In a civil case over an alleged knock-and-announce violation, the plaintiff loses because the government showed sufficient reasonable suspicion to not have to do so. Plaintiff also did not show that the handling of the raid was excessive force. Jama v. United States, 2010 U.S. Dist. LEXIS 48133 (W.D. Wash. May 17, 2010)*:

Plaintiff’s claim of excessive force fails. Having breached Plaintiff’s door and detained all the occupants, officers were reasonable in “exercis[ing] unquestioned command of the situation.” Summers, 452 U.S. at 703. They therefore handcuffed all the apartment’s occupants and detained them in a single location, while they searched the apartment. Moreover, they summoned medics when Plaintiff complained of pain in her shoulder. Medics examined Plaintiff, but determined that she did not need treatment. (Jama Decl. 2 (Dkt. No. 43)). Officers were reasonable in maintaining total control of the situation while conducting the search, just as they were reasonable in breaching the door after eight to ten seconds.

Defendant’s stop also included keeping him near the car he was stopped in. United States v. Rush, 2010 U.S. Dist. LEXIS 47780 (D. Neb. March 4, 2010).*

On the advice of an Assistant State’s Attorney because a warrant would take extra time to procure that day because of unavailability of the municipal judge, officers were justified in entering defendant’s apartment with probable cause to freeze it and prevent destruction or sale of heroin when a warrant was obtained. No search occurred until the warrant issued. State v. Holt, 2010 Ohio 2298, 2010 Ohio App. LEXIS 1887 (3d Dist. May 24, 2010):

[*P44] The C[omputer] A[ssisted] D[ispatch] notes from February 23, 2009, indicated that Sanchez was stopped at 6:58 p.m. and her heroin was found at 7:08 p.m. It also indicated that Smith’s heroin was found at 7:06 p.m. The notes further showed that the police entered the home at 7:22 p.m. and that Holt ran at that time. Also, these notes indicated that Holt was apprehended and the home secured at 7:28 p.m. Thus, the CAD notes revealed that the detectives entered the home less than twenty minutes after obtaining information sufficient to obtain a warrant. The CAD notes also confirmed the testimony of the detectives that everything happened fairly quickly once the Bravada was spotted despite the seeming disparity in times noted in the detectives’ individual reports. Thus, the trial court could reasonably have relied upon the CAD time frames to support its finding that the police had a reasonably objective basis for concluding that the loss or destruction of evidence was imminent.

[*P45] Given these facts, we find that the police had an objectively reasonable belief that the destruction of heroin was imminent and they were justified in entering 492 Silver Street for the limited purpose of securing the premises and preventing the loss or destruction of evidence. Furthermore, their mode of entry was also reasonable given the need to act quickly, the limited time they had to organize an entry, and the fact that their need to act quickly resulted in an entry team consisting of only three men who were in plain clothes, armed with merely their sidearms, and only a vest to protect them, rather than entry by a heavily armed SWAT team in full protective gear. Additionally, they knocked on the door, waited for it to be answered before entering the home, and immediately identified themselves as police officers.

Defendant registered as a sex offender under Tennessee law. The registry person in his county told him that he had to submit to “house checks,” random walk throughs of his house by the registry person and the police. He had been subjected to a few and then, after a dispute with a neighbor, they came by again. He admitted having a gun. The threatened entry was the product of coerced consent obtained by a false claim of authority. United States v. Arwood, 2010 U.S. Dist. LEXIS 50258 (E.D. Tenn. April 27, 2010):

Defendant argues that he believed that he had no choice other than to submit to the “house checks,” and that he also was obligated to answer any questions asked by the police during those checks. The United States argues that “ignorance of the law is not a defense,” citing United States v. International Minerals & Chemical Corp., 402 U.S. 558, 563, 91 S. Ct. 1697, 29 L. Ed. 2d 178 (1971), and therefore defendant’s erroneous belief that he was required to answer Deputy Standifer’s questions is irrelevant.

There was nothing inappropriate about Deputy Standifer’s question to defendant regarding a gun in the house. The issue, however, is the validity–or voluntariness, if you will–of his response that there was indeed a gun in the house, as well as the validity of his consent that the officers enter his house.

Defendant was “ignorant” of the law, i.e., his rights, to the extent that he was under the misapprehension that he had no choice. That misapprehension, however, was the product of prior visits and statements by representatives of the Hamblen County Sheriffs Department.

A consent is not voluntary if it is given in response to a false threat that a search warrant will be obtained if the consent is withheld. See, e.g., United States v. White, 979 F.2d 539, 542 (7th Cir. 1992). Similarly, a consent based upon an officer’s false representation that he possesses a warrant is no consent at all:

When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.

Bumper v. North Carolina, 391 U.S. 543, 548-550, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968). There is no difference between an officer’s misrepresentation regarding his intent to procure a warrant and his misrepresentation (by word or action) of his authority to conduct warrantless house checks and to require a convicted sex offender to answer his questions. In either situation the defendant’s consent cannot truly be said to be valid and voluntary.

