The search warrant in this case was issued without probable cause, not even close. The state judge who signed off on the search warrant can only be found to have “rubber stamped” the search warrant, so the good faith exception did not apply. Motion to suppress granted. United States v. Lester, 2009 U.S. Dist. LEXIS 29631 (W.D. Va. April 1, 2009)*:

Despite the government’s assertion to the contrary, I find that the Supreme Court’s holding in Herring is not particularly relevant to the facts of this case — other than to demonstrate the current Court’s disfavor of the application of the exclusionary rule. See also Hudson v. Michigan, 547 U.S. 586, 591 (2006) (exclusionary rule applicable “only where its deterrence benefits outweigh its ‘substantial social costs'” (quoting Leon, 486 U.S. at 907). In Herring, the law enforcement officers acted in good faith upon what was only minutes later determined to be false information. In this case, the search warrant at issue sought to seize evidence of the crime of distribution of a controlled substance. Both the officer who obtained the warrant, Skeens, and the officer who executed the warrant, Owens, admitted that they knew the elements of the crime of distribution of a controlled substance. Both admitted that they were familiar with the contents of the Affidavit–Skeens because he drafted it and Owens because he read the Affidavit before he executed the search warrant. Both admitted, although Skeens did so reluctantly, that the Affidavit did not establish probable cause that the crime of distribution of a controlled substance had been committed by anyone, anywhere. Perhaps, most shockingly, both men asserted that they believed that the warrant was a valid warrant because they had presented similarly deficient affidavits on numerous occasions to Virginia state court magistrates, including Magistrate Mitchell, and had been issued warrants to search for evidence of the distribution of controlled substances. Based on the facts of this case, the court is left to only one conclusion–the magistrate simply “rubber stamped” the bare bones Affidavit presented to him.

I do not mean to suggest that the officers involved in the search at issue in this case acted in subjective bad faith. This court is acutely aware of the impact that the distribution of oxycodone and other narcotic painkillers is having on the residents of Southwest Virginia. This court also is aware of the difficulties local law enforcement agencies face as they battle this ever-increasing problem. I cannot under Leon, however, find that the officers’ reliance on this warrant was objectively reasonable.

The fact that defendant was in a vehicle for 15 seconds before his arrest made him a “recent occupant” and made the vehicle subject to search incident. United States v. Patterson, 2009 U.S. Dist. LEXIS 29655 (M.D. Pa. April 8, 2009).*

Police were called to defendant’s partner’s suicide, and they were investigating and treating the home as a crime scene. Defendant consented to the entry, and the resulting search warrant for the computer was valid. United States v. Filipowski, 2009 U.S. Dist. LEXIS 29388 (D. Vt. April 3, 2009).*

Defendant’s encounter with the officer was purely consensual and led to his consent. People v. Scheffer, 224 P.3d 279 (Colo. App. 2009).*

Defendant was found lying on the ground injured and bloody, and an officer arrived at the scene. He had difficulty communicating his name, and he permitted the officer to remove his wallet for his ID. The officer also felt an object that was round, but it had to be opened to ascertain its contents because it was not “immediately apparent.” The search of the container was unlawful. Cannon v. State, 985 So. 2d 968 (Ala. Crim. App. 2007):

In this case, Cannon gave Daley consent to retrieve his identification from his pocket. Before reaching into Cannon’s pocket, Daley did a pat-down search for her safety. While doing the patdown, she felt an object in one pocket that she knew was not Cannon’s driver’s license but that felt like a film canister. Just as the officer who testified in Warren explained, Daley said that based upon her training and experience, she knew that people kept illegal drugs in such canisters. When she could not see to identify the contents of the canister pulled from Cannon’s pocket, she opened it and found what she believed to be a controlled substance. Nonetheless, nothing in the record shows that the nature of the contraband found in the canister was immediately apparent when Daley pulled it from Cannon’s pocket.

Informant’s statement was sufficient to show probable cause, and two week old information about drug sales from defendant’s house was not stale. State v. Jenkins, 26 So. 3d 458 (Ala. Crim. App. 2007).

In a suit over a state mandated database to track information about potential predatory mortgage loans, the statute does not offend due process or the Fourth Amendment. Access to the information is only permitted if there is a crime or fraud suspected, and it is a long way from there to actual release of the information, which plaintiffs have no standing to object to under California Bankers Ass’n. v. Schultz, 416 U.S. 21, 68 (1974). Bell v. Martinez, 2007 U.S. Dist. LEXIS 37948 (N.D. Ill. May 24, 2007).*

The viability of a state constitutional claim was not absolutely clear, so the court had to deny the motion to dismiss, considering that it will likely have to decide that question itself. Aquino v. County of Monroe, 2007 U.S. Dist. LEXIS 37872 (M.D. Pa. May 24, 2007):

Plaintiff correctly notes that where there is no ruling currently available from the state’s highest court on a matter of state law, the district court “must predict how that court would resolve [the relevant] issues should it be called upon to do so.” Dilworth v. Metropolitan Life Ins. Co., 418 F. 3d 345, 349 (3d Cir. 2005). To make such a prediction, the district court will examine: (1) state Supreme Court decisions in related areas; (2) “decisional law” of intermediate state courts; (3) opinions of federal courts of appeals and district courts applying state law; and (4) decisions from other jurisdictions that have discussed the issues before the court. Id.

