The Ninth Circuit denies rehearing en banc in its August 2009 Gant retroactivity-with-no-good-faith-exception case. In that case, the defendant had a cert petition pending when Gant was decided, and SCOTUS GVR’d the case. On remand, Gant was applied. The rehearing dissent says that Herring and Krull dictate the result, but it reads like the officers were held liable for a judgment for violating the Fourth Amendment. As the majority says: “Finally, the reader should bear in mind that this case deals with a defendant’s right to suppress evidence obtained by an unconstitutional search. It does not involve whether the officers who conducted the search are entitled to qualified immunity. The rights of the defendant, not those of the police, are at issue. The dissent persists in its view that discipline of police is at issue rather than individual rights. See Dissent at 4347-48 (‘Here, the panel confuses the retroactive application of a Supreme Court decision in the area of individual rights (a jury picked without racial motivation) with what is an area of societal rights (suppression of evidence to discipline police).’).” United States v. Gonzalez, 598 F.3d 1095 (9th Cir. 2010), denying rehearing en banc from 578 F.3d 1130 (9th Cir. 2009) posted here.

Assuming the police seized defendant’s apartment unlawfully, the statement he made was purged of the taint and was voluntary. United States v. Tyson, 369 Fed. Appx. 272 (2d Cir. 2010) (unpublished).*

Officers developed probable cause from the informant’s information, and that gave them reason to search the car under Ross. United States v. Garcia-Ruiz, 2010 U.S. Dist. LEXIS 22777 (E.D. Tex. March 1, 2010).*

A third party in possession of a computer case that had been passed her by the defendant had apparent authority to consent to its search. There was nothing to give the officers notice that the person in a possession had only limited authority over the computer bag. United States v. Jackson, 2010 U.S. App. LEXIS 5278 (7th Cir. March 12, 2010).*

Any appeal here of the trial court’s findings on reasonable suspicion would be frivolous under Anders. The findings of fact had support in the record. United States v. Gellinger, 367 Fed. Appx. 706 (7th Cir. 2010) (unpublished).*

A Franks hearing was not required where the defendant could not show that the omitted information would have changed the probable cause finding. The statements of two witnesses in the affidavit also corroborated each other and showed probable cause. Even so, the good faith exception would apply. United States v. Brown, 370 Fed. Appx. 18 (11th Cir. 2010) (unpublished).*

Apparently because of continuous conduct [the opinion isn’t clear], the 2007 warrant was not stale based on activities in 2004-05 in unlawfully exporting paddlefish roe. The argument of the search exceeding the scope of the warrant was not raised below, so it is reviewed for plain error, and it is not. United States v. Bemka Corp., 368 Fed. Appx. 941 (11th Cir. 2010) (unpublished).*

Under California law (Vehicle C. § 14602.6), one driving a vehicle with a suspended license is subject to having his or her vehicle impounded for up to 30 days, with a provision for administrative review and mitigation of the impoundment. The statute provides due process, and, thus, no Fourth Amendment violation. Alviso v. Sonoma County Sheriff’s Dep’t, 186 Cal. App. 4th 198, 111 Cal. Rptr. 3d 775 (3d Dist. 2010):

Our conclusion that the prompt administrative hearing provided under sections 14602.6 and 22852 satisfies the requirements of due process dispenses also with Alviso’s contention that the impoundment provisions authorize an unlawful seizure in violation of the state and federal Constitutions, which rests on the same premise–i.e., that the Constitution requires post-seizure judicial review. Alviso does not challenge the initial seizure of his or any other vehicle under section 14602.6, but “only the continued warrantless retention of the vehicle for 30 days or more without post-seizure judicial review.” Since the validity of the initial seizure is therefore not at issue and our analysis under Mathews satisfies us that the administrative hearing available on two days’ notice satisfies due process requirements for the government’s continued retention of the seized vehicle during the 30-day impoundment, the statutory scheme does not effect an unconstitutional seizure.

