Defendant’s consent was involuntary where it occurred after officers violated his Miranda rights by ignoring his request for counsel. It was reasonable for defendant to conclude that his rights did not matter and it was futile to resist. United States v. Nejbauer, 2009 U.S. Dist. LEXIS 107329 (D. Ariz. November 2, 2009):

The context in which Mr. Nejbauer made his decision to consent is also relevant to a determination of voluntariness. See United States v. Washington, 490 F.3d 765, 775 (9th Cir. 2007) (the context in which the defendant consented to the search of his car was important to the determination of voluntariness). Schneckloth instructs courts to “determine[] the factual circumstances surrounding the confession, assess[] the psychological impact on the accused, and evaluate[] the legal significance of how the accused reacted.” Schneckloth, 412 U.S. at 226 (citing Culombe v. Connecticut, 376 U.S. 568, 603 (1961)). Factors to be considered include, “the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep.” Id. (internal citations omitted). In addition, “[i]n examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” Id. at 229.

The circumstances surrounding Mr. Nejbauer’s decision to consent, taken together, suggest that there may have been a lack of true voluntariness. There is nothing in the record to suggest that Mr. Nejbauer has minimal schooling or is of low intelligence. Mr. Nejbauer is also a mature man of forty-eight with some criminal history more than a decade ago. On the other hand, Agent Leising’s conduct–successfully dissuading Mr. Nejbauer from talking to a lawyer and immediately thereafter pressuring him to consent to the search–would reasonably suggest to Mr. Nejbauer that it was simply futile to withhold his consent to Agent Leising’s demands. Furthermore, Agent Leising’s plainly misleading statements regarding the need to dispense with a lawyer and cooperate right away with the FBI in order to receive a sentencing reduction would reasonably lead Mr. Nejbauer to believe that, if he did not comply with Agent Leising’s requests immediately, he would lose the opportunity to obtain leniency in the future.

Storage unit landlord had actual authority to enter for emergencies. Here, water was seen coming out of the unit, and that gave cause to enter to check on it. Defendant had unregistered firearms located inside. United States v. Smith, 353 Fed. Appx. 229 (11th Cir. 2009) (unpublished).*

Plaintiffs’ claims survive summary judgment in their excessive force claim where they were awakened asleep in a truck at the Ft. Worth Stockyards, and they lashed out. While the officers were concerned that they may have been ill or crime victims, that justified approaching the plaintiffs. There was a fact dispute as to the need for the force used. Peterson v. City of Fort Worth, 588 F.3d 838 (5th Cir. 2009).*

Officers lacked a reasonable belief under Payton that the subject of an arrest was at the address they felt he should be. United States v. Jett, 2009 U.S. Dist. LEXIS 108673 (N.D. Ohio November 20, 2009):

Payton and the widely-applied “reasonable belief” standard do not require officers to be certain that the subject of an arrest warrant resides in the home to be searched. Moreover, officers need not be correct as to the suspect’s residence in the home. Valdez v. McPheters, 172 F.3d 1220, 1224-25 (10th Cir. 1999). Except for the Ninth Circuit, every circuit to address the issue has held that all Payton requires is a reasonable belief that the suspect resided in the home and could be found there at the time of the search. See Id. (collecting cases).

The information known to officers at the time of the search in the instant matter, however, was not sufficient to support a reasonable belief as to either fact. Despite their efforts, officers were never able to confirm that Tunanidas lived at 1334 Republic Avenue at the time of the search. The home was did not belong to Tunanidas. (Tr. at 9). Officer Giovanni testified that, although the home was listed on ChoicePoint as an address for Tunanidas, such listing does not necessarily indicate that Tunanidas had ever actually lived at that address. (Tr. at 6-7). On several occasions, officers received no response at the address when they attempted to confirm Tunanidas’ residence there. (Tr. at 9). When shown a photo of Tunanidas, a neighbor could not positively identify him as a resident in the home. (Tr. at 9). In short, nothing besides the ChoicePoint listing and two 17-month-old arrest warrants indicated that Tunanidas lived at 1334 Republic Avenue.

