Officers had exigent circumstances for an entry. [With all the laboring to find justification, the fact of “hostages” one would think would be enough.] Also, exigent circumstances were not manufactured. United States v. Flores-Castaneda, 384 Fed. Appx. 364 (5th Cir. 2010) (unpublished):*

In this case, agents testified that (1) a cell phone associated with the alien smugglers was inside the residence, (2) alien smugglers generally employ guns in their trade; (3) after the agents knocked on the door, they heard movement inside but Flores-Castaneda did not open the door for approximately two minutes, which seemed long to the officers; and (4) a man inside the residence spotted the agents, turned, and ran back into the interior of the house despite the agent’s request for the man to return to the door. The agent who entered the house believed that the man was likely running to get a gun. The district court credited this testimony and found that the officers and hostages were in imminent danger, which danger justified the warrantless entry. This finding is not clearly erroneous.

Plaintiff’s Fourth Amendment case was objectively frivolous after plaintiff’s deposition, and he was responsible for defendant’s attorney’s fees. The case is remanded for consideration of whether fees are awarded under 28 U.S.C. § 1927 or 42 U.S.C. § 1988, and whether plaintiff’s counsel is also responsible for them. Santhuff v. Seitz, 385 Fed. Appx. 939 (11th Cir. 2010) (unpublished).*

Defendant was arrested on an immigration warrant, and, while in detention, he directed his brother to retrieve a suitcase from his house. The brother opened the suitcase at home and found false ID documents. The police arrived, and the brother consented to a search and seizure with apparent authority to consent. He had an expectation of privacy in the suitcase. United States v. Al-Salibi, 385 Fed. Appx. 127 (3d Cir. 2010) (unpublished).*

The officer smelled marijuana coming from defendant’s truck pulling his travel trailer. The travel trailer was not searched based on that finding, but there were other circumstances on the totality for the search of the travel trailer, too. The government’s fall back position of inevitable discovery did not have to be considered. United States v. Ballard, 384 Fed. Appx. 358 (5th Cir. 2010) (unpublished).*

The officer’s testimony on consent is credited over the defendant’s, and the court explains its credibility determination. United States v. Stevenson, 2010 U.S. Dist. LEXIS 64377 (S.D. Ga. June 4, 2010)*:

Stevenson’s mendacious demeanor at the hearing weighs heavily against him. He was evasive, often refusing to answer straightforward questions, and he minced words when he did answer. For instance, …. Moreover, he has a track record of telling half truths. … [¶] In contrast to Stevenson’s vacillations, the officers’ testimony was consistent and clear. …

Defendant’s “reference [in his § 2255] to his trial counsel’s failure to file a motion to suppress items seized in a search (presumably referring to a search of his apartment made with his consent) is devoid of discussion as to why such a motion would have succeeded.” Thompson v. United States, 2010 U.S. Dist. LEXIS 58805 (D. R.I. June 10, 2010).*

This was a consent after a knock-and-talk, and defendant’s authorities were all cases involving apparent coercion during the talk. United States v. Perez-Saavedra, 2010 U.S. Dist. LEXIS 59217 (N.D. Iowa June 15, 2010).*

Defense counsel withdrew his motion to suppress before defendant’s guilty plea to interstate travel for sex with a minor. This was a reasonable tactical choice after defense counsel learned that the defendant was on a jail recording talking to her to change her story. Carrasco v. United States, 2010 U.S. Dist. LEXIS 58788 (E.D. Mich. June 14, 2010).*

“[I]t was objectively reasonable for agent Jackson to conclude that Awan voluntarily consented to the search of his suitcases at Mian’s residence. Awan has failed to show that the district court committed clear error in crediting Jackson’s testimony rather than Awan’s affidavit.” United States v. Awan, 384 Fed. Appx. 9 (2d Cir. 2010) (unpublished).* [Shouldn’t the question really be a finding defendant consented rather than the officer’s belief defendant consented? Aren’t they different things?]

