The search of defendant’s cell phone for text messages relating to a possible drug transaction that day was unreasonable under the Fourth Amendment [with no detailed cell phone analysis; just applying basic principles], but excising that information from the search warrant affidavit did not change the outcome and the search warrant was still valid. United States v. Sams, 2010 U.S. Dist. LEXIS 73358 (S.D. Ga. June 29, 2010):

The undersigned recognizes Scott’s testimony that cell phones are commonly used communications devices, particularly in situations involving criminal activity. However, the undersigned does not find that Scott’s searches of Washington’s cell phone–either at the time of her arrest, or later, when Scott was at the station house–fit within an exception to the warrant requirement. There was no evidence at the hearing that Scott had a reasonable belief that, had he not searched Washington’s cell phone without benefit of a warrant, evidence of alleged criminal activity would be destroyed. To the extent Scott could be considered conducting an inventory search, he merely had to note that Washington’s cell phone was taken from the traffic stop and was being held in the station’s property room. Finally, there is no evidence that exigent circumstances existed to justify Scott’s warrantless searches of Washington’s cell phone.

Nevertheless, the undersigned finds that evidence obtained as a result of a search of Washington’s cell phone should not be subject to suppression. A review of the application for search warrant reveals that, even excising the information discovered during Scott’s search of Washington’s cell phone, the search warrant’s issuance is supported by probable cause.

His arrest was with probable cause. United States v. Sams, 2010 U.S. Dist. LEXIS 73350 (S.D. Ga. June 29, 2010).*

Search warrant issued for a probation violator based on an anonymous letter with a wealth of detail about defendant, including his case number, was sufficient with reasonable suspicion. An anonymous telephone call did not measure up. Also, the good faith exception applied to this probation violation search warrant. United States v. Griswold, 2010 U.S. Dist. LEXIS 73142 (E.D. Pa. July 20, 2010).*

Franks motion fails without some kind of statement in support or an offer of proof of what would be shown. United States v. Rivera-Hidalgo, 2010 U.S. Dist.LEXIS 73101 (W.D. Mich. July 20, 2010)*:

Defendant has set forth no factual detail, let alone evidentiary support, indicating that the warrant affidavit contains a false statement made knowingly and intentionally, or with reckless disregard for the truth. … Defendant’s contentions are based on nothing more than mere supposition–aptly characterized by the Government as “rhetorical doubts”3 (Gov’t Br. 14). Given the conclusory nature of Defendant’s argument, and the failure to challenge any particular statements in the affidavit, no further analysis under Franks is warranted. … Defendant’s request for an evidentiary hearing is properly denied.

3 Defendant’s artful argument begs the question and leads one to query “Where’s the beef?”–both in terms of the challenge advanced and the rendition of the facts.

ICE agents illegally entered defendant’s hotel room to arrest him and then they obtained his consent. “‘[T]he question of whether the exclusionary rule applies is an issue separate from whether Fourth Amendment rights were violated.’ … Suppression of evidence is only justified when the discovery of evidence results from illegal government action. …” Supplemental briefing required on the exclusionary rule. United States v. Eggleston, 2010 U.S. Dist. LEXIS 72480 (D. Ore. July 19, 2010):

A three-part test is employed to determine attenuation: (1) the temporal proximity between the illegality and the discovery of evidence, (2) the presence of any intervening circumstances, and (3) the purpose and flagrancy of the official misconduct. See United States v. Washington, 490 F.3d 765, 776-77 (9th Cir. 2007) (citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)). The government bears the burden to show admissibility of evidence. Id.

In the facts presented here, although the illegality was temporally proximate to the search of defendant’s motel room, it was preceded by a legal arrest. The search of defendant’s room appears to have been inevitable in light of the fact that ICE agents had followed him to the motel and had observed him carrying luggage. Additionally, as noted above, defendant was advised of his rights repeatedly and he consistently waived his Fourth Amendment rights both orally and in writing after the agents’ improper entry into his room. After defendant was taken to the ICE office, he signed three written consent forms, one of which specifically allowed ICE agents to search his motel room.

