Defendant’s vehicle seizure was with probable cause to believe that it was being used to transport drugs, so it was valid as vehicle search or in aid of forfeiture for transporting drugs. United States v. Hall, 354 Fed. Appx. 725 (3d Cir. 2009) (unpublished)* (We don’t see many cases where the basis for the seizure is in aid of forfeiture. That almost always is a post hoc determination.)

Defendant’s stop was valid under Terry for furtive behavior–driving from the scene of a reported crime with his lights off. United States v. Nadal, 354 Fed. Appx. 729 (3d Cir. 2009) (unpublished).*

During a traffic stop, defendant was ordered out of the car, and a gun was seen in plain view. The officer’s intent to search was not binding, so Gant had no application. The fact that defendant was handcuffed in a police car did not prevent entry into the car for the gun in plain view. United States v. Rumley, 588 F.3d 202 (4th Cir. 2009).*

Moreover, Deputy Wagner’s intent to search the truck does not transform his lawful request of Ross into the “first step” of an improper search. Rather, Deputy Wagner’s request was a “discrete” act that brought the pistol into plain view. Cf. United States v. Moses, 540 F.3d 263, 272 (4th Cir. 2008) (concluding that separate acts of lawfully inserting a key in a lock and unlawfully entering a house without a warrant, while part of a “continuous activity,” constituted discrete acts yielding discrete information, “because the use of the key in the lock need not have led to entry of the residence at all”).

Defendant’s less than half-hearted argument that he had standing in a borrowed van was tantamount to an abandonment of the argument on appeal. United States v. Crisp, 355 Fed. Appx. 378 (11th Cir. 2009) (unpublished).*

In his brief, Crisp refers only three times, in passing, to the reasonableness of his privacy expectation. He alludes in one sentence to his pretrial suppression argument; he devotes two sentences to the proposition that his “custody and control over the van” gave him “a reasonable expectation of privacy”; and he asserts in his conclusion, without support, that he “had an expectation of privacy in the borrowed vehicle.” Such cursory treatment of the issue that was dispositive in the district court–and thoroughly discussed in its order–works an abandonment of the issue on appeal. Without a legitimate expectation of privacy in the van, Crisp cannot challenge the validity of the search.

Defendant’s consent to a general search of his house was sufficient to open a false bottomed can. He also did not object to the use of a dog in the search [like anybody can know they can?]. United States v. Duncan, 2009 U.S. App. LEXIS 26711 (11th Cir. December 8, 2009) (unpublished).*

Habeas petitioner had a full and fair opportunity to and did litigate his Fourth Amendment claims in Kansas state court, so his COA is denied. Scott v. Werholtz, 355 Fed. Appx. 203 (10th Cir. 2009) (unpublished).*

Mere typographical errors on the face of the search warrant are insufficient to suppress. (Checking a box about relying on a CI and failing to include the time of issuance.) Besides, the good faith exception would save the search anyway. United States v. Fitzgerald, 2009 U.S. Dist. LEXIS 456 (W.D. Va. January 6, 2009).*

Driver was CI to her passenger being in possession of cocaine and a gun. The driver was a prior CI for the police and had direct information, and she signaled the officer to initiate the stop. Jackson v. State, 295 Ga. App. 427, 671 S.E.2d 902 (2009).*

Trial court might have erred in concluding that a joint occupant of the premises could consent to a search of defendant’s own closet, but the record is incomplete for the appellate court to reach that issue. Here, however, the other evidence in the case is so significant on the issue of defendant’s involvement in the crime that the product of the search is harmless in comparison. State v. Early, 194 N.C. App. 594, 670 S.E.2d 594 (2009).*

Defendant was seen driving on a suspended DL and he was then moving furtively when the officer’s attention was drawn to him. That was cause for the stop. United States v. Harris, 2009 U.S. Dist. LEXIS 464 (E.D. Va. January 6, 2009).*