Defendant took his computer in for repair to a CompUSA store in 2005, and the repair person found child pornography and called the police. The police came and the repair tech showed the pictures. The computer was seized and a search warrant obtained for it. The police search prior to the warrant did not exceed the scope of the private search under Walter and Jacobsen. The police later came to arrest the defendant, and his wife, who was seeking a divorce from him, consented to a search of his home office which she had equal access to. United States v. Tosti, 2010 U.S. Dist. LEXIS 122168 (N.D. Cal. November 1, 2010).*

The CI’s information was subjected to efforts to corroborate and he was brought before the issuing magistrate. His information was sufficient for probable cause. In any event, the good faith exception would save the search. United States v. Brown, 2010 U.S. Dist. LEXIS 122057 (N.D. Ill. November 17, 2010).*

Officers had an arrest warrant for one of two people living in the residence. They did a valid protective sweep to make sure they were safe on entry, and drugs in plain view were validly seized. McKibben v. State, 46 So. 3d 1224 (Fla. App. 1st DCA 2010).*

The controlled buy from the defendant two months earlier was probable cause and there was no excuse for not having obtained an arrest warrant for his arrest. Therefore, the search incident to his arrest was void, and the exclusionary rule applied. The product of the search incident was used to get a search warrant, and that too was void as derivative evidence. State v. Anderson, 2011 Ohio 22, 2011 Ohio App. LEXIS 14 (2d Dist. January 7, 2011):

[*P22] The State bears the burden of proving that it was impracticable to obtain an arrest warrant prior to the defendant’s arrest. VanNoy, at P25, citing Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218. In this case, the State offered no explanation for the lapse of two months from the time of the second controlled buy until Anderson’s arrest. Nor did the State prove that it was impracticable to have obtained an arrest warrant during that time. Therefore, Anderson’s warrantless arrest was not lawful. Anderson’s warrantless arrest not having been lawful, any evidence obtained as a result of that unlawful arrest was tainted and should have been suppressed as “fruit of the poisonous tree.” Wong Sun v. United States (1963), 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441.

. . .

[*P24] The narcotics found in Anderson’s pocket should have been suppressed because they were found as a direct result of his unlawful arrest. Similarly, the incriminating statements regarding the presence of additional narcotics in his home were made as a direct result of the unlawful arrest and should have been suppressed. See, e.g., State v. Cooper, Montgomery App. No. 20845, 2005 Ohio 5781, P28, citing New York v. Harris (1990), 495 U.S. 14, 19, 110 S.Ct. 1640, 109 L.Ed.2d 13. Finally, the search warrant for Anderson’s home having been issued primarily based upon the illegally seized narcotics from Anderson’s pocket and his incriminating statements resulting therefrom, the narcotics found in his home also should have been suppressed.

Clifford and Tyler on fire scene searches do not distinguish between protection of people and property. Here, a blood trail was also seen. United States v. Infante, 2011 U.S. Dist. LEXIS 1131 (D. Me. January 3, 2011):

Defense counsel distinguished Finnigin on grounds that, in that case, there had been a visible fire and, therefore, evidence of an ongoing process, whereas, in this case, there was none. He reasoned that whereas, in Finnigin, the existence of an ongoing process justified firefighters in entering the suspect’s house to ensure that the process (the fire) had been extinguished, in this case, firefighters only speculated, in the face of a lack of objective evidence, that any such process had transpired or was continuing to transpire in the defendant’s house.

The defendant construes First Circuit caselaw too narrowly in arguing that the emergency doctrine in no circumstance encompasses threats to property. The First Circuit itself has clarified that its list of examples of exigent circumstances “is not an exclusive compendium[.]” United States v. Martins, 413 F.3d 139, 146-47 (1st Cir. 2005). It has recognized that, pursuant to the emergency doctrine, “the police, in an emergency situation, may enter a residence without a warrant if they reasonably believe that swift action is required to safeguard life or prevent serious harm.” Id. (emphasis added). Other United States circuit courts of appeals have expressly recognized that, pursuant to the emergency doctrine, the prevention of destruction to property can justify warrantless entry of a residence. See, e.g., Hunsberger v. Wood, 570 F.3d 546, 555 (4th Cir. 2009) (emergency-doctrine inquiry is whether circumstances known to officer “would create an objectively reasonable belief that an emergency existed that required immediate entry to render assistance or prevent harm to persons or property within”) (citations and internal quotation marks omitted); Sheik-Abdi v. McClellan, 37 F.3d 1240, 1244 (7th Cir. 1994) (same). See also, e.g., United States v. Lawlor, 324 F. Supp.2d 81, 86 (D. Me. 2004) (“[W]hen policemen, firemen or other public officers are confronted with evidence which would lead a prudent and reasonable official to see a need to protect life or property, they are authorized to act on that information, even if ultimately found erroneous.”) (citation and internal punctuation omitted).

