. O’Quinn v. State, 303 Ga. App. 657 (2010).*

Defendant’s rental car was eight days overdue. While checking the paperwork, the officer could run a dog around the car. Langston v. State, 302 Ga. App. 541, 691 S.E.2d 349 (2010).*

Cross-gender jail strip search during a cellblock shakedown that involved manipulation of genitals through underwear was unreasonable under the Fourth Amendment. Byrd v. Maricopa County Sheriff’s Department, 2011 U.S. App. LEXIS 86 (9th Cir. January 5, 2011) (6-5 en banc):

We approach this issue by reiterating our longstanding recognition that “[t]he desire to shield one’s unclothed figure from [the] view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.” York v. Story, 324 F.2d 450, 455 (9th Cir. 1963); see also Michenfelder, 860 F.2d at 333 (same); Grummett v. Rushen, 779 F.2d 491, 496 (9th Cir. 1985) (distinguishing cross-gender searches that “are done briefly and while the inmates are fully clothed, and thus do not involve intimate contact with the inmates’ bodies”) (emphasis added). It is not surprising that a connection has been made between cross-gender searches and the level of sexual impropriety between inmates and corrections personnel. See, e.g., Nicholas D. Kristof, Op-Ed., Kids in Crisis (Behind Bars), N.Y. Times, Jan. 28, 2010, at A33 (discussing a “stunning new Justice Department special report” finding that cross-gender assignments in prisons foster abuse of inmates by male and female officers); Connie Rice and Pat Nolan, Op-Ed, Policing Prisons, L.A. Times, Apr. 5, 2010, at A13 (citing to the June, 2009, National Prison Rape Elimination Commission Report (Commission Report)).

Applying the Bell factors in the context of our precedent recognizing the privacy interest of inmates in their personal dignity, giving credence to the compelling findings made by the Commission, and acknowledging the applicable accrediting standards, we conclude that the cross-gender strip search of Byrd was unreasonable as a matter of law. O’Connell touched Byrd’s inner and outer thighs, buttocks, and genital area with her latex-gloved hand through very thin boxer shorts. She moved his penis and scrotum in the process of conducting the search. The scope of this intrusion totally thwarted any desire on Byrd’s part to “shield [his] unclothed figure from [the] view of strangers … of the opposite sex …” York, 324 F.2d at 455. The scope of the intrusion in this case far exceeds searches we have previously sanctioned and weighs in favor of a finding of unreasonableness.

. . .

The manner in which the search was conducted weighs in favor of a determination of unreasonableness. Byrd was searched by a female cadet who was dressed in jeans and a white t-shirt. Other than the name printed on the back of the t-shirt, the officer who conducted Byrd’s search was unidentified. Ten to fifteen non-participating officers watched the strip search, and at least one person videotaped the search. Although the dissent relies on the fact that the search was conducted “professionally,” see Dissenting Opinion, p. 396, we have consistently recognized the “‘frightening and humiliating’ invasion” occasioned by a strip search, “even when conducted ‘with all due courtesy.’” Way, 445 F.3d at 1160, quoting Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir. 1984) (per curiam). Furthermore, the dissent’s reliance on the jury’s finding that the manner of O’Connell’s search was appropriate because O’Connell “did not intentionally squeeze or knead Byrd’s penis or scrotum or improperly touch his anus through his boxer shorts,” Dissenting Opinion, p. 397, ignores the district court’s ruling that the cross-gender aspect of the search was constitutional as a matter of law. Thus, the jury was not deciding whether the manner of the search was appropriate despite being performed by a member of the opposite sex.

Probation search of defendant’s computer was reasonable after finding first a gun and then “Family Lust” magazine indicating child pornography. United States v. Howard, 2011 U.S. Dist. LEXIS 975 (S.D. Ala. January 5, 2011):

Applying this balancing test results in a finding that the probation officers’ search of Howard’s computer was reasonable. After entering Howard’s home and seeing a gun in plain view, the officers were justified in continuing their search of the house for other illegal weapons. The continuation of the search resulted in finding the magazines. Upon discovering the magazines, it was not unreasonable for the probation officers to suspect that Howard might perpetuate this interest, i.e. Family Lust (Fathers and their Teenage Daughters), through the use of the internet. It was also reasonable to assume that this interest might have resulted in illegal activity on the computer. Thus, a search of his computer was reasonable under the circumstances.