Defendant did not have a reasonable expectation of privacy in a gun safe where his guns were stored. The safe was in another person’s premises, and he had no control over it at all. Ubele v. United States, 2008 U.S. Dist. LEXIS 113966 (S.D. Ga. January 5, 2009).*

Officer responded to a “pers[on with] gun” report. Defendant’s pat down was not justified. He had a bulge on his waistband, but he was cooperative, and there was no reasonable suspicion as to him. Commonwealth v. Flemming, 76 Mass. App. Ct. 632, 925 N.E.2d 39 (2010).*

During defendant’s traffic stop, the officer smell unburnt marijuana, and that justified an automobile search. Commonwealth v. Villatoro, 6 Mass. App. Ct. 645 (2010).*

Denial of motion to suppress was remanded for a new hearing because of the confusion at the first hearing since everybody got it wrong. The defendant dropped the drugs, but there was no indication of whether the defendant did so in response to an illegal stop. The denial of the motion is reversed and remanded for a new suppression hearing. Commonwealth v. Rodriguez, 456 Mass. 578, 925 N.E.2d 21 (2010).*

Officers had a man in custody who agreed to be a CI and called the defendant. The informant was on the phone with the defendant and gave information where the defendant would be going to meet up with the CI. Officers were waiting where the defendant would show up, and, as stated by the CI, the defendant showed up. While the CI was a first time informant, his details were corroborated as he was giving them out, and this was probable cause. United States v. Ramos-Rogel, 2010 U.S. Dist. LEXIS 36475 (D. S.D. April 13, 2010).*

Two threats, a bomb threat and a shooting threat, were called in to a school. Officers responding elected to lockdown the school. A second bomb threat was called in. The police made a “split second” decision that the bomb threat was an attempt to get people out for a shooting. Two CIs told police that plaintiff was the probable caller, and the call was related to potential gang violence. Police went to the plaintiff’s house, and called out. The door was unlocked, and they went in and searched. The police had qualified immunity in how they responded to the threats. Armijo v. Peterson, 601 F.3d 1065 (10th Cir. 2010).*

Negligent non-material misstatements did not avoid application of the good faith exception. United States v. Newton, 2010 U.S. Dist. LEXIS 36529 (N.D. Tex. April 13, 2010).*

District Court erred in granting a motion to suppress in the face of broad consent to search. The officers inside observed a blood trail in the house, and they would have been derelict in not following it. United States v. Coleman, 588 F.3d 816 (4th Cir. 2009):

Not only was the bedroom within the scope of the consent search, but the officers also would have been derelict in their duty not to follow a blood trail from the kitchen. Far from not being part of the crime scene, as Coleman argues, see Br. of Appellee 15, nothing less than a trail of blood led to the master bedroom from the kitchen where the shooting occurred.

Further, at the time of the search the officers had no way of knowing whose blood trail they were following. They knew that Coleman had been shot, but Sergeant McIntosh also testified that there were reports that one of the intruders may have been shot as well. At a minimum, the trail of blood was likely to lead to evidence of some kind, even if nothing more than physical corroboration of events as told by witnesses. Furthermore, for all that the officers knew, the trail of blood could have led directly to a suspect, or it could have led to another victim in need of assistance. In short, there were any number of reasons why officers, based on what they knew, behaved reasonably by following the blood trail.

Plaintiffs were police supervisors and were fired by the Baltimore mayor, and he directed that their badges and IDs be retrieved. This was arguably a search and seizure, but it was in an employment context, not a law enforcement context, and it was not shown to be unreasonable.
Francis v. Giacomelli, 588 F.3d 186 (4th Cir. 2009).*

Consent to search does not require that every officer know about it or its limits. A bag was requested to be opened because consent did not include breaking into it. United States v. James, 356 Fed. Appx. 636 (4th Cir. 2009) (unpublished):

However, “general, blanket consent to search … by itself would not permit officers to break into a locked container located within the area being searched.” Jones, 356 F.3d at 534 (emphasis in original).

Here, James informed Officer Michael Brewton that law enforcement could search the vehicle he was driving. While this information was not specifically conveyed to the other officers on the scene prior to the initiation of the search, this does not render the consent invalid. Moreover, Brewton testified that he would have instructed the officers to stop the search if James had not consented. Although the luggage found in the vehicle was locked, officers did not force it open. James informed Brewton that his wife, a passenger, had the keys, and in the meantime Mrs. James had willingly unlocked a bag and turned the keys over to Small, without objection from James. His “failure to object (or withdraw his consent) … is a strong indicator that the search was within the proper bounds of the consent search.” Jones, 356 F.3d at 534.