More importantly, the Supreme Court has recognized that, with respect to the firefighting function in particular, the need to enter a burning building and to remain for a reasonable period of time thereafter to determine the cause of the blaze on its face presents an exigency of sufficient proportions to justify warrantless entry. See, e.g., Michigan v. Clifford, 464 U.S. 287, 293 (1984) (“A burning building of course creates an exigency that justifies a warrantless entry by fire officials to fight the blaze. Moreover, in Tyler we held that once in the building, officials need no warrant to remain for a reasonable time to investigate the cause of the blaze after it has been extinguished. … The aftermath of a fire often presents exigencies that will not tolerate the delay necessary to obtain a warrant or to secure the owner’s consent to inspect fire-damaged premises. Because determining the cause and origin of a fire serves a compelling public interest, the warrant requirement does not apply in such cases.”) (citation, footnotes, and internal quotation marks omitted). In so holding, the Court did not deem it necessary to parse whether the danger posed was to persons, property, or both.

Of course, in this case, as defense counsel repeatedly emphasized, the defendant’s house was not ablaze. Indeed, firefighters found no indicia whatsoever of an explosion or fire. Nonetheless, I conclude that the government has met its burden of demonstrating that there was “a reasonable basis, … approximating probable cause, both to believe in the existence of [an] emergency and to associate that emergency with the area or place to be searched.” Beaudoin, 362 F.3d at 66 (footnote omitted).

Defendant was a mere bystander to the frisk of his friend that produced a knife in the friend’s pocket. The officer frisked defendant, too, but without reasonable suspicion, and a hard cylindrical object was felt in defendant’s pocket. The officer went for it thinking it might be a knife, but it was a container of meth. The frisk was invalid. State v. Lowe, 2010 UT App 156, 2010 Utah App. LEXIS 160 (June 17, 2010).

Officers reasonably believed that defendant dropped drugs during his flight from them, and his reappearance in bushes made reasonable his arrest. People v. Holman, 402 Ill. App. 3d 645, 937 N.E.2d 196 (2010).*

Police received a call from defendant’s wife that he was driving drunk, and the vehicle description and route to the high school to pick up kids was given. That was reasonable suspicion for a stop. State v. Wollam, 280 Neb. 43, 783 N.W.2d 612 (2010).*

Defendant was accused of child pornography by his own victims, and the police raced to get a search warrant for his computer which had pictures of the kids that he showed them. While the failure to attach appropriate documents violated Groh, the court refuses to suppress the search under the exclusionary rule and the good faith exception. United States v. Rosa, 626 F.3d 56 (2d Cir. 2010):

Upon examining the circumstances of the case, we conclude that the officers acted reasonably and that the exclusionary rule would serve little deterrent purpose in this case. Given the time pressures and the content of the application and the affidavit, it is only reasonable to conclude that the failure to ensure that the items to be seized were properly limited under the express terms of the warrant was simply an inadvertent error that was the product of “isolated negligence.” Herring, 129 S.Ct. at 698. There is nothing to suggest deliberateness and culpability on the officers’ part. See United States v. Riccardi, 405 F.3d 852, 863-64 (10th Cir. 2005) (applying the good faith exception to an officer’s search of a seized computer for evidence of child pornography despite the warrant’s lack of particularity). “[E]ven assuming that the rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.” Leon, 468 U.S. at 918-19; see Herring, 129 S.Ct. at 704 (“In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, we conclude that when police mistakes are the result of negligence … rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.’” (internal citations omitted)).

