Defendant was detained and his room aboard the Carnival cruise ship Elation was searched by the crew in investigating the death of his wife at sea. The federal regulations requiring reports of deaths at sea and the cruise line’s pre-existing “agreement” with the FBI to so did not make the search of his belongings a government search. The federal requirement is “investigate,” not “search.” The court distinguishes airline security cases because they are required to search. United States v. McGill, 718 F. Supp. 2d 1240 (S.D. Cal. 2010).

Defendant’s consent to search his vehicle was consensual to the FBI. In the course of the discussions leading up to the consent, he admitting to being a snitch (“worked with” a sheriff’s deputy) and offered to be one for the FBI. After that he consented. United States v. Freeman, 2010 U.S. Dist. LEXIS 24642 (S.D. Fla. March 16, 2010).*

There was probable cause for issuance of the search warrant in this case, and the good faith exception saved it in any event. United States v. Henson, 2010 U.S. Dist. LEXIS 24927 (D. Md. March 16, 2010)* (without discussion).

The affidavit for the search warrant for a doctor’s office in an investigation of prescribing drugs without seeing patients showed probable cause. Even if it didn’t, the good faith exception applied. United States v. McKinney, 695 F. Supp. 2d 182 (E.D. Pa. 2010) [Even doctors need lawyers; this one alleged that his statements to the DEA during the officer search were uncounseled.]

Danger to the community from an alleged rapist on the loose, with slight PC, was enough to justify a warrantless entry into defendant’s house to arrest him for the home invasion rape of a 94 year old woman. The police were also trying to get the potentially destructible DNA evidence that the defendant might have on his person. West v. Commonwealth, 54 Va. App. 345, 678 S.E.2d 836 (2009):

Based on an examination of the entire record before us, we find that sufficient exigent circumstances existed in this case that justify the police’s entry into appellant’s home without a warrant. Here, the officers were investigating serious crimes, involving violent sexual assault and home invasion. See Welsh, 466 U.S. at 751-52 (explaining that the seriousness of the alleged offense is an important factor). In addition, although the crimes here did not involve a firearm, the perpetrator had violently attacked a 94-year-old woman as she lay in her bed after he had used something sharp to cut the screen out of the window and enter her home. Therefore, the danger to the community from this perpetrator continued if the police did not enter his house and quickly act to restrain the suspect. Also, because appellant lived behind Mrs. M’s house, he could easily observe that the police were actively investigating the crime, which could have prompted him to destroy evidence or to flee.

Finally, maiming and the sexual assault crimes that the police were investigating potentially involved DNA evidence. Detective Snyder knew, based on his investigation that morning, that both the victim and the perpetrator had been cut or bitten during the attack and attempted rape. Detective Snyder had seen blood on the victim, indicating that blood would most likely also be found on her assailant, given the facts in this case. In addition, DNA from the victim’s saliva was also likely to be found on her assailant where she had bitten him during the attack. Similarly, the police could also expect to recover other DNA evidence from the clothing of the perpetrator, given the perpetrator maimed the victim and committed object sexual penetration of her. This type of physical evidence is easily destroyed, by simply washing a pair of pants or taking a shower. Therefore, it was critical for the officers to gain control of the situation and arrest appellant once they had probable cause to believe he committed the crimes. Otherwise, appellant could easily destroy the biological evidence of his guilt while the police proceeded to get a search or arrest warrant. See United States v. Reed, 935 F.2d 641, 643 (4th Cir. 1991) (“Exigent circumstances can arise when evidence might be destroyed before a search warrant could be obtained and police need not produce concrete proof that the evidence was on the verge of destruction.”); State v. Hardin, 359 N.W.2d 185, 189 (Iowa 1984) (“From the bloody and disheveled condition of the victim, the police reasonably expected to find … the victim’s hair in defendant’s beard, her blood on his body, and meaningful scrapings underneath his fingernails. Defendant could have extinguished much of that incriminating evidence merely by showering, an additional factor supporting the warrantless immediate arrest.”); State v. Welker, 37 Wn. App. 628, 683 P.2d 1110, 1114 (Wash. Ct. App. 1984) (noting that experienced officers know that “important ‘trace evidence,’ such as hair, fibers, bodily secretions, scratches and bite marks, is usually present in rape cases and that it is transient or short lived. If the attacker could elude capture long enough, this trace evidence could be washed or combed away and, in this case, the freshness of the incriminating scratches would be lost.”); cf. Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (finding “the attempt to secure evidence of blood-alcohol content” without a warrant was reasonable incident to Schmerber’s arrest, given the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence'”); contrast State v. Vice, 259 S.C. 30, 190 S.E.2d 510, 512 (S.C. 1972) (holding that, as the evidence proved Vice was not in his rented room, “[t]here was simply no circumstance upon which to base a conclusion that the exigencies of the situation required dispensing with the necessity of a warrant to search appellant’s room”).