Court order for taking custody of a child in a child protective services investigation reasonably permits an entry into the home to take possession of the child. Wernecke v. Garcia, 2009 U.S. App. LEXIS 27636 (5th Cir. December 15, 2009):

The facts of this case validate our continuing concern with the risk of flight in Fourth Amendment cases: KW was not present in the Wernecke home because Mrs. Wernecke had, in fact, absconded with her to prevent TDFPS from taking KW into protective custody. TDFPS did not take physical custody of KW until June 4, 2005, three days after the § 262.102 order was issued, because of Mrs. Wernecke’s evasion. With these concerns firmly in mind, we reiterate that when a state social worker obtains from a judge a temporary emergency custody order that imposes legal duties on the state agency and has reason to believe the child is within the child’s home, the social worker may, consistent with the Fourth Amendment, enter and search the home for the child.

Officers had probable cause to believe that the suspect wanted in an arrest warrant was in the premises, so the entry was reasonable. United States v. Perez-Jacome, 356 Fed. Appx. 212 (10th Cir. 2009) (unpublished):

The first prong of the Payton test requires that officers have a reasonable basis for believing that the suspect, in this case Mr. Moreira, lived in the home. The district court found the agents’ belief that Mr. Moreira lived at 1814 Bunker to be objectively reasonable. Based on the record, we agree.

. . .

Because the first prong of the Payton analysis is met, the district court properly determined that Payton, and not Steagald, is controlling. See Gay, 240 F.3d at 1226. Furthermore, Mr. Perez-Jacome concedes that the agents reasonably believed that Mr. Moreira could be found within the home at the time they executed the arrest warrant, and thus the second prong of the Payton analysis is satisfied. Indeed, agents observed Mr. Moreira enter the home immediately before they executed the warrant. Therefore, both prongs of the Payton analysis are met. Because the entry into Mr. Perez-Jacome’s home was lawful under Payton, the district court properly denied Mr. Perez-Jacome’s motion to suppress the evidence found in his home and his statement.

A radio call about a robbery led to defendant’s patdown, and it was reasonable under all the circumstances. United States v. Roane, 356 Fed. Appx. 564 (3d Cir. 2009) (unpublished).*

A police show-up of suspects immediately after a stabbing was reasonable under the totality of circumstances. Therefore, defense counsel was not ineffective for not raising the challenge. Palacios v. Burge, 589 F.3d 556 (2d Cir. 2009):

Rather than supporting a “good Fourth Amendment claim,” Kimmelman, 477 U.S. at 382, the “totality of the circumstances,” Cortez, 449 U.S. at 417, and the “balance [of] privacy-related and law enforcement-related concerns,” McArthur, 531 U.S. at 331, undermine Palacios’s claim that the police show-up, following the Djukanovic and Kolenovic stabbings, violated Palacios’s Fourth Amendment rights and tainted his subsequent arrest and confession. Accordingly, we conclude that Palacios has not shown that counsel’s decision not to pursue a Fourth Amendment challenge respecting the show-up rose to the level of “incompetence” as “unreasonable under prevailing professional norms” and “not sound strategy.” Kimmelman, 477 U.S. at 381; see also Strickland, 466 U.S. at 687-88.

Defendant was subjected to a Terry stop and frisk and he was put on the back of the police car. His car was subjected to a frisk, too, and it was valid because he would be shortly released and could reenter the car and gain access to weapons. United States v. Griffin, 589 F.3d 148 (4th Cir. 2009) (2-1).*

Defendant’s furtive movement in the car he was a passenger in was sufficient for a frisk of the car. (The government waived any standing argument by not raising it in the district court.) United States v. Lightbourn, 357 Fed. Appx. 259 (11th Cir. 2009) (unpublished), cert. den. 2010 U.S. LEXIS 4117 (U.S., May 17, 2010).*

Informal juvenile probation could not impose a drug testing condition without statutory authority. Derick B. v. San Diego County Superior Court, 180 Cal. App. 4th 295, 102 Cal. Rptr. 3d 634 (4th Dist. 2009).*

Defendant consented during a knock-and-talk, and his giving keys to the safe to the officer is indicative of consent. He also fell asleep during the search. United States v. Lowe, 2010 U.S. Dist. LEXIS 36064 (E.D. Tenn. March 4, 2010) (R&R), adopted United States v. Lowe, 2010 U.S. Dist. LEXIS 36068 (E.D. Tenn. April 12, 2010).*

Defendant walked into a gas station in Nebraska while en route cross country, and made small talk with an officer who just happened to be in there. The travel plans did not make much sense, and the conversation led to reasonable suspicion. The officer asked for consent to search the car, and the defendant ultimately consented. United States v. Lopez-Mendoza, 601 F.3d 861 (8th Cir. 2010)*:

Deputy Brown asked, “Do you care if I look and see?,” simultaneously pointing two fingers first toward his eyes and then at the car. Vargas-Miranda said “go ahead,” but after a pause added, “You don’t got no right. I wasn’t even driving.” Deputy Brown responded, “Well I’m asking you. I’m just asking you. I’m asking you. But like you said, it’s all consensual. I’m just asking you.” After asking about weapons, he went on to say, “Well, I’ll tell you what, since you said I could look, I’m going to go ahead and look real quick, and then get you guys on your way.” In response, Vargas-Miranda nodded his head.