Rosa invokes Leon’s language that good faith may not be found where a “warrant [is] so facially deficient-i.e., in failing to particularize the place to be searched or the things to be seized,” to argue that a reasonable officer could not rely on this search warrant in good faith and that the exclusionary rule should therefore apply. He likewise relies on the Supreme Court’s denial of qualified immunity to the ATF agent in Groh as further support for applying the exclusionary rule. Not every facially deficient warrant, however, will be so defective that an officer will lack a reasonable basis for relying upon it, see Otero, 563 F.3d at 1134; Riccardi, 405 F.3d at 864, and the defective warrant in this case certainly did not have the glaring deficiencies of the itemless warrant in Groh. Moreover, the Court has made clear since Leon that while the objective inquiries underlying the good faith exception and qualified immunity are the same, see Groh, 540 U.S. at 565 n.8, application of the exclusionary rule requires the additional determination that the officers’ conduct was “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system,” Herring, 129 S.Ct. at 702. Because there is no evidence that Investigator Blake and his team of officers actually relied on the defective warrant, as opposed to their knowledge of the investigation and the contemplated limits of the town justice’s authorization, in executing the search, the requisite levels of deliberateness and culpability justifying suppression are lacking. Cf. Groh, 540 U.S. at 569 (Kennedy, J., dissenting) (“The issue in this case is whether an officer can reasonably fail to recognize a clerical error, not whether an officer who recognizes a clerical error can reasonably conclude that a defective warrant is legally valid.”); id. at 579 (Thomas, J., dissenting) (“[T]he Court does not even argue that the fact that [the agent] made a mistake in preparing the warrant was objectively unreasonable, nor could it. … The only remaining question is whether [his] failure to notice the defect was objectively unreasonable.”).

The circumstances surrounding the investigation and application for a warrant, conducted with necessary speed in the early hours of the morning, and the search, executed by a team led by the application’s affiant, demonstrate that the officers proceeded as though the limitations contemplated by the supporting documents were present in the warrant itself, and, as a result, their actions “bear none of the hallmarks of a general search.” Liu, 239 F.3d at 141. Under the facts of this case, we conclude that the benefits of deterrence do not outweigh the costs. In so holding, however, we reiterate the importance of law enforcement’s compliance with the probable cause and particularity requirements of the Fourth Amendment and emphasize that application of the exclusionary rule will vary in accordance with the facts of each case.

A Florida “felony pick-up order” issued by a police supervisor and not a judicial officer authorizes a warrantless arrest on probable cause, but it cannot permit an entry into a dwelling under Payton. Bennett v. State, 46 So. 3d 1181 (Fla. 2d DCA 2010):

In his motion to suppress and on appeal, Bennett argues that a pick-up order is not a warrant and did not authorize the officer’s entry into the premises. The State convinced the trial court that the officer’s warrantless entry was justified by section 901.19(1), Florida Statutes (2007), which provides in pertinent part as follows:

901.19 Right of officer to break into building.

(1) If a peace officer fails to gain admittance after she or he has announced her or his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, the officer may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.

We agree that the pick-up order authorized a warrantless arrest. See § 901.15(2) (authorizing officer to make warrantless arrest when “[a] felony has been committed and [the officer] reasonably believes that the person committed it”). But we cannot agree that the statute was a proper basis for the officer’s entry into the dwelling.

The United States Supreme Court has clearly held that “the Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” Payton v. New York, 445 U.S. 573, 576 (1980) (citations omitted). In reaching this result, the Supreme Court had before it New York statutes, similar to the Florida statute cited by the State and described above, which (1) allowed a warrantless arrest when a felony was committed and the officer had reasonable cause to believe it was committed by the person to be arrested, and (2) allowed an officer, announcing his office and purpose, to break into a building after being refused admittance. Id. at 578 n.6. In fact, the Supreme Court cited Florida’s statute, section 901.19, in its discussion of similar statutes enacted by some twenty-four states, id. at 598 n.46; and the Court later noted that Florida was one of only two states whose courts had found warrantless entries under such circumstances to be constitutional, id. at 600.

The defendant was a fairly regular guest at his grandmother’s house, eating meals there and often spending the night. The trial court erred in holding that there was insufficient evidence he regularly stayed there because that was not the question. State v. Alexander, 2010 Ohio 3598, 2010 Ohio App. LEXIS 3073 (8th Dist. August 5, 2010):

[*P14] The trial court did not address Alexander’s status as an overnight guest when deciding the motion to suppress; it simply concluded there was not enough evidence to demonstrate that he regularly stayed at the apartment. Although that may be true, the evidence that he was staying there on the day in question was undisputed. Accordingly, the trial court erred in ruling that he did not have standing to challenge the warrantless entry. As Alexander had standing, and the trial court ruled that there were no exigent circumstances justifying the warrantless entry, the motion to suppress should have been granted. Accordingly, the matter is remanded for a new trial.