District Court applied the wrong authority (Terry v. Ohio) to conclude that the seizure and search of plaintiffs in their apartment was valid. Applying the correct case (Maryland v. Garrison), the court concludes that the seizure and search were justified and summary judgment was properly granted for the officers. Harman v. Pollock, 586 F.3d 1254 (10th Cir. 2009),* prior appeal Harman v. Pollock, 446 F.3d 1069 (10th Cir. 2006).

Record supports district court’s finding of consent. United States v. Molina-Garcia, 353 Fed. Appx. 277 (11th Cir. 2009) (unpublished).*

“When an owner of a house leases it to someone, he no longer has an expectation of privacy in that house which society is prepared to recognize as legitimate. See, Miller v. Kunze, 865 F.2d 259, 1988 WL 138916 (6th Cir. 1988). Thus, Wards’ leasing of the property to Barnett, either alone or in conjunction with Barnett’s subletting of the property to Gamino-Villa and Vizcarra-Lopez, stripped him of any standing to contest the search of 750 Georgia Street.” United States v. Wards, 2009 U.S. Dist. LEXIS 107754 (E.D. Tenn. October 28, 2009).*

Homeless shelter with 24 rooms was highly regulated as to who stayed where and for how long. The use of the rooms was not completely free, and the shelter regulated it and had the authority to enter for inspection. Thus, there was no reasonable expectation of privacy in the rooms. The shelter let the police in to look for a gun. Commonwealth v. Porter P., 73 Mass. App. Ct. 85, 895 N.E.2d 775 (2008):

Here, the defendant and his mother lived in a room in a twenty-four room shelter. The department paid their rent. They could not choose their room, and could be transferred to another room if deemed necessary by the shelter. They voluntarily agreed to live in a highly regulated environment, where shelter staff were charged with maintaining order, discipline, and a safe environment. [¶] The defendant had neither exclusive control nor sole access to room 24. Brown maintained a master key to the room and was permitted, along with her staff (acting under her direction), entry for certain purposes specified in the manual.

Reversed Commonwealth v. Porter P., 456 Mass. 254, 923 N.E.2d 36 (2010) posted March 12, 2010.

In a knock-and-talk, defendant’s assenting to entry and motioning for the officer to enter was manifestion of consent. State v. Johnson, 996 So. 2d 1151 (La. App. 5th Cir. October 28, 2008).*

NYPD officer who failed a drug test could not complain that this specific test violated his Fourth Amendment rights just because it was not approved by the police union collective bargaining agreement. Matter of Chiofalo v. Kelly, 2010 NY Slip Op 785, 70 A.D.3d 423, 893 N.Y.S.2d 552 (1st Dept. 2010).

We reject petitioner’s claim that using the radioimmunoassay method of hair testing violated his Fourth Amendment right against unreasonable search and seizure because the use of that method was not authorized by the Police Department’s collective bargaining agreement with petitioner’s union. The Court of Appeals has held that the Commissioner was empowered to choose the method of drug testing, and that choice was not subject to collective bargaining (see Matter of City of New York v Patrolmen’s Benevolent Assn. of City of N.Y., Inc., NY3d , 2009 NY Slip Op 09314 [2009]).

[Note: If a police officer can be drug tested under the Fourth Amendment, which is a given, how does any particular test after the sample is taken violate the Fourth Amendment?]

Trial court erred in granting defendant’s motion to suppress. The totality of circumstances showed more than mere coincidence and thus reasonable suspicion for defendant’s stop, and the smell of marijuana thereafter justified more action by the police. State v. Peery, 2010 Mo. App. LEXIS 107 (February 2, 2010)*:

But, this case does not present any one of those “facts” as the only “fact.” This case presents all of those “facts” itemized by the motion court in its suppression order. Any one of these facts may properly be deemed an innocent coincidence, but when all of these “coincidences” are added together, it is erroneous to conclude that this string of facts is anything but a pattern of conduct suggestive of involvement in criminal activity. It is erroneous to conclude that this cumulative evidence of Peery’s conduct fails to establish a particularized and objective basis for suspecting illegal activity. When reviewing the whole picture, it is erroneous to conclude that the officers in this case failed to point to articulable facts that criminal activity may be afoot. It is erroneous to conclude that the totality of the circumstances of the facts of this case fail to demonstrate a minimal level of objective justification for a Terry stop.