Informant was merely stated to be “reliable” without stating why. There was no effort to corroborate the informant’s story. The good faith exception was not argued by the government so the court will not consider it on its own. Suppression granted. United States v. Shaw, 2009 U.S. Dist. LEXIS 124693 (W.D. Ky. December 15, 2009).

Drugs moving out of a mobile home was exigency to enter to prevent more from leaving until a search warrant could be obtained. United States v. Angeles-Guzman, 683 F. Supp. 2d 397 (E.D. N.C. 2010)*:

. . . Here, the officers lawfully entered the Angeles-Guzman’s home and had probable cause to conduct a search of the home. At the time of entry, the officers initially secured the home pursuant to a valid exigency in anticipation of obtaining a search warrant. The officers then searched the residence with the good faith belief that Angeles-Guzman had consented to the search. If the officers had not obtained Angeles-Guzman’s ostensible consent through Galicia, the officers would have maintained the status quo in the home until a search warrant was obtained.

Officers had probable cause to search defendant’s car because it would contain buy money from various drug transactions, including the CI’s buy. United States v. Sierra, 2010 U.S. Dist. LEXIS 10309 (W.D. La. January 20, 2010).*

One court takes a dim view of the viability of the exclusionary rule in civil forfeiture cases. United States v. Real Property Located at 265 Falcon Road, Carbondale, Williamson County, Illinois, 2010 U.S. Dist. LEXIS 223 (S.D. Ill. January 4, 2010)*:

Assuming (1) the exclusionary rule applies in civil forfeiture cases, see One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702, 85 S. Ct. 1246, 14 L. Ed. 2d 170 (1965) 1, ….

1 This has been called into question, see United States v. Marrocco, 578 F.3d 627, 642 (7th Cir. 2009) (Easterbrook, C.J., concurring) (citing INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S. Ct. 3479, 82 L. Ed. 2d 778 (1984); United States v. Janis, 428 U.S. 433, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976)).

[Note: This would only qualify as a weak “cf.” reference because there is no analysis of the issue at all. This case is instructive as to the leanings of the writer: USDJ Phil Gilbert.]

Defendant’s guilty plea waived his motion to suppress. Webb v. United States, 2009 U.S. Dist. LEXIS 121731 (E.D. Mo. December 31, 2009).*

An administrative subpoena for ISP information violated no Fourth Amendment interest of the defendant, even if he had “standing,” which he doesn’t. Also, the good faith exception would apply to an administrative subpoena. United States v. Guthmiller, 2009 U.S. Dist. LEXIS 121794 (D. Minn. December 14, 2009).*

Officers entered defendant’s property from areas from which any visitor would come, so their knock-and-talk did not intrude on a private area. Defendant came out from a different area, and talked to the officers and consented. United States v. Faller, 681 F. Supp. 2d 1028 (E.D. Mo. 2009).*

Search incident of defendant at stationhouse after a custodial traffic arrest was reasonable. United States v. Amankwaa, 2010 U.S. Dist. LEXIS 118 (M.D. Pa. January 4, 2010).*

A locked bank bag in a juvenile’s possession was not properly subject to an inventory at the station house because the inventory policy did not deal with it. Commonwealth v. Vanya V., 75 Mass. App. Ct. 370, 914 N.E.2d 339 (2009):

Here, the policy was insufficiently precise in two respects. First, it did not spell out what to do with locked containers as opposed to those that are simply closed. As a subset of this, the policy also did not spell out what should be done with a locked container for which the officers have the key and a locked container for which they do not. Second, accepting the Commonwealth’s position that the bank bag was “opened” pursuant to the policy requires stretching the meaning of “open” to a degree that would allow officers to choose among a limitless range of options, including (as here) destruction.

We have found no case that would permit an officer to break into or damage a locked container in order to conduct an inventory search. The purpose of an inventory is to protect the property of the owner and to protect officers from claims by the owner that the property was damaged. Permitting an officer to destroy or break into a locked container runs counter to the very purpose of the inventory exception. See Tennessee v. Cabage, 649 S.W.2d 589, 592 (Tenn. 1983). Moreover, breaking into the locked bank bag served no noninvestigatory purpose. There is no suggestion that the bag presented an immediate danger that required that it be opened immediately to protect public safety.

We conclude that the contents of the locked bank bag were not obtained as a result of a legitimate inventory search and, therefore, should have been suppressed. Suppression of the contents of the locked bank bag in turn requires that the adjudications based on the drug charges be reversed, there being no other evidence to support those charges. That being the case, whether the patfrisk or the search incident to arrest were valid are questions we need not, and do not, reach. Neither resulted in the discovery of evidence to support any of the adjudications.