School search of a dog sniff of a backpack directed to be left in a classroom was not unreasonable. In re D. H., 306 S.W.3d 955 (Tex. App. — Austin 2010).*

Drunk and disorderly conduct arrest justified a search incident. State v. Branham, 2010 Ohio 795, 2010 Ohio App. LEXIS 668 (5th Dist. March 3, 2010).*

Being in a high crime area and “slowly retreating” a group is evasive action amounting to reasonable suspicion. United States v. Oglesby, 597 F.3d 891 (7th Cir. 2010).*

A call about an altercation and blood on the porch justified an emergency entry into the house. Harris v. Ford, 369 Fed. Appx. 881 (10th Cir. 2010) (unpublished).*

A 911 dispatcher who received 40 harassing telephone calls, a misdemeanor, in one night from defendant attorney directed officers to make a citizen’s arrest, and the arrest was valid under California law. He fought with the officers who came to arrest him. People v. Bloom, 185 Cal. App. 4th 1496, 111 Cal. Rptr. 3d 710 (4th Dist. 2010).*

Officers had information that a red VW Beetle was involved in a robbery, and, when they saw one, they had reasonable suspicion to stop it. United States v. Knight, 2010 U.S. Dist. LEXIS 63034 (M.D. Fla. February 4, 2010).*

The USMJ’s findings that the defendant consented to a seizure and search of his briefcase was supported by the evidence. United States v. Shafer, 608 F.3d 1056 (8th Cir. 2010).*

Defendant’s search incident for riding a bicycle without a helmet was reasonable. State v. Portillo, 314 S.W.3d 210 (Tex. App.–El Paso 2010):

A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). A search incident to an arrest permits officers to search a defendant, or areas within the defendant’s immediate control, in order to remove any weapons that the arrestee may seek to use in order to resist arrest or effect escape. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969); see McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003). An arresting officer may also search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. Chimel, 395 U.S. at 763, 89 S.Ct. at 2040; see McGee, 105 S.W.3d at 615.

Because Officer McOsker observed Portillo riding a bicycle without a helmet as required by the Dallas bicycle helmet ordinance, he was permitted to arrest Portillo for the ordinance violation and search Portillo incident to the arrest. Chimel, 395 U.S. at 763, 89 S.Ct. at 2040; see McGee, 105 S.W.3d at 615. Consequently, we find that the trial court clearly abused its discretion when it suppressed the evidence, here cocaine, which was the fruit of a lawful search conducted incident to a warrantless arrest for violation of a valid ordinance. See Wood, 828 S.W.2d at 474; see also Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). Accordingly, we sustain the State’s sole issue.

Incredible. I’m sure there was evidence of that offense to be found.

A juvenile accused of a forced sex offense did not have a right to have an attorney or his parents present for execution of a search warrant for his DNA because it was not a “critical stage” of the proceedings. Also, the affidavit for the search warrant did not omit any material facts to the finding of probable cause. State v. Poitra, 2010 ND 137, 785 N.W.2d 225 (N.D. 2010):

[*P25] In general, a criminal defendant does not have a constitutional right to an attorney before submitting DNA during the execution of a search warrant. See, e.g., McClain v. State, 410 N.E.2d 1297, 1303 (Ind. 1980) (no right to counsel during execution of a search warrant for internal body secretions, swab emission test does not involve attempts to get testimony or assertions and is not a critical stage of the proceedings); State v. Delisle, 630 A.2d 767 (N.H. 1993) (a defendant does not have a right to an attorney prior to giving blood samples pursuant to a warrant); Hale v. State, 220 S.W.3d 180 (Tex. App. 2007) (no right to counsel when taking a saliva sample for DNA testing because it was not a critical stage of the proceedings). Poitra fails to cite any authority granting juveniles greater protections in executing a search warrant than an adult criminal defendant receives.