The Ninth Circuit denied rehearing en banc yesterday to the denial of prosecutorial immunity case of Al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009) (posted here), where the plaintiff alleged he was falsely accused as a terrorist suspect under the guise of being a material witness, in violation of his Fourth Amendment rights. Al-Kidd v. Ashcroft, 598 F.3d 1129 (9th Cir. 2010) (“The facts alleged in al-Kidd’s complaint are chilling, and serve as a cautionary tale to law-abiding citizens of the United States who fear the excesses of a powerful national government, as did many members of the Founding Generation.”).

See ABAJ.com, L.A. Now.

Rarity: Habeas corpus granted on an IAC Fourth Amendment claim where the Indiana Court of Appeals was found to have unreasonably applied the Fourth Amendment in finding that defense counsel was not ineffective for not addressing defendant’s pro se issue that the search of his wheelbarrow was unreasonable. It was unreasonable to conclude that defendant would not have prevailed on the search issue. [A really interesting case.] Gentry v. Sevier, 2010 597 F.3d 838 (7th Cir. 2010):

As explained above, the record reflects that the searches performed by the officers at the scene of Gentry’s arrest were unconstitutional and there is thus no indication that a motion to suppress evidence resulting from such searches would have been futile. See A.M. v. Butler, 360 F.3d 787, 795 (7th Cir. 2004) (stating that “[i]f there was no underlying constitutional violation, a motion to suppress would have been futile and counsel could not be viewed as ineffective for failing to present such a motion”). We recognize that trial strategies are generally left to the discretion of counsel and second-guessing strategic decisions in hindsight will generally not be a meritorious basis to find ineffective assistance of counsel. See, e.g., Smith v. Gaetz, 565 F.3d 346, 352-53 (7th Cir. 2009). However, in this case, the decision by Gentry’s trial counsel not to seek to suppress evidence based on a violation of Gentry’s Fourth Amendment rights is beyond the pale of an objectively reasonable strategy. The application of the fundamental principles of Fourth Amendment case law to Gentry’s situation should have been apparent to his trial counsel. The record does not indicate that any strategic benefit would have been accorded to Gentry by his trial counsel’s failure to seek the suppression of the evidence. Gentry even brought the suppression issue to the attention of his counsel by filing a pro se motion to suppress and yet, even then, his counsel failed to attempt to suppress the evidence. Gentry has shown that he received ineffective assistance of counsel and that he suffered prejudice. The record does not reflect what evidence could have been used to convict Gentry excluding the garage door opener, the identities of the residents, the stolen items and the evidence found in the wheelbarrow. We conclude that the Court of Appeals of Indiana unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984) to the facts in this case.

. . .

For the above stated reasons, we conclude that the Court of Appeals of Indiana unreasonably applied federal law when the Court determined that the evidence concerning the search of the wheelbarrow was admissible and held that Gentry’s counsel’s performance did not fall below an objective standard of reasonableness.

Defense counsel was not ineffective for not moving to suppress the search of defendant’s property for evidence of bank robbery where an unsigned copy was left and not shown to defendant before the search was done. Even if the facts alleged were true, these are not violations of the Fourth Amendment or Rule 41. United States v. Askew, 2010 U.S. Dist. LEXIS 8581 (W.D. Pa. February 2, 2010).*

The evidence supports the USMJ’s conclusion that defendant’s consent was voluntary. United States v. Romero, 2010 U.S. Dist. LEXIS 8286 (D. Neb. February 1, 2010).*

Defendant’s IAC claim for not challenging a murder defendant’s arrest on an Air Reserve base in unicorporated Cobb count failed where the arrest was not shown to be unlawful in the first place. Devega v. State, 286 Ga. 448, 689 S.E.2d 293 (2010).*