The affidavit for the search warrant said that the CI’s drug transaction with the defendant was “at” his residence rather than “in,” but that does not show that there was no nexus to defendant’s house for the search warrant. United States v. Murrell, 2011 U.S. Dist. LEXIS 594 (M.D. Tenn. January 3, 2011).*

When defendant was lawfully ordered to the ground, he raised his hands, and the butt of a gun was visible in his waistband. That justified seizing the gun. United States v. Smith, 2010 U.S. Dist. LEXIS 138622 (W.D. Tenn. November 19, 2010).*

Defendant disclaimed ownership of the car he was in saying that it was his mother’s, and that’s why he did not consent to search of her car he was in. By his own admission, his mother as owner of the car could consent to its search. He did not really refuse consent. He did have standing to contest the search of the car. United States v. Ingram, 2010 U.S. Dist. LEXIS 139041 (W.D. N.C. December 28, 2010). He argued Georgia v. Randolph prevented them from asking her after he refused, but he did not refuse. The court also notes, without having to decide, that Randolph may only apply to the home. Note 3:

Even if Defendant had refused consent, it is not clear that Randolph would extend beyond the home.

A careful reading of the Supreme Court’s decision in Randolph reveals that it was limited to “the circumstances here at issue”–-a search of a home undertaken as a result of consent given by one co-tenant in the face of a present co-tenant’s objection. See id. at 106-08. The majority’s opinion turned primarily on the understanding that Fourth Amendment reasonableness is based upon “the great significance given to widely shared social expectations, which are naturally enough influenced by the law of property, but not controlled by its rules.” Id. at 110 (citations omitted). The Court reasoned that because “there is no common understanding that one co-tenant generally has a right or authority to prevail over the express wishes of another,” it followed that no co-tenant had the right to admit a guest over another tenant’s objection. Id. at 114-15. Ultimately, the Court’s focus was on the traditional import given to the house:

Since we hold to the centuries-old principle of respect for the privacy of the home, it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people. We have, after all, lived our whole national history with an understanding of the ancient adage that a man’s house is his castle to the point that the poorest man may in his cottage bid defiance to all the forces of the Crown.

Id. at 115 (internal quotations omitted).

Because it is well-established that vehicles do not enjoy the same privileges as the home, see, e.g., South Dakota v. Opperman, 428 U.S. 364, 367 (1976); Rakas, 439 U.S. at 148, it is not evident from its face that Randolph applies in the context of vehicles. Instead, the “widely shared social expectations” surrounding vehicles and shared chattel would, if anything, counsel against applying Randolph to that context, particularly in light of the Court’s focus on the relationship that exists between co-tenants of real property. See United States v. King, 604 F.3d 125, 136 (3d Cir. 2010) (“our reading of Justice Souter’s opinion for the Court, Justice Breyer’s concurrence, and Chief Justice Roberts’s dissent, leads us to conclude that the rule of law established in Randolph does not extend beyond the home”); see also Randolph, 547 U.S. at 131-32 (Roberts, C.J., dissenting) (recognizing that the “social expectation” that accompanies “shared information, papers, [or] containers … is that privacy has been shared with another,” and therefore one assumes the risk that the confidante will share access with a third-party, such as the police); but see United States v. Murphy, 516 F.3d 1117, 1124 (9th Cir. 2008) (“there is no reason that the rule in Randolph should be limited to residences”).

Ultimately, the Court need not decide this question, however, because it has already held that Randolph does not apply to the facts of this case.