Defendant consented to officers entering his house to look for others that might have been involved in a fight, and that necessarily permitted them to look in the cellar. State v. Uran, 2008 ND 223, 758 N.W.2d 727 (December 16, 2008).*

Under implied consent law, the defendant does not have to consent [but he can refuse]. State v. Salter, 2008 ND 230, 758 N.W.2d 702 (December 16, 2008).*

Defendant was not detained when the officer approached him to talk to him while defendant was parked in his car. There were no lights and the car was not blocked. State v. Isenhour, 194 N.C. App. 539, 670 S.E.2d 264 (2008).*

Officer’s patdown for weapons before a “courtesy” police car ride did not justify a search of the person because the officer did not feel any weapons and it became an exploratory search. The court considers the split of authority on the propriety of a patdown as a matter of course whenever anybody gets into a police car and does not have to enter the fray. State v. Harlan, 2008 ND 220, 758 N.W.2d 706 (December 16, 2008).*

Defendant was in his mother’s home when he was arrested and the place was searched. He failed to show a reasonable expectation of privacy in her place because he disavowed that he was an overnight guest and he was there to smoke crack all night and not sleep there. United States v. Hunt, 2008 U.S. Dist. LEXIS 111768 (M.D. Ala. July 31, 2008)*:

Hunt expressly disavowed any ownership interests in the dwelling and acknowledged he neither lived nor resided at his mother’s residence. He repeatedly stated he did not stay there. He testified he was not there to sleep over at the house, but rather, up all night smoking crack and marijuana and watching television, and had just fallen asleep before the officers arrived. When asked who uses the bedroom at the dwelling, Hunt stated it was a family house with many people coming and going and there was no telling who had been in the house.

“The fact that [Hunt] had temporary access to the premises along with several other members of [his] family and had some personal effects there does not establish the requisite subjective expectation of privacy to assert standing when coupled with [his] explicit disclaimer of ownership or interest.” Sweeting, 933 F.2d at 964. Thus, Hunt is unable to establish standing to challenge the search of his mother’s house.

So, does this mean that one has to intend to sleep to have standing, even in his mother’s home, where he has a standing invitation to stay for any reason or any purpose? That can’t be the law.

Crossing the fog line twice, driving 40 in a 60, discrepancies in the account of the trip, and a furtive movement justified a request for consent. People v Blanco, 67 A.D.3d 923, 889 N.Y.S.2d 93 (2d Dept. 2009).*

Apparent hand to hand transaction from a car in an area known as a high crime area was reasonable suspicion. State v. Brewer, 2009 Ohio 6129, 2009 Ohio App. LEXIS 5146 (2d Dist. November 20, 2009).*

Officers had reasonable suspicion on approaching a parked car with people standing around it in an area known for gang activity and saw two people throw handguns under the car. State v. Johnson, 2009 Ohio 6136, 2009 Ohio App. LEXIS 5152 (2d Dist. November 20, 2009)* (well, Duh!).

Defendant’s stumbling when he got out of his car was reasonable suspicion of driving while impaired. It was visible on the video of the stop. The officer had asked for consent, too, because of a tip that defendant was involved in drug activity. The consent was valid. State v. Coniglio, 2009 Ohio 6087, 185 Ohio App. 3d 157, 923 N.E.2d 646 (5th Dist. 2009).

Seizure of defendant’s clothing from a hospital ER was without exigent circumstances and violated his expectation of privacy. “Nor does the record reflect that obtaining a warrant before the police seized the clothes was impracticable. The detective’s generic testimony that ‘sooner [is] better’ is insufficient to establish the exigency.” Commonwealth v. Williams, 76 Mass. App. Ct. 489, 923 N.E.2d 556 (2010):