Questioning a motorist and passengers about their immigration status was brief and did not turn an otherwise valid stop into an unreasonable detention. Their inability to speak English and produce any identification created at least reasonable suspicion they were illegal aliens. “In any event, the law was not and is not now clearly established, such that Chabot should have known that he could not investigate further.” It was objectively reasonable at the time for the officer to believe he needed to investigate further, and the officer had qualified immunity. Estrada v. State of Rhode Island, No. 09-1149 (1st Cir. February 4, 2010).*

It was reasonable to have defendant’s vehicle inventoried and towed, rather than leave it parked in a high crime area that would have exposed it to vandalism or theft. Commonwealth v. Eddington, 76 Mass. App. Ct. 173, 920 N.E.2d 883 (2010) (“This evidence demonstrates a sufficient risk that the car might be vandalized or stolen so that, when combined with the risk of false claims for loss against the police, the impoundment of the car, pursuant to a constitutionally adequate police policy, was reasonable and thus permissible under the Fourth Amendment.”).

Defendant’s father consented to a search of his juvenile daughter’s room, and the officer also searched her purse which was not in the room. There were “widely divergent” facts in the suppression hearing, and the suppression order must be affirmed. State v. V.S., 26 So. 3d 662, 35 Fla. L. Weekly D 235 (4th DCA 2010).*

Defendant was a visitor to a motel room, and he had no reasonable expectation of privacy to challenge its search. Smith v. State, 301 Ga. App. 128, 690 S.E.2d 449 (2010).*

The trial court’s conclusion that the search of defendant’s car was valid as an inventory from his arrest was affirmed. Alternatively, the trial court’s conclusion that defendant did not consent to the search of the car is unsupported by the evidence, and that is an alternative ground. People v Concepcion, 2010 NY Slip Op 701, 69 A.D.3d 956; 893 N.Y.S.2d 283 (2d Dept. 2010).*

Defendant was riding a bicycle on the sidewalk in a high crime area, and the officer stopped him and subjected him to a frisk without reasonable suspicion. Being in a high crime area is not enough. State v. Roberts, 2010 Ohio 300, 2010 Ohio App. LEXIS 235 (2d Dist. January 29, 2010):

[*P19] In this case, there is no evidence that Fuller’s patdown of Roberts was based on a reasonable and articulable suspicion that Roberts may have been armed. Fuller explained the bases for the frisk, stating: “I did this because this is both a high crime and high drug area. I personally have made drug arrests, gun arrests, and have personal knowledge of other officers making gun and drug arrests within the same vicinity. We have an officer involved shooting within two blocks of there several weeks before that. Based on these reasons, I patted him down for weapons.” As for Roberts specifically, Fuller stated that, prior to the search, Roberts was compliant, made no assertive movements, did not reach into his pockets, was not belligerent or verbally abusive, and had not discarded anything. Fuller did not know Roberts, and his stop of Roberts was based on a traffic violation, not any suspicion of drug activity or any other criminal conduct that might involve weapons. Fuller acknowledged on cross-examination that, “at this point, [Roberts] was 100% compliant. He didn’t do anything to make [the officer] worry that he was going to do anything to harm [him].”

[*P20] Based on Fuller’s testimony, it is apparent that the officer lacked the requisite reasonable and articulable suspicion that Roberts was armed and dangerous to justify a patdown for weapons. Accordingly, the trial court erred in denying Roberts’ motion to suppress evidence obtained as a result of the patdown, i.e., the handgun.

Bag of meth found on the defendant’s person after his arrest for outstanding warrants was valid either as a search incident or would have inevitably been discovered on booking into the jail. State v. Rodrigues, 122 Haw. 229, 225 P.3d 671 (2010).*

Defendant opened his door to permit officers to enter after they asked if they could enter, and that was consent shown by conduct. Piercy v. Commonwealth, 303 S.W.3d 492 (Ky. App. 2010).*

A passenger in a car can be asked for ID without any reasonable suspicion as to her. People v. Bowles, 226 P.3d 1125 (Colo. App. 2009):

Although under Brendlin Bowles was seized when she provided the false name, for the following two reasons we conclude that the officer lawfully could ask for her identification during the traffic stop without reasonable suspicion of criminal activity on her part.