Defendant was stopped for overtinting, and the officer could smell marijuana, the defendant was really nervous, and the car had 18 air fresheners hanging inside. The subsequent search produced 574 grams of cocaine. The search was valid. Richardson v. State, 305 Ga. App. 850, 700 S.E.2d 738 (2010).*

Defendant was stopped for a traffic offense, and the car had the overwhelming odor of air freshener, defendant could not say where he was going, and he was getting increasingly nervous as the stop continued. That was reasonable suspicion. Wilson v. State, 306 Ga. App. 286 (September 10, 2010).*

Defendant was present at a place where a drug search warrant was executed, and he could be patted down for weapons. He consented to a further search of his person. Brint v. State, 306 Ga. App. 10, 701 S.E.2d 507 (2010).*

Iowa police received information that defendant, a casino employee, was running a high stakes poker game at his residence and that he was using his personal computer in the operation. They got a search warrant for his computer and flash drive and opened the flash drive, coming upon child pornography. They closed the flash drive and applied for a new search warrant for child pornography. The court does not even have to decide probable cause because the good faith exception to the warrant requirement saves the search in any event. Under Herring, application of the exclusionary rule is fact specific, and these facts all favor not excluding. United States v. Koch, 625 F.3d 470 (8th Cir. 2010):

Here, the basis for the district court’s decision not to suppress the challenged evidence was that the probable cause underlying the original search warrant was still effective at the time the agents viewed the flash drive and thus the warrant was not stale. We need not address that issue, however, because we conclude that the agents had an objective, good faith belief under United States v. Leon that their search was legal. See United States v. Proell, 485 F.3d 427, 430 (8th Cir. 2007) (“applicability of the good-faith exception to the exclusionary rule” may be considered before assessing probable cause).

[Note: Applying the good faith exception here is a pointless exercise because there was a warrant to open the flash drive, and it would have survived even the most skeptical analysis. Applying the good faith exception, however, is particularly useful if one is of a mind to expand Herring, which most federal appellate courts are more than willing to do.]

Officers surveilled a drug operation, and they saw defendant put the suspected drugs into his trunk. This was probable cause for his stop and search under the automobile exception. United States v. Aguilera, 625 F.3d 482 (8th Cir. 2010).*

Cell site location information (“CSLI”) warrants in the Ninth Circuit have to be governed by its GPS case, Pineda-Moreno, and the government prevails. United States v. Velasquez, 2010 U.S. Dist. LEXIS 118045 (N.D. Cal. October 22, 2010):

In any event, even if defendant Velasquez had demonstrated a subjective expectation of privacy in (415) 240-0634, he cannot demonstrate that he had a reasonable expectation of privacy for Fourth Amendment purposes. There is no legitimate expectation of privacy in basic, non-content phone records — such as the telephone numbers of incoming and outgoing calls — which are by their nature voluntarily conveyed to the third-party service provider. See, e.g., Smith v. Maryland, 442 U.S. 735, 744, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979); United States v. Plunk, 153 F.3d 1011, 1020 (9th Cir. 1998), overruled on other grounds by United States v. Hankey, 203 F.3d 1160 (9th Cir. 2000); United States v. Lustig, 555 F.2d 737, 747 n.10 (9th Cir. 1977). Although our court of appeals has not specifically addressed the extent to which this line of decisions applies to CSLI, its decision in United States v. Pineda-Moreno is analogous and governs the inquiry of the records specifically at issue here. United States v. Pineda-Moreno, 591 F.3d 1212, 1217 (9th Cir. 2010).

After a GVR in light of Gant, the district court conducted a hearing and concluded that the evidence the officer had that the vehicle was likely stolen made its seizure and inventory valid, and the record supports that conclusion. United States v. Dunson, 2010 U.S. App. LEXIS 23172 (5th Cir. November 5, 2010) (unpublished).*

Officers working with a reliable [of course] CI buying off the defendant had arranged a signal for when the defendant would have drugs on him. The CI gave the signal, and the officers came in and arrested the defendant. His car nearby was searched with probable cause he brought drugs to the place of the buy and Gant did not apply, although it predated the suppression hearing. United States v. Webster, 625 F.3d 439 (8th Cir. 2010).*

Outrageous government misconduct claim of presenting allegedly false information to the grand jury that came from search warrants is rejected. “The grand jury serves as a referee or buffer between the government and the people. United States v. Williams, 504 U.S. 36, 47 (1992). It is an accusatory body that sits ‘not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge.’ Id. at 51; Bracy v. United States, 435 U.S. 1301, 1302 (1978).” United States v. Dynkowski, 720 F. Supp. 2d 475 (D. Del. 2010):

The “judiciary is extremely hesitant to find law enforcement conduct so offensive that it violates the Due Process Clause.” United States v. Voigt, 89 F.3d 1050, 1065 (3d Cir. 1996). To that end, the Third Circuit has admonished that the doctrine is to be implicated only “in the face of the most intolerable government conduct” and “not each time the government acts deceptively or participates in a crime that it is investigating.” Lakhani, 480 F.3d at 180 (citations and quotations omitted); United States v. Pitt, 193 F.3d 751, 761 n.11 (3d Cir. 1999) (collecting cases); United States v. DeRewal, 10 F.3d 100, 105 n.3 (3d Cir. 1993) (“in the 15 years since [the outrageous conduct doctrine] was decided, [the Third Circuit] has not found any case warranting dismissal of criminal charges on a similar ground”).

