Arrest by Ohio State Troopers of defendant in Pennsylvania did not violate the Fourth Amendment. The officers were in hot pursuit (see Uniform Fresh Pursuit Act, Ohio Rev. Code §§ 2935.30 & 2935.31) with probable cause. What state law provides does not necessarily involve the Fourth Amendment under Virginia v. Moore. This arrest was reasonable. United States v. Sed, 601 F.3d 224 (3d Cir. 2010):

In Moore, police arrested Moore for driving on a suspended license, even though Virginia law empowered them to issue only a summons for that offense. Id. at 1601-02. The question presented to the Supreme Court was “whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law.” Id. at 1601. Like Sed, Moore argued that his arrest in violation of Virginia law constituted an ipso facto violation of the Fourth Amendment. The Supreme Court disagreed, noting: “A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional.” Id. at 1606. The Court concluded that “while States are free to regulate … arrests however they desire, state restrictions do not alter the Fourth Amendment’s protections.” Id. at 1607. In light of Moore, Sed is plainly wrong when he argues that his arrest in violation of Ohio law renders the conduct of the State Police unreasonable per se under the Fourth Amendment.

Our rejection of Sed’s categorical argument is not the end of the inquiry, however, because we still must determine whether the seizure was unreasonable under the Fourth Amendment. We review the reasonableness of a seizure under the totality of the circumstances. Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996). Our review of the undisputed facts of this case leads us to conclude that there was nothing unreasonable about the Pennsylvania State Police’s seizure of Sed and Grannison, despite the fact that the arrest occurred in Ohio instead of Pennsylvania.

Although Sed was seized outside the territorial jurisdiction of the Pennsylvania State Police, the first controlled purchase between Sed and Poulos was negotiated and consummated entirely within Pennsylvania. As for the second controlled purchase, Poulos requested Grannison’s presence at the Shenango Valley Mall. When Sed changed the location to the gas station at the Hermitage Plaza, the “take down” team assembled nearby and planned to make the arrest there. The record demonstrates that all state actors believed the second controlled purchase would occur entirely within Pennsylvania until Sed insisted that the deal would have to occur in the same fashion as the first deal six days earlier. Thus, it was only as a result of this last-minute change of plans by Sed that the second controlled buy occurred so close to the state line. Even then, the police intended to arrest Sed in Pennsylvania and believed that they had done so when they stopped Grannison’s car.

In sum, Sed had committed a serious drug crime in Pennsylvania and was acting in furtherance of a conspiracy to distribute crack cocaine in Pennsylvania at the time he was seized. The stop of Grannison’s car before it entered Pennsylvania was nothing more than an honest mistake and a de minimis one at that, considering the game of hopscotch Grannison and Sed played across the Pennsylvania-Ohio border. This mistake does not render the seizure of Sed unreasonable. Cf. United States v. Delfin-Colina, 464 F.3d 392, 398-99 (3d Cir. 2006) (stating that a reasonable mistake of fact is “rarely fatal” to the legality of a Terry stop even where the mistake goes to the question of whether a crime is being committed). Under these circumstances, the seizure of Sed was not unreasonable and the District Court did not err in denying his motion to suppress evidence.

Defendant was stopped for having trim around the license plate that covered the state of issuance. The officer asked her questions, and she “enthusiastically” agreed to let him keep asking. The suspicion, however, never ripened into something articulable, and the USMJ recommended suppression. United States v. Martin, 679 F. Supp. 2d 723 (W.D. La. 2009)*:

Perhaps of even greater importance is Linton’s failure to explain a link between Martin’s purportedly suspicious behavior and any specific criminal activity. Jenson, 462 F.3d at 405; Thibodeaux, supra. Linton testified that based upon all of the facts that he identified, he believed that Martin was up to no good and that “something [was] wrong.” Linton later reiterated that he had determined that “something was wrong” and that he was going to search her vehicle. Linton, however, did not articulate how Martin’s behavior and the remaining circumstances indicate that she was engaged in illegal drug activity or some other specific criminal activity. See Jenson, supra; see also Santiago, supra (search was unreasonable even though officer thought that the car might contain drugs, because any suspicion of drug trafficking was dispelled once the licenses cleared). Accordingly, Linton’s suspicions comprised no more than a hunch, albeit a very good one. Jenson, supra; Thibodeaux, supra. Hunches, however, do not suffice.