First, because Brendlin did not address any aspect of police-passenger interaction other than the initial traffic stop, it leaves intact earlier Supreme Court rulings that police may request identification without reasonable suspicion. See, e.g., Hiibel v. Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177, 185 (2004) (“In the ordinary course a police officer is free to ask a person for identification without implicating the Fourth Amendment.”); Florida v. Bostick, 501 U.S. 429, 434-35 (1991) (“[E]ven when officers have no basis for suspecting a particular individual, they may generally … ask to examine the individual’s identification ….” (citations omitted)); INS v. Delgado, 466 U.S. 210, 216 (1984) (“[I]nterrogation relating to one’s identity or a request for identification by the police does not, by itself, constitute a Fourth Amendment seizure.”).

. . .

Second, even if such a request for identification is minimally intrusive, it can easily be justified, as recognized in three post-Brendlin decisions rejecting arguments like those raised by Bowles. See 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, [then] he may surely take the minimally intrusive step of requesting passenger identification.” (quoting Maryland v. Wilson, 519 U.S. 408, 410 (1997))), cert. denied, 128 S.Ct. 1221 (2008); United States v. Diaz-Castaneda, 494 F.3d 1146, 1152-53 (9th Cir. 2007) (“[P]olice may ask people who have legitimately been stopped for identification without conducting a [separate] Fourth Amendment search and seizure” to determine who the passengers are and whether any of them is capable of driving the car should the driver be arrested), cert. denied, 128 S.Ct. 634 (2007); People v. Harris, 886 N.E.2d 947, 962 (Ill. 2008) (Such a request “provid[es] a certain level of protection to both the officer and the driver of the vehicle” by “identify[ing] a potential witness to the traffic violation and to the officer’s actions” during the stop).

Moreover, a passenger’s response to such a request may be consensual, despite having been seized as a result of the traffic stop. See Harris, 886 N.E.2d at 963-64 (Fourth Amendment was not implicated because a reasonable passenger “would feel free to decline to provide his driver’s license,” “even upon realizing that the driver of the car in which he ha[d] been riding [was] about to be arrested,” in that a request for identification is “facially innocuous” and does not cause the passenger “to feel intimidated or threatened.”); ….

Alabama decides to join the majority of jurisdictions that conclude that a minor has sufficient joint control in her parents’ house to consent to a search under the following standard:

Accordingly, the State of Alabama must affirmatively answer the following questions in order to support a contention that a person under the age of 18 provided valid third-party consent to a request to conduct a warrantless search: First, did the minor live in the home or share the premises with the absent parent? Second, did the minor have the right of access to the premises searched and the right to invite others to the premises? Third, did the totality of the circumstances indicate that the police were reasonable in their determination that the minor had sufficient control over the premises? Finally, did the facts attendant to the encounter — including the minor’s age, maturity, and intelligence — indicate that the minor could exercise sufficient discretion to freely, knowingly, and voluntarily consent to the search and not merely acquiesce to a request of a police officer? Failure to satisfy all four prongs of this test will preclude a finding that the minor gave valid third-party consent.

Allen v. State, 2009 Ala. Crim. App. LEXIS 62 (May 1, 2009) (surveying many cases).

Defendant was in a car stopped for excessive noise, and defendant was fidgeting and nervous. When the officer talked to him, he said that he did not want to be patted down. The officer had reasonable suspicion that defendant was armed. B.A.H. v. State, 28 So. 3d 29 (Ala. Crim. App. 2009).*

CI does not need a track record for a controlled buy as PC. Morgan v. State, CR08-1330 (Ark. May 7, 2009).*

Identified citizen informant’s first hand observations of what was in defendant’s house was probable cause for the search warrant. State v. Rader, 2010 Ohio 1010, 2010 Ohio App. LEXIS 824 (12th Dist. March 15, 2010).*

