The officers entering eight seconds after announcing defendant’s home entered illegally because there was no denial or constructive denial of entry. The knock-and-announce rule serves important interests, and the search is suppressed. [Hudson was not cited. Here, one officer had a tape recorder on his person, and eight seconds was just not enough.] State v. Gonzales, 2010 NMCA 23, 147 N.M. 735, 228 P.3d 519 (2009), Released for Publication February 23, 2010:

[*21] We are unwilling to accept the State’s generic assertion that drugs could be destroyed as justifying the officers’ failure to comply with the knock and announce rule. See State v. Ortega, 117 N.M. 160, 162-63, 870 P.2d 122, 124-25 (1994) (holding that “the mere potential for destruction of evidence does not in itself give rise to any exigency,” but that if the officer has good reason, based on “particular circumstances,” that suspects will destroy evidence, that evidence will excuse compliance with the knock and announce rule).

[*22] The knock and announce rule serves a number of purposes, including preventing the needless destruction of property and protecting “the sanctity of the home and individual privacy.” Attaway, 117 N.M. at 147, 870 P.2d at 109. Both of these purposes were frustrated in this case without justification. The police did not knock, did not wait, and did not provide Defendant with any realistic opportunity to allow them to enter. In the absence of a showing of exigency, we conclude that the law enforcement officers violated the knock and announce rule, such that all evidence stemming therefrom was properly suppressed. Accordingly, we affirm.

[Having briefed knock-and-announce for SCOTUS three times, I am a firm believer in the importance of the privacy rights in the home the knock-and-announce rule protects. Some state courts will reject Hudson on state grounds in the right case, and a bad enough fact situation could still prevail in a federal court. Hudson was not a bad fact situation for the state.]

Violation of constitutional no-knock requirement by SWAT team deciding on its own to enter without knocking without sufficient legal justification required suppression of the search under the Indiana Constitution. Lacey v. State, 931 N.E.2d 378 (Ind. App. 2010):

Here, no circumstances bearing upon officer safety or escape arose after the issuance of the warrant and before its execution. There has been no allegation of furtive movement, attempted flight, or destruction of evidence. Under the totality of the circumstances, we find the unilateral decision to dispense with the knock-and-announce rule unreasonable under Article 1, Section 11 of the Indiana Constitution where the relevant facts could have been presented in application for a “no-knock” warrant.

Accordingly, we must decide whether the evidence obtained in the search should be excluded. The State urges that we follow Hudson v. Michigan, 547 U.S. 586, 590 (2006),which discussed the appropriateness of the exclusionary rule where a “no-knock” entry concededly violated the Fourth Amendment. At the outset, the Court observed that ”indiscriminate application of the exclusionary rule” had been rejected, and it was applicable only when its deterrence benefits outweigh its substantial social costs. Id. at 591. …

. . .

In this case, the criminal histories of the targeted individuals were known well in advance of the execution of the search warrant. Nonetheless, the officer seeking the warrant did not advise a neutral judicial officer of the circumstances that would arguably have supported a “no-knock” authorization. Rather, the critical decision was made by a person charged with a duty of law enforcement.

Further, it was admittedly routine and systemic for the Emergency Service Team officers, as opposed to a neutral magistrate, to decide to serve warrants in a “no-knock” manner. Although police officers at times confront emerging exigent circumstances, to which an emergency response is appropriate under the Indiana Constitution, the instant situation did not involve exigencies arising when there was no opportunity to seek judicial sanction for a “no-knock” entry. As Sergeant Strausborger explained, “no-knock” entries into a residence increase the potential for violence against police officers due to misapprehension of circumstances by the occupants. In light of our Indiana Supreme Court’s pronouncement in Holder, acknowledging that intrusions based upon security concerns will be tolerated only “so long as they are reasonably aimed toward those concerns,” 847 N.E.2d at 940, we believe that such entries should remain rare and, where practicable, subject to review by a detached and neutral judicial officer.

And Wilkins v. State, 2010 Ind. App. LEXIS 1364 (July 27, 2010) holds blanket no-knock is unconstitutional:

Indiana Code Section 35-33-5-7 does not constitute a blanket prohibition upon no-knock warrants in this State. The “no-knock” execution of the search warrant was supported by reasonable suspicion and thus no Fourth Amendment violation is established. However, under the totality of the circumstances, the “no-knock” execution was unreasonable under the Indiana Constitution. We find suppression of the evidence to be an appropriate remedy in the particular circumstances of this case.