Under the totality of circumstances, the defendant’s van was believed by the police to be involved in a shooting incident, and that justified a stop. A minor error in the description (flag on mirror and not in back) was not enough to show a lack of RS. Commonwealth v. Lopes, 455 Mass. 147, 914 N.E.2d 78 (2009).*

Call to the police of a burglary in progress justified police entry into the defendant’s apartment when the police arrived and found the door open. People v. Ferral, 397 Ill. App. 3d 697, 921 N.E.2d 414, 336 Ill. Dec. 800 (2009).*

Defendant’s showing up at the scene of a suspected drug buy did not justify his search because he was completely unknown to the police and there were no facts suggesting that he was involved in the expected drug transaction that was going down. People v. Christmas, 396 Ill. App. 3d 951, 920 N.E.2d 1240, 336 Ill. Dec. 650 (2009).*

Defense counsel’s agreeing with the facts recited by the trial court during the suppression hearing precludes arguing to the contrary on appeal. State v. Corbin, 233 Ore. App. 113, 224 P.3d 705 (2009).*

Police testimony about a protective sweep was more credible and believable than the defense witnesses that there actually was an illegal search during the protect sweep. The defense testimony is just too “speculative and convenient.” United States v. Salazar, 2009 U.S. Dist. LEXIS 121471 (N.D. Tex. December 31, 2009).*

Telling the defendant he was free to go, then asking for consent to search his car, taken over by a second officer, was a continuation of the stop and made the consent invalid. State v. Alvarez, 234 Ore. App. 544, 228 P.3d 683 (2010):

The check came back clear. Boyd walked back to defendant’s car, returned defendant’s documents, gave defendant a warning for not having license plates, told defendant that he was “free to leave,” and stepped back from the vehicle. At that point, the “forward-facing red and blue lights” on Boyd’s police car had been turned off and nothing “block[ed] [defendant’s] pathway or his ability to leave the scene.”

“[A] few seconds” after telling defendant that he was free to go, Boyd asked defendant, in a “relaxed” manner, for his consent to search the car and if he “[had] anything with you that [Boyd] need[ed] to know about.” Defendant asked why a search was necessary. McGladrey, who had been watching Boyd and defendant from his position behind defendant’s car, then approached the driver’s side and “[took] over the discussion,” while Boyd “stepped back” but remained on the scene behind defendant’s car. In a “calm and professional” manner, McGladrey answered defendant’s question by telling him that there was “a high incidence of *** drug use and trafficking in [the] area.” He then

“pointed out the fact that there were no license plates on the vehicle. Uh, it was, it was night. It was dark outside. Um, it was basically suspicious activity. And I asked [defendant] if he could understand that from our perspective, from our position. That, uh, we’re a little concerned about, uh, his activity that night. And I asked if he’d be willing to let us search the vehicle for those reasons[.]”

The factual scenario in this case is not materially different from the one in Toevs. Here, as in Toevs, defendant was lawfully stopped for a traffic infraction and, as in Toevs, the officer returned defendant’s documents, told defendant that he was free to go, and then immediately asked for consent to search defendant’s vehicle. And, just as the back-up officer in Toevs interrupted the conversation between the first officer and the defendant and pressured the defendant in that case to consent, here, McGladrey, the back-up officer, “[took] over” the discussion between defendant and Boyd, informed defendant that he appeared “suspicious,” explained that defendant was in a high crime area at night, and asked a second time for defendant’s consent. That “continuous show of police authority,” id. at 536-37, constitutes conduct “significantly beyond that accepted in ordinary social intercourse,” Holmes, 311 Ore. at 410, and served to “negate” Boyd’s statement that defendant was free to go. Moreover, nothing in Toevs indicates that the defendant’s path was blocked in that case, and the court did not consider that fact in its analysis. Further, as in Toevs, the encounter occurred after a traffic stop and, as the Supreme Court has recently explained, in such situations, a person’s belief that he or she is not free to leave the scene is inherently more reasonable than it is in other types of citizen-police encounters. State v. Rodgers/Kirkeby, 347 Ore. 610, 623, ___ P3d ___ (2010). Thus, we conclude that defendant was stopped, for purposes of Article I, section 9, when the officers asked for his consent.

Apparently ganging up on the defendant changes the dynamic. Compare State v. Deneen, 234 Ore. App. 582, 228 P.3d 680 (2010) noting Alveraz decided the same date, holding that one officer was not coercive:

Here, however, Gandy’s request to speak with defendant did not involve a continuous show of authority of the type that occurred in Toevs. In contrast to the officers’ immediate and repeated requests for consent to search in Toevs, Gandy’s conversation with defendant was low-key and casual. After defendant began pedaling away at the conclusion of the traffic stop, Gandy asked if he could speak with defendant again, a request that would be perceived as nonoffensive conduct if it occurred between ordinary citizens. The previous stop for a traffic violation does not change that analysis: Gandy had said that defendant was free to go at the conclusion of that stop, and Gandy’s subsequent conduct did not negate that statement.