Police officer had a reasonable basis for concluding that the car that plaintiff was driving was stolen when the stop occurred, so the defendant is entitled to summary judgment. Phelan v. Village of Lyons, 2007 U.S. Dist. LEXIS 37943 (N.D. Ill. May 23, 2007).*

Defendant had a reasonable expectation of privacy in his fenced backyard. A warrantless entry into the backyard was not permitted because there no exigent circumstances justifying it. The asserted justification of officer safety was not shown in this vehicle theft case. People v. Brunsting, 224 P.3d 259 (Colo. App. 2009):

Here, the People do not rely on the first two factors set forth above (and the trial court did not find the deputies were in “hot pursuit,” or that there was a risk the occupants of the house would destroy evidence relating to the stolen vehicle). Rather, the People contend that the exigent circumstance justifying the deputies’ entry in the backyard was their “reasonable … belie[f] that their lives might be in danger when they knocked on the door to ask about the vehicle.” (Emphasis added.) Hence, we must determine whether, when Deputy C first entered the backyard and later moved to the back door, there was a colorable claim of an emergency situation threatening the life or safety of the deputies (or others) sufficient to justify the entry. We conclude there was not.

. . .

Here, it is the obligation of the People–as the party bearing the burden of proving the applicability of the exigent circumstances exception–to make a colorable claim that, when Deputy C entered the backyard and when he moved to the back door, it would have appeared to a prudent and trained police officer that an emergency situation already existed and threatened the deputies’ lives or the safety of others.

Except for the testimony that the owner spoke in a loud voice, the record does not show, and the People do not argue, that when Deputy C entered the backyard, circumstances required an immediate warrantless entry in response to a risk of immediate destruction of the vehicle or an immediate threat to the deputies or others. There is no evidence that anyone inside the house was in danger or that the allegedly stolen vehicle was in danger of destruction. …

In an animal abuse case, the defendant consented to bringing the animals out to be seen by the officer. People v. Lewis, 2009 NY Slip Op 29091, 23 Misc. 3d 49 (2d Dept. 2009).*

Crossing the centerline is RS for a stop. State v. Guseman, 2009 Ohio 952, 2009 Ohio App. LEXIS 792 (4th Dist. February 27, 2009).*

Under New Jersey’s heightened standard of exigency for an automobile search (tied with a preference for telephonic warrants where exigency is lacking), the state showed exigency because of actions of confederates or potential interlopers. State v. Lewis, 411 N.J. Super. 483, 987 A.2d 135 (2010):

We conclude that the facts of this case are closer to the facts in Pena-Flores than to those in Fuller and that, applying the factors relevant to an exigency analysis identified in the Pena-Flores-Fuller opinion, the State made a sufficient showing of exigent circumstances to uphold the search in this case. The stop of defendant’s van occurred at night in a Plainfield neighborhood known for high crime and drug sales. As in Pena-Flores, the police had no reason to anticipate in advance that defendants would be involved in drug activity because the targets of their investigation were Courtney and Porter, not defendants. Moreover, the stop of defendant’s car occurred at a location where it could be readily observed by persons in the neighborhood, such as the five or six people who congregated in the area after the stop. If they drove by, the occupants of the Camry who apparently had purchased drugs from defendants also would have been likely to observe the van and assume that it contained drugs. Therefore, it cannot be said in this case, as in Fuller, that “[t]here is nothing in the record to suggest that [defendants] had cohorts who might have come on the scene.” 198 N.J. at 32.

Moreover, although a second police car arrived on the scene after the stop, the search of the car and leather case had already been completed before then. Furthermore, it is unclear whether the officers in the second police car would have been available to detain defendants while Detectives Black and Staten applied for a warrant, because the officers involved in the Courtney-Porter investigation were responsible for searching four different residences, a car, and the persons of Courtney and Porter, and according to Detective Black, “were stretched out kind of thin.”

In addition, unlike in Fuller, defendants had not been placed under arrest when Detective Black searched their car. In fact, while we agree with the trial court’s conclusion that Detective Alston’s observation of Jason Lewis engaging in an apparent drug transaction with Courtney, who was one of the targets of the warrants, and Detective Black’s observation of Jerome Lewis apparently discarding something between the seats of the car, provided probable cause to believe there were drugs in the car, it does not automatically follow that those observations, by themselves, without the discovery of drugs, would have been sufficient to establish probable cause to arrest defendants. See State v. Chippero, N.J. , (2009) (slip op. at 15-20) (discussing the distinction between probable cause to search and probable cause to arrest). Consequently, if the circumstances confronted by the police officers in this case were found not to have been exigent, the police may have been required to temporarily detain defendants during the period required to seek a warrant.

For all these reasons, we conclude that the State made a sufficient showing of exigent circumstances under the factors set forth in Pena-Flores to justify a warrantless search under the automobile exception.