Defendant’s cooperation during the stop and search of his car showed that it was by consent. The officer told the defendant that his consent could be withdrawn. He also had experience with law enforcement in the past, and it was apparent that the defendant thought that the drugs were so well hidden that they would not be found. United States v. McCoy, 2010 U.S. Dist. LEXIS 48930 (N.D. Miss. April 21, 2010).*

One defendant was removed from the car and searched because of furtive movements, and the car was searched too. Having found nothing on him, the officer searched the other, but there was no articulable reasonable suspicion as to him. The government’s argument as to inevitable discovery fails as to the second defendant because there was no reason to believe that the vehicle had to be impounded until the second was searched. United States v. Fields, 2010 U.S. Dist. LEXIS 48777 (S.D. Ohio April 23, 2010).*

Third party consent to seize and search defendant’s computer for child porn by one with common authority over it was valid. A search warrant was thus not required. State v. Ramage, 2010 WI App 77, 325 Wis. 2d 483, 784 N.W.2d 746 (2010).*

Officers received a call about a car partially submerged in a creek and responded. When the officer arrived, he saw the vehicle in the water and another car parked near it. The officer engaged in chit-chat with the driver of the other car about what he knew about it, never considering him a suspect in anything, but it became apparent he was under the influence. Defendant was not detained until reasonable suspicion developed. State v. McGinnis, 290 Kan. 547, 233 P.3d 246 (2010)*:

Deputy Clark did not activate his vehicle emergency lights or sirens. Nor did he consider McGinnis a suspect. He got out to ask if McGinnis knew anything about the partially submerged vehicle. When walking by McGinnis’ car, Clark saw through the window a 12-pack of Natural Light Beer on the front passenger seat. Clark could not tell if any cans were open. He did not suspect McGinnis of intoxication because he had not witnessed any traffic infractions while following McGinnis there.

When Deputy Clark approached McGinnis near the creek bank, he said “Hi” and asked how McGinnis was doing. He also asked if McGinnis knew anything about the partially submerged vehicle. McGinnis denied having knowledge of the vehicle and indicated that he was looking for a fishing spot, which is common in the area. During this brief encounter, Deputy Clark noticed three indicia of possible intoxication: McGinnis’ slurred speech, bloodshot eyes, and an odor of alcohol coming from him. According to Clark, at this point he began an investigation of driving under the influence of alcohol (DUI).

McGinnis admitted to consuming two beers and consented to a field sobriety test. …

Traffic stop led to officer smelling marijuana, and that created probable cause. United States v. Johnson, 2010 U.S. Dist. LEXIS 54868 (M.D. Ala. May 7, 2010),* adopted 2010 U.S. Dist. LEXIS 54867 (M.D. Ala. June 4, 2010).*

Defendant’s vehicle was lawfully impounded after a DUI arrest, and the officer conducted an inventory of the car finding drugs in the trunk. It was a lawful inventory. People v. Shafrir, 183 Cal. App. 4th 1238, 107 Cal. Rptr. 3d 721 (1st Dist. March 29, 2010), Publication Status of this Document has been Changed by the Court from Unpublished to Published April 14, 2010.*

There was insufficient evidence defendant was in the place to be entered, of another person, to justify this entry. United States v. Luckey, 701 F. Supp. 2d 464 (S.D. N.Y. 2009):

Thus, a threshold question must be answered when law enforcement enters a home solely on the power of an arrest warrant: Did the officers know or have reason to know that they were entering a home belonging to a third party but not the arrestee? If the answer is yes, then Steagald controls. The question of whether the officers knew or had reason to know that they were entering the home of a person not named in the arrest warrant is another way of approaching the first prong of the test stated in Lauter: Where the officers had no reasonable basis to believe they were entering an arrestee’s residence, Steagald requires a search warrant, consent, or exigent circumstances. Of course “[w]hat a citizen is ‘assured by the Fourth Amendment … is not that no government search of his house will occur’ in the absence of a warrant or an applicable exception to the warrant requirement, ‘but that no such search will occur that is ‘unreasonable.”” 83

83 Lovelock, 170 F.3d at 343-44 (quoting Illinois v. Rodriguez, 497 U.S. 177, 183 (1990)).

. . .