[*P26] Unlike cases where a juvenile must consent or refuse to take a chemical test, a juvenile does not have a choice whether to provide evidence when a search warrant has been issued. …

A dog sniff of a postal package in Pittsburgh was conducted after Postal Inspectors there were alerted the package was coming by Postal Inspectors in Los Angeles, with a fictitious return address. A search warrant was prepared for the package, and then the address where the package was going. The SW was issued with probable cause, and, in any event, the good faith exception would apply. United States v. Morris, 2010 U.S. Dist. LEXIS 57661 (W.D. Pa. June 10, 2010).*

Defense counsel could not be ineffective for not challenging a search where there the defendant clearly had no standing. Hairston v. State, 314 S.W.3d 356 (Mo. App. 2010).*

Defendant was stopped for a noisy exhaust, but the officer found that he had a suspended license. His car was subject to towing and inventory even under Gant decided shortly after the arrest but before the suppression hearing. Marijuana was seen in plain view. State v. Swinderman, 2010 Ohio 2659, 2010 Ohio App. LEXIS 2182 (5th Dist. June 10, 2010).*

The video of defendant’s driving shows cause for his stop for DUI. State v. Soller, 2010 Tenn. Crim. App. LEXIS 471 (June 9, 2010).*

Defendant was allegedly drug dealing out of a Hurricane Katrina damaged and abandoned building with no windows or doors, and a neighbor complained to the police. He had no expectation of privacy against a police entry. State v. Patterson, 38 So. 3d 1131 (La. App. 4th Cir. 2010);* State v. Carter, 38 So. 3d 1092 (La. App. 4th Cir. 2010).*

Since defendant’s unpursued motion to suppress was meritless, defense counsel cannot be ineffective assistance of counsel. Burgess v. United States, 2010 U.S. Dist. LEXIS 48464 (S.D. Ohio April 22, 2010).*

Defendant made a sufficient showing of a Randolph veto of consent issue to get a hearing. United States v. Penlton, 2010 U.S. Dist. LEXIS 48175 (W.D. Wis. April 16, 2010).*

Plaintiff-intervener convict could not intervene in a civil action filed by his stepfather challenging subpoenas for records. His claim is barred by Heck v. Humphrey, aside from being untimely. Booker v. Dominion Va. Power, 2010 U.S. Dist. LEXIS 29076 (E.D. Va. March 26, 2010).*

Encounter with defendant in his yard was not a “stop” for Terry purposes, no matter what the officer called it in his own reports. There was no show of force or aggression. The officers did not block the driveway, and their lights were not on. United States v. Sullivan, 2010 U.S. Dist. LEXIS 28966 (W.D. Ky. March 24, 2010).*

Search incident of a car for a driver’s license infraction was unjustified under Gant. The state’s effort to distinguish Gant as involving one suspect and here two is rejected (Belton was 4-1). There was no reason to believe they posed a threat to the officer, as he admitted on the stand. State v. Grubb, 2010 Ohio 1265, 186 Ohio App. 3d 744, 930 N.E.2d 380 (3d Dist. 2010).*

Removing defendant’s wallet from his pocket was reasonable were there was reasonable suspicion. It is possible a knife could have been hidden in the wallet. Currency sticking out was in plain view and there was reason to seize it where defendant was a suspect in a robbery. United States v. Muhammad, 604 F.3d 1022 (8th Cir. 2010).*

Search warrant did not list items to be seized, but the affidavit did, and the warrant here referred to the affidavit. Even so, the good faith exception would save this search. State v. Maxwell, 38 So. 3d 1086 (La. App. 1st Cir. 2010).*

The stop of defendant’s car was without probable cause, despite his apparent lack of standing to challenge the search of the car. The CI gave hearsay information to him, and there was no observation by the officer of any criminality. People v Voner, 2010 NY Slip Op 5803, 74 A.D.3d 1371, 904 N.Y.S.2d 225 (2d Dept. 2010):

Here, even assuming that McMahon’s testimony that the confidential informant had supplied information leading to prior arrests was sufficient, standing alone, to establish the informant’s reliability …, the basis-of-knowledge prong of the Aguilar-Spinelli test was not satisfied. The informant never indicated to McMahon that the information he was supplying was based upon his personal knowledge or observations. Furthermore, the information was not so highly detailed, and McMahon’s observations were not sufficiently corroborative of criminal activity, to support a reasonable belief that the informant’s tip must have been based on firsthand observation …. McMahon first saw the defendant’s vehicle approximately half a mile away from the reservation where the cigarettes had allegedly been purchased, and the thick black plastic bags used to transport the cigarettes were not of such a distinctive character that a trained police officer could readily determine that they contained untaxed cigarettes.