(I don’t see that the evanescence of this evidence appears anywhere except in the post-hoc rationale of the police. Can’t this rationale be used in any rape case if the call to the police is immediate and the suspect is marginally identified?)

Defendant’s parole officer was looking for defendant and had a warrant for taking him. He found defendant at home and knocked and entered. The defendant’s parole consent permitted the entry. Local LEOs were there, but as backup, and the PO was the first in. Hatcher v. State, 2009 Ark. App. 481, 324 S.W.3d 366.*

Defendant was stopped for a traffic offense, and the officer could smell marijuana coming from the car. This was probable cause. In the back seat was a locked toolbox. Under the probable cause, the officer could ask for the key to the box without violating Miranda. State v. Goff, 44 Kan. App. 2d 536, 239 P.3d 467 (2010).*

Defendant’s arrest was illegal, but he made statements to other inmates 20 hours after arrest in Central Booking which were admissions. The fruit was unpoisoned by the time and space between the illegal arrest and the statements. Cox v. State, 194 Md. App. 629, 5 A.3d 730 (2010).*

Defendant was arrested as an internet traveler meeting up with a fictitious child for sex. His car was across the street from where he was arrested. The search of the car was valid because he was “in the vicinity” [obviously conflating search incident completely contrary to Gant and the automobile exception in the opinion where there’s no suggestion of PC of evidence in the car; you try to figure it out; I can’t; Gant was over a year ago, come on!]. In any event, he was arrested and the car was towed, so inevitable discovery applied to the inventory [which isn’t even discussed as to whether it was within policy; this court is notorious for making up arguments the state didn’t to help the state and then not adequately explaining them]. Fuson v. State, 2010 Ark. App. 593, 2010 Ark. App. LEXIS 632 (September 15, 2010),* rehearing denied by 2010 Ark. App. LEXIS 743 (Oct. 27, 2010), review granted by 2010 Ark. LEXIS 548 (Nov. 11, 2010).

The good faith exception does not save an arrest on an arrest warrant issued without any probable cause at all. “Judicial error” does not save the warrant. State v. Hess, 2010 WI 82, 327 Wis. 2d 524, 785 N.W.2d 568 (2010)*, affg, 2009 WI App 105, 320 Wis. 2d 600, 770 N.W.2d 769:

[*P1] … The issue presented in this case is whether the good-faith exception to the exclusionary rule permits the use of evidence obtained by a law enforcement officer in his execution of an arrest warrant that was void from the beginning because the warrant had no basis in fact or law. The State contends that suppression of evidence from a warrant issued solely as a result of judicial error would not further the purposes of the exclusionary rule.

[*P2] We conclude that the good-faith exception to the exclusionary rule does not apply to a situation in which: (1) no facts existed that would justify an arrest without a warrant; (2) the civil arrest warrant issued by a circuit judge was void ab initio 1 because (a) it did not comply with any statute authorizing the court to issue a warrant; and (b) it was not supported by an oath or affirmation; and (3) the court issued the warrant without the benefit of verification of the facts or scrutiny of the procedure to ensure that the judge acted as a detached and neutral magistrate.

Welfare check on defendant and entry into his house was justified because he hadn’t been heard from at work and he wasn’t answering his telephone. State v. Junk, 2008 Ohio 1564, 2008 Ohio App. LEXIS 1335 (6th Dist. March 31, 2008):

[*P25] Appellant also argues that an emergency exception did not apply because the police officers entered the residence pursuant to a “welfare check” instead of in response to an emergency. According to police testimony, the officers initially drove to appellant’s residence to conduct a welfare check. The officers based the check on appellant’s unexplained absence from work, the collective inability of appellant’s supervisor and the police and sheriffs departments to reach appellant by phone, and a potentially serious work-related injury. Furthermore, when the officers arrived at the scene they observed an absence of tracks in the snow to or from the house, ill-fed cats, and, most notably, an ajar backdoor and a resulting accumulation of snow inside the house. As the United States Supreme Court noted in Mincey, “‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.'” 437 U.S. at 392-393, quoting Wayne v. U.S., 115 U.S. App. D.C. 234, 318 F.2d 205, 212.