In the totality of circumstances, the officers had reason to know they were entering the home of a person not named in the arrest warrant. Under Steagald, to enter apartment 1R, the officers needed a search warrant, consent, or exigent circumstances, all of which they lacked. Even if Steagald does not control, the information possessed by the officers was insufficient to support a reasonable belief that Lee was residing in apartment 1R or there at the time of the entry.

IV. CONCLUSION

The Court is acutely aware that crime and evidence of crime is often concealed within homes, as the facts of this case seem to illustrate. Illegal activity within homes is of “grave concern to society, and the law allows such crime to be reached on proper showing.” “The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a police [officer] or Government enforcement agent.” I have no doubt the officers here were acting in good faith to apprehend a fugitive and to enforce the laws that help to ensure a safe and orderly society. Law enforcement must, however, conduct itself in accord with the commands of the Constitution.

Violation of the Louisiana nighttime search rule was not necessarily subject to suppression of evidence. State v. Brown from LA5th is followed. State v. Lewis, 33 So. 3d 1046 (La. App. 3d Cir. 2010).*

The search of defendant’s house occurring by consent within 15-20 minutes of his unlawful stop was not sufficiently attenuated. The three Brown v. Illinois factors ((1) the temporal proximity of the illegal entry and the consent, (2) the presence of intervening circumstances, and, particularly, (3) the purpose and flagrancy of the official misconduct) favored the defendant. The government’s alternative argument that the defendant was subject to a parole search required the officers have knowledge of the search term, and they did not. The search is suppressed. United States v. Austin, 702 F. Supp. 2d 1021 (N.D. Ill. 2010).*

Technology and its impact on the Fourth Amendment Criminal Procedure, By Timothy P. O’Neill in the Chicago Law Bulletin:

Let’s set the Wayback Machine to 1983. You are in a law school classroom and are discussing a brand new U.S. Supreme Court case, U.S. v. Knotts, 460 U.S. 276 (1983). The professor says, “This case holds that police use of a beeper to track a suspect’s car to a drug lab is not a search under the Fourth Amendment. In order for police activity to constitute a search, it must intrude on the person’s reasonable expectation of privacy. Here the car was always on public streets; theoretically, any person could have viewed the suspect’s movements. Use of the beeper only aided the officer’s ability to track those public movements. Because the police use of the beeper was not a search, the officer did not need either a warrant or probable cause to use it.”

The professor then goes on. “But let’s imagine in the distant future that technology has given police a device they can use to track a car’s movements 24 hours a day and they use it for an entire month to track a suspect. Could you argue that this is qualitatively different from the discrete trip in Knotts and that this is a search? Or should Knotts control?”

Obviously, the “distant future” is now. …

…

There is a growing body of academic literature calling for a new test for what constitutes a search under the Fourth Amendment. See, e.g., Daniel J. Solove, “Fourth Amendment Pragmatism,” __ Boston College Law Review __ (2010) (forthcoming); Jed Rubenfeld, “The End of Privacy,” 61 Stanford Law Review 101 (2008); Timothy P. O’Neill, “Beyond Privacy, Beyond Probable Cause, Beyond the Fourth Amendment: New Strategies for Fighting Pretext Arrests,” 69 University of Colorado Law Review 693 (1998). In Daniel Solove’s words “The focus should not be on which government activities invade privacy; it should be on which government activities should be regulated.”

The GPS issue is merely the first in what promises to be a long line of cases dealing with the Fourth Amendment implications of new technology. Defense lawyers must be prepared to look beyond mere “privacy” concerns when arguing these issues.

Defendant’s “belligerent and assertive conduct” showed consent was voluntary on the totality. United States v. Claus, 2010 U.S. Dist. LEXIS 93391 (W.D. Pa. September 8, 2010):

He demonstrably knew how to invoke his right to refuse consent (and had previously done so), yet he ultimately made a knowing and informed decision to sign a written consent form and permit a search. Indeed, Dunlevy and Claus negotiated a number of the terms under which the search would be conducted. Claus’ belligerent and assertive conduct throughout the incident demonstrated that his consent was not the product of intimidation by officers. The Court recognizes that the actions of the officers in this case were somewhat aggressive and that they certainly attempted to influence and persuade Claus to obtain his consent.