When the officer approached defendant’s car he could smell alcohol and the defendant admitted drinking three beers. That was enough to order him out of the car. State v. Wojewodka, 2010 Ohio 973, 2010 Ohio App. LEXIS 837 (11th Dist. March 12, 2010).*

Defendant’s patdown was reasonable. He was a passenger in an SUV pulled over at a gas station. He asked if he could go into the gas station to get something to drink, and the officer said he could if he were patted down. He stayed, but he was nervous. The officer then asked him to raise his shirt, and marijuana was found. B.A.H. v. State, 28 So. 3d 29 (Ala. Crim. App. 2009), Released for Publication January 19, 2010.*

Defendant’s pre-Gant guilty plea is permitted to be withdrawn. The factors to be considered for withdrawal of the plea favor defendant. The government argued for application of a “Gant good faith exception” which the court finds uncertain because of the split in the circuits. United States v. Amos, 2010 U.S. Dist. LEXIS 515 (E.D. Tenn. January 5, 2010).*

Defendant’s stop at a bus station and request to see his bus ticket and search his bag was voluntary and reasonable. United States v. Torres, 2010 U.S. Dist. LEXIS 230 (D. Neb. January 4, 2010).*

After execution of a probation violation warrant for defendant’s arrest, the PO could still conduct a search of his property for evidence of a violation. It was likely he would be released and would return to the place because the violation was for a dirty UA. A meth lab was found. United States v. King, 2009 U.S. Dist. LEXIS 121849 (N.D. Ga. December 30, 2009).*

An IP address associated with the defendant is nexus to defendant’s property for execution of a search warrant alleging computer hacking. United States v. Kim, 677 F. Supp. 2d 930 (S.D. Tex. 2009).*

The trial court’s findings of lack of consent and exigent circumstances are supported by the evidence. State v. Angelo, 2009 Ohio 6966, 2009 Ohio App. LEXIS 5862 (9th Dist. December 31, 2009).* As to exigent circumstances:

[*P18] We conclude that the State also failed to present evidence of articulable facts that the officers reasonably believed that re-entry into the home was necessary to respond to some emergency. Id. at PP17-18. Neither officer testified that Angelo or Goldsby were exhibiting frantic or erratic behavior or otherwise impeding the officers’ investigation. The officers did not describe the scene at the home as hectic or chaotic. Goldsby and Angelo were no longer physically or verbally assaulting each other when the officers arrived and it is reasonable to believe that removing Goldsby from the home quelled the threat of further violence. Moreover, Officer Stump testified that he was able to observe Angelo through the window in the front door as Angelo was sitting on the couch speaking with others in the house. Officer Stump did not testify that Angelo was exhibiting erratic or aggressive actions as they observed him. Additionally, as Goldsby was secured in the police cruiser, she was no longer in any danger by way of any conduct Goldsby attributed to Angelo prior to the police arriving. Finally, at no point while the officers were at the home was Angelo armed with a weapon. The facts presented do not demonstrate that there was an emergency in the home that required response from the officers on scene. Accordingly, it was not an error for the trial court to find that exigent circumstances did not justify re-entry into the home.

Defendant’s stop was based on his vehicle tags not matching the vehicle, and the officer saw the makings of a blunt, which led to him asking for consent, which was valid. State v. Williams, 2009 Ohio 6955, 2009 Ohio App. LEXIS 5848 (9th Dist. December 31, 2009).*

Analyzing all the facts in detail, the court concludes on the totality of circumstances that defendant’s consent to search his vehicle for a gun was valid. United States v. Swanson, 677 F. Supp. 2d 1030 (N.D. Ill. 2009).*

The automobile exception applies to a trailer not connected to a vehicle. It is still easily movable, and its ability to move on its own is not the question. United States v. Navas, 597 F.3d 492 (2d Cir. 2010):