However, under the exclusionary rule, the burden remains with the government to establish the admissibility of the evidence obtained after law enforcement officers entered defendant’s motel room improperly. Because this burden has not yet been met, counsel are ordered to file supplemental briefs addressing whether the improper entry should result in suppression of evidence and, if so, the extent of that evidence. In light of the pending trial date, the schedule for this briefing must be accelerated. The parties are ordered to file their briefs no later than noon on July 26, 2010. No responses and no oral argument will be permitted. The briefs are limited to ten pages, plus attached exhibits if necessary.

How many bites at the apple does the government get? The entry was illegal. The “consent” occurred as a result. Come on.

In the NYTimes: Two Officers Are Accused of Lying About Searches, by Anahad O’Connor:

A New York City police sergeant lied to cover up several unlawful stops and seizures in Manhattan and forced subordinates to falsify paperwork to justify the stops, authorities said Thursday in announcing the indictment of two officers.

In the indictment, prosecutors portrayed the sergeant, William Eiseman, 41, as a renegade who routinely stopped people for no justifiable reason, searched their cars and then arrested them when he recovered drugs or weapons.

I’m “shocked, shocked” that police officers might lie about the justification for a stop and a search. 2 out of 800,000. Right.

Taking the alleged victim to the scene of execution of the search warrant and letting him dictate what else was seizable as plain view denied defendants qualified immunity in a state Fourth Amendment § 1983 case filed in state court. Debrower v. City of Bremer, 0-316 (Iowa July 14, 2010)*:

We conclude Deputy Miller’s conduct in seizing the additional eleven trees based on Burkle’s new allegations of ownership after he spotted newly-planted trees as he was leaving the property and based on whether the trees could be pulled out of the ground during a night-time search engenders a fact issue on whether “the incriminating feature of the object was immediately apparent.” Burkle’s handwritten statement clearly asserts “34 trees” were stolen “about 3 weeks ago” and thirty-four trees had already been seized under the warrant. Three weeks is sufficient time to accurately identify the number of trees stolen. Further, defendants provide no authority to support a seizure of property not listed in the warrant based upon unsworn claims made by a civilian participating in the search. Because a fact issue remains, summary judgment was improper. See Price-Cornelison v. Brooks, 524 F.3d 1103, 1117-18 (10th Cir. 2008) (stating “whether a police officer has actually aided a private party’s seizure of property ‘is particularly fact-sensitive’” and the right to avoid state participation in private party’s wrongful seizure of property was clearly established in 2003). Since the Bailey decision in 1991, Iowa officers knew “that the officers’ conduct in executing a search warrant is subject to review and an officer may face section 1983 liability for executing a warrant in an unreasonable manner.” Bailey v. Lancaster, 470 N.W.2d 351, 358 (Iowa 1991). A factual issue exists concerning the reasonableness of the officers‟ actions based on existing law.

Hat tip to appellant’s counsel who forwarded it.

Plaintiff’s strip search which he alleged included a sexual touching was a de minimus claim for a jail, and summary judgment is granted. Brown v. Brooks, 2010 U.S. Dist. LEXIS 69383 (E.D. La. June 17, 2010)*:

Even if the touching was sexually motivated, as Brown alleges, such conduct, while despicable, must be characterized as constitutionally de minimis in this context. Copeland, 2001 WL 274738, at *3; see Brown v. Sloan, No. 1:09-cv-01066, 2010 WL 476720, at *2 (W.D. La. Feb. 10, 2010) (Drell, J.) (citing Copeland, 2001 WL 274738 at *3) (quoting Boddie, 105 F.3d at 861) (Plaintiff’s claim that corrections officer fondled him while conducting a shakedown failed to state an Eighth Amendment claim when plaintiff did not allege any physical injury. “This single incident is not severe enough to be objectively sufficiently serious or egregious to state a constitutional violation. … [S]uch conduct does ‘not involve a harm of federal constitutional proportions as defined by” the Supreme Court.); accord McGill v. Corrections Corp., No. 08-CV-0923, 2009 WL 790363, at *5 (W.D. La. Mar. 25, 2009) (Drell, J.) (citing Copeland, 2001 WL 274738, at *2); Washington v. City of Shreveport, No. 03-2057, 2006 WL 1778756, at *5-6 (W.D. La. June 26, 2006) (Hicks, J.) (citing Berryhill v. Schriro, 137 F.3d 1073, 1076 (8th Cir. 1998); Boddie, 105 F.3d at 861; Copeland, 2001 WL 274738, at *2; Buckley v. Dallas County, No. 397-CV-1649BC, 2000 WL 502845, at *5 (N.D. Tex. Apr. 27, 2000)).

. . . Under the Fifth Circuit’s standards, a prison official’s burden of proving the reasonableness of a strip search “is a light burden because an administrator’s decisions and actions in the prison or jail context are entitled to great deference.” Tuft, 2010 WL 420003, at *7 (citing Elliott, 38 F.3d at 191).

Defendant leased a Tahoe from Enterprise, and it was equipped with OnStar. The government got a court order to monitor the GPS in the vehicle to see where he was. That court order did not violate the Fourth Amendment or any reasonable expectation of privacy. United States v. Dantzler, 2010 U.S. Dist. LEXIS 68753 (W.D. La. June 16, 2010):

Applying the foregoing considerations to the case at bar, it is manifest that Dantzler did not enjoy a reasonable expectation of privacy in the movement of his rented vehicle on public thoroughfares. The OnStar system revealed no more information than what law enforcement officers could have observed from constant surveillance of the vehicle from the time that it was rented in Houston until the time of the stop. Although defendant trumpets the fact that the court order was issued to a Michigan corporation, for a vehicle that was rented in Texas, there is no evidence that Louisiana law enforcement officials acted upon any information provided by OnStar until the vehicle approached the Louisiana border. It was not until the vehicle passed the officers’ surveillance point in Louisiana that an OnStar representative actively assisted the state trooper to confirm that the vehicle had passed his vantage point. Moreover, this is not a case where authorities physically installed a tracking device on defendant’s vehicle. Rather, the officers merely accessed information that defendant’s rented vehicle had transmitted to a third-party monitoring service.

Furthermore, Dantzler either knew or should have known that he was renting an OnStar-equipped vehicle that was capable of transmitting the vehicle’s location to a monitoring service. As a result, defendant accepted the risk that the information that the tracking system transmitted to the third-party monitoring service could be forwarded to others. See Smith v. Maryland, 442 U.S. 735, 743-744, 99 S.Ct. 2577, 2582, 61 L. Ed. 2d 220 (1979) (by using his telephone, petitioner conveyed information to the telephone company and assumed the risk that the information would be turned over to the police). Even if Dantzler was not aware that he was renting a vehicle outfitted with OnStar, he has not demonstrated that society expects the movements of a rental car to remain private. See Smith, supra.

For those interested in GPS under the Fourth Amendment, this case thoroughly discusses the reasonable expectation of privacy issues and what those advocating a reasonable expectation of privacy from GPS monitoring have to overcome. I’d provide a pdf of the opinion, but it costs too much to do it very often.