The San Francisco strip search case on remand: Bull v. City and County of San Francisco, 2010 U.S. Dist. LEXIS 93493 (N.D. Cal. September 8, 2010), on remand from Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc):

Defendants are entitled to summary judgment as to those members of the class who were searched once pursuant to the Classification Search Policy and then placed into safety cells. With the exception of that caveat, the Court’s prior summary judgment ruling on the Safety Cell Search Policy stands.

Defendant’s 2255 claim that the police officer took his pulse during the traffic stop has no support in the record from 11 years ago, and it is insufficient to get IAC relief. United States v. Olivera, 2010 U.S. Dist. LEXIS 93235 (E.D. Cal. September 8, 2010).*

Adam M. Gershowitz, Password Protected? Can a Password Save Your Cell Phone from the Search Incident to Arrest Doctrine?, forthcoming from the Iowa Law Review.

Abstract:
Over the last few years, dozens of courts have authorized police to conduct warrantless searches of cell phones when arresting individuals. Under the so-called search incident to arrest doctrine, police are free to search text messages, call histories, photos, voicemails, and a host of other data if they arrest an individual and remove a cell phone from his pocket. Given that courts have offered little protection against cell phone searches, this article explores whether individuals can protect themselves by password protecting their phones. The article concludes, unfortunately, that password protecting a cell phone offers minimal legal protection. In conducting a search incident to arrest, police may attempt to hack or bypass a password. Because cell phones are often found in arrestees’ pockets, police may take the phones to the police station where computer savvy officers will have the time and technology to unlock the phone’s contents. And if police are themselves unable to decipher the password, they may request or even demand that an arrestee turn over his password without any significant risk of the evidence on the phone being suppressed under the Miranda doctrine or as a Fifth Amendment violation. In short, while password protecting a cell phone may make it more challenging for police to find evidence, the password itself offers very little legal protection. Accordingly, legislative or judicial action is needed to narrow the search incident to arrest doctrine with respect to cell phones.

Today I received the new volume 3A of Federal Practice and Procedure with Rule 41, pages 41-260. Well done.

Google Instant is now available to most U.S. users.

Google Instant is a new search enhancement that shows results as you type. We are pushing the limits of our technology and infrastructure to help you get better search results, faster. Our key technical insight was that people type slowly, but read quickly, typically taking 300 milliseconds between keystrokes, but only 30 milliseconds (a tenth of the time!) to glance at another part of the page. This means that you can scan a results page while you type.

The most obvious change is that you get to the right content much faster than before because you don’t have to finish typing your full search term, or even press “search.” Another shift is that seeing results as you type helps you formulate a better search term by providing instant feedback. You can now adapt your search on the fly until the results match exactly what you want. In time, we may wonder how search ever worked in any other way.

See the LATimes and NYTimes blogs and the Washington Post. See also Three Tips on Using Google Instant. It is not available on Google Scholar.

The Third Circuit today held that the government need not always show probable cause for a tracking order of a cell phone, but because cell phones provide detailed location, the USMJ can require the government to show probable cause for that information. The case is remanded to the USMJ for further fact finding. This was based on an ex parte application of the government, and EFF participated in the case as amicus, and their brief was important to the decision. In the Matter of the Application Of the United States of America For an Order Directing a Provider of Electronic Communication Service to Disclose Records to the Government, 08-4227 (3d Cir. September 7, 2010):

The Government vigorously objects to treating CSLI from cell phone calls as information from a tracking device. It explains that cellular calls are wire communications, that tracking devices are excluded from the definition of electronic communications but not from the definition of wire communications, and that, in any event, it hasn’t sought records from a tracking device in this case. Section 2510(1) defines “wire communication” as “any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) ….” 18 U.S.C. § 2510(1). The CSLI requested by the Government consists of records of information collected by cell towers when a subscriber makes a cellular phone call. That historical record is derived from a “wire communication” and does not itself comprise a separate “electronic communication.” Thus, even if the record of a cell phone call does indicate generally where a cell phone was used when a call was made, so that the resulting CSLI was information from a tracking device, that is irrelevant here because the CSLI derives from a “wire communication” and not an “electronic communication.” See id. § 2703(c) (providing that the Government may require “a provider of electronic communication service” to disclose records); id. § 2510(15) (defining “electronic communication service” to include providers of “wire or electronic communications”) (emphasis added).