[*P26] The officers entered the residence out of concern for appellant’s safety rather than for the purpose of investigating criminal activity. As such, the welfare check evolved into an emergency exception to the Fourth Amendment, and the officers were justified in entering the residence.

Ohio Supreme Court summarily affirms Mercier, with two justices dissenting. State v. Mercier, 2008 Ohio 1429, 117 Ohio St. 3d 1253, 885 N.E.2d 942 (2008), cert. denied 129 S. Ct. 2049, 173 L. Ed. 2d 1132 (U.S. 2009).

affirming State v. Mercier, 2007 Ohio 2017, 2007 Ohio App. LEXIS 1837 (1st Dist. April 27, 2007), posted here: “The judgment of the court of appeals is affirmed on the authority of Wyoming v. Houghton (1999), 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408.”*

A mere loud argument in a motel room that the police were called to was not sufficient to justify a warrantless entry into the room. State v. Fredricks, 238 Ore. App. 349, 243 P.3d 97 (2010):

Here, the evidence in the record shows only that Walker overheard a loud argument that, in his words, was “not deescalating.” The record does not contain any other objective indicia of a “potential victim of a dangerous circumstance or a potential perpetrator of a dangerous act.” Id. Where police overhear a loud argument, unaccompanied by any sounds of “physical struggle or an indication that an act of violence ha[s] occured,” a warrantless entry into a defendant’s residence is not authorized by the emergency aid doctrine. Salisbury, 223 Ore. App. at 524. It follows that the trial court erred in denying defendant’s motion to suppress.

Judge Moylan trashes the defense Fourth Amendment arguments as being pointless and without citation of authority. Also, the violation of the knock-and-announce rule he declares “trivial” (“the Exclusionary Rule of Mapp v. Ohio does not apply to such relatively trivial breaches of the Fourth Amendment as violations of the knock-and-announce rule. Hudson v. Michigan …”) was also meaningless since the search of the house produced nothing. There was a typo in the year of the search on the inventory which was also meaningless. Woods v. State, 2010 Md. App. LEXIS 170 (November 3, 2010).*

When the officer was standing at the door, the defendant said “Come on in,” and this was consent and supported the plain view of the gun in this case. United States v. Harris, 2010 U.S. Dist. LEXIS 117373 (E.D. Mo. September 27, 2010).*

Defendant’s car’s search incident was invalid under Gant, although it occurred a year before Gant was decided. The court has previously applied Gant retroactively, and the state does not even cite it in its brief on appeal. Order denying suppression reversed. State v. Bauer, 2010 WI App 93, 327 Wis. 2d 765, 787 N.W.2d 412 (2010)*:

P11 In light of the Gant decision, the broad rule adopted in Fry, 131 Wis. 2d at 174-75, is no longer good law, much less “black-letter law.” “Belton does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.” Gant, 129 S. Ct. at 1714. While citizens may be afforded greater protections under the Wisconsin Constitution, they may not be afforded less; they are always entitled to the minimum protections afforded by the Fourth Amendment to the United States Constitution, as interpreted by the United States Supreme Court. See State v. Knapp, 2005 WI 127, P59, 285 Wis. 2d 86, 700 N.W.2d 899; … We are perplexed that the State still relies on Fry despite Bauer’s reliance on Gant. We deem the State’s failure to respond to Bauer’s Gant argument as a concession. …

Not only did the trash pull “refresh” the two month old information from the CI, it corroborated it. There was a substantial basis for issuing the search warrant. Inclusion of defendant’s non-drug criminal history was not erroneous because the issuing magistrate could consider it. State v. Storey, 8 A.3d 454 (R.I. 2010).*

Police got a call about a possible DUI, so they found the car and followed it, observing actions that supported a valid stop. State v. McFarland, 2010 Tenn. Crim. App. LEXIS 1025 (December 3, 2010).*