The conversation that followed Gandy’s request to speak with defendant again was similar to that in State v. Bretches, 225 Ore. App. 602, 604, 202 P3d 883, rev den, 346 Ore. 361, 211 P.3d 930 (2009). There, the defendant had been stopped for traffic infractions. After being told that he was free to go, the defendant stood and continued to converse with the police officer. During that conversation, the officer asked if the defendant had anything illegal, and the defendant acknowledged possessing marijuana and consented to a search of his person and his truck. Id. Rejecting the defendant’s argument that he had been illegally stopped, we explained that, despite the lack of a break between the statement that the defendant was free to go and the continuation of the conversation, other factors weighed against the existence of a stop. Id. at 608. The defendant was questioned by only one officer, not in a tag-team fashion, and did not face immediate and repeated requests for consent to search that would prevent him from driving away. We emphasized that the defendant “was not subjected to multiple requests to search, never refused consent, and, when asked, never denied that he had drugs on him” and that the officer did not engage in physical conduct that would unlawfully effect or extend a traffic stop. Id. at 609.

Here, likewise, defendant was questioned by only one officer, Gandy, who did not engage in any physical control over defendant’s movements or press defendant with repeated requests for consent to a search. …

Officer was able to ask passenger for his name and DOB for a passenger seat belt violation. The passenger came back having a warrant out for him. The questioning was valid because the officer could ask. United States v. Fernandez, 600 F.3d 56 (1st Cir. 2010):

Other circuits had concluded before [Arizona v.] Johnson that officers could properly ask a passenger for identification in circumstances similar to those before us, and Johnson’s discussion of the permissible scope of a traffic stop has only strengthened such precedent. See, e.g., United States v. Diaz-Castaneda, 494 F.3d 1146, 1152 (9th Cir. 2007) (stating, in the context of a passenger inquiry, that “[t]he police may ask people who have legitimately been stopped for identification without conducting a [separate] Fourth Amendment search or seizure”) (citing Hiibel, 542 U.S. at 185); United States v. Soriano-Jarquin, 492 F.3d 495, 500 (4th Cir. 2007) (“If an officer may ‘as a matter of course’ and in the interest of personal safety order a passenger physically to exit the vehicle, he may surely take the minimally intrusive step of requesting passenger identification.”) (citing Wilson, 519 U.S. at 410); United States v. Rice, 483 F.3d 1079, 1084 (10th Cir. 2007) (“[B]ecause passengers present a risk to officer safety equal to the risk presented by the driver, an officer may ask for identification from passengers and run background checks on them as well.”) (citing Wilson, 519 U.S. at 413-414). [¶] We therefore hold that, based on the record before us, no Fourth Amendment violation occurred.

Stop of car at a sobriety checkpoint was validly extended because the car matched a BOLO from an hour earlier about a robbery. United States v. Jackson, 680 F. Supp. 2d 772 (S.D. W.Va. 2009):

In considering the totality of the circumstances, this Court has little difficulty finding this initial stop was constitutional. The officers knew there was a recent armed robbery in close proximity to the checkpoint, the suspects were a white female and black male, and they were the only couple fitting that description that had gone through the checkpoint. Although Corporal Poff was mistaken that the robbery had “just occurred,” the Court finds that even if he had known it had occurred approximately an hour earlier, it was still sufficiently close in time that it would not prohibit the initial investigatory stop.

Once stopped, the officers on the scene collected Ms. Gilman’s driver’s license and proof of insurance and waited approximately five to eight minutes for Corporal Poff to return. After he arrived, he explained to Ms. Gilman and the defendant that they fit the racial profile of armed robbers. They were then asked to get out of the car and patted down for officer safety. Although the duration of the detention is lengthening, the Court finds that a patdown for officer safety was reasonable in that they knew the robbers were armed. See Arizona v. Johnson, 129 S. Ct. 781, 787 (2009) (affirming that officers conducting traffic stops may patdown a passenger if there is reasonable suspicion the passenger may be armed and dangerous). However, the officers found nothing unusual or suspicious during the patdown and there was not anything of a suspicious or incriminating nature in plain view in the car. Nevertheless, the officers separated Ms. Gilman and the defendant and put them in the back of different police cruisers and both were given their Miranda rights. Clearly, Ms. Gilman and the defendant remained seized during this entire time as a reasonable person would not have felt like he or she could walk away from the situation.