. . .

We cannot reject the hypothesis that CSLI may, under certain circumstances, be used to approximate the past location of a person. If it can be used to allow the inference of present, or even future, location, in this respect CSLI may resemble a tracking device which provides information as to the actual whereabouts of the subject. The Knotts/Karo opinions make clear that the privacy interests at issue are confined to the interior of the home. There is no evidence in this record that historical CSLI, even when focused on cell phones that are equipped with GPS, extends to that realm. We therefore cannot accept the MJ’s conclusion that CSLI by definition should be considered information from a tracking device that, for that reason, requires probable cause for its production.

In sum, we hold that CSLI from cell phone calls is obtainable under a § 2703(d) order and that such an order does not require the traditional probable cause determination. Instead, the standard is governed by the text of § 2703(d), i.e., “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). The MJ erred in allowing her impressions of the general expectation of privacy of citizens to transform that standard into anything else. We also conclude that this standard is a lesser one than probable cause, a conclusion that, as discussed below, is supported by the legislative history.

. . .

A cell phone customer has not “voluntarily” shared his location information with a cellular provider in any meaningful way. As the EFF notes, it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information. Therefore, “[w]hen a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed and there is no indication to the user that making that call will also locate the caller; when a cell phone user receives a call, he hasn’t voluntarily exposed anything at all.” EFF Br. at 21.

The EFF has called to our attention an FCC order requiring cell phone carriers to have, by 2012, the ability to locate phones within 100 meters of 67% of calls and 300 meters for 95% of calls for “network based” calls, and to be able to locate phones within 50 meters of 67% of calls and 150 meters of 95% of calls for “hand-set” based calls. EFF Br. at 12 n.5 (citing 47 C.F.R. § 20.18(h)(1)(2008)). The record does not demonstrate whether this can be accomplished with present technology, and we cannot predict the capabilities of future technology. See Kyllo v. United States, 533 U.S. 27, 36 (2001) (“While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.”); see also id. (“the novel proposition that inference insulates a search is blatantly contrary to [Karo], where the police ‘inferred’ from the activation of a beeper that a certain can of ether was in the home.”).

. . .

Similar reasoning lay behind the MJ’s refusal to grant a § 2703(d) order. In the issue before us, which is whether the MJ may require a warrant with its underlying probable cause standard before issuing a § 2703(d) order, we are stymied by the failure of Congress to make its intention clear. A review of the statutory language suggests that the Government can proceed to obtain records pertaining to a subscriber by several routes, one being a warrant with its underlying requirement of probable cause, and the second being an order under § 2703(d). There is an inherent contradiction in the statute or at least an underlying omission. A warrant requires probable cause, but there is no such explicit requirement for securing a § 2703(d) order. We respectfully suggest that if Congress intended to circumscribe the discretion it gave to magistrates under § 2703(d) then Congress, as the representative of the people, would have so provided. Congress would, of course, be aware that such a statute mandating the issuance of a § 2703(d) order without requiring probable cause and based only on the Government’s word may evoke protests by cell phone users concerned about their privacy. The considerations for and against such a requirement would be for Congress to balance. A court is not the appropriate forum for such balancing, and we decline to take a step as to which Congress is silent.

Because the statute as presently written gives the MJ the option to require a warrant showing probable cause, we are unwilling to remove that option although it is an option to be used sparingly because Congress also included the option of a § 2703(d) order. However, should the MJ conclude that a warrant is required rather than a § 2703(d) order, on remand it is imperative that the MJ make fact findings and give a full explanation that balances the Government’s need (not merely desire) for the information with the privacy interests of cell phone users.

We again note that although the Government argues that it need not offer more than “specific and articulable facts showing that there are reasonable grounds to believe that the … information sought … [is] relevant and material to an ongoing criminal investigation,” 18 U.S.C. § 2703(d), the MJ never analyzed whether the Government made such a showing. We leave that issue for the MJ on remand.

EFF story here, NLJ here, CNET here.

NACDL and ACLU sue of suspicionless laptop searches at the border. See the Press Release on NACDL’s website; ACLU’s is here. See also articles in the Washington Post and The Hill.

On the Secrecy News blog: FISA Court Proposes New Court Rules, with many links to rules:

The Foreign Intelligence Surveillance Court has proposed new rules to comply with the provisions of the FISA Amendments Act of 2008. The Court reviews government applications for intelligence surveillance and physical search under the Foreign Intelligence Surveillance Act (FISA).