In the circumstances presented here, the police presumptively violated the defendant’s rights under the Fourth Amendment to the United States Constitution when they removed his clothing from the hospital over his objection. See United States v. Neely, 345 F.3d at 370. We agree with the motion judge that the defendant retained a possessory interest in the clothing, regardless of his status as a hospital patient. See, e.g., ibid. Cf. Commonwealth v. Porter P., 456 Mass. 254, 262-264 (2010), and cases cited (regarding authority of third parties to consent to police entry and search); id. at 265 n.11. The Commonwealth failed to demonstrate that the defendant forfeited his possessory rights. Hospital staff placed his clothing in plastic bags in accordance with hospital policy and for the sole purpose of safeguarding effects. Evidence of hospital personnel storing the clothing in a bag further illustrates that the hospital did not consider itself an owner of the clothes and that the clothes were held for the defendant. 8 Because the hospital did not jointly own the clothing, the defendant, particularly in light of his vigorous protest, had no expectation or reason to believe that his belongings would be turned over to police without his authorization. Thus, as the Commonwealth did not present adequate evidence of an exception to the warrant requirement, an exigency or otherwise, the seizure of the defendant’s clothing was unreasonable because he had not forfeited his possessory interest in the clothing.

Oil supply boat working off the Louisiana coast who was in international waters could be subjected to a border search when he arrived back in port. ICE suspected him of downloading child porn to his computer, and they searched the computer as a part of the border search. United States v. Pickett, 2008 U.S. Dist. LEXIS 69710 (E.D. La. September 16, 2008), aff’d United States v. Pickett, 598 F.3d 231 (5th Cir. 2010).

The police did not need a search warrant to search a computer disk that was turned over voluntarily by somebody with authority to do so. United States v. Nichols, 2008 U.S. Dist. LEXIS 69193 (W.D. Ark. September 12, 2008)* (Comment: This wasn’t even close.)

Search warrant for defendant’s cellphone for pictures of a minor was with probable cause. United States v. Hexon, 2008 U.S. Dist. LEXIS 69628 (D. Ore. September 12, 2008).*

On a knock-and-talk, the officers found [created] exigent circumstances from the defendant’s feigned confusion and somebody inside apparently disposing of drugs in the sink. United States v. Cisneros-Gutierrez, 598 F.3d 997 (8th Cir. 2010):

In this case, we believe that an objectively reasonable police officer, knowing the information supplied by Hernandez-Pena and observing Alfonso’s and Gerardo’s conduct, would conclude that there was danger of removal or destruction of evidence of a crime. Hernandez-Pena had told officers that the brothers possessed large quantities of illegal narcotics and several firearms and that they served as enforcers for the drug trafficking organization. After arriving at the house and announcing themselves, the officers witnessed evasive behavior. Gerardo and Alfonso consulted one another, following which Gerardo’s feigned confusion appeared to be a delaying tactic during which Alfonso took several plastic bags to the kitchen sink and disposed of their contents. Taken together these circumstances justified the officers’ warrantless entry. Additionally, under the totality of the circumstances, probable cause existed: a reasonable person would believe that there was a fair probability that drugs or evidence of drug trafficking would be found in the residence. See Kleinholz v. United States, 339 F.3d 674, 676 (8th Cir. 2003).

There was PC to search defendant’s car after he brokered a drug deal during a telephone call with the CI which would occur at a specific time and place. His showing up as expected was PC. The claim that the CI was incredible as a matter of law was meritless. United States v. Allen, 353 Fed. Appx. 352 (11th Cir. 2009) (unpublished)*:

As applied here, the district court did not err by denying Smith’s motion to suppress drug evidence seized during a search of his car because police officers had probable cause to believe that Smith’s car contained cocaine base that Smith intended to sell to a CS. During the suppression hearing, a government agent testified that on August 2, 2006, the CS, in a telephone conversation, brokered a transaction with Smith in which Smith agreed to sell the CS cocaine base at the Hwy. 17/State Rd. 100 gas station. Thus, when Smith subsequently showed up at the Hwy. 17/State Rd. 100 gas station, the investigators could have reasonably believed that there was a fair probability that Smith’s vehicle contained cocaine base that he intended to sell to the CS. This is especially true given that, prior to this date, Smith had twice sold cocaine base to the CS and law enforcement officers in controlled transactions.