Tossing a cigarette from a car justified its stop for littering, and a drug dog arrived within two minutes, which did not unreasonably extend the stop. United States v. Roach, 2010 U.S. Dist. LEXIS 3769 (D. S.C. January 15, 2010).*

Rolling stop justified traffic stop, and defendant was found to have consented to a search of his car. United States v. Cousin, 2009 U.S. Dist. LEXIS 123457 (E.D. Tenn. November 18, 2009)*; United States v. Coachman, 2010 U.S. Dist. LEXIS 4113 (W.D. Pa. January 20, 2010).*

In that same case, an equal protection claim is not subject to suppression. United States v. Cousin, 2009 U.S. Dist. LEXIS 123481 (E.D. Tenn. November 23, 2009):

Because the exclusionary rule is not an appropriate remedy for an Equal Protection violation by police pursuant to United States v. Nichols, 512 F.3d 789 (6th Cir. 2007), it is RECOMMENDED that defendant’s motion to suppress and defendant’s request for additional discovery and an evidentiary hearing on his Equal Protection claim be DENIED.

Ohio judge issued a search warrant which was executed in California, and this violated the Fourth Amendment. State v. Jacob, 2009 Ohio 7048, 185 Ohio App. 3d 408, 924 N.E.2d 410 (2d Dist. 2009):

[*P25] We agree that, in Jacob’s situation, a violation of statutory provisions that a judge can issue a valid search warrant only within his or her court’s jurisdiction is a fundamental violation of Fourth Amendment principles. As Justice Holmes said in a different context in Silverthorne Lumber Co. v. United States (1920), 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, T.D. 2984, 17 Ohio L. Rep. 514, a line must be drawn somewhere to prevent the Fourth Amendment’s guarantee against unreasonable searches and seizures from becoming no more than a “form of words.” Crossing state lines by allowing an Ohio court to determine when California citizens and property are subject to search and seizure crosses this constitutional line. In Hardy and Wilmoth, at least, the court that issued the warrant, the court that had authority to issue it, and the law enforcement officers were all in Ohio, albeit in different legislatively-created venues, and, as such, their actions were all subject to Ohio law. Allowing one state’s court to determine when property, residences, and residents of another state may be subject to search and seizure would trample the sovereignty of states to determine the procedures by which a warrant may be issued and executed and of their courts to determine the consequences of a failure to follow those laws.

A third party ceded virtual control over a house damaged in a fire where defendant’s husband died in an alleged arson had the authority to consent to fire scene investigators entering to take pictures to determine the cause of the fire. Defendant practically abandoned the property because she did not want to be around it, and she let the third party deal with it. Orr v. State, 306 S.W.3d 380 (Tex. App. – Ft. Worth 2010).

Defendant admitted that the gun used in a series of robberies was in his car, and he signed a consent form to search the car. The court rejects his version that he did not know it was a consent form he was signing. [As if probable cause wasn’t enough?] United States v. Medrano, 2010 U.S. Dist. LEXIS 14495 (S.D. Fla. January 17, 2010).*

Defendant’s interaction with the officer after his traffic stop and warning ticket was consensual. People v. Roa, 2010 Ill. App. LEXIS 108 (February 10, 2010).*

The propriety of an inventory has to be challenged in the trial court to be able to appeal on that issue. Therefore, it was waived. State v. Hobbs, 2010 Ohio 589, 2010 Ohio App. LEXIS 495 (11th Dist. February 19, 2010).*

Officers came to an apartment to arrest the defendant for whom they had an arrest warrant, but they had no search warrant. A woman who answered the door let them in, and they arrested defendant, taking him out. Without asking defendant or even attempting to resolve any possible ambiguity as to ownership of a shoebox marked 10½ men’s Air Jordans surrounded by men’s clothes, the officers got consent from the woman, who essentially disclaimed a privacy interest in the room. The District Court’s suppression order is affirmed; no apparent authority to consent. United States v. Taylor, 600 F.3d 678, 2010 FED App. 0103P (6th Cir. 2010):

Upon conducting a full search of the apartment, the officers found more men’s clothes in the spare bedroom’s closet. This again indicated that someone besides Arnett was using this space—most likely Taylor because he was found in a nearby bedroom in his underwear. Although Arnett had no children, the closet in the spare bedroom contained a mix of children’s clothes, toys, and men’s clothes. Underneath an item of men’s clothing lay the closed shoebox. In short, nothing in the closet indicated that the items within it belonged to Arnett or were regularly used by her. Under these circumstances, when the officers discovered and were considering whether to open the shoebox, a reasonable person would have had substantial doubts about whether the box was subject to mutual use by Arnett.