One police officer told another that four men were smoking marijuana at a bus stop. Another officer went to the bus stop and smelled marijuana. It could not be pinpointed to a particular man. This was less like Pringle and more like Ybarra, and searching the defendant was without probable cause. State v. Johnson, 2010 Ohio 840, 186 Ohio App. 3d 648, 929 N.E.2d 1094 (2d Dist. 2010):

[*P25] Defendant’s presence at the location where the odor of marijuana was in the air implicated him in the suspected crime, if only by complicity, on the view that smoking marijuana is an act which is visibly criminal. However, and unlike the three men in Pringle who were each implicated directly in possession of drugs that police saw in their car, Defendant’s complicity did not create an implication that he actually possessed drugs. Also unlike the men in Pringle who shared the same car, Defendant and the other men who were standing at the public bus stop at Fourth and Main Streets in downtown Dayton were not engaged in conduct from which a common enterprise is reasonably inferred. Finally, and unlike in Moore, where the defendant was in a car that smelled of marijuana and smelled of marijuana himself, Defendant and the other men were in a public space. A strong odor of marijuana was in the open air, but that fact did not create probable cause to believe that Defendant was in possession of marijuana, absent some additional indication which the trial court found was lacking. Defendant’s situation was more akin to that of the bar patrons in Ybarra, in which the Supreme Court held that mere propinquity to a crime is insufficient to create probable cause to believe the accused engaged in it. Therefore, probable cause to search Defendant’s person for the drugs that he moved to suppress was lacking, and the trial court erred when it denied Defendant’s motion to suppress the evidence that was seized from his person. Terry.

Defendant’s car was stopped for a traffic violation, and he was shoving something in his pants. The officer had him get out of the car, and a bag of marijuana fell out. The stop and removal from the car were legal. State v. Courtney, 2010 Ohio 774, 2010 Ohio App. LEXIS 630 (8th Dist. March 4, 2010).*

In a homicide investigation, officers also got a search warrant. They found Post-It Notes around the house which they seized because they related to the divorce proceedings between defendant and the victim. The plain view doctrine permitted their seizure, and “immediately apparent” means logically related to the subject of the investigation. Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 930 N.E.2d 91 (2010):

Although the warrant for the defendant’s home did not authorize the officers to search for or seize documents or writings, it would be unrealistic to require officers to ignore what is immediately in front of them. See, e.g., United States v. Crouch, 648 F.2d 932, 933 (4th Cir.), cert. denied, 454 U.S. 952 (1981) (during search pursuant to warrant that did not authorize search for documents or writings, officers discovered incriminating letters; court attached no significance to “the fact that some cursory reading of the letters was necessary in order to establish their nature”); United States v. Ochs, 595 F.2d 1247, 1257 n.8 (2d Cir.), cert. denied, 444 U.S. 955 (1979) (“A number of courts … have upheld without much discussion the seizure of documents during an otherwise valid search as in ‘plain view’ notwithstanding the fact that some perusal, generally fairly brief, of the documents was clearly necessary in order for the police to perceive the relevance of the document to crime”). See also 2 W.R. LaFave, Search and Seizure § 4.11(d), at 793 (4th ed. 2004).