In light of Howard’s emphasis on inherent mobility and the practical concerns that animate the mobility rationale, the district court erred in its assessment of the trailer sans cab. It started by wrongly characterizing the automobile exception as “generally relat[ing] to some type of vehicle that is capable of moving on its own.” Navas, 640 F. Supp. 2d at 267. However, when the Supreme Court introduced the mobility rationale in Carroll, it referenced “wagon[s],” which, like trailers, require an additional source of propulsion [*18] before they can be set in motion. Carroll, 267 U.S. at 153; see also Ross, 456 U.S. at 820 n.26 (referring to “contraband . . . transported in a horse-drawn carriage”). A wagon is not “capable of moving on its own,” but the Carroll Court considered it to present mobility concerns similar to those presented by the car searched in that case. And, at least for purposes of the Fourth Amendment, a trailer unhitched from a cab is no less inherently mobile than a wagon without a horse.

The district court’s adoption of a false premise — i.e., that the automobile exception centers on a vehicle’s ability to “mov[e] on its own” — led it to place undue emphasis on the fact that the trailer was disconnected from a cab at the time of the search. However, the trailer remained inherently mobile as a result of its own wheels and the fact that it could have been connected to any cab and driven away. For similar reasons, we are unpersuaded by the district court’s reference to the position of the trailer’s “legs.” These legs served only as a temporary stabilization mechanism. They could be retracted and a cab could be attached to the trailer. As such, the fact that the trailer was “detached from a … cab with its legs dropped,” Navas, 640 F. Supp. 2d at 267, did not eliminate its inherent mobility.

The district court’s “brusque good faith analysis” was inconsistent with the [almost extreme] degree of analysis it went through to find that the search warrant lacked probable cause. The good faith exception did apply to the warrant, and the suppression order was reversed. United States v. Stearn, 597 F.3d 540 (3d Cir. 2010):

Additionally, the District Court’s good faith analysis plainly charged the executing officers with a greater knowledge of the law than our precedent requires. Even though the District Court ultimately declined to credit the informant’s tip and declined to apply the Burton inference to Joseph Doebley and Edward Stearn’s residences, it did so only after a detailed analysis of our case law, analysis we neither expect nor require from “nonlawyers in the midst and haste of a criminal investigation.” United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965). Given the complexity of the District Court’s probable cause analysis, we find untenable its categorical conclusion that no search could be upheld under the good faith exception.

Prior to that, the court held that the standing issue was reserved, and the court “egregious[ly] failed to return to it after having determined that it would suppress the evidence under the search warrant:

We conclude that the District Court erred in ordering the suppression of evidence without regard to the defendants’ ability to demonstrate legitimate expectations of privacy in the locations searched. Although the District Court had discretion to decide the issues of probable cause and good faith first, see United States v. Varlack Ventures, 149 F.3d 212, 216 (3d Cir. 1998), it was required under Rakas to address the defendants’ Fourth Amendment “standing” for the searches it ultimately determined were unreasonable. Its failure to do so was an egregious error.

Officers seized a karaoke bar sex club in Guam pending getting a search warrant, but it took 26½ hours. That was just too long to be reasonable under any authorities. Despite Herring, the exclusionary rule was applied. United States v. Cha, 597 F.3d 995 (9th Cir. 2010):

Finally, the Supreme Court’s recent decision, Herring v. United States, does not change our decision to affirm suppression of the evidence. 129 S. Ct. 695 (2009). …

The Herring Court explained that Supreme Court cases apply the exclusionary rule to “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” Id. at 702. It concluded that because the exclusionary rule is triggered only if police conduct is “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system,” id., the marginal deterrence of excluding evidence that was the result of isolated, “nonrecurring and attenuated negligence” did not “‘pay its way,'” id. at 702, 704. The Court noted that it was “crucial to [its] holding” that the Eleventh Circuit concluded that the police error was merely negligent and that the “question presented treat[ed] the error as a ‘negligen[t]’ one.” Id. at 700 & n.1.

Because Herring only applies to isolated police negligence, it does not bar suppression here because the police conduct was deliberate, culpable, and systemic.

The police conduct was sufficiently deliberate. …

[Note: This is a significant case on the scope of Herring. The government may keep this case going for rehearing and cert.]