Officers did a knock-and-talk on a hotel room, and defendant permitted them to enter, so the entry was by consent. State v. Bowling, 2010 Ohio 3595, 188 Ohio App. 3d 777 (8th Dist. August 5, 2010).*

Defendant’s car was stopped for driving with his door open and weaving, and a search for an open container was justified by the facts. State v. Burke, 2010 Ohio 3597, 188 Ohio App. 3d 777, 936 N.E.2d 1019 (8th Dist. 2010).*

Officer was sincere but mistaken in whether defendant consented. Her testimony was contrary to defendant and other officer. Defendant’s testimony also credited because he was sincere and cooperative with officers throughout. United States v. Mills, 2010 U.S. Dist. LEXIS 68853 (M.D. Fla. June 17, 2010).*

There were some inconsistencies with the search warrant affidavit with some testimony in the case, but that did not undermine the probable cause. The reference to firearms offenses shows a continuing occurrence that overcomes staleness, and the good faith exception would apply. United States v. Stout, 2010 U.S. Dist. LEXIS 68770 (N.D. Okla. July 9, 2010).*

Plaintiff failed to show that a school official listened in to a telephone call and intercepted it. Walsh v. Krantz, 386 Fed. Appx. 334 (3d Cir. 2010) (unpublished).*

The D.C. Circuit denied rehearing en banc 5-4 in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), in an order styled United States v. Jones, 08-3034, consolidated with 08-3030 which is Maynard. 625 F.3d 766 (D.C. Cir. November 22, 2010). Jones and Maynard are co-defendants. Hat tip to Courthouse News Service.

Now the conflict in the Circuits is apparent. Which case will SCOTUS take? This one or Pineda-Moreno (posted here and here (on denial of rehearing en banc))?

The police received a tip that a man with a gun used in a homicide would be at a certain location. They stopped the car when they saw it for an alleged traffic offense, and admitted that they couldn’t give a ticket. Based on an alleged furtive movement, they decided to impound the car and defendant left on foot. A later search warrant for the car was issued, and the gun was found. The motion to suppress was denied, and the jury hung at trial. Defendant later entered a conditional plea and appealed. The Kentucky Court of Appeals reversed the denial of the motion to suppress because the basis for the search warrant was the anonymous tip that defendant would show up essentially at his girlfriend’s house; this was insufficient to show probable cause as a matter of law. The motion to suppress should have been granted. Reversed. Abdul-Jalil v. Commonwealth, 324 S.W.3d 433 (Ky. App. 2010):

This fact is essentially a non-issue considering the registered owner of the car lived at the address given and the driver of the car was the car owner’s paramour. It is safe to assume that the car and driver in this case would eventually end up at the address given under normal circumstances. This tip, viewed in light of what the officer knew at the time of the impoundment, lacked enough information to give the officer a “reasonable basis for suspecting … unlawful conduct” sufficient to warrant the immediate impoundment of Abdul-Jalil’s car. J.L., 529 U.S. at 271, 120 S. Ct. at 1379.

Defense counsel does not always want to exploit a bad search. In this murder case, a search warrant was issued for defendant’s house and his car that was not on the curtilage was searched under the warrant for the house. The state conceded that the search of the car was bad. However, during the trial, it became tactically important to defense counsel to go into what was found, and it became important during cross-examination of the investigating officers because it showed inconsistencies in the investigation. “Counsel in fact highlighted the inconsistencies just described in his cross-examination of Detective McDermott and Trooper Foley, and he argued the point forcefully in closing.” It was not ineffective assistance of counsel to do so. Commonwealth v. Greineder, 458 Mass. 207, 936 N.E.2d 372 (2010).

This case underscores what experienced defense counsel will inevitably encounter. As discussed in § 45.18 of the Treatise, do you need the evidence from the illegal search to prove another point that is more beneficial? You can file a motion to suppress, but, as the trial date closes in, the defense strategy for witness examination may be evolving and may require foregoing the motion to suppress entirely. Or, you may try the motion and win it, and then unexpectedly find you need to use the evidence at trial anyway. It happens, and it has happened to me. After all, no matter how well prepared you are, a trial always includes a series of unanticipated events that requires quick thinking and judgment calls based on one’s experience. Just because you won or can win a motion to suppress doesn’t mean that you have to remain locked in to it as the trial progresses. Usually the object is winning the criminal trial, not just the motion to suppress.