Defendant’s PO went to defendant’s girlfriend’s house to arrest him and did. Defendant was handcuffed and placed in a police car. The PO realized that his glasses were left inside, and he got permission to go back inside for them. Defendant was in the police car screaming at her not to let them in. The girlfriend consented to reentry and a further search because she was afraid of him, but she did not want him to hear her consent. State v. Yarbrough, 2010 Ohio 5882, 2010 Ohio App. LEXIS 4962 (2d Dist. December 3, 2010).*

Officers were surveilling a drug house, and defendant drove away. Officers followed observing a traffic offense, and he was pulled over and directed out of the car. Officers observed him put something in his mouth as he was getting out of the car and two baggies fell to the out while talking to the officer. That was a valid plain view. State v. Brock, 2010 Ohio 5885, 2010 Ohio App. LEXIS 4966 (2d Dist. December 3, 2010).*

In this capital case, Pennsylvania police received word in 1994 that defendant in Leavenworth Federal Penitentiary was a suspect in a 1988 Tennessee murder. Tennessee officers went there with a Kansas search warrant for defendant’s DNA, which they did not serve on him at the time as required by state rule 41, but they mailed him a copy. After getting his DNA, defendant confessed to the muder. In 1989, the state court of appeals held in an unpublished opinion (not in S.W.2d, that is) that failure to immediately serve a search warrant on an incarcerated suspect was not fatal to the search, and that case is followed. State v. Henretta, 325 S.W.3d 112 (Tenn. 2010)* (since the search warrant was issued and served in Kansas, why was not Kansas law applied?).

An officer received word from fireman that a particular vehicle was driving like the driver was drunk, and they gave the license number. The officer ran the license and it came back to defendant. The officer went to defendant’s address and found defendant asleep at the wheel in the driveway. The arrest was valid and the “stop” with reasonable suspicion. State v. Patterson, 2010 Tenn. Crim. App. LEXIS 821 (September 30, 2010).*

A stop for failing to move over for flashing lights of emergency vehicles on the shoulder supported defendant’s stop. While waiting for the DL information to come back, defendant’s story about his travel plans seemed suspicious. Then he started contradicting himself, raising more suspicion. The officer admitted that he was trained to converse with motorists while waiting for the DL check to come back to find criminal indicators. Defendant was asked about consenting to a search, which he did. There was a drug dog in the police car right behind him. The subsequent search was valid. State v. Cooper, 2009 Tenn. Crim. App. LEXIS 1085 (September 29, 2010).*

The fact defendant was handcuffed did not make consent invalid. “Finally, we reject Silverio’s argument that he merely acquiesced to a claim of lawful authority in allowing the search, as his assertion is not supported by the evidence. Rather, he and his sister testified that the officers never asked for his consent to search the premises. Having denied that officers requested his consent, Silverio cannot now claim that he permitted a search.” Silverio v. State, 2010 Ga. App. LEXIS 964 (October 13, 2010).*

Defendant had no objectively reasonable expectation of privacy in a shopping bag of drugs that he handed over to a co-conspirator who put it in the co-conspirator’s car when that other car was searched. He may have had a subjective expectation of privacy, but it was not one that society would recognize as reasonable. By turning it over, he assumed the risk that it would be taken from the co-conspirator. Tri Pham v. State, 324 S.W.3d 869 (Tex. App. – Houston 2010).*

Defendant was detained for shoplifting by a store’s loss prevention officer, and the police were called. When the officer arrived, he asked for consent to search the car for other stolen stuff. Defendant then admitted that he had drugs in the car. The admission alone was probable cause, and Miranda warnings were not required before asking for consent. State v. Severt, 2010 Ohio 5389, 2010 Ohio App. LEXIS 4539 (2d Dist. November 5, 2010)*:

[*P47] Initially, we note that a police officer’s request to a defendant for consent to search his vehicle does not constitute an interrogation. State v. Carver, Montgomery App. No. 21328, 2008 Ohio 4631. Thus, Miranda warnings were not necessary before the request to search was made. We are not persuaded that Officer Young’s response to Severt’s question that he wanted to search the vehicle in order to check for stolen merchandise and/or other illegal items was a statement designed to elicit an incriminating response from Severt regarding the contents of his vehicle.