A national park road audit validly stopped a DWI. The park service sets up checkpoints out of sight of the entrance booth to verify that all cars entering had paid the required fees. No shortages had ever been found at this park, but they have been elsewhere in the country. (This was not a law enforcement roadblock in enforcing the law against drivers.) United States v. Rodriguez, 2009 U.S. Dist. LEXIS 119687 (S.D. Tex. December 23, 2009):

Additionally, several cases similar to this action have come before the Ninth Circuit. That court has determined that a checkpoint stop by a federal ranger was reasonable where the purpose was to distribute litter bags, “which included regulations concerning campfires for fire safety, refuse disposal for litter control, and camp restrictions.” United States v. Faulkner, 450 F.3d 466, 470 (9th Cir. 2006); see also United States v. Hawkins, 249 F.3d 867, 873 (9th Cir. 2001) (because “the military has a substantial interest in preventing theft of its property and in ensuring national security,” a fixed “checkpoint advanced a substantial public interest”); Freece v. Clackamas County, 442 F. Supp. 2d 1080, 1087 (D. Or. 2006) (brief seizure to enable ranger “to talk to park users about littering, with the goal of reducing littering” was reasonable). Moreover, in United States v. Fraire, 575 F.3d 929 (9th Cir. 2009), the Ninth Circuit addressed a vehicle checkpoint in the Kings Canyon National Park that was designed “to counter illegal hunting within that park.” Id. at 933. The court concluded that public interest in wildlife protection as well as visitor safety were pressing concerns. Id.

Second, the public interest must be balanced against the individual’s privacy and liberty interests. Sitz, 496 U.S. at 450; Collins v. Ainsworth, 382 F.3d 529, 539 (5th Cir. 2004). Courts must address the “effectiveness of the checkpoint program. Sitz, 496 U.S. at 453-55. For example, checkpoints have been found constitutional when they resulted in 1.5 percent of drivers being found to be intoxicated, id. at 454-55; and .12 percent of cars being found to contain illegal aliens. Martinez-Fuerte, 428 U.S. at 554.

Search of a cigarette packet seized for officer safety from defendant’s purse was unreasonable because the threat (also admittedly a close call) was neutralized by seizure. State v. Johnson, 2009 Kan. App. LEXIS 849 (October 9, 2009):

Here, by the time of the search and seizure, this defendant had offered Officer Tucker a plausible innocent explanation for her presence at the apartment, which was verified by the landlord. Tucker’s concerns were raised when the defendant retrieved the cigarette package after Tucker told the defendant not to reach in her purse. Tucker cited his previous experience with individuals who would hide razors in cigarette packages. However, such individuals were involved in drugs and prostitution, neither of which Tucker connected with this defendant. This leads us to the conclusion Tucker’s search of the cigarette package was an impermissible warrantless search.

Our conclusion is supported by the United States Supreme Court’s recent decision in Arizona v. Gant, 556 U.S. , 173 L. Ed. 2d 485, 129 S. Ct. 1710 (2009). Although Gant involved the vehicle-search-incident-to-arrest exception to the warrant requirement as formulated in New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981), this exception is partly justified by the same officer safety rationale that underlies the Terry exception at issue here. See Gant, 173 L. Ed. 2d at 492-93. Concluding the vehicle-search-incident-to-arrest exception had been improperly broadened to allow a vehicle search incident to any arrest, the Supreme Court narrowed the exception by holding such warrantless searches are proper “only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” 173 L. Ed. 2d at 501. Our Supreme Court recently relied on Gant in striking down part of Kansas’ warrantless-search-incident-to arrest statute, K.S.A. 22-2501(c). See State v. Henning, 289 Kan. 136, , 209 P.3d 711 (2009).

Because Colorado law on probation searches is “sparse,” the court discusses at length SCOTUS probation search cases and concludes that this search was valid. Police has a warrant for defendant for a gang related murder, and called his probation officer. The probation officer called defendant and went to his house and conducted a probation search for a weapon, finding gang colors and a .40 cal. bullet. The search was valid. People v. Samuels, 228 P.3d 229 (Colo. App. 2009).*

Defendant’s flight from detention after being confronted in an alley was not a seizure. United States v. Bandy, 2009 U.S. Dist. LEXIS 95466 (N.D. Ind. October 13, 2009).*

Plaintiffs’ child suffered from cerebral palsy, and she had a paraprofessional who helped her use the bathroom at school. A bruise was seen, and the school was a mandatory reporter. There was no Fourth Amendment violation from seeing the bruise. S. L. v. Seymour R-2 Sch. Dist., 2009 U.S. Dist. LEXIS 95731 (W.D. Mo. October 14, 2009).*

Gant did not abrogate the vehicle exception. This search was valid under the vehicle exception because there was probable cause. United States v. Allen, 2009 U.S. Dist. LEXIS 95383 (E.D. Tenn. October 13, 2009).*

Flight after suspicious conduct is reasonable suspicion. Defendant saw police and went onto a porch and fiddled with a door and then fled when they were looking at him. Akins v. Commonwealth, 2009 Ky. App. LEXIS 199 (October 16, 2009):

Akins contends that he was not subject to an ordinary investigatory stop on Valley Creek Road based on his behavior as observed by the police. We do not agree. His conduct on the porch itself under the circumstances furnished an articulable, reasonable suspicion that criminal activity might be afoot. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed2d 889 (1968). His reactions to the police–taking immediate, evasive flight upon seeing Kelly’s vehicle approach and then leaping from the porch as the two vehicles approached–also furnished reasonable, articulable suspicion for the initial stop. The United States Supreme Court has held that the fact of flight at the mere sight of the police constitutes the reasonable suspicion required to justify a Terry stop:

Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight–wherever it occurs–is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.