The proposed FISA Court rules (pdf) provide new procedures by which telecommunications companies can petition the Court to modify or dismiss a court order or a directive from the Attorney General or the DNI requiring them to assist in electronic surveillance, to provide “any tangible thing,” or to adhere to a nondisclosure requirement concerning intelligence surveillance. Meanwhile, other procedures would permit the government to petition the Court to compel cooperation by a non-compliant telecommunications provider. A new section in the proposed FISA Court rules accordingly addresses the conduct of “adversarial proceedings,” a term that does not appear in the current rules (last modified in 2006).

“Defendant Norris had at least arguable probable cause to arrest Brown for disorderly conduct.” Therefore, he had qualified immunity against a § 1983 case. “In short, we look only to whether a reasonable officer, knowing what Sergeant Norris knew at the time, objectively could have believed probable cause existed. We conclude Brown’s actions in playing loud music, stopping her car, and rolling her window down could have indicated to an objectively reasonable officer at the scene that Brown was making unreasonable noise with intent to create public annoyance, even if those circumstances were insufficient to prove an actual violation of § 13A-11-7.” Joi v. City of Huntsville, 608 F.3d 724 (11th Cir. 2010).*

Excessive force claim survives qualified immunity analysis to get to trial. Miller v. Sanilac County, 606 F.3d 240, 2010 FED App. 0165P (6th Cir. 2010)*:

Miller’s claim of excessive force admittedly comes close to the “scintilla of evidence” of excessive force this Court has previously found to be insufficient to survive summary judgment. … However, we believe that a jury could reasonably find that slamming an arrestee into a vehicle constitutes excessive force when the offense is non-violent, the arrestee posed no immediate safety threat, and the arrestee had not attempted to escape and was not actively resisting. Graham, 490 U.S. at 396.

Blocking the door so defendant could not close it and terminate his conversation with the police involved the “threshold” and thus was an entry into the house without exigent circumstances. Terry does not permit entry into homes on reasonable suspicion. However, the officer could arrest defendant for hurting the officer, and the search incident of his person was valid. The search of his house was not. State v. Jefferson, 413 N.J. Super. 344, 994 A.2d 1067 (2010):

The trial court said, “the police were facing a potentially armed suspect who had not unequivocally indicated that he did not wish to speak to them.” But defendant’s possible willingness to speak to the police from inside his house did not translate into permission for them to enter. Defendant gave no indication that he had invited the police into the hallway, or into any part of his home. We reject the State’s argument that Sergeant Smith could reasonably believe that she was permitted to “move to the threshold to view [defendant’s] entire body and ascertain that defendant was not armed.” In fact, she inserted herself into the doorway while defendant was peering from behind it, thus expressing his choice to exclude the police from his home.

The State has not cited any case recognizing an exception from the warrant requirement when the police wish to enter a home to effect a Terry-type investigative detention of a suspect. The State’s argument that the police have such authority is inconsistent with the constitutional requirement that police have a warrant, or establish an exception to the warrant requirement, when they enter a home to make a formal arrest.

. . .

In this case, the police had no warrant and made no showing of an exception from the warrant requirement when Sergeant Smith partially entered defendant’s residence to stop him from closing his front door. That conduct of the police infringed upon the “firm line at the entrance to the house” when applying the protections of the Fourth Amendment. Kirk, supra, 536 U.S. at 638, 122 S. Ct. at 2459, 153 L. Ed. 2d at 602 (quoting Payton, supra, 445 U.S. at 590, 100 S. Ct. at 1382, 63 L. Ed. 2d at 653).

All persons on the premises warrant did not justify the search of the defendant without showing probable cause. Ergo, the strip search of all persons present was also invalid. People v. Mothersell, 2010 NY Slip Op 2675, 14 N.Y.3d 358, 926 N.E.2d 1219, 900 N.Y.S.2d 715 (2010), rev’g People v. Mothersell, 59 A.D.3d 995, 873 N.Y.S.2d 406 (4th Dep’t, 2009):

Our conclusion that this all-persons-present warrant is not valid, should not be taken as signifying a departure from Nieves’s initial holding that warrants of this sort are not categorically unconstitutional. Indeed, we think it clear that surveillance of a location may yield a factual basis to infer with the requisite force that the place is devoted to an ongoing illicit purpose, such as the manufacture or marketing of narcotics (a “drug factory”) or their use (a “shooting gallery” or “drug house”), and that all those present at the time of the contemplated search will probably be in possession of contraband or other specified evidence of illegality. Although the predicate for this kind of warrant cannot, consistent with the essential constitutional purpose of protecting persons from unreasonable searches, be less than exacting, the warrant may still have utility. Its utility, however, may not permissibly arise, as it apparently has in practice, from any relaxation of the requirement of probable cause as to each person targeted for search or seizure.