[*P48] Moreover, Severt’s admission regarding the presence of contraband in his vehicle made immediately after being asked for consent supplied Officer Young with probable cause to search the vehicle. Probable cause has been defined as a “fair probability” that criminal activity is afoot. State v. George (1989), 45 Ohio St.3d 325, 544 N.E.2d 640. In the instant case, Severt’s statement that “there was some illegal items in the car,” gave Officer Young the necessary probable cause to search the vehicle for evidence of a crime. Thus, the trial court erred when it sustained Severt’s motion to suppress.

Defendant was stopped for speeding, and the officer talked to him through the window. When the defendant couldn’t produce a driver’s license, the officer directed him out of the car. Defendant was reaching for his right pocket repeatedly even when the officer told him not to. This was reasonable suspicion for a frisk for weapons. State v. Winston, 2010 Ohio 5381. 2010 Ohio App. LEXIS 4540 (2d Dist. November 5, 2010).*

Defendant was stopped for speeding, and the officer noted that he was excessively nervous during the stop. He related travel plans to a distant mall when gas was $4 a gallon, and it was a place of narcotics sales. Consented to the search of his car. Moreover, defendant was placed in the patrol car and told to hit a button to tell the officer to stop the search, an option he did not exercise. Vasquez v. State, 324 S.W.3d 912 (Tex. App.–-Houston (14th Dist.) 2010).*

Defendant was not “merely present” as in Ybarra. He was in a drug house, and there was probable cause as to everybody. United States v. Nelson, 385 Fed. Appx. 566 (7th Cir. 2010) (unpublished):

The police had probable cause to arrest Nelson at Tompkins’s home because, unlike Ybarra, the arrest here is based on more than his “mere presence” near criminal activity in a public place of lawful business. Nelson was present in a private dwelling that, with its drug paraphernalia, drug transactions, lack of furnishings and no running water, appeared to have no lawful purpose. In United States v. Pace, 898 F.2d 1218, 1240 (7th Cir. 1990), we rejected the defendants’ argument that the police lacked probable cause to arrest them where officers executing a search warrant for a home suspected to be a site for drug-dealing observed the defendants exiting rooms in which the police found large quantities of either drugs or money out in the open. We reasoned that these observations, combined with the fact that the homeowner trusted the defendants enough to have them in his home while the money and cocaine were out in the open, could lead a reasonable person to conclude that the defendants were involved in a cocaine deal with the owner. Id. Here, similarly, Tompkins appeared to trust Nelson enough not to hide his drug dealing and paraphernalia, giving Nelson ready access to that paraphernalia at a private site that appeared to be a place specifically for drug dealing. These facts supported an inference that Nelson himself might be a drug customer or dealer.

Nexus was shown to defendant’s car for a search warrant for proceeds and evidence of a bank robbery. There was probable cause as to defendant, and the car he left in his later escape from the police was seized. United States v. Sneed, 385 Fed. Appx. 551 (6th Cir. 2010):

[T]his case presents a close call as to whether Lauber’s affidavit established a nexus between Sneed’s Cadillac and evidence of the bank robbery. Yet reading the affidavit as a whole, and based on the totality of the circumstances, we conclude that it set forth sufficient facts to meet the nexus requirement. See Lapsins, 570 F.3d at 763-64 (stating the standard for evaluating whether probable cause exists). Sneed does not dispute that the information contained in Lauber’s affidavit clearly established probable cause to believe that Sneed was connected with the Sky Bank robbery. A reading of the affidavit in its entirety also supports an inference that Sneed would have kept instrumentalities from the robbery in his Cadillac. See Gunter, 551 F.3d at 481 (stating that an inference can be drawn that a suspect will keep criminal instrumentalities in his place of residence).

Defendant’s continued stop was based on reasonable suspicion, and a wait of up to 20 minutes for a drug dog to arrive was not unreasonable. United States v. Anderson, 2010 U.S. Dist. LEXIS 72039 (W.D. Mich. July 19, 2010).*

Same, 16 minutes. United States v. Curry, 2010 U.S. Dist. LEXIS 72074 (D. Md. July 16, 2010).*

In what was a “a close case,” officers came to a house with a door open and nobody answering their knocks and they went inside and found defendant asleep near drugs. It was reasonable to conclude that they overdosed, and this was a legitimate community caretaker function. State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785 N.W.2d 592 (2010).*

Defendant told the police there was a gun in the bedroom closet, and this was within the Quarles public safety exception to Miranda. That also permitted the police to go to closet and retrieve the gun before somebody else could lay hands on it, so the search of the closet was with exigent circumstances. Commonwealth v. Loadholt, 456 Mass. 411, 923 N.E.2d 1037 (2010). [Quarles is literally self-fulfilling exigent circumstances.]