The court finds the challenged misconduct, even if true, does not establish the extent of outrageous government conduct that would be necessary to prevail. Significantly, the alleged false and inflammatory information that was the alleged catalyst to the investigation and was included in the search warrants and presented to the grand jury occurred after the crimes had occurred. The Third Circuit has not recognized such conduct as sufficiently outrageous to implicate the doctrine and the court finds that none of the conduct was demonstrably outrageous or intolerable or even close to meeting the rigorous standards enunciated in United States v. Nolan-Cooper, 155 F.3d at 230-231; United States v. Montgomery, 336 Fed. Appx. 221 (3d Cir. 2009); United States v. Georgiou, 2009 WL 4641719 (E.D. Pa. December 7, 2009).

A search warrant for a house did not permit entry into a separate rented room within because the occupant of that room had his own expectation of privacy. State v. Fleming, 790 N.W.2d 560 (Iowa 2010):

We reject the rationale behind the community-living exception. We must consider society’s generally recognized and permitted expectations about privacy with respect to roommates living together in a single-family home. “Today it is not unusual to see a group of unrelated single persons living together and sharing expenses.” Ames Rental Prop. Ass’n v. City of Ames, 736 N.W.2d 255, 266 (Iowa 2007) (Wiggins, J., dissenting).2 We do not believe that when individuals decide on this type of living arrangement, they believe they are giving up the right to privacy in their personal space. Generally, when single, unrelated persons live together in a house, the kitchen, living room, bathroom, hallways and entryways are communal space, but the individual bedrooms remain private. As a social norm, this is fairly well established; thus, many of these individuals probably do not feel the need to clearly delineate their personal space with locks or signs. We find a reasonable expectation of privacy in an individual room rented within a single-family house.

2 At the time of the 2000 census, over 135,000 Iowans were living with nonrelatives. See Bureau of the Census, U.S. Dep’t of Commerce, Profile of General Demographic Characteristics for Iowa: 2000 (2001), available at http://www.census.gov/prod/2002pubs/c2kprof00-ia.pdf. A recent study also found that 12% of young adults age 18 to 34 have acquired a roommate because of recent economic conditions. Wendy Wang & Rich Morin, Pew Research Center, Home for the Holidays … and Every Other Day (Nov. 24, 2009), available at http://pewsocialtrends.org/pubs/748/recession-brings-many-young-adults-back-to-the-nest.

Fleming has demonstrated a legitimate expectation of privacy in his bedroom. The testimony shows Fleming rented a room within Nearman’s house for $375 a month. He was not related to Nearman and testified that he had exclusive possession and control of his room. There is no indication he gave Nearman access to his private bedroom. We hold Fleming has demonstrated a reasonable expectation of privacy in his bedroom. Therefore, a warrant was required to enter Fleming’s bedroom.

Defendant’s drug deal on the street alone did not justify a search warrant for his home. And, this is “bare bones” for Leon’s purposes. People v. Lenyoun, 402 Ill. App. 3d 787, 932 N.E.2d 63, 342 Ill. Dec. 172 (2010):