While the warrant’s invalidity is dispositive of defendant’s entitlement to suppression, we briefly address defendant’s second point in view of the hearing testimony indicating that strip searches are commonly performed solely on the authority of all-persons-present warrants.

We have held that a post-arrest strip search must be based upon reasonable suspicion that an arrestee is hiding contraband beneath his or her clothing, and that a search involving visual examination of an arrestee’s anal and genital cavities — a distinctly elevated level of intrusion, which must be separately justified — may not be performed except upon a “specific, articulable factual basis supporting a reasonable suspicion to believe the arrestee secreted evidence inside a body cavity” (People v Hall, 10 NY3d 303, 310-311, 886 N.E.2d 162, 856 N.Y.S.2d 540 [2008], cert denied U.S. , 129 S Ct 159, 172 L. Ed. 2d 241 [2008]). In this connection, we stressed in language particularly resonant here that “visual cavity inspections … cannot be routinely undertaken as incident to all drug arrests or permitted under a police department’s blanket policy that subjects persons suspected of certain crimes to these procedures. There must be particular, individualized facts known to the police that justify subjecting an arrestee to these procedures (see generally People v McIntosh, 96 NY2d 521, 525, 755 N.E.2d 329, 730 N.Y.S.2d 265 [2001]). Our precedent on this point is unequivocal: the police are required to have ‘specific and articulable facts which, along with any logical deductions, reasonably prompted th[e] intrusion (People v Cantor, 36 NY2d 106, 113, 324 N.E.2d 872, 365 N.Y.S.2d 509 [1975]), although they are allowed to ‘draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person’ (United States v Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 [2002] [internal quotation marks omitted].” (id. at 311 [emphasis added]).

Thus, even where there is probable cause for an arrest, and a suspect has been arrested — something that had not yet occurred at the time of the search of defendant — there must, in addition to the predicate for the arrest, be grounds to justify the very significant intrusion of a strip or visual body cavity search 1. It is not enough that there is probable cause to suppose that a person possesses contraband or that pursuant to a warrant there may exist grounds for a non-strip search; where a strip search is to be performed, there must also exist “particular, individualized facts known to the police that justify subjecting an arrestee to these procedures” (id.), i.e., specific facts to support a reasonable suspicion that a particular person has secreted contraband beneath his or her clothes or in a body cavity. Such a predicate did not exist at the time that the present warrant was sought and, accordingly, these extraordinary intrusions could not have been within any authority the warrant was capable of conferring.

A 911 hangup and no answer on call back is probable cause. Hanson v. Dane County, 608 F.3d 335 (7th Cir. 2010):

[A] 911 call provides probable cause for entry, if a call back goes unanswered. The 911 line is supposed to be used for emergencies only. A lack of an answer on the return of an incomplete emergency call implies that the caller is unable to pick up the phone—because of injury, illness (a heart attack, for example), or a threat of violence. See United States v. Jenkins, 329 F.3d 579, 581 (7th Cir. 2003); United States v. Richardson, 208 F.3d 626, 629–30 (7th Cir. 2000). Any of these three possibilities supplies both probable cause and an exigent circumstance that dispenses with the need for a warrant. See Brigham City v. Stuart, 547 U.S. 398 (2006). There are of course other possibilities. Perhaps a child dialed 911 by mistake, or perhaps the ringer had been set to silent so the phone did not alert anyone to the incoming call from the 911 dispatcher. But probable cause just means a good reason to act (the fourth amendment protects people against “unreasonable” searches and seizures); it does not mean certainty, or even more likely than not, that a crime has been committed or a medical emergency is ongoing. See Illinois v. Gates, 462 U.S. 213, 235 (1983).