While the trunk of defendant’s rental car could not be searched incident to arrest, inevitable discovery saved this search as an inventory. It could have been done as an inventory, and it appeared to be investigatory, but that’s not enough for inevitable discovery. United States v. Thompson-Bey, 2010 U.S. Dist. LEXIS 67181 (E.D. Tenn. January 12, 2010)*:

Even if the officers could properly search the passenger compartment of the car for evidence relating to the Defendant’s arrest on drug charges, they could not search the trunk of the car pursuant to the search incident to arrest exception. The line of cases governing the search incident to arrest exception, beginning with Chimel v. California, 395 U.S. 752 (1969), permit officers to “search incident to arrest only the space within an arrestee’s ‘immediate control,’ meaning ‘the area from within which he might gain possession of a weapon or destructible evidence.’” Gant, 129 S. Ct. at 1714, 1716 (quoting Chimel, 395 U.S. at 763)). “That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy.” Gant, 129 S. Ct. at 1716. The trunk of the vehicle is not a place within the arrestee’s immediate control.

. . .

In the present case, Trooper Robe’s decision to search the Defendant’s rental car was not the result of negligence but, instead, was the result of his accurate determination that the inventory policy required him to impound the car because the passengers could not legally take custody of it. Although Trooper Robe’s testimony suggests that the department intended to use the inventory policy to perform searches that would no longer be justified incident to the suspect’s arrest in the wake of the Gant decision, neither that testimony nor Trooper Robe’s conduct reveal that inventory searches were being conducted when they were not permitted by the inventory policy. Accordingly, the Court finds no bad faith on the part of law enforcement. The Court finds that the exclusionary rule should not be applied in this case but questions whether Herring, which turns upon police negligence, applies. Instead, the Court finds, as discussed in the previous section, that the exclusionary rule should not be applied because the evidence in question would have been inevitably discovered in an inventory search subsequent to the impoundment of the rental car. See Williams, 467 U.S. at 444 (questioning the applicability of the exclusionary rule when the evidence “ultimately or inevitably would have been discovered by lawful means”). The Court recommends that the defendant’s motion to suppress evidence [Doc. 115] be denied.

NYS is allegedly using the National Guard to help investigate drug crimes. See NY National Guard Violate Posse Comitatus:

Reports from the Empire State indicate that the National Guard is assisting local law enforcement in Albany, that state’s capital city, to search and seize weapons from citizens — an apparent violation of the Fourth Amendment and the Posse Comitatus Act.

The unique charter of the National Guard creates a force that is a “joint reserve component of the United States Army” and therefore it is proscribed from exercising police power (the exclusive province of the state and the municipalities thereof) except under the very limited circumstances set forth in the Constitution and the Posse Comitatus Act.

See also Prison Planet:

Yesterday we reported on how the New York National Guard is working with local law enforcement authorities to perform sophisticated scans of vehicles entering the New York area looking for guns and drugs, a program celebrated by local news station Fox 23, who today ran a part two on the Guard’s activities in the region.

The news clip lauds the fact that the National Guard are conducting surveillance flights over the area “looking for marijuana” using infrared cameras.

Remember when National Guard troops stood next to airport security after September 11th, 2001 with automatic weapons at the ready in a meaningless show of force? It turned out that the guns were unloaded. Was that legal or illegal under the Posse Comitatus Act? (It was really disconcerting. I was always afraid that some guy with a gun who was unhinged would open up on the airport passengers.)

The best legal resource: The Posse Comitatus Act: A Resource Guide. See also Rand.org.

Defendant’s pickup truck was stopped for a traffic violation late at night and there was an alleged furtive movement in the truck as the officers approached, also allegedly seeing a hunting knife in plain view, which the court finds not credible. United States v. Miller, 2010 U.S. Dist. LEXIS 68613 (W.D. Okla. July 9, 2010)*:

Based upon the totality of circumstances, and in particular the questionable credibility of Officer Barnes and Sergeant Bowden, the Court finds that the factors present here do not constitute reasonable suspicion. Specifically, the factors which weigh in favor of reasonable suspicion are of minimal significance and susceptible to varying interpretations so as to be innocuous. Because “the question is whether this suspicion was reasonable and articulable rather than a hunch that turned out accurate,” the Court finds that the officer and sergeant’s “inchoate and unparticularized suspicions or hunches were insufficient to give rise to reasonable suspicion” that defendant was armed and dangerous. Simpson, 2010 WL 2559796, at *11. Therefore, the Court concludes the officer’s and sergeant’s actions were outside the bounds of the Fourth Amendment such that the evidence obtained should be suppressed.