Illinois v. Wardlow, 528 U.S. 119, 124, (citations omitted) 120 S.Ct. 673, 676, 145 L. Ed. 2d 570 (2000).

Note: the court left out from the quote the sentence before: “In this case, moreover, it was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion but his unprovoked flight upon noticing the police.” That should have been included.

Defendant was the passenger in a car stopped based on a telephone call from Walgreens about overpurchase of pseudophedrine, and the pseudo was on the seat in plain view. He had standing to challenge the stop, and he loses. As for the search of the car, he has no standing to challenge its search under Rakas. Lindsey v. Commonwealth, 306 S.W.3d 522 (Ky. App. 2009).*

Probable cause for search of defendant’s truck for cash was based on wiretaps and observations that were consistent with the wiretaps. The truck was mobile, so the automobile exception applied. United States v. Longoria, 2009 U.S. Dist. LEXIS 96333 (N.D. Ga. August 13, 2009).*

The affidavit for the search warrant was devoid of nexus to defendant’s home and the crime, and the good faith exception did not save this search. State v. Wildman, 2009 Ohio 6986, 185 Ohio App. 3d 346, 923 N.E.2d 1240 (6th Dist. 2009):

[*P19] Here, because the affidavit does not provide a basis upon which probable cause could be found to search the premises at 126 Venango Street, the officer’s belief that probable cause existed to search that property was unreasonable. The officer’s testimony at the motion to suppress hearing as to how they determined that the Venango Street address was appellant’s residence does not change the analysis. “[An] officer cannot claim good faith reliance on a search warrant based on less than probable cause where he has failed to place in the affidavit information known to him that would support probable cause[;] the officer’s reliance on the warrant can be objectively reasonable only if his belief that the affidavit contains facts sufficient to create probable cause is itself objectively reasonable.” State v. Klosterman (1996), 114 Ohio App.3d 327, 333, 683 N.E.2d 100.

Defendant’s license plate light did not work, and that was the basis for the stop. The video of the stop did not support defendant’s position that the license plate was lit. State v. Hundley, 2009 Ohio 6873, 2009 Ohio App. LEXIS 5775 (3d Dist. December 28, 2009).*

Driving slowly, stopping, and then engaging in a possible hand to hand drug transaction in a high crime area was reasonable suspicion. State v. Martin, 2009 Ohio 6948, 2009 Ohio App. LEXIS 5855 (9th Dist. December 31, 2009).*

Plain view of picture on cell phone screen justified search warrant for content of cell phone. Illegal search of the cell phone did not taint the search warrant State v. Carroll, 2010 WI 8, 322 Wis. 2d 299, 778 N.W.2d 1 (2010), affirming 2008 WI App 161, 314 Wis. 2d 690, 762 N.W.2d 404:

¶2 The focus of our inquiry is whether the evidentiary basis for the warrant to search the cell phone was tainted such that the Fourth Amendment to the United States Constitution, or Article I, Section 11 of the Wisconsin Constitution, requires suppression of that evidence under the following circumstances: (1) an officer who had observed Carroll speeding confronted Carroll outside of his vehicle and ordered him to drop an unknown object that he held in his hand; (2) upon retrieving that object, the officer recognized it as an open cell phone and observed on the display screen an image of Carroll smoking what appeared to be a marijuana blunt; (3) the officer kept the phone, scrolled through its image gallery, and saw other images depicting Carroll with illegal items; and (4) the officer answered an incoming call pretending to be Carroll, and during that conversation, the caller ordered illegal drugs. The police obtained a warrant to search the phone. With the warrant, the police obtained time-stamped digital images from Carroll’s cell phone. It is that evidence that Carroll seeks to suppress.

¶3 We hold that neither the Fourth Amendment to the United States Constitution nor Article I, Section 11 of the Wisconsin Constitution requires that the evidence be suppressed under the circumstances presented here. In so holding, we are satisfied that the officer was justified in seizing Carroll’s cell phone and in viewing the marijuana image, which was in plain view. Further, although the officer was also justified in continuing to possess the phone, we are satisfied that the officer was not justified in opening and browsing through the cell phone image gallery at the time that he took such action. As such, the evidence that the officer gleaned from that conduct was tainted and could not form the basis for a search warrant. However, based on exigent circumstances, the officer was justified in answering the incoming call to Carroll’s phone during which the caller ordered illegal drugs. That evidence was an untainted independent source that formed a valid basis for the search warrant when combined with the officer’s knowledge of drug traffickers and Carroll’s juvenile record, along with the plain view of the image of the marijuana blunt. Accordingly, we affirm the court of appeals.

See Illegal police search of cell phone does not invalidate conviction.