Defense counsel was not ineffective for not challenging defendant’s trash search because it was lawful under Greenwood since it was at the curb and it was a regular trash collection day. Zimmerman v. Cason, 354 Fed. Appx. 228, 2009 FED App. 0747N (6th Cir. 2009) (unpublished).*

Probable cause was shown for a search warrant for defendant’s safe deposit box. Even if not it is close enough for the good faith exception to apply. United States v. Claude X, 2009 U.S. Dist. LEXIS 112641 (W.D. Mo. October 14, 2009) (USMJ R&R), obj. overruled, United States v. Claude X, 2009 U.S. Dist. LEXIS 112640 (W.D. Mo. December 3, 2009):

A search warrant is supported by probable cause if the supporting affidavit presents a fair probability that evidence or contraband will be found in the location to be searched. Supporting affidavits must be read in a common-sense fashion and should be evaluated based on the totality of the circumstances. E.g., United States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995); United States v. Edmiston, 46 F.3d 786, 789 (8th Cir. 1995). Defendants complain about the inclusion of information from confidential informants, but the Court need not consider this issue because the remaining information establishes a fair probability that contraband or evidence of drug activity was stored in the safe deposit boxes. Christina insists the affidavit does not connect her to criminal activity, and both Christina and Aarika insist the affidavit does not provide any reason to believe they were storing evidence or contraband in the boxes. Even if they are correct (and, at least with respect to Christina, the Court tends to agree), they miss the point. Probable cause does not require a showing that they were responsible for any evidence or contraband in the boxes, nor does it require a showing that they were criminally culpable. The law only requires a fair probability that evidence or contraband will be found, not that any particular person placed it in the location. See United States v. Stults, 575 F.3d 834, 843 (8th Cir. 2009). The affidavit provided probable cause to believe Claude was using the boxes to store evidence or contraband. A fair, common-sense reading of the affidavit presents probable cause to believe:

1. Claude was engaged in drug activity.
2. Claude frequently arranged for or oversaw the drug transactions but did not always become personally involved.
3. Claude had large sums of money and no source of income.
4. The boxes were accessed with unusual frequency, particularly in light of his lack of income.
5. The boxes were sometimes accessed on multiple times in a single day, or on consecutive days.

It was reasonable for the judge issuing the warrant to conclude that Claude was — personally or through others — storing drugs or money in the boxes. Whether those “others” (here, Christina) knew about the illicit source of money or otherwise have culpability is irrelevant.

The defendant consented only to an entry into the apartment and not a search, but there was sufficient factual basis for a Buie protective sweep which was limited in scope. United States v. Hassock, 676 F. Supp. 2d 154 (S.D. N.Y. 2009).*

Defendant’s guilty plea waived appeal of his motion to suppress. He could not have relied on Gant, which had not yet been decided. The motion to suppress, however, was sufficient to raise a Gant scope of search incident claim, but the motion to suppress fails on the merits because of defendant’s actions created reason to believe he was holding at the time of arrest. State v. Snapp, 219 P.3d 971 (Wash. App. November 9, 2009).

There was minimal probable cause to justify the search of defendant’s car in a murder case. He was the last person seen with her, and he was vague and inconsistent under questioning. State v. Richardson, 2010 Tenn. Crim. App. LEXIS 115 (February 11, 2010)*:

Looking at the case herein, the investigation revealed that Appellant was the last person seen with the victim alive. Officers knew that Appellant had given the victim a ride in the Lumina on the night before the victim’s body was discovered. Appellant was vague and inconsistent under questioning about whether the ride Appellant gave the victim was for money or not. The car was parked in a public lot and Appellant had informed the officers that other people had access to the vehicle. Officer Mullins expressed concern about the mobility of the vehicle and the preservation of any evidence that might have been inside. Further, officers knew that the victim’s body had been transported from the scene of the murder to the location where the body was found. Although, this case presents a close question, we believe there is at least minimal probable cause to seize the Appellant’s car and tow it to a secure location. This issue is without merit.