Our conclusion is further reinforced by the district court’s factual finding that “the police would likely not have opened the closed shoebox if they believed it belonged to Arnett. Rather, they opened the shoebox precisely because they believed it likely belonged to Taylor.” Such a factual finding—that the officers believed the shoebox belonged to Taylor before they opened it—further strengthens Taylor’s argument that a reasonable officer in these circumstances would have had substantial doubts about whether the shoebox was mutually used by both Taylor and Arnett. Although many items that belong to a houseguest like Taylor might also be used by the dwelling’s resident (such as books, compact discs, magazines, or a portable stereo), a shoebox that is surrounded by the guest’s clothes and that sits in the corner of a closet in a little-used room is not likely to be such an item.

The government’s argument the shoebox had a lesser expectation or privacy was rejected:

Taylor’s shoebox was not sealed, and a shoebox is not a container that historically has enjoyed heightened expectations of privacy. See United States v. Block, 590 F.2d 535, 541 (4th Cir. 1978). But this does not equate to a per se rule that shoeboxes are never entitled to expectations of privacy in the Fourth Amendment context. Rather, we must consider the entirety of “the facts available to the officer at the moment” of his decision. See Waller, 426 F.3d at 846 (internal quotation marks omitted). Here, those facts demonstrate that there was ambiguity as to whether Arnett had mutual use or control of the shoebox found in the closet.

The thermal imaging warrant in this case was issued with probable cause based on a tip that defendant had an indoor grow operation. All the information was not stale because the tip corroborated other information that made the activity continuing and entrenched. The search warrant was based on the product of the thermal imaging, and it was valid, too. State v. Barton, 2010 R.I. Super. LEXIS 62 (April 7, 2010).*

The dog sniff in this case was within five minutes of the stop, and it was based on reasonable suspicion from the defendant’s heaving breathing and excessive nervousness, not making eye contact, and suspicious travel story. United States v. Mohamed, 600 F.3d 1000 (8th Cir. 2010).*

Defendant was found to be an overnight guest where he answered the police knock at the door in his shorts and a t-shirt, having just woke up. The police gained entry because they were checking on the welfare of one of the occupants, and they were let in. What was seen in plain view could be seized. United States v. Rodriguez, 2010 U.S. Dist. LEXIS 35698 (M.D. Pa. April 12, 2010).*

The court suppressed the search of one of defendant’s residences, but there was a dispute as to which computer of two computers came from there. The exclusionary rule would not be applied to a hearing to decide which was which. It served no purpose of the exclusionary rule. United States v. Conrad, 668 F. Supp. 2d 1071 (N.D. Ill. 2009) (interesting opinion on essentially applying the exclusionary rule to a second hearing on the suppression issue; it says it is unique but it could come up again):

Applying the exclusionary rule here would also impose substantial societal costs. The purpose of the July 2009 hearing was to determine which laptop computer was obtained at the Geneva Residence and therefore subject to the Court’s earlier suppression order. The application of the rule would inhibit that purpose, as the evidence Defendant seeks to exclude from consideration will assist the Court in making its decision. See Calandra, 414 U.S. at 349, 94 S.Ct. at 621 (the exclusionary rule would “unduly interfere with the effective and expeditious discharge of the grand jury’s duties”).

Additionally, applying the rule here would be inconsistent with the more relaxed procedures that apply to suppression hearings. “[T]he rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility of evidence.” United States v. Matlock, 415 U.S. 164, 172-73, 94 S.Ct. 988, 994 (1974). See also id. at 175, 94 S.Ct. at 995 (“There is, therefore, much to be said for the proposition that in proceedings where the judge himself is considering the admissibility of evidence, the exclusionary rules, aside from rules of privilege, should not be applicable; and the judge should receive the evidence and give it such weight as his judgment and experience counsel.”); United States v. Watson, 87 F.3d 927, 930 (7th Cir. 1996) (construing Matlock‘s holding to mean “aside from privilege, exclusionary rules should not apply in a proceeding in which the court itself is considering the admissibility of evidence”). Just as in other proceedings to which the exclusionary rule does not apply, the court presiding over a suppression hearing “does not finally adjudicate guilt or innocence” and is “unimpeded by the evidentiary and procedural restrictions applicable to a criminal trial.” Calandra, 414 U.S. at 349, 94 S.Ct. at 620. See also Scott, 524 U.S. at 365-66, 118 S.Ct. at 2020-21 (declining to extend the exclusionary rule to parole revocation proceedings, which are “traditionally flexible” and in which the “traditional rules of evidence generally do not apply”). Even though suppression hearings are not bound by the traditional rules and procedures applied to trials, the Court notes that Defendant Conrad had the ability to cross-examine the Government’s witnesses and present his own evidence.