After a valid traffic stop, defendant was asked if he would consent to a search of the car, which he agreed to. He was handcuffed and stuck in a police car during the search. While in there, he abandoned a bag of cocaine which was found after he was permitted to drive off. His detention was unreasonable and led to the abandonment. The 30 minute handcuffing for a consent search was unreasonable. Hidelgo v. State, 25 So. 3d 95 (Fla. App. 3d DCA 2009).

As evidence to seize in a search warrant, “evidence of sexual abuse” was “inartful” but not so bad that seizure under the warrant should be suppressed. State v. Tolen, 304 S.W.3d 229 (Mo. App. 2009).*

Mere eye contact with the police is not a seizure. “Therefore, evidence of his reaction to the police, clutching movements at his waistband, his flight, and the gun and magazine should have all been suppressed because the police lacked reasonable grounds for suspicion that the defendant was committing a crime. We disagree.” Commonwealth v. Ware, 76 Mass. App. Ct. 53, 918 N.E.2d 861 (2009).*

Officer did not violate the Fourth Amendment by entering defendant’s patio and getting his attention through his sliding glass door. The officer followed the defendant’s own route through the snow. The officer was investigating a DWI from a security guard that saw defendant stuck in a snowbank. State v. Perkins, 2009 UT App 390, 222 P.3d 1198, 646 Utah Adv. Rep. 14 (2009):

[*P23] The Dunn factors weigh against a determination that “the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” United States v. Dunn, 480 U.S. 294, 301 (1987). Furthermore, Perkins had the burden of demonstrating that he had an expectation of privacy in the patio itself. See United States v. Cavely, 318 F.3d 987, 994 (10th Cir. 2003). He has not carried that burden. Consequently, we hold that, under the facts of this case, Perkins’s back patio is not part of the curtilage of the home, which would require a warrant for entry. As a result, Officer Lealaitafea’s entrance onto the patio, after following Perkins’s own path to the home, for the purposes of detaining Perkins to investigate a reliable tip that Perkins had been driving under the influence of alcohol, did not constitute a warrantless entry into Perkins’s home.

The officers encouraged the search by a private person, and that made the search a government search. “[C]ommon authority does not depend on ‘property rights,’ but derives from the ‘mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.’ United States v. Waller, 426 F.3d 838, 845 (6th Cir. 2005) (quoting United States v. Matlock, 415 U.S. 164, 171 (1974)).” The government failed in its burden of showing by a preponderance of the evidence that the person who consented had actual authority. He had no key to enter and was locked out. United States v. Van Dyke, 2010 U.S. Dist. LEXIS 47652 (W.D. Mich. May 14, 2010).

Former officer of a corporation that was searched under a warrant could not show a reasonable expectation of privacy (“standing”) in the place searched. He was a legal officer of the corporation, but he did not use the offices searched. United States v. Renzi, 2010 U.S. Dist. LEXIS 47621 (D. Ariz. April 16, 2010).*

Defendant was a passenger in a livery cab stopped in the Bronx for failing to signal, and the officer approached the cab and defendant allegedly denied ownership of the plastic bag in the back of the cab. The court does not credit the officer’s testimony because it was recollected only on the eve of the hearing on the motion to suppress over a year after the arrest. Also, defendant had a reasonable expectation of privacy in the back of the cab while he was sitting in it, as shown by his trying to hide the bag of drugs. United States v. Bulluck, 2010 U.S. Dist. LEXIS 47577 (S.D. N.Y. May 13, 2010):

As to the subjective prong of this analysis — whether Bulluck by his conduct exhibited a subjective expectation of privacy — this Court finds that he did manifest such a subjective expectation. According to both Officer Robinson and Officer Doyle, when the police approached the livery cab, Bulluck sought to stuff the plastic bag under the front driver’s seat, presumably to hide the bag. Under such circumstances, the Second Circuit and other courts have found that defendants have demonstrated a subjective expectation of privacy.

Defendant consented to the entry of his house, and then he was arrested for smoking marijuana inside. United States v. Raymond, 2010 U.S. Dist. LEXIS 47942 (N.D. Okla. May 14, 2010).*