The unusual facts of the instant case fall far below the bar set by this court in Beck [which was a “close case”]. To uphold the second warrant in this case would undermine the sanctity of a citizen’s home “upon the mere commission of a crime and an affidavit of a law enforcement officer” warned against by the Beck court. Beck, 306 Ill. App. 3d at 181. More than the commission of a crime on the street while in a vehicle is required to justify opening up the defendant’s home to a search. Where the clear intent of the second warrant was to recover contraband, the sworn complaint for the search warrant must give rise to a reasonable inference that criminal activity was ongoing in the home itself. See People v. Cooke, 299 Ill. App. 3d 273, 279, 701 N.E.2d 526, 233 Ill. Dec. 676 (1998) (circuit court’s judgment suppressing evidence seized pursuant to a search warrant that resulted in charges of weapons possession by a felon and misdemeanor drug possession was reversed where confidential source observed a “‘long gun (shotgun or rifle)’” in the defendant’s residence and a handgun carried by the defendant, which made the search warrant at least partially valid). Here, as confirmed by the examination of Detective Viscioni at the good-faith hearing, nothing was ever observed connecting the defendant’s drug activity on the street to the defendant’s apartment. Nor does the State point us to any facts or circumstances set forth in the second complaint for a search warrant from which the issuing judge could independently determine probable cause that evidence of the defendant’s criminal activity was present in his apartment.

I suggest something more blunt than this court: The state’s argument makes a mockery of the good faith exception because this is, to me, a complete abdication of responsibility by the issuing magistrate and the officer who drafted the affidavit for the house. This isn’t even close. Other cases have found a sufficient nexus to the house from the addition of information in the affidavit that the house had the stash. Here, nothing.

“Close only applies in horseshoes, nuclear war, and the good faith exception.” The good faith exception to the exclusionary rule is judicial recognition of “close enough for government work.”

Defense counsel was not ineffective for not raising a Gant issue where his appeal was decided before Gant. Even so, the search was valid under inventory and not search incident. State v. Lucic, 2009 Ohio 5686, 2009 Ohio App. LEXIS 4796 (8th Dist. October 23, 2009).*

“The information provided in the four corners of the affidavit indicates that the type of criminal activity was of a protracted and continuous nature, thus, based on the nature of the crime, a judge may properly infer that there is a fair probability that evidence of wrongdoing would still be found on the premises given the totality of the circumstances. Accordingly, the trial court correctly found the information provided in the affidavit was not stale.” Smith v. Commonwealth, 323 S.W.3d 748 (Ky. App. 2009).*

Defendant’s stop was based on overpossession of pseudophedrine. When the officer got up to him, he voluntarily turned over a cup of crushed psuedo tablets. Davenport v. State, 299 S.W.3d 859 (Tex. App. — Eastland 2009).*

The officer stopped because defendant’s car was stopped with the door open into traffic, and he wanted to see what defendant was doing that kept the door open. As he approached, he saw the defendant drop a rock of crack. The stop was with PC. State v. Jones, 2009 Ohio 5701, 2009 Ohio App. LEXIS 4793 (8th Dist. October 29, 2009).*

The issue of defendant’s consent was a fact question decided against him, and his own witness could not help him at the suppression hearing on what he heard. State v. Smith, 2009 Ohio 5692, 2009 Ohio App. LEXIS 4795 (8th Dist. October 29, 2009).*

Gant is not retroactive in Kansas. State v. Karson, 44 Kan. App. 2d 306, 235 P.3d 1260 (2010):