Plaintiff’s arrest for domestic violence was in his house, without exigent circumstances, and thus violated Payton. Denton v. Rievley, 353 Fed. Appx. 1, 2009 FED App. 0736N (6th Cir. 2009) (unpublished).*

Stop for illegally tinted windows was valid and with PC. United States v. Leonard, 356 Fed. Appx. 231 (11th Cir. 2009) (unpublished).*

With search warrants for drug dealers, nexus is almost per se shown for their home for drugs and money. United States v. Huerta, 2009 U.S. Dist. LEXIS 116621 (E.D. Tenn. November 10, 2009):

“In the case of drug dealers, evidence is likely to be found where the dealers live,” United States v. Jones, 159 F.3d 969, 975 (6th Cir. 1998), quoting United States v. Lamon, 930 F.2d 1183 (7th Cir. 1991). A case that originated in this court is directly on point: United States v. Gunter, 551 F.3d 472 (6th Cir. 2009). Gunter argued that the affidavit filed in support of the search warrant issued by this court failed to establish a nexus between his residence and the criminal activity otherwise described in the affidavit, arguing that “the affidavit does not contain any facts indicating that Gunter was dealing drugs from his residence, and that the affidavit only mentions his residence in one short paragraph ….” 551 F.3d at 481. The Court of Appeals held that it was reasonable to conclude from the affidavit that Mr. Gunter was engaged in drug trafficking, and it was therefore reasonable to infer “that evidence of the illegal activity would be found at [his] residence,” citing Gunter, supra, 551 F.3d at 481.

Accord: United States v. Huerta, 2009 U.S. Dist. LEXIS 117154 (E.D. Tenn. December 3, 2009).*

Defendant’s specific argument of lack of attenuation from alleged illegal police conduct was not made in the district court, so it was waived for appeal. “While the two arguments are related, they are not the same.” United States v. Lambert, 356 Fed. Appx. 179 (10th Cir. 2009) (unpublished).*

Odor of marijuana coming from defendant’s vehicle was probable cause for a search. United States v. Curry, 2009 U.S. Dist. LEXIS 116499 (N.D. Tex. December 14, 2009).*

Compulsory taking of DNA from a pretrial detainee under 42 U.S.C. § 14135a violates the Fourth Amendment. It cannot be supported under special needs, totality of the circumstances, or a compelling governmental interest. United States v. Mitchell, 681 F. Supp. 2d 597 (W.D. Pa. 2009):

A DNA profile generates investigatory evidence that is primarily used by law enforcement officials for general law enforcement purposes. To allow such suspicionless searches, which are conducted in almost all instances with law enforcement involvement, to occur absent traditional warrant and probable cause requirements will intolerably diminish our protection from unreasonable intrusion afforded by the Search and Seizure Clause of the Fourth Amendment. The Court, therefore, finds that the “special needs” exception to the warrant and probable cause requirements of the Fourth Amendment is inapplicable here.

. . .

The Government also argues that the degree of intrusion affecting Mitchell’s privacy interest is minimal. The Third Circuit, in Sczubelek, specifically found that “the intrusion of a blood test is minimal.” United States v. Sczubelek, 402 F.3d at 184 (citing Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. at 625) 8. The taking of a buccal swab, then, certainly can not be any more intrusive. The Third Circuit, however, also stated that “this slight intrusion into an ordinary citizen’s privacy is unconstitutional.” Id. Though Mitchell may not be considered an “ordinary citizen” based upon his restricted liberty as a pretrial detainee, this Court has found that he maintains a high expectation of privacy in the comprehensive, inherently private information contained in his DNA sample. Therefore, even though the taking of a sample may not be unreasonably intrusive, the search of the sample is quite intrusive, severely affecting Mitchell’s expectation of privacy in his most intimate matters.

. . .

In assessing the totality of the circumstances and weighing the legitimate governmental interests against Mitchell’s expectation of privacy in the genetic information contained in his DNA sample, the Court finds that a universal requirement that a charged defendant submit a DNA sample for analysis and inclusion in a law enforcement databank for criminal law enforcement and /or identification purposes is unreasonable under, and therefore in violation of, the Fourth Amendment to the United States Constitution.

. . .

Based upon the foregoing, this Court finds that 42 U.S.C. § 14135a, and its accompanying regulations, requiring a charged defendant to submit a DNA sample for analysis and inclusion in CODIS without independent suspicion or a warrant unreasonably intrudes on such defendant’s expectation of privacy and is invalid under the Fourth Amendment to the United States Constitution. An appropriate order follows.