[Note: Close only counts in horseshoes, government work, nuclear war, and probable cause (which is a subset of government work).]

Blood alcohol dissipates, and it is an exigent circumstance which will ordinarily permit dispensing with a warrant. State v. Machuca, 347 Ore. 644, 227 P.3d 729 (2010):

It may be true, phenomenologically, that, among such cases, there will be instances in which a warrant could have been both obtained and executed in a timely fashion. The mere possibility, however, that such situations may occur from time to time does not justify ignoring the inescapable fact that, in every such case, evidence is disappearing and minutes count. We therefore declare that, for purposes of the Oregon Constitution, the evanescent nature of a suspect’s blood alcohol content is an exigent circumstance that will ordinarily permit a warrantless blood draw of the kind taken here. We do so, however, understanding that particular facts may show, in the rare case, that a warrant could have been obtained and executed significantly faster than the actual process otherwise used under the circumstances. We anticipate that only in those rare cases will a warrantless blood draw be unconstitutional.

Defendant should have been cited and released, but the officer kept asking questions, and that unreasonably extended the stop. State v. Rodgers, 347 Ore. 610, 227 P.3d 695 (2010):

Based on the totality of the circumstances, we conclude that the deputy’s show of authority that accompanied his request that defendant consent to a patdown and subsequent request that defendant consent to an examination of the contents of defendant’s pockets occurred after the point that defendant should have been issued a citation or sent on his way. Because the deputy’s further detention of defendant was a significant limitation on defendant’s freedom of movement and was not justified by reasonable suspicion of criminal activity, defendant Kirkeby was unlawfully seized in violation of Article I, section 9.

The officer had probable cause to arrest for a felony, and that permitted a search incident of the defendant’s person. State v. Ralph, 2010 Tenn. Crim. App. LEXIS 102 (February 10, 2010).*

Defendant’s detention as a passenger was incidental to the stop of the driver, and it was not unreasonably long. He consented to a search of his eyeglasses case. State v. Hurt, 2010 UT App 33, 127 P.3d 271, 649 Utah Adv. Rep. 54 (2010).*

The record supports that the defendant consented to a search of her home. “Moreover, we agree with the district court that the mere presence of several police cars and four officers outside Kelley’s home was insufficient to call into question the voluntariness of Tanya’s consent to search.” United States v. Kelley, 594 F.3d 1010 (8th Cir. 2010).*

Brignoni-Ponce on roving border patrols applies virtually “anywhere” near the border. Applying Brignoni-Ponce does not violate equal protection even if ethnicity is a basis for the stop near the Mexican border. Here, RS developed for the stop when the Border Patrol officer pulled on to the highway to follow, four of the six passengers in the vehicle had apparently ducked down to hide, and that supported the stop. United States v. Hernandez-Moya, 353 Fed. Appx. 930 (5th Cir. 2009) (unpublished).

Defendant’s traffic stop was not unreasonably extended because reasonable suspicion had developed. The driver’s story was suspect in itself, but the passenger’s story and actions made reasonable suspicion, so the request for consent came within a reasonable time. United States v. Pena-Ponce, 588 F.3d 579 (8th Cir. 2009).*

Because defendant storing his duffle bag at a friend’s apartment told the friend what was in it and permitted access, he had no reasonable expectation of privacy in the bag. This distinguishes United States v. Waller, 426 F.3d 838 (6th Cir. 2005), involving suitcases left with a friend where that defendant did retain a reasonable expectation of privacy. United States v. Grantham, 2009 U.S. Dist. LEXIS 110372 (W.D. Ky. November 25, 2009).