The Fourth Amendment Right To Delete by Paul Ohm in the Harvard Law Review. First paragraph and last paragraph of introduction:

For years the police have entered homes and offices, hauled away filing cabinets full of records, and searched them back at the police station for evidence. In Fourth Amendment terms, these actions are entry, seizure, and search, respectively, and usually require the police to obtain a warrant. Modern-day police can avoid some of these messy steps with the help of technology: They have tools that duplicate stored records and collect evidence of behavior, all from a distance and without the need for physical entry. These tools generate huge amounts of data that may be searched immediately or stored indefinitely for later analysis. Meanwhile, it is unclear whether the Fourth Amendment’s restrictions apply to these technologies: Are the acts of duplication and collection themselves seizure? Before the data are analyzed, has a search occurred?

. . .

The right to delete explains why imaging is seizure without requiring Hicks to be overruled or otherwise conflicting with existing jurisprudence. It will also help determine the Fourth Amendment status of the ongoing data collection of heat emanations, keypresses, monitor images, WiFi communications, GPS tracks, web browsing records, and new technologies yet to be invented. Ultimately, a physical-property based reading of Fourth Amendment seizure fails to properly translate the Amendment’s protections to intangible, digital property.

AOL came upon child pornography and conducted its own investigation. As a “mandatory reporter,” AOL reported the child pornography to the government. AOL was not acting as an agent of the government, and defendant’s [creative] argument that the mandatory reporting requirements of Skinner applied here were rejected because the situations and interests were different. [AOL filed an amicus brief in support of the government.] United States v. Richardson, 607 F.3d 357 (4th Cir. 2010):

On June 10, 2004, AOL, pursuant to a mandatory reporting requirement set forth in 42 U.S.C. § 13032(b)(1),*1 reported to the Cyber Tip Line at the National Center for Missing and Exploited Children (“NCMEC”) that AOL had detected the transmission of child pornography images by a subscriber using an e-mail address called knifeisland@aol.com. NCMEC, also as mandated by the same federal law, passed along this information to the North Carolina State Bureau of Investigation (“SBI”), which, in turn, served AOL with an administrative subpoena for subscriber information related to the “knifeisland@aol.com” address. AOL determined that the “knifeisland@aol.com” account was registered to Richardson at 2541 Pine View Lane, Apartment H, Gastonia, North Carolina. The screen name “tr2066″ was also linked to this account. By August 2004, however, when SBI agents received and followed up on this information, Richardson no longer resided at the 2541 Pine View Lane address and no forwarding address was available.

*1 This particular provision is no longer in effect. The reporting requirements were amended and are now codified in 18 U.S.C. § 2258A.

. . .

The question of whether a private entity such as AOL serves as a mere conduit for the Government in performing a search “necessarily turns on the degree of the Government’s participation in the private party’s activities.” Skinner, 489 U.S. at 614. “[T]here must be some evidence of Government participation in or affirmative encouragement of the private search before a court will hold it unconstitutional. Passive acceptance by the Government is not enough.” Jarrett, 338 F.3d at 346. Additionally, we generally look for evidence bearing upon the question of “whether the private party’s purpose for conducting the search was to assist law enforcement efforts or to further h[is] own ends.” Ellyson, 326 F.3d at 527 (internal quotation marks omitted).

Thus, the key factors bearing upon the question of whether a search by a private person constitutes a Government search are: “(1) whether the Government knew of and acquiesced in the private search; and (2) whether the private individual intended to assist law enforcement or had some other independent motivation.” Jarrett, 338 F.3d at 344.