Pittsburgh Post Gazette here; Pittsburgh Live here.

Officers invited into the scene of a fire, minutes after it was put out, because one firefighter was trained in meth lab detection and reported an apparent meth lab to the police, violated the Indiana constitution. State v. Peters, 921 N.E.2d 861 (Ind. App. 2010).*

Police officers saw a vehicle recently involved in an armed robbery and suspected of being involved in others. Officers surrounded the house, and took a man outside. Defendant’s wife then consented to a search. The search was not subject to suppression because he was not removed to avoid his consent. Burke v. State, 302 Ga. App. 469 (2010).*

Minor deviation from departmental policy on conducting roadblocks did not make the roadblock unreasonable. The part not adhered to was for the safety of the officers. Field v. State, 28 So. 3d 697 (Miss. App. 2010).

Hand-to-hand transaction between a passenger in a car and a person who walked up to it was reasonable suspicion. State v. Long, 303 S.W.3d 198 (Mo. App. 2010).*

Defense counsel could not be ineffective for not filing a meritless motion to suppress. It was litigated on another ground and lost, and defendant argued that another ground would have worked, but it wouldn’t. Commonwealth v. Franklin, 2010 PA Super 24, 990 A.2d 795 (2010).*

The exclusionary rule did not apply to a forcible entry and detainer action to remove defendant from a publicly owned apartment building for drug usage on the premises. United States Residential Mgmt. & Dev. v. Head, 397 Ill. App. 3d 156, 922 N.E.2d 1, 337 Ill. Dec. 143 (2009):

The present case is distinguishable from One 1958 Plymouth Sedan. Here, the focus of the Act is not to punish defendant, but rather to set forth a mechanism for the peaceful adjudication of possession rights in the circuit court. In addition, while defendant may be subjected to a harsh consequence – losing his residence–-this consequence does not transform this civil proceeding into a quasi-criminal proceeding. When the Supreme Court denied extending the exclusionary rule in Immigration and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 82 L. Ed. 2d 778, 104 S. Ct. 3479 (1984), and in Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357, 141 L. Ed. 2d 344, 118 S. Ct. 2014 (1998), the possible sanctions were deportation and incarceration, respectively. These sanctions, while harsh, did not transform the civil proceedings into quasi-criminal proceedings. These sanctions are also equally, if not more, harsh than losing one’s residence.

. . .

Balancing the factors in the present case, we conclude that the exclusionary rule should not be extended to encompass the present situation. The cost to CHA and the truth-finding process outweigh the benefit which would result from the application of the exclusionary rule in forcible entry and detainer actions. By applying the exclusionary rule in the present case, CHA would be unable to consider valuable and relevant evidence of potential criminal activity that would impede the truth-finding function of the circuit court. To extend the rule and suppress evidence of criminal activity would hinder CHA’s ability to enforce lease agreements designed to promote safety and deter illegal conduct in public housing communities. This rationale is consistent with the concerns of the Illinois General Assembly in implementing the Act, which was to protect persons at public housing premises from “imminent danger and peril to [their] lives, safety, health and mental and physical well being.” Pub. Act 87–0933, eff. August 27, 1992 (adding 735 ILCS 5/9–118). The circuit court failed to incorporate this half of the analysis under the exclusionary rule balancing test.

Patdown of the defendant revealed a small container that was not a weapon. The officer told the defendant to empty his pockets, and it was a small container with drugs inside. The direction to empty his pockets was unreasonable, and it was not revealed by plain feel. State v. Gambow, 306 S.W.3d 163 (Mo. App. 2010).

Defendant’s motion to suppress should have been granted. His explanations about his ownership of the car he was driving were reasonable and there were no facts which justified continuing the stop 20 minutes after the time necessary to write him a ticket. Instead of just any back up, a drug dog arrived, and a dog sniff was conducted. It was unreasonable. Wells v. State, 922 N.E.2d 697 (Ind. App. 2010).*

Defense counsel was not ineffective for not filing a motion to suppress a search warrant that looked for evidence concerning the disappearance of the murder victim. That was particular enough. Other clauses in the warrant tied to it. Hemm v. State, 2010 Iowa App. LEXIS 135 (March 10, 2010).*

Police dispatcher’s unreasonable error as to whether there was a warrant for the defendant required suppression of the evidence, and Herring does not apply. The month of the DOB was the same, but not the date or year, and the first name was a variant of spelling of defendant’s first name. The officer acted reasonably in the field, but the dispatcher did not. This holding is consistent with Herring, but decided under the state constitution. (New Jersey does not have a good faith exception anyway.) State v. Handy, 412 N.J. Super. 492, 991 A.2d 281 (2010):