The defendant further argues that the plain view doctrine was inapplicable here because the letter and the notes did not have an immediately apparent incriminating character, the third requirement of the doctrine. See D’Amour, 428 Mass. at 730. Trooper Frydryk, who was in charge of videotaping the crime scene, was the first to see the letter on the kitchen counter. He was able to view the phrases “Howard Safford,” “Joe has,” “verbally and emotionally,” “divorce,” and “take everything.” The trooper knew Safford to be an assistant district attorney, knew the victim had died in the house, and knew the victim’s first name was Joseph (or Joe). Additionally, the officers executing the search warrant for 56 Bear Hole Road knew that the victim and the defendant were in the midst of an impending divorce. While we do not agree with the motion judge that the incriminating nature of the letter was “immediately apparent,” in light of what was known at the time, the trooper could permissibly conclude that the letter was “plausibly related … to criminal activity of which [he was] already aware.” Commonwealth v. Bond, 375 Mass. 201, 206 (1978) (“[m]ere evidence” may be seized under plain view doctrine only if police recognize plausible connection to criminal activity known to them). See D’Amour, 428 Mass. at 731; Commonwealth v. Accaputo, 380 Mass. 435, 447-448 (1980).

Oregon explains Randolph, Matlock, and Rodriguez in detail where the objector was removed from the scene. His objection continues. State v. Caster, 236 Ore. App. 214, 234 P.3d 1087 (2010):

Randolph is best viewed not as an “exception” to co-occupant consent cases like Matlock and Rodriguez, but rather as an illustration of the ordinary rule that warrantless searches are unauthorized. That is, Randolph is properly understood as a case in which the Court was unable to find, as it had in Matlock and Rodriguez, an exception to the warrant requirement. In determining whether the circumstances merited a departure from the ordinary rule, the Court explained that the “constant element” in assessing whether a warrantless entry is reasonable based on the co-occupant’s consent is “the great significance given to widely shared social expectations.” 547 US at 111. The Court ultimately concluded that police cannot reasonably rely on a co-occupant’s consent in the face of an express, “at-the-door” objection, because there is ordinarily “no societal understanding of superior and inferior” as between the rights of co-occupants. 547 US at 114. Such is the case, according to the Court, “whether the issue is the color of the curtains or invitations to outsiders.” Id.

Thus, the question before us is whether some different societal understanding obtains once the objecting tenant has been arrested. That is, does it somehow become “reasonable” under the Fourth Amendment for police to ignore a tenant’s earlier objection once that tenant is arrested? We are not persuaded that it does.

Defendant’s general motion to suppress citing only the Fourth Amendment and the state constitution with an assertion it appeared there was no probable cause was not sufficient to put the state and court on notice as to the issue to be heard in this case, and the memorandum of law filed the day of the hearing in response to the motion to strike to deny as untimely did not add anything of substance to the motion. Otherwise, there was no clear error. State v. Roth, 235 Ore. App. 441, 234 P.3d 1019 (2010):

On October 16, 2007, defendant filed a motion to suppress “all evidence that resulted from the search of the defendant’s purse.” In the “points and authorities” section of the motion, defendant relied on the “Oregon Constitution, Article I, Section 9 and all relevant caselaw pertaining thereto. United States Constitution, Amendments IV, V and XIV and all relevant caselaw pertaining thereto.” Defendant’s trial attorney filed an affidavit in support of the motion to suppress that included the pertinent facts set forth above, and the following assertion that, “I have read the police reports in this matter and believe that it is questionable whether [the officer] had reasonable suspicion or probable cause to search [defendant] or her purse.”

Being ordered out of the car at gun point was a seizure. “Again, Reinhart gave no indication that he was armed or dangerous. Nevertheless, with the laser sight of Deputy Coney’s gun prominently fixed on him, Reinhart was ordered first to kneel with his hands behind his head for a period and then lie face down on the ground for an additional period of time while waiting for the second police officer to arrive. Reinhart was then handcuffed before he was searched twice. We believe that a reasonable person in Reinhart’s position would not have believed himself to be free to leave but instead would have considered his freedom of movement to have been restrained to the degree associated with a formal arrest. … [¶] While we are mindful of the significant danger faced by police officers during traffic stops, we must balance the interests of officer safety with the privacy interests protected by the Fourth Amendment in requiring law enforcement to use the least intrusive means necessary to investigate a traffic stop.” Reinhart v. State, 2010 Ind. App. LEXIS 1207 (July 9, 2010).* (The only thing that makes no sense here is the state’s argument that this was not a seizure.).