The search warrant here did not have the attachments necessary when it was served, but the application for the warrant with all the attachments was reviewed by an AUSA, the USMJ, and all the officers involved were well aware of its limitations. The good faith exception applied. United States v. Allen, 625 F.3d 830 (5th Cir. 2010):

The warrant at issue clearly does not pass constitutional muster. It is undoubtedly broad because of its lack of particularity, absent the affidavit and attachments. Simply incorporating the affidavit and attachments, which stated specifically what the search entailed and what was to be seized, by reference in the warrant could have cured the deficiency of the warrant. That being said, the issue here is not the constitutional invalidity of the warrant, but whether the evidence seized pursuant to the unconstitutionally vague warrant should be suppressed. Indeed, the Supreme Court has clearly stated that suppression is “an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.” Leon, 468 U.S. at 906 (quoting Illinois v. Gates, 462 U.S. 213, 223, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)).

Even though the warrant in this case was not sufficiently particular, we conclude that the fruits of the search are admissible under the good-faith exception. See Leon, 468 U.S. at 913 (“[O]ur evaluation of the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate leads to the conclusion that such evidence should be admissible ….”). The district court correctly found that the agents involved acted in objectively reasonable good-faith in relying on the search warrant.

As the Supreme Court pointed out recently in Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 699-700, 172 L. Ed. 2d 496 (2009), the exclusionary rule is a judicially fashioned remedy whose focus is not on restoring the victim to his rightful position but on deterring police officers from knowingly violating the Constitution. Therefore, evidence should be suppressed “only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Id. at 701 (quoting Illinois v. Krull, 480 U.S. 340, 348-49, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)); see also United States v. Otero, 563 F.3d 1127 (10th Cir. 2009). Otherwise, the “good-faith” rule of Leon applies.

. . .

After the review by his co-workers, Agent Stone presented the application and warrant to the U.S. Attorney’s office for review. Only after that review was complete, did Agent Stone present the affidavit to Magistrate Judge Platt for review. Judge Platt took the time to review the affidavit and the search warrant. The agent also testified that Judge Platt signed off on language in the search warrant that states, “I am satisfied that the affidavit and any record testimony establish probable cause to believe that the person or property so described is now concealed on the person or premises above described and establish grounds for the issuance of this warrant.” It is clear from the testimony given that Magistrate Judge Platt carefully reviewed the warrant, the affidavit, and the attachment and did not just give the documents a cursory review. Furthermore, he signed the affidavit to which the specific list of items to be seized was attached.

Prior to executing the search warrant, Agent Stone gave his fellow agents, including the forensic analyst, a copy of the search warrant as well as the affidavit and attachments which specifically listed the items to be seized. Stone testified that he did this so they could review it and know what they were searching for. In fact, all of the agents and law enforcement officers who participated in the search were given the affidavit and attachments in advance of the search. There was a brief meeting before executing the warrant, but the affidavit and its attachments were all reviewed and handed to the agents prior to that meeting. Agent Stone told the court at the suppression hearing that after they began executing the warrant, they contacted the U.S. Attorney’s office several times with questions about what they could seize.

[It’s well known that I’m no fan of the good faith exception as created by Leon, but this case is one of those where I cannot disagree. There clearly was probable cause [there was in Leon, too, but the court pretended there wasn’t] and everybody involved in the search knew the limitations. The question of prejudice to the target of the search is always a relevant consideration from the warrant failures. Did the officers exceed the limits of the warrant per the attachments that were left off? No. If they did, then this would have been a far different case.]

Pro se litigant wins his search claim that the officer had no justification to search his car. Gomez v. Markley, 385 Fed. Appx. 79 (3d Cir. 2010) (unpublished)*:

Thus, if we accept the facts in the light most favorable to Gomez, we would consider that Officer Markley reasonably believed that Gomez was operating a vehicle with an expired registration and without inspection stickers and was driving with a suspended license. Furthermore Gomez had explained that the address on his license was outdated. These facts do not support a finding of probable cause to search the car. Even if we were to also accept that, at some point, Gomez began acting nervously, the facts are still not sufficient to support a finding as a matter of law that Officer Markley had probable cause to believe that there were drugs in the car before he commenced his search.