Trial court’s finding of consent was supported by the record that defendant consented right after his documents were given back to him during a traffic stop. Davis v. State, 306 Ga. App. 185 (March 31, 2010).*

Grant of a suppression motion that was not appealed by the state was collateral estoppel to a probation revocation. [Apparently Georgia does not recognize that the exclusionary rule does not apply in probation revocation proceedings.] Thackston v. State, 303 Ga. App. 718, 694 S.E.2d 136 (2010).*

“If that’s what you guys want to do” in response to a request to search defendant’s car was not clear and unequivocal consent. Suppression order affirmed. State v. Mays, 2010 Ohio 3289, 2010 Ohio App. LEXIS 2789 (10th Dist. July 13, 2010).*

Defendant got out of a car that police then approached and smelled marijuana smoke and saw a blunt inside it. The search of defendant’s person was unjustified because the driver said that the blunt was his. State v. Johnson, 2009 Ohio 3436, 2009 Ohio App. LEXIS 5922 (10th Dist. July 14, 2009):

[*P20] If the issue before us were the search of the car, Moore would apply. However, no testimony at the hearing on the motion to suppress indicated that Johnson had any odor of marijuana smoke on him. At most, Johnson had been in a car while someone smoked marijuana earlier, but his presence in the car did not provide probable cause to believe he possessed marijuana at the time he was searched, especially in light of the driver’s acknowledgement that the marijuana belonged to him (the driver). There was no probable cause to believe that more marijuana or any other controlled substance was in the possession of anyone outside the car.

In a Franks analysis, the affiant-officer’s law enforcement sources may be questioned, too. United States v. Ohoro, 724 F. Supp. 2d 1191 (M.D. Ala. July 16, 2010), R&R 2010 U.S. Dist. LEXIS 71933 (M.D. Ala. April 12, 2010):

But in conducting a Franks analysis, the court will “hold the government accountable for statements made not only by the affiant but also for statements made by other government employees which were deliberately or recklessly false or misleading insofar as such statements were relied upon by the affiant in making the affidavit.” United States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997); Hart v. O’Brien, 127 F.3d 424, 449 (5th Cir. 1997) (“A governmental official violates the Fourth Amendment when he deliberately or recklessly provides false, material information for use in an affidavit in support of a search warrant, regardless of whether he signs the affidavit.”); cf. Franks, 438 U.S. at 171 (“The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.” (emphasis added)). “[A] different rule would permit government officials deliberately to keep from affiants or the court information material to the determination of probable cause and by such conduct avoid the necessity of a Franks hearing.” United States v. DeLeon, 979 F.2d 761, 764 (9th Cir. 1992).

Plaintiff was on parole, and Sprint turned over cellphone records on a demand from the police to locate plaintiff. He sued on the communications privacy statutes, § 1983, and the Fourth Amendment. His parole status permitted the state to look for him without process. There were also exigent circumstances. Sprint is entitled to summary judgment. (The criminal case is still pretrial.) Jayne v. Sprint P.C.S., 2010 U.S. Dist. LEXIS 71508 (E.D. Cal. July 14, 2010).*

The community caretaking doctrine could not justify a warrantless entry into the plaintiff’s home. The plaintiff had his kids, and his ex had come to the door to pick them up for visitation. He failed or refused to respond to the door or calls to his phone. Officers were called, and they knew of the acrimonious relationship between the plaintiff and his ex. They called for guidance and decided to enter. The entry violated the Fourth Amendment. However, the officers were entitled to qualified immunity. At the time of the officers’ actions, two circuits had arguably extended the community caretaking doctrine to warrantless entries into homes. This Circuit had addressed the issue only in a nonprecedential opinion one month prior to the officers’ actions, and it left unresolved whether a community caretaking exception might justify a warrantless search of a home. Under the circumstances, the officers were not on notice that their conduct was a clear violation of the law, and they acted reasonably in their belief that they could enter the home to check on the homeowner’s daughter. Ray v. Twp. of Warren, 626 F.3d 170 (3d Cir. 2010).*