An individual in a house made statements that supported the need for a protective sweep (“[I]t wasn’t us with the gun, it wasn’t us with the gun.”), and it was valid under Buie. Taylor v. State, 929 N.E.2d 913 (Ind. App. 2010).*

On rehearing from Bush v. State, 925 N.E.2d 787 (Ind. App. 2010) (not precedental), the state was found to have changed its original theory, not the defendant. The state waived Gant. Bush v. State, 929 N.E.2d 897 (Ind. App. 2010)*:

In its petition for rehearing, the State correctly points out that this court cannot reverse on issues raised sua sponte unless the grounds for reversal constitute fundamental error. …. However, given the parties’ arguments as discussed above, we do not regard the reasonableness of Bush’s detention and the canine sniff of his automobile as an issue raised sua sponte. The State, by not responding in its brief to Bush’s contentions regarding Gant and instead focusing its Fourth Amendment argument on the canine sniff as the basis for the warrantless search, impliedly consented to litigating this case on the grounds addressed in our original opinion. It is too late for the State to switch course and insist the warrantless search issue is properly framed only in terms of whether the search was valid under Gant.1 ….

1 The State’s petition for rehearing does not argue the search of Bush’s automobile was valid under Gant.

The fact the consenter had permission to use the defendant’s bathroom did not give the consenter apparent authority to consent to a search of the bathroom. State v. Hansen, 2010 Ida. App. LEXIS 60 (July 15, 2010):

The State’s showing that Kirsch had permission to use bathroom facilities in Hansen’s house does not establish that he had “joint access or control for most purposes.” The evidence does not even show whether Kirsch had a key and could enter whenever he wished or could enter only when a resident was at home. There was no evidence that the residents had expressly or impliedly authorized Kirsch to admit others into the house. Kirsch’s mere permission to use the bathroom in the home did not, in our view, confer “the right to permit inspection” of the bathroom such that inhabitants of the home had assumed that risk.

.

Report to the police of men with a gun was specific and corroborated when they were seen, justifying the stop. State v. Deluca, 40 So. 3d 120 (Fla. 1st DCA July 16, 2010).*

The passenger was nervous and sitting on his hand and wouldn’t look at the officer. This justified a pat-frisk of the passenger for weapons. Commonwealth v. Hernandez, 77 Mass. App. Ct. 259, 929 N.E.2d 992 (2010).*

Officers went to defendant’s place based on an informant’s statement he was there dealing drugs and had an outstanding warrant. It was actually a commitment order for unpaid fines. When officers got there and knocked and announced, they heard running sounds inside. They could reasonably believe that the defendant was running to destroy evidence. State v. Robinson, 2010 WI 80, 327 Wis. 2d 302, 768 N.W.2d 463 (July 15, 2010).

Defense counsel was not ineffective for not challenging that search on the ground the officers manufactured exigent circumstances where it was clear there were exigent circumstances. State v. Artic, 2010 WI 83, 327 Wis. 2d 392, 768 N.W.2d 430 (2010), certiorari denied 2010 U.S. LEXIS 9126 (U.S., Nov. 29, 2010)*

Officers had a search warrant for defendant’s house, and found him 1½ blocks away. His stop and search was justified by the automobile exception. When the officers approached the car, they could smell burning marijuana. Commonwealth v. Velez, 77 Mass. App. Ct. 270, 929 N.E.2d 984 (2010).*

Defendant consented to the taking of his DNA in a sex crime prosecution. There was a court order for taking the DNA in the event he refused, but he never knew about it until later. The validity of the court order is thus irrelevant. State v. Morgan, 34 So. 3d 1127 (La. App. 2d Cir. 2010).*

The officer was in defendant’s apartment by consent. A woman appeared from a back room and retreated inside. The officer could follow, and evidence was found in a valid plain view. In appellate review of a motion to suppress, the court can consider the trial evidence as well. State v. Gipson, 34 So. 3d 1090 (La. App. 2d Cir. 2010).