There is no question that law enforcement agents did not actually participate in the search at issue here. …

Whether a door is open or closed does not matter–“the Fourth Amendment has drawn a firm line at the entrance to the house”–Payton. The entry here was illegal, but not flagrantly so, so later consent was still valid. United States v. Greer, 607 F.3d 559 (8th Cir. 2010):

But absent a finding of consent, which is not urged, or a suspect standing in the doorway, cf. United States v. Santana, 427 U.S. 38, 42 (1976), the status of the door is not determinative. In Payton itself, the officers saw the suspect through an open door, crossed the threshold, and arrested him, 445 U.S. at 578, but the Court held that “the Fourth Amendment has drawn a firm line at the entrance to the house.” Id. at 590. The government says it is significant that the police had “first hand knowledge” that Smiley was in the house, not merely second-hand probable cause, but there is no certitude exception to the warrant requirement. The entry to the home was unlawful.

. . .

The circumstances here demonstrate purgation of the taint. The Supreme Court has placed “particular” emphasis on the purpose and flagrancy of the official misconduct. Brown, 422 U.S. at 604. Those factors suggest that Greer’s voluntary consent was an independent act of free will. The purpose of the unlawful entry was not to investigate Greer. The officers spotted a fugitive in the residence, and their intrusion was aimed at apprehending her. The entry was not especially flagrant; the door to the residence was open, and the officers used no force to gain access. The officers smelled marijuana before going into the house, so the unlawful entry did not prompt the request to search.

From the to-pose-the-question-answers-it category is this: “A lot of child pornography cases come through our court, and most of them present fairly routine issues. This one, however, brings in tow a Fourth Amendment issue with important implications for the national security of the United States. When a foreign cargo vessel enters this country and is subject to a border search, may the cabins of its crew members be searched for contraband without reasonable suspicion?” Obviously, yes, even though on a ship like this, the rooms of the crew are their “homes.” The search was by an agriculture inspector looking for pests and seeds. DVDs were found in the desk drawer of defendant’s cabin, and children engaged in sex acts were on the cover. United States v. Alfaro-Moncada, 2010 U.S. App. LEXIS 10841 (11th Cir. May 27, 2010).

Not only is the national interest in searching for agricultural contraband coming into this country strong, but any expectation of privacy a crew member has in his living quarters is weaker when those quarters are brought to the border of this country. Montoya de Hernandez, 473 U.S. at 539, 105 S.Ct. at 3309-10; see also United States v. Hidalgo-Gato, 703 F.2d 1267 (11th Cir. 1983) (“On crossing a border the individual is on notice that a search may be made, and his privacy is arguably less invaded by such search.” (quotation and other marks omitted)). There are no inspection-free zones on a foreign cargo vessel at the border, just as there are none in an airplane or a motor vehicle. Someone who travels to the border in a recreational vehicle that also serves as his home could not reasonably expect that it would not be subject to search. The same is true of a crewman whose cabin, along with the rest of his ship, travels three miles up the Miami River to dock.

Defendant was stopped after officers surveilling a head shop, and he produced a still wrapped pipe. This was insufficient to justify a search incident of his car under Gant. Even if Gant applied, the court would not make the good faith exception to this warrantless search retroactive. People v. McCarty, 229 P.3d 1041 (Colo. 2010).

Under Gant, a search of a glove compartment in a car is unlawful where the driver was neither within reaching distance of the vehicle’s passenger compartment and there was no indication that any evidence of the offense of arrest would be found in the car. Even if the driver disclaimed any possessory interest in the glove compartment, his possessory interest in the car itself prevents an officer from entering the vehicle in order to access the glove compartment within it. Perez v. People, 231 P.3d 957 (Colo. 2010):

Even if we assume, without deciding, that Perez lacked a possessory interest in the glove compartment, such a conclusion would be irrelevant. Both sides in this case agree that Perez had a possessory interest in the car and therefore had standing to protest the search of the car itself. As we have explained above, Gant leaves the officers in this case with no lawful basis to search the vehicle without a warrant. Because the officers could not access the glove compartment without first gaining access to the car itself, the police could not lawfully access the glove compartment. This is the necessary and unavoidable result of Gant. Unless some other established exception to the warrant requirement applies, a container cannot be accessed if the vehicle containing it cannot be searched under Gant. See, e.g., Pineda v. People, 2010 Colo. LEXIS 359, 08SC756 (Colo. May 10, 2010). No other exception to the warrant requirement was argued in this case.