The facts in the case before us are quite distinct from those in Herring. Rather than a past clerical error, such as neglecting to remove a no-longer valid warrant, the police dispatcher in this case inaccurately reported to the police officer in the field that there was an active warrant for Handy when, in fact, there were significant discrepancies in the spelling of the first name and the date of birth that were not reported at the same time, thereby causing the arrest of the wrong person. Had the police dispatcher reported the discrepancies at the same time as the existence of the warrant, [Officer] Drogo would have attempted to verify that the warrant was for Handy before, rather than after, the arrest. Inasmuch as he was never able to verify that the warrant was for Handy, the arrest and the resulting search would not have taken place.

The deterrent value of applying the exclusionary rule in this case is, in our view, quite significant, especially in contrast to the low value under the factual circumstances before the Supreme Court in Herring. The police dispatcher is the crucial link between the officer in the field and police headquarters. The officer depends on receiving the correct information from the dispatcher, information such as whether there is or is not an outstanding arrest warrant for the person with whom the officer is then face to face. Misinformation either way has the potential to leave the officer either unaware that he or she is dealing with a dangerous criminal or arresting the wrong person.

The need to avoid the former is obvious and clearly in the best interest of the police officer in the field, the need to avoid the latter finds its basis in the Fourth Amendment’s protection of “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” See also N.J. Const. art. I, P 7. The police officer in the field and the citizen on the street both benefit from a police dispatch system that is free of unreasonable conduct by dispatchers who fail to ensure that they are providing the available information about outstanding warrants as accurately and completely as possible.

Under Schmerber, how a search for blood is conducted is always an issue, not just whether it was done under a search warrant. Here, just because the blood draw was in a police station does not make it unreasonable per se. State v. Johnston, 305 S.W.3d 746 (Tex. App.—Ft. Worth 2009):

The trial court found that the seizure of appellee’s blood “violated the Fourth Amendment’s reasonableness requirement by not being taken by medical personnel in a hospital or medical environment.” [Emphasis added.] However, most cases interpreting Schmerber do not read it so narrowly as to restrict the location of a blood draw to a hospital or clinic only. Draws taken in jails and sheriff’s offices have been upheld as reasonable. Here, there was extensive testimony that the trial court found to be credible as to the “clean” and appropriate nature of the room in which the blood draw was taken. Accordingly, we conclude that the location of the draw was not inherently unreasonable under the Fourth Amendment or Schmerber simply by virtue of it occurring in the clean room at the police station as opposed to a “medical environment.”

There likely is no reasonable expectation of privacy in a hotel room rented with a stolen credit card, so the trial court’s termination of the suppression hearing without resolving this question is reversed. State v. Delvechio, 301 Ga. App. 560, 687 S.E.2d 845 (2009).*

Defendant’s car search was not justifiable under Gant, but it was with PC for a bank robbery, and that was enough. United States v. Singletary, 2009 U.S. Dist. LEXIS 104639 (W.D. La. November 10, 2009).*

The fact an IP address is linked to child porn and then to defendant’s home is enough to issue a search warrant. United States v. Massey, 2009 U.S. Dist. LEXIS 104657 (E.D. Mo. November 10, 2009):

This Court finds that, even accepting the assertion that the IP address could have been hijacked by a third party, the Affidavit provided probable cause to find that evidence of child pornography would be at 7378 Hazel Avenue. This is because the search warrant affidavit established that, through his use of peer-to-peer file sharing software, Sgt. Kavanaugh observed over twenty videos of child pornography (identified by hash value) on a computer with IP address 68.188.82.208 on May 13, 2008 at 1:15:19, which was associated with the account of Ken Massey (defendant’s father) at 7378 Hazel Avenue. Defendant’s objection will be overruled.