USPO did not violate is statutory authority or separation of powers in first investigating defendant’s admissions to his mental health counselor that he was viewing child pornography and then assisting USAO in the case. United States v. Jennings, 2009 U.S. Dist. LEXIS 109025 (N.D. N.Y. November 23, 2009):

For similar reasons, the Court also finds that the USPO did not exceed its constitutional authority. Defendant contends that prosecuting crimes is within the sole province of the executive branch, that it is outside the scope of the judiciary to institute new criminal proceedings, and that the instant matter blurs the roles of each branch because “if the probationer feared that information candidly shared with Probation was going to form the basis of a separate criminal prosecution, the probationer would have no incentive to honestly participate in his own recovery … [and] limiting criminal investigations and the initiation of criminal proceedings to the executive assures that the constitutional rights of a probationer … are guarded through the well-established rules of criminal procedure ….”

. . .

The USPO’s statutory duties of keeping informed of whether a probationer is complying with the conditions of release necessarily overlap some law enforcement duties. See Scott, 118 S. Ct. at 2025. That the results of the USPO’s duties may have dual uses (i.e. forming the basis for a revocation of supervised release and the initiation of new criminal charges) does not run afoul of the separation of powers. In this case, the undisputed evidence is that the USAO was involved in the criminal investigation from an early stage. The record evidence is that the USAO: (1) conferred with the USPO concerning obtaining a search warrant; (2) prepared the warrant application based on information obtained from the USPO; (3) presented the warrant to this Court; (4) made the decision to file new criminal charges; (5) made the decision as to which criminal charges to pursue, see Gov’t Mem. of Law at 19; (6) prepared the felony complaint, see Lovric Aff. at P 23; (7) filed the criminal charges; (8) presented the matter to a grand jury; and (9) continues to prosecute the charges against Defendant. The probation officer has no role in how the information submitted to the USAO is used by it. See United States v. Hook, 471 F.3d 766, 777 (7th Cir. 2006). Inasmuch as the Executive Branch has been involved from an early stage and has made the critical determinations whether, and how, to proceed with new criminal charges against Defendant, the Court finds no encroachment that violated the separation of powers doctrine. Nothing the USPO did interfered with the Executive Branch’s ability to make law enforcement decisions or perform law enforcement functions. See Sczubelek, 402 F.3d at 189.

For a COA in a § 2254 case, reasonable jurists could not find the district court’s decision remotely wrong that “video pornography” implicitly includes only commercially made and not defendant’s homemade. Satterlee v. Addison, 354 Fed. Appx. 292 (10th Cir. 2009) (unpublished).*

Defendant’s guilty plea was unconditional, but the government concedes that he wanted to reserve the right to appeal, so the plea is vacated and remanded for a do over. United States v. Ochoa, 2009 U.S. App. LEXIS 25768 (11th Cir. November 24, 2009) (unpublished).*

In a vehicle safety checkpoint stop, the officer asked defendant to pull over to a secondary checkpoint because he did not have his seatbelt on. Defendant was told it was a safety checkpoint. The request for consent to search would only be understood as a search for safety purposes, so the broad search of a shaving kit was suppressed. State v. Sargent, 2009 ME 125, 2009 Me. LEXIS 128 (December 17, 2009).

Alaska declines to adopt a different standard than the Fourth Amendment for trash pulls. The defendant had no expectation of privacy in his trash because the Alaska Supreme Court in 1975 refused to adopt a different standard. Beltz v. State, 221 P.3d 328 (Alas. 2009).*

State’s argument that defendant subjectively would have stopped anyway made it so that he was not “stopped” for Fourth Amendment purposes is rejected. On these facts, he objectively was stopped. People v. Cash, 396 Ill. App. 3d 931, 922 N.E.2d 1103 (2009)*:

The State’s contention also appears to cover a scenario in which neither defendant nor Castronovo submitted to the show of authority because they subjectively intended to remain at the spot regardless of any actions undertaken by the agents. In such a situation, they did not submit to the show of authority, because it had no impact upon their intentions and their actions. Under the State’s analysis, they were not seized, because they were not submitting to the show of authority. Further, when the agents request that defendant and Castronovo exit the car, they still were not seized, because this was a noninvestigative encounter between the agents and defendant and Castronovo. When Castronovo and defendant opened the car doors and exited, the agents smelled a particularly strong odor of marijuana, giving them probable cause to seize defendant and Castronovo, and it was only after this point, according to the State’s argument, that the men were seized. The problem, however, with the State’s contention is that it sweeps too broadly. If the target of the investigative stop flees, then he or she is obviously not submitting to the show of authority. If, however, the target does not flee, then he or she is still not submitting to the show of authority, because it was his or her intent to stand his or her ground regardless of the police presence. The fly in the ointment, however, is the fact that submission appears to be exactly the same as refusing to submit. The target stays put. If such behavior denotes both submission and refusal to submit, then our inquiry is removed from the objective reasonable person and focuses on the target’s subjective intent, and this would both be contrary to the law as it has developed and disturb any predictability in search-and-seizure law. The State’s argument, then, cannot be accepted.

The DEA was surveilling an arrival at DFW who flew in to make a $1M cocaine deal with an undercover officer. The officers arrested two guys and they flipped. The arrest of the third was with PC and permitted a warrantless exigent entry into the motel room. United States v. Timoteo, 353 Fed. Appx. 968 (5th Cir. 2009) (unpublished):

The issue is whether the agents’ warrantless entry into the hotel room and arrest of Timoteo were supported by exigent circumstances. Even if the agents had probable cause to arrest Timoteo, they had to have exigent circumstances to enter the hotel room. See Richard, 994 F.2d at 247. The circumstances, viewed objectively, must justify the action taken. Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978) (noting the “standard of objective reasonableness”); Ohio v. Robinette, 519 U.S. 33, 38, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996) (“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”) (quotation omitted). However, “[i]f reasonable minds could differ, we will not second-guess the judgment of experienced law enforcement officers concerning the risks of a particular situation.” United States v. Hearn, 563 F.3d 95, 106 (5th Cir. 2009) (quotation omitted).

The district court found that, after the arrest of Miliaris, “the officers did not know if others had seen the arrests and, if so, whether the others were armed, in flight, or destroying evidence.” Since the agents knew that the driver of the Hyundai had entered the hotel and that he was not the man who came out when the agents called the room, they knew that someone else was also in the hotel room. It was reasonable for the agents to believe that this man, alarmed when Miliaris did not return, would barricade himself in the hotel room with a firearm, potentially endangering the agents and other hotel guests; attempt to destroy evidence; or attempt to flee the scene. The district court’s finding that exigent circumstances justified the warrantless entry was not clear error.

[posted 12/5]

Attempted entry into an open garage in broad daylight was not curtilage. Plaintiff was arrested for obstructing a court order when the officers attempted to enter the garage to serve a court order and the plaintiff tried to close the door on them. Coffin v. Brandau, 597 F.3d 1205 (11th Cir. 2010)*:

The third and fourth Dunn factors, however, weigh strongly against the garage constituting curtilage when the Deputies arrived. When the Deputies arrived, there was still daylight. The Coffins did not take steps to protect the interior of the garage from the observation of people passing by. Both cars were in the driveway and the garage door was open. Mrs. Coffin agreed that “[i]t would be fair to say that until the moment [she] pushed the control to shut the overhead door, … the interior of the garage was visible from the street.” Under these circumstances, we cannot say it is clear that the Coffins’ garage enjoyed Fourth Amendment protections. Moreover, there is no evidence in the record that the garage was being used for intimate purposes when the Deputies arrived. The Coffins were not inside the garage, and when questioned about the contents of the garage, Mrs. Coffin replied that it contained “[t]oo much. Motorcycle, lawn mower, a bike, a couple bikes, toolboxes.” These items do not suggest that the sanctity that we credit a home should extend to the Coffins’ garage.