Curfew violation was reasonable suspicion. State v. Wise, 2010 Ohio 2040, 2010 Ohio App. LEXIS 1674 (5th Dist. May 6, 2010):

[*P18] In the instant case, the officer saw a group of individuals who appeared to be young in age walking in the street rather than on the sidewalk at 1:15 a.m. He recognized one member of the group and knew that individual to be under the age of 18 and therefore out after curfew. When the group saw the officer, they began walking away at a fast pace. The officer had reasonable suspicion to stop the group and investigate further.

The officer parked near defendant and walked up. The patrol car’s lights were not on. The interaction with defendant was consensual because he was not commanded to stop. State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010):

Rennerfeldt approached Casillas on foot. He did not turn on the overhead lights of his police cruiser. Rennerfeldt did not interfere with Casillas’ prior activity of sitting in the truck. Instead, he asked for identification and posed a few questions to Casillas. We have explained that a seizure does not occur simply by reason of the fact that a police officer approaches an individual, asks him or her for identification, and poses a few questions to that individual, so long as the officer does not indicate that compliance with his or her request is required and the questioning is carried on without interrupting or restraining the person’s movement.

Officer’s mistake of law about a traffic offense barred application of the good faith exception to this warrantless arrest. The statute was clear, so the lack of decisions under the statute doesn’t matter. United States v. Davis, 692 F. Supp. 2d 594 (E.D. Va. 2010):

The United States takes the view that this case is distinguishable because here, the officer was applying an unsettled law. As a result, the United States asserts, applying the exclusionary rule will not result in an appreciable deterrence, one of the primary aims of the rule. See United States v. Janis, 428 U.S. 433, 454 (1976) (stating that the exclusionary rule should be applied when doing so will result in appreciable deterrence of future constitutional violations).

It is true that there is little decisional law applying § 46.2-926 and perhaps, in that limited sense, the law is unsettled. However, the statutory text of § 46.2-926 is plain and straight forward. And, when considered in perspective of § 46.2-928, it simply does not admit of the interpretation pressed here. In any event, the argument made by the United States really is that the officer’s mistake was reasonable. Most circuits have concluded that a reasonable mistake of law simply does not animate the good faith exception. See McDonald, 453 F.3d at 961-62 (holding that the good faith exception does not apply because a “stop based on a subjective belief that a law has been broken, when no violation actually occurred, is not objectively reasonable.”); Lopez-Soto, 205 F.3d at 1106 (holding that allowing the good faith exception for officer’s mistakes of law “would defeat the purpose of the exclusionary rule, for it would remove the incentive for police to make certain that they properly understand the law that they are entrusted to enforce and obey.”). That reasoning is persuasive and it forecloses application of the good faith exception of Leon.

Defendant’s stop was with probable cause to believe he committed a lane change violation by driving on the rumble strip. As the officer approached the vehicle, he could smell marijuana, and that was probable cause to search. United States v. Ohangbon, 2010 U.S. Dist. LEXIS 15599 (M.D. N.C. February 22, 2010).*

Defendant did not allege a different factual version than what was contained in the police reports he attached to his motion to suppress. Based on the police reports, the search was valid, so the district court did not abuse its discretion in denying a motion to suppress. United States v. Jackson, 363 Fed. Appx. 208 (3d Cir. 2010) (unpublished)*:

Jackson did not offer any version of events contrary to the version contained in the police reports he attached to his motion. He based his request for an evidentiary hearing only on alleged discrepancies in the reports, which he argued raised questions about the truthfulness of the account provided, and raised the suggestion that the events leading to his arrest may have unfolded differently. This was not a sufficient showing under Brink and Voigt. Accordingly, there was no abuse of discretion in the District Court’s decision to deny an evidentiary hearing.