Detaining defendant 20 minutes for a dog sniff because he was nervous and his story was unusual was unreasonable and without reasonable suspicion, so the motion to suppress is granted. United States v. Richardson, 2010 U.S. Dist. LEXIS 124076 (S.D. Tex. November 23, 2010).*

The court finds the officers’ version of the consent more credible. United States v. Kerner, 2010 U.S. Dist. LEXIS 124179 (E.D. Wis. November 23, 2010), adopting United States v. Kerner, 2010 U.S. Dist. LEXIS 124424 (E.D. Wis. October 22, 2010).*

Defendant and a companion were seen in a parking lot peering into cars and checking door handles. The officer stopped and talked to them about what they were doing and arrested them for loitering. The officer located their car and searched it. They were nowhere near the car so a search of the car was invalid. Holsey v. State, 306 Ga. App. 75, 701 S.E.2d 538 (2010).*

Defendant was stopped for a traffic offense and $4,280 was found in his pocket and a small quantity of cocaine in the console. The state failed in its burden of proving that the money was from the sale of drugs; the defendant did not have to prove anything. Williams v. State, 46 So. 3d 3 (Ala. Civ. App. 2010).

None of defendant’s 2255 hypertechnical Fourth Amendment IAC claims would have changed the outcome. The case was effectively argued in the first instance, and none of defendant’s new post-conviction arguments can carry the day. United States v. Rice, 2010 U.S. Dist. LEXIS 94511 (N.D. Ohio February 4, 2010).*

Defendant’s stop was justified because of his “severely cracked” windshield. When stopped, he was agitated and a patdown was required. Part of the delay of the stop was defendant refusing to timely produce his DL and insurance papers, and the officer put him in the patrol car. He said they were in the glove compartment, but he refused the officer permission to go in the car to look for them. The officer called for a drug dog, “continued his efforts to obtain and verify defendant’s information.” The dog arrived and sniffed the car [apparently, because the opinion doesn’t say] before the DL was produced. The dog alerted, and the trunk was opened, and a gun was found in the trunk in a diaper bag. Defendant was a felon in possession. United States v. Marzette, 2010 U.S. Dist. LEXIS 127968 (W.D. Okla. December 2, 2010).*

Officers stopped one parolee at a hotel for violating conditions of parole, and it was reasonably suspected that he was a drug dealer. Another parolee was found at the same room, so it was reasonable to suspect that he was associating with a known drug offender, and his search was based on his parole condition. United States v. Alston, 626 F.3d 397 (8th Cir. 2010).*

The search of defendant’s car was justified either by search incident or inevitable discovery by the inventory that took place after his custodial arrest and because the vehicle registration had expired and it could not be driven. United States v. Zareck, 2010 U.S. Dist. LEXIS 128372 (W.D. Pa. December 3, 2010).*

Arrest task force team searched defendant’s house without a search warrant, and it is suppressed. No theory for exigency works for the government. The protective sweep, even if valid, was excessive. United States v. Barone, 721 F. Supp. 2d 261 (S.D. N.Y. 2010)*:

In this case, because the Task Force arrest team searched Barone’s home without a warrant, the government must establish that one of the recognized exceptions to the warrant requirement applies. We therefore analyze the constitutionality of the agents’ conduct as follows. First, we assess the basis for the entry and search of Barone’s home following his arrest in the driveway. We find that, because the entry and initial search cannot be justified under either strand of the “protective sweep” doctrine — or under any other exception to the warrant requirement — that entry violated Barone’s constitutional rights. Alternatively, and assuming, arguendo, that the agents were within constitutional bounds when they entered the house and commenced a “protective sweep,” we find that Detective Arrigo’s seizure of the handgun from the bedroom closet exceeded the limited scope of protective sweeps because none of the incriminating contents of the gift bag were in “plain view.” Under either analysis, we hold that the first gun was unlawfully seized and therefore must be suppressed.

“AEDPA’s § 2254(d) does not circumvent or override Stone v. Powell.” Hillman v. Beightler, 2010 U.S. Dist. LEXIS 63564 (N.D. Ohio April 19, 2010).