Taking defendant in for fingerprinting was unreasonable, so the search of her purse in transit was unreasonable. State v. Byrd, 2009 Ohio 5606, 185 Ohio App. 3d 30, 923 N.E.2d 161 (2d Dist. 2009):

[T]he crucial issue before us is whether, under those facts, the officers violated the Fourth Amendment by beginning to transport Byrd to jail for fingerprint identification. Based on our review of the record, we conclude that they did. Byrd plainly did not consent to being transported to jail for fingerprinting. Nor did the officers have judicial authorization to transport her. At best, the officers may have had articulable suspicion that Byrd and her companions were engaged in some criminal activity and that she might not have been who she claimed. In Hayes v. Florida (1985), 470 U.S. 811, 105 S. Ct. 1643, 84 L. Ed. 2d 705, the U.S. Supreme Court held that the Fourth Amendment prohibits transporting a suspect to the station house for fingerprinting absent probable cause, the suspect’s consent, or prior judicial authorization. Id. at 814-816. While articulable suspicion may be enough to justify a brief detention in the field for fingerprinting, it does not justify the involuntary removal of a suspect to the police station, which is sufficiently akin to arrest to require probable cause. Id. at 816.

Defendant failed to show that his probation search was unreasonable or that the probation officer was a “stalking horse” for the police. State v. Hendricks, 2009 Ohio 5556, 2009 Ohio App. LEXIS 4691 (8th Dist. October 22, 2009)*:

[*P20] There is no evidence in the record that the sheriffs department did anything to press the probation officer into conducting a search of Hendricks’s home. Although the tip was passed on from the sheriff’s department to Hendricks’s probation officer and detectives from the sheriff’s department accompanied the probation officer to Hendricks’s home, there is no evidence that the sheriff’s department used the search as a fishing expedition. The fact that the probation officer and the sheriff’s department worked together to search Hendricks’s apartment does not make the search invalid.

Search warrant for a private residence permitted search of all persons found there, including visitors, and Ybarra is distinguishable because that involved a public place. State v. Williams, 2009 Ohio 5553, 2009 Ohio App. LEXIS 4695 (8th Dist. October 22, 2009).

Under established Ohio precedent, it is not a violation of the Fourth Amendment to convict a driver for refusing a breath test for DUI. State v. Wilson, 2009 Ohio 5663, 2009 Ohio App. LEXIS 4767 (5th Dist. October 23, 2009).*

When defendant opened his door after a knock-and-talk, the officers smelled the strong chemical odor of a meth lab, and that justified their entry on exigent circumstances. State v. Parson, 2010 Ohio 989, 2010 Ohio App. LEXIS 800 (2d Dist. March 12, 2010).*

The search warrant for evidence of the “drug trade” was not overbroad. State v. Ruscoe, 119 Conn. App. 834, 119 Conn. App. 834, 989 A.2d 667 (2010).*

Defendant’s stop on the street was unjustified. “Detective Woyma testified that the police suspected Williams and the two persons he was with of drug activity because they were ‘huddled’ together near a corner known for drug activity and tried to walk away when the police arrived. Neither fact justifies an investigatory stop.” State v. Williams, 2010 Ohio 901, 2010 Ohio App. LEXIS 765 (8th Dist. March 11, 2010).*

Officers entered by consent when a man arrested outside requested clothes before going with them. Once inside, this defendant fled, and that justified a protective sweep. The police already suspected somebody might be inside who was wanted for murder. United States v. Scroggins, 599 F.3d 433 (5th Cir. 2010).*

Officer responded to a 911 call about a possible domestic beating in a house. When he arrived, he tried to talk to all the participants, and he entered without a warrant because of the obvious tenseness of the situation. The entry was with exigent circumstances. Schreiber v. Moe, 596 F.3d 323, 2010 FED App. 0062P (6th Cir. 2010).*

Defendant was arrested as an internet traveler for sex with a minor, and his car could be inventoried because it was seized pursuant to policy when defendant, an out-of-towner, was arrested. United States v. Wright, 2010 U.S. Dist. LEXIS 19676 (E.D. Tenn. February 5, 2010).*