Washington applies the good faith exception to a search incident that occurred and was legal pre-Gant, following McCane (post here) that the police would not be deterred by suppression. State v. Riley, 154 Wn. App. 433 (2010) (dissent). The court discussing the conflicting cases.

¶1 Relying on the prevailing interpretation of a United States Supreme Court case, a police officer searched Eugene Riley’s car incident to his arrest under circumstances later declared unconstitutional in Arizona v. Gant. Because United States Supreme Court retroactivity precedent requires the retroactive application of “clear break” Fourth Amendment rules, the officer violated Riley’s Fourth Amendment rights. But the officer in this case was acting in good faith reliance on existing Fourth Amendment law. We therefore hold that under federal constitutional law, suppressing the evidence establishing methamphetamine possession would not deter police misconduct and apply the good faith exception to the exclusionary rule. While it appears the Washington Supreme Court could have a more restrictive view of the good faith exception to the exclusionary rule, its recent decisions rejecting suppression of evidence seized in reliance on a presumptively valid statute support applying the good faith exception to the exclusionary rule under article I, section 7 of our constitution. We therefore affirm the conviction.

. . .

¶8 We agree that the rule announced in Gant must be applied retroactively in accordance with the constitutional principles stated in Griffith. We therefore hold that Thompson violated Riley’s Fourth Amendment rights when he conducted the postarrest search of Riley’s car with Riley secure in the back of a patrol car.

¶9 Having established a Fourth Amendment violation, we must next determine what remedy applies. While the Fourth Amendment does not expressly preclude “‘the use of evidence obtained in violation of its commands,’” United States Supreme Court “decisions establish an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial.” Because the exclusionary rule is “‘designed to safeguard Fourth Amendment rights generally through its deterrent effect,’” it “applies only where it ‘result[s] in appreciable deterrence.’” Recognizing that the exclusionary rule “cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity,” the United States Supreme Court established the good faith exception to the exclusionary rule and has repeatedly applied the rule in circumstances where police have not engaged in misconduct.

¶10 In United States v. McCane, an officer conducted a pre-Gant search of the arrestee’s vehicle consistent with Tenth Circuit precedent adopting the widely-understood, but now erroneous, interpretation of Belton. Although the Tenth Circuit agreed that the search was unconstitutional under Gant, it determined that relying on settled Tenth Circuit case law is “‘objectively reasonable law enforcement activity.’” Reasoning that suppressing evidence found during a search conducted in compliance with controlling case law could not and would not deter police misconduct, the Tenth Circuit declined to apply the exclusionary rule. We adopt that reasoning.

Note: Another case from Washington came to a different conclusion. State v. McCormick, 152 Wn. App. 536, 216 P.3d 475 (2009) (post here). So, the Washington Supreme Court will have to resolve it.

Student security persons had citizen arrest power over the “public offense” of public urination without violating the Fourth Amendment. State v. Ludemann, 2010 SD 9 (February 3, 2010).*

Defendant’s stop was justified by a traffic offense, but he was completely uncooperative in identifying himself, and the stop was in a high crime area. His uncooperativeness justified putting him in the back of a police car. The stop was not unreasonably extended to bring in a drug dog. State v. McClellan, 2010 Ohio 314, 2010 Ohio App. LEXIS 266 (3d Dist. February 1, 2010).*

Officer’s approaching defendant to ask questions and defendant volunteering he likely had a warrant out on him was not a seizure. Search incident to arrest was valid. State v. Bailey, 154 Wn. App. 295, 224 P.3d 852 (2010):

¶2 Yakima Police Officer James Walker saw James Bailey walking along an otherwise deserted street in Yakima, Washington. He asked Mr. Bailey “if he had a minute.” Report of Proceedings (RP) at 5. The officer had to repeat his question for Mr. Bailey to hear him. Mr. Bailey responded affirmatively and walked toward the officer. The officer questioned Mr. Bailey to determine “if he had business in there or if he was legitimately headed somewhere.” RP at 6. He asked Mr. Bailey where he was going and what he was up to. Mr. Bailey explained that he was on his way to a friend’s house. Officer Walker then asked him for his identification. Mr. Bailey gave the officer his identification and, as soon as he did, advised the officer that he likely had an outstanding warrant. Officer Walker verified that Mr. Bailey had an outstanding warrant and arrested him. The officer searched Mr. Bailey incident to arrest and found two and one-half grams of methamphetamine in his glove.

IP address was sufficiently linked to defendant’s home to support nexus for a search warrant for his computer. While it was not exclusively his, it was otherwise linked to him and it was the most common one used by defendant. United States v. Kearney, 2009 U.S. Dist. LEXIS 110976 (D. Minn. November 30, 2009):

Third, and most crucially, the affidavit links defendant’s “ownership” of IP address 68.116.165.4 on May 20 to 22, 2008, to the Internet persona padraigh8 and the associated Yahoo! and MySpace accounts. Although there is no averment in the affidavit that the subject IP address belonged to defendant on the dates of the alleged chats between padriagh8 and “Julie,” the affidavit provides probable cause to believe that defendant accessed padriagh8’s Yahoo! and MySpace accounts on May 21 and 22, 2008. Paragraph 18 of the