Karen asked the police to leave, but officers who have probable cause need not cancel an investigation on request. The fourth amendment does not contain a least restrictive-alternative rule. See Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 629 n.9 (1989). Nor did Karen’s statement that she was unharmed establish that there was no need for further inquiry. … To the contrary, her statements supported the officers’ actions.

911 call with information from a relative of the defendant was entitled to more credibility. State v. Roybal, 2010 UT 34, 232 P.3d 1016, 656 Utah Adv. Rep. 63 (2010):

[*P18] However, many courts have also considered tips from family or friends to be of greater reliability because a family member or close friend often has a greater opportunity to observe the criminal behavior of the suspect and may have an incentive not to report the suspect due to family loyalty. [citing cases]

Defendant’s DOB on his DL didn’t match the computer check, which also showed he was a regular user of aliases. “By the time the warning was issued, however, the factors identified above had coalesced into reasonable suspicion of criminal activity, which justified additional investigation.” When the officer asked about consent to search, the way the defendant responded created more reasonable suspicion. (“No. I hate having officers in my child’s face every time. Don’t do this to me.”) A drug dog was called. United States v. Spence, 2010 U.S. Dist. LEXIS 47398 (M.D. Fla. April 19, 2010).*

“Consent to search may be in the form of conduct, gestures, or words.” “When Detective Ogg asked Gamez if he could check to see if he had anything illegal on him, Gamez raised his hands above his head and spread out his feet. Further, when Detective Ogg asked to search him a second time, Gamez responded the same way by raising his hands. We conclude that these actions conveyed Gamez’s consent to search his person.” State v. Gamez, 34 So. 3d 245 (Fla. App. 2DCA 2010).*

Forged prescription obtained from a pharmacist was not a “medical record” that a court approved subpoena was required for. A new suppression hearing is required, however. State v. Bean, 36 So. 3d 116 (Fla. App. 2d DCA 2010)*:

This is not a typical suppression case in which a seizure is made without a warrant and the State has the burden to prove that it had constitutional authority to make a warrantless search and seizure. See, e.g., Riggs v. State, 918 So. 2d 274 (Fla. 2005) (finding that the State proved exigent circumstances existed to justify warrantless entry and search of defendant’s home); Smith v. State, 753 So. 2d 713 (Fla. 2d DCA 2000) (finding that the State failed to meet its burden of proving defendant consented to warrantless search of his mouth). In this case, Mr. Bean maintains that the pharmacist or the State violated section 456.057(7)(a)(3) and that this statutory violation justified the exclusion of the evidence. We conclude that he has the initial burden to prove the application of this statute and he has failed in that burden.

Given the abbreviated nature of the hearing on the motion to suppress and the incorrect assumption of the trial court that it could resolve this matter without a full hearing, we reverse the order on appeal without prejudice to further proceedings addressing the possible suppression of this evidence.

Accord: State v. Fernandez, 36 So. 3d 120 (Fla. App. 2d DCA 2010)*:

There may be merit to the State’s claim that Fernandez lacks a reasonable expectation of privacy in the prescriptions if they were not in fact authorized by the doctor. Cf. Hicks, 929 So. 2d at 16 (holding that defendant had no reasonable expectation of privacy in stolen item because he did not lawfully possess it; therefore, he was not entitled to suppression of stolen item in a prosecution for offenses relating to stolen item); Lennon, 963 So. 2d at 770 (same). However, because this specific issue was never argued to the trial court below, the trial court never made any specific factual findings regarding whether the prescriptions were authorized and, if so, whether Fernandez had a reasonable expectation of privacy in them. The parties should be given a chance to fully address this issue. See McCauley, 842 So. 2d at 900. Accordingly, we reverse the order suppressing the evidence and remand for further proceedings. If Fernandez wishes to pursue her motion to suppress, the trial court shall hold a hearing on the issue of standing, at which time Fernandez will have the burden to establish that she had a reasonable expectation of privacy in the prescriptions. See Rakas v. Illinois, 439 U.S. 128, 130 n.1 (1978); Hicks, 929 So. 2d at 16.

Defendant’s claim he was stopped for a robbery because he was a young black male is contrary to the record that he was the age, height, and weight, and fit the clothing description of a robber of a slot machine cashier. United States v. Brown, 636 F. Supp. 2d 1116 (D. Nev. 2009) [erroneously put in 2008].