[Posted 11/14]

Defendant was stopped and the officer told the defendant to stand in a particular place while the information was run. That was a seizure. He was on probation, and he believed he was being investigated. State v. Zaccone, 234 Ore. App. 267, 227 P.3d 215 (2010).*

Defendant was subjected to a pre-Gant search incident that violated Gant. The state concedes error, and the case is remanded [even though the defendant did not challenge the search]. State v. Burnett, 154 Wn. App. 650, 228 P.3d 39 (2010).* That same day, the same court held that a search claim was waived by not filing a motion to suppress. State v. Nyegaard, 154 Wn. App. 641, 226 P.3d 783 (2010).*

When defendant was talking to the officer, his wallet was open in his hand. The officer asked to look in the wallet, and defendant consented to it. State v. Smith, 154 Wn. App. 695, 226 P.3d 195 (2010).*

Under the totality of circumstances, the officer did not have probable cause to force a blood draw from the defendant at the scene of an accident under exigent circumstances. The trial court’s finding of consent, reversed by the Court of Appeals as clearly erroneous, was also affirmed. Defendant was clearly not free to go, and the officer effectively arrested her to isolate her from friends with her telling her not to consent to a blood draw. He asked three times, was rebuffed three times, and “took control of” her. State v. Tripp, 2010 UT 9, 227 P.3d 1251, 650 Utah Adv. Rep. 18 (2010), affg State v. Tripp, 2008 UT App 388, 197 P.3d 99:

[*P49] Here, the court of appeals correctly concluded that the police lacked probable cause to perform the blood draw under the totality of the circumstances. The court of appeals considered the testimony of Detective Roberts, Officer Saunders, and Officer Monson. See State v. Tripp, 2008 UT App 388, P 22, 197 P.3d 99. All testified that they did not detect an odor of alcohol or any signs of impairment. Also, the court of appeals was not convinced by Detective Roberts’s observation of Ms. Tripp’s red eyes and nervousness. See id.

[*P50] Nonetheless, the State contends that the court of appeals ignored these and other facts. Detective Roberts grew concerned that Ms. Tripp was impaired when he observed that the redness of her eyes was not dissipating and that he had not seen Ms. Tripp cry. He also observed that Ms. Tripp continually smoked and that she lacked any concern for the victim. The State argues that Ms. Tripp’s red eyes were a sign of impairment, her continuous smoking was used to mask the odor of alcohol, and her lack of concern suggested her preoccupation with guilt. Also, the State points out that Ms. Tripp failed to yield the right of way to the victim despite an apparently unobstructed view of the intersection. Finally, the State emphasizes that Ms. Budd and Mr. Davis detected an odor of alcohol from Ms. Tripp.

[*P51] Although the court of appeals did not specifically mention these facts in its analysis, we conclude under the totality of the circumstances review that the result remains the same. The State isolates a few facts within the totality of the circumstances to the exclusion of others.

The defendant’s request to hold under the state constitution that he had a reasonable expectation of privacy in a wired CI’s car is rejected, following United States v. White; if the CI could testify to the conversation as a witness, why should there be special protection against recording it? State v. Loh, 2010 ND 66, 780 N.W.2d 719 (2010):

[*P16] While our state constitution may provide greater protections than the United States Constitution, State v. Wanzek, 1999 ND 163, P 19, 598 N.W.2d 811, the defendant has provided no separate analysis of our state constitution or its history. Under the facts and circumstance of this case, we are not persuaded that our state constitution was violated by law enforcement’s warrantless electronic monitoring of Loh’s face-to-face conversations with the confidential informant when the conversations and drug transactions occurred in the informant’s car and the informant consented to the police’s electronic monitoring. Here, as in Kummer, there is no dispute that the confidential informant was cooperating with police, was aware of the nature of the transactions, and consented to the electronic monitoring of the conversations with Loh.

Defendant fails in his Franks challenge—the misstatements were not material, there was probable cause without them, and the good faith exception would not require suppression anyway. United States v. Craig, 2010 U.S. Dist. LEXIS 34809 (N.D.Ind. April 7, 2010).*

An officer responding to a noise complaint at 2 a.m. found several people on the front step of defendant’s house. When the door was opened, the light from inside reflected off a plastic bag stashed in the gap between the step and the house. It was in plain view, and using a flashlight after the first glimpse was not a search under Lee. State v. Gates, 2010 Iowa App. LEXIS 266 (April 8, 2010).*

Defendant was ordered out of the car with the others in it, and his movements made the officer concerned for his safety, so a frisk was justified. The incriminating nature of the object was unknown, however, so the search of a cigarette pack was invalid. State v. Brown, 30 So. 3d 907 (La. App. 5th Cir. 2009), released for publication January 26, 2010*:

The case before us is distinguishable from Morton in that there is nothing in the record to show that the cocaine evidence seized from defendant’s pocket would inevitably have been discovered in a legal manner. According to the testimony, there was nothing the officer could have arrested defendant for at the time of the traffic stop aside from the discovery of the cocaine. The record contains no evidence that defendant had outstanding warrants. Nor could the drugs found inside the other passenger’s purse be attributed to defendant. Therefore, there would have been no search incident to arrest that would have led the officer to find defendant’s cocaine legally.

The trial court credited the officer that defendant was speeding, and that justified defendant’s stop. When he was ordered from the car, rocks of crack were seen in plain view on the floorboard, and that justified a search of the car. State v. Wolff, 30 So. 3d 897 (La. App. 5th Cir. 2009).*

Where defendant’s conviction was affirmed but remanded, he could not raise a search and seizure issue that should have been raised in the first appeal. State v. Evans, 30 So. 3d 958 (La. App. 5th Cir. 2009).*

Defendant filed a motion to suppress but never requested a hearing on it, and that was a waiver of the motion. State v. Oliver, 30 So. 3d 946 (La. App. 5th Cir. 2009).*

Defendant’s moving his hand from his pocket at the officer’s direction and then behind his back, ostensibly to “itch his butt” raised safety concerns for the officer and justified a frisk. State v. Mason, 2009 Iowa App. LEXIS 1671 (December 30, 2009).*

Where two search warrants are issued for property on the same day by the same magistrate, the two affidavits may be read together to determine probable cause, even though the second does not incorporate the first. The second warrant in this dog fighting case should not have been suppressed. People v. Scott, 227 P.3d 894 (Colo. 2010):

However, the second affidavit need not be read in a vacuum. It is common practice for a single warrant to be supported by multiple affidavits, or for an affidavit to incorporate by reference and then expand upon an earlier affidavit. See, e.g., People v. Hakel, 870 P.2d 1224 (Colo. 1994) (reading two affidavits together as establishing probable cause where the second affidavit incorporated the first by reference); Commonwealth v. Saleh, 486 N.E.2d 706 (Mass. 1985) (same); see also 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.3(d), at 516 (4th ed. 2004) (stating that “[i]t is clear … there is no inherent defect in utilizing multiple affidavits” for the purpose of probable-cause determinations). Here, though, the affidavit supporting the second warrant does not explicitly incorporate by reference the affidavit supporting the first warrant. Rather, the second affidavit only states that the officers made their observations while executing the first search warrant at Scott’s residence.

Nonetheless, the observations sworn in the first affidavit clearly informed the ongoing investigation as well as the second warrant request. To force the two affidavits to be considered separately simply because Officer Feeney failed to explicitly incorporate the first affidavit into the second would be to impose hypertechnical requirements on an affidavit’s form and constrain the commonsense approach that guides a magistrate’s probable-cause determinations. See Kaiser v. Lief, 874 F.2d 732, 734-35 (10th Cir. 1989) (discussing the propriety of magistrates considering information in documents before them other than the affidavit supporting a warrant request and stating that a magistrate should not be constrained by unnecessary limitations on his use of common sense); United States v. Fogarty, 663 F.2d 928, 930 (9th Cir. 1981) (“[W]e can think of no Fourth Amendment reason why the magistrate had to read either affidavit with tunnel vision.”). We will not so constrict a magistrate’s analysis.

Hat tip to Jeri Merritt, who dubbed this the “eight corner rule.”

Second search of defendant’s property finding child porn was with consent and was validly used to enhance his sentence. He first objected, but then he withdrew the consent. United States v. Cottle, 355 Fed. Appx. 18, 2009 FED App. 0755N (6th Cir. 2009) (unpublished).*

Seventh Circuit declines to join the split on whether a person not on a rental contract has “standing” [n. 2; a word it notes the Supreme Court does not use anymore] because there was cause for the search no matter what. United States v. Brown, 355 Fed. Appx. 36 (7th Cir. 2009) (unpublished).*

During a knock and talk, defendant let officers into his house, and marijuana was in plain view. He consented to a further search of the basement finding more than 100 plants. United States v. Wise, 588 F.3d 531 (8th Cir. 2009), affg United States v. Wise, 2008 U.S. Dist. LEXIS 62966 (E.D. Mo., Aug. 18, 2008).*

District court did not err in finding that the search of defendant’s car for which there was PC to believe was involved in a robbery of a cocaine stash house was reasonable as an impoundment. [It also appears to be valid as an automobile exception search.] United States v. Ulloa, 355 Fed. Appx. 286 (11th Cir. 2009) (unpublished), cert. den. 2010 U.S. LEXIS 3053 (U.S., Apr. 5, 2010).*

Not a Fourth Amendment case, but interesting: A Navy regulation requires disclosure of civil drug and alcohol arrests. Defendant’s compelled report could not be used against him under the Fifth Amendment under Kastigar. United States v. Serianne, 68 M.J. 580 (N.-M. Ct. Crim. App. 2009).*