Defendant framed his argument against a knock-and-talk as requiring probable cause, but that “is wide of the mark.” Nothing is required for a knock-and-talk. “[T]he reliability of the evidence leading the officers to the Arndt residence is of no legal consequence in a suppression motion.” United States v. Arndt, 2010 U.S. Dist. LEXIS 7146 (W.D. Mo. January 11, 2010).

The totality of the evidence supports the district court’s finding that defendant was seen with a gun. To credit defendant requires a finding that all the officers lied and that defendant’s call to relatives after arrest that he had gun didn’t happen. United States v. Williams, 363 Fed. Appx. 682 (11th Cir. 2010), certiorari denied 176 L. Ed. 2d 1238 (U.S. May 24, 2010).*

[While really thin,] there was sufficient cause to issue a search warrant for child porn in defendant’s house based on his text messages to a child and other facts observed in defendant’s house. The fact the police here had obtained other search warrants in similar situations and had not been challenged was strong evidence of good faith. How a computer search will occur is not a subject for the search warrant itself. United States v. Sage, 2007 U.S. Dist. LEXIS 99110 (W.D. Mo. December 3, 2007). [So, if other defense lawyers did not challenge searches under these circumstances, and this defense lawyer was competent enough to raise what certainly appears to be a valid issue, the default by others in other cases means this defendant loses.]

Defendant in a 2255 proceeding argued that defense counsel did not properly argue his suppression motion, and the court finds no procedural bar from the argument first raised and decided on appeal from the conviction. On the merits, the record showed that defendant’s consent was voluntary, despite his limited language skills because his own testimony showed he knew he could refuse consent. United States v. Murillo, 2010 U.S. Dist. LEXIS 16451 (E.D. Cal. February 23, 2010).*

As officers approached defendant on the street, he dropped a box which had marijuana in it in plain view. [Perhaps he would have been better off to have not dropped the box but held onto it and kept it shut. This was not treated as an abandonment.] United States v. Echevarria, 692 F. Supp. 2d 322 (S.D. N.Y. 2010).*

The search warrant here was lawfully issued and with probable cause. Nevertheless, some items seized were beyond the scope of the warrant, and they are ordered returned to the defendant. United States v. Petters, 2009 U.S. Dist. LEXIS 125305 (D. Minn. April 28, 2009).*

Officer did not seize defendant when the officer woke him up in his car. By the time defendant was ordered out of the car, the officer had reasonable suspicion of intoxication. Sivik v. Driver & Motor Vehicle Servs. Div., 235 Ore. App. 358, 231 P.3d 1177 (2010):

Here, however, it is clear that, when Mills awakened petitioner and asked him if he was in distress, the encounter was mere conversation by anybody’s standard. Mills did not interfere with petitioner’s freedom of movement until he asked petitioner to step out of his van. By that time, he had developed a suspicion that petitioner had been driving while intoxicated, and that suspicion was reasonable; he had observed petitioner drive into the lot with the wheels of his van kicking up gravel, pull to a halt in front of a closed coffee kiosk, and slump over the steering wheel. Before actually conversing with petitioner, Mill had detected a strong odor of alcohol emanating from the van. Although he testified that he did not develop probable cause to believe that petitioner had been driving while intoxicated until after petitioner stepped out of the van, he also testified that he had developed a suspicion before making contact. The stop was lawful, and the ALJ did not err in rejecting petitioner’s argument to the contrary.

The stop was justified either as a Terry stop or a traffic offense, and consent followed almost immediately. “This is about as brief as an investigation can be without having contraband in plain view.” State v. Brand, 309 S.W.3d 887 (Mo. App. 2010).*