On this issue, we are in accord with the majority of courts, which have concluded that the good-faith exception applies to searches conducted in accordance with the prevailing understanding of the Belton rule before Gant was decided. Compare McCane, 573 F.3d at 1045 (applying good-faith exception); United States v. Davis, 598 F.3d 1259 (11th Cir. 2010) (same); United States v. Allison, 637 F. Supp. 2d 657 (S.D. Iowa 2009) (same); United States v. Lopez, 2009 WL 3112127 (E.D. Ky. 2009) (unpublished opinion) (same); United States v. Schuttpelz, 2010 WL 200827 (E.D. Mich. 2010) (unpublished opinion); United States v. Lee, 2009 WL 3762404 (W.D. Mo. 2009) (unpublished opinion) (same); United States v. Gray, 2009 WL 4739740 (D. Neb. 2009) (unpublished opinion); United States v. Southerland, 2009 WL 5149263 (E.D.N.C. 2009) (unpublished opinion); United States v. Grote, 629 F. Supp. 2d 1201 (E.D. Wash. 2009) (same); People v. Henry, 184 Cal. App. 4th 1313, 110 Cal. Rptr. 3d 85 (2009) (same); Brown v. State, 24 So. 3d 671 (Fla. Dist. App. 2009) (same); Meister v. State, 912 N.E.2d 412, 418 n.1 (Ind. App. 2009) (same); State v. Baker, 229 P.3d 650 (Utah 2010) (same); State v. Riley, 154 Wash. App. 433, 225 P.3d 462 (2010) (same); State v. Dearborn, __ N.W.2d __, 2010 WL 2773536, at *6-10 (Wisc. 2010), with United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009) (declining to apply good-faith exception); United States v. Peoples, 668 F. Supp. 2d 1042 (W.D. Mich. 2009) (same); United States v. Buford, 623 F. Supp. 2d 923 (M.D. Tenn. 2009) (same); People v. McCarty, 229 P.3d 1041 (Colo. 2010) (same); United States v. Debruhl, 993 A.2d 571 (D.C. 2010) (same); Valesquez v. Commw., ___ S.W.3d ___, 2010 WL 567325, at *3 (Ky. App.) (same); People v. Mungo, ___ N.W.2d ___, 2010 WL 1461620 (Mich. App. 2010) (same); State v. Johnson, ___ S.W.3d ___, 2010 WL 2730593, at *6-13 (Mo. App. 2010) (same); State v. Harris, 154 Wash. App. 87, 100-01, 224 P.3d 830 (2010) (same). We find the majority’s approach (exemplified by the Tenth Circuit’s opinion in McCane) squarely in line with the Supreme Court’s application of the good-faith exception–and certainly with the rationale for that rule set out in Herring.

The state did not prove voluntary consent to search defendant’s college dormitory room where officers came to the door and said that they wanted to search the room and filled out a consent to search form. Commonwealth v. Carr, 458 Mass. 295, 936 N.E.2d 883 (2010), aff’g Commonwealth v. Carr, 76 Mass. App. Ct. 41, 918 N.E.2d 847 (2009).

Defendant was stopped because he was acting suspiciously in an area known for burglaries. He was arrested on an outstanding warrant. When in booking, burglary tools and gloves with embedded glass were taken from him. Officers also photographed the sole of his boots, the imprint of which was used to connect him to a burglary. The seizure of the boots to photograph them was not done under any kind of jail inventory policy, and the motion to suppress the photographs should have been granted under the Oregon Constitution. Inevitable discovery also did not apply. State v. Hartman, 238 Ore. App. 582, 243 P.3d 480 (2010)* [Note: I don’t think this case would be followed outside of Oregon].

Defendant got of out his car in an apartment building parking lot. He was encountered by the officer who asked him questions. The officer said that he noticed a bulge in defendant’s waistband, and he was going to pat defendant down. Defendant then ran away and the officer could not catch him. The officer came back and looked in the car, and he noticed the console was not sitting right, and it likely was a storage place for drugs. He asked around if anybody knew whose car this was, and nobody knew. He searched the car. The trial court held that the car was abandoned, but it wasn’t. Watts v. Commonwealth, 57 Va. App. 217, 700 S.E.2d 480 (2010):

Here, appellant neither denied ownership of the car nor relinquished physical control of it in the context of this case, and the additional circumstances also do not support a finding of abandonment. Officer Maxey testified that when he inquired whether the car belonged to appellant, appellant readily admitted rather than denied ownership.

Regarding physical control of the vehicle, Officer Maxey testified that appellant parked in the private parking lot in a fashion similar to the other cars parked there and that he exited the vehicle voluntarily and began walking away before Maxey approached and made appellant aware of his presence. No evidence established appellant left the car unlocked or left the keys behind.

The evidence failed to establish an additional element relevant to the “physical control” analysis–that appellant lacked authority to park where he did. Although Officer Maxey spoke with an unknown number of residents of the apartment building and none of them recognized the car, Officer Maxey did not ask whether any of the residents had seen or recognized appellant himself, and because Officer Maxey did not know who appellant was at that time, he was unable to ask about appellant by name. The Commonwealth also did not establish that Officer Maxey spoke with all of the building’s residents. Further, the gold vehicle bore temporary license tags, and appellant had told Officer Maxey he “just” bought the vehicle, thereby leaving open the hypothesis that appellant was authorized to park the car there and that the residents with whom Officer Maxey spoke simply were not yet able to recognize his new vehicle on sight.