“[T]here is no constitutional requirement that a police officer issue a traffic citation; the police officer can pull a car over if he simply observes that car committing a traffic infraction.” Here, it was also reasonable for the officer to conclude that defendant’s DL was still likely suspended for a DUI. United States v. Woods, 385 Fed. Appx. 914 (11th Cir. 2010) (unpublished).*

Defendant consented to the search of his car. Alternatively, the officer had probable cause from smelling marijuana. Alternatively, the fact defendant’s car was missing a license plate required towing and an inventory under Kansas City PD procedure. United States v. Wiggins, 2010 U.S. Dist. LEXIS 65617 (W.D. Mo. June 7, 2010).*

The entry into defendant’s house to investigate a home invasion robbery by consent was neither by trickery or deception. Recognizing that “[i]f deception reaches the point of coercion, it can vitiate a consent,” the officers knew that the place was a crack house. Defendant opened a drawer to get receipts for the stolen stuff, and inside was a gun he was allegedly loaned after the robbery for protection. He was a felon and was arrested. The entry was valid. United States v. Dickerson, 2010 U.S. Dist. LEXIS 65575 (E.D. Mo. June 2, 2010).*

Officers did a knock-and-talk to effect an arrest warrant, and they asked for ID. Once the person was ID’d, they stepped in, and this was not unreasonable to secure the situation. United States v. Roberts, 612 F.3d 306 (5th Cir. 2010)*:

The facts here are even stronger than in Chrisman. The Supreme Court found that the entry to maintain control was reasonable even in the “absence of an affirmative indication that the … person might have a weapon available or might attempt to escape.” Id. at 6. (emphasis added). Here, the officers acted well within their authority in stepping into Roberts’s apartment. Not only did they need to maintain control over their suspect, but they had affirmative information indicating the presence of weapons based on information provided by the other building residents.

Defense counsel’s failure to challenge the search of defendant’s cabin on a ship hauling cocaine was not ineffective assistance because it would not have prevailed in any event. De La Rosa v. United States, 2010 U.S. Dist. LEXIS 69628 (D. P.R. July 12, 2010).*

Basic questions while preparing the paperwork of a stop did not unlawfully extend it. United States v. Hidalgo, 385 Fed. Appx. 372 (5th Cir. 2010) (unpublished).*

During a valid traffic stop, telling the driver to close the window and shut off the engine before the dog sniff was reasonable here and did not make it more of a seizure. United States v. Pina, 386 Fed. Appx. 792 (10th Cir. 2010) (unpublished)*:

Pina and Lajara contend a different result is warranted here because Owen asked Lajara to close the window and turn off the vehicle before he walked his dog around the vehicle. We disagree. While we recognize the possibility an officer’s instruction to close a window or turn off an engine could be seen as an unreasonable exercise of dominion and control in some circumstances, 4 we agree with the district court that these requests were reasonable here. As the court explained: “There’s no reason for that car to be running while this search is going on with a passenger inside the car. It would be very simple for the passenger to move over and take off[.]” (R. Vol. II at 74.) And Owen testified he instructed Lajara to close the window in order to prevent his dog-an aggressive dog-from jumping in the window and potentially causing harm to Lajara. Considering Owen’s instructions in the light of “common sense and ordinary human experience,” United States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985), they did not unreasonably or unnecessarily prolong the detention. Like the detention at issue in Patterson, Pina and Lajara’s detention was reasonable in scope and duration.

Defendant was not seized when the officer was talking to him and told him to take his hands out of his pocket. He could not show defense counsel was ineffective for not raising the issue. State v. Fortun-Cebada, 158 Wn. App. 158, 241 P.3d 800 (2010).

Hearsay during the suppression hearing was admissible. The officers had a witness’s description of the car involved in a drug store robbery, and stopped the car. Defendant never rebutted the testimony that the search of the car was by consent. Lloyd v. Commonwealth, 324 S.W.3d 384 (Ky. 2010).*

Defendant was not under arrest when he accompanied FBI agents in to talk about a crime they were investigating, and he ultimately validly confessed to sex crimes and murder. United States v. Redlightning, 624 F.3d 1090 (9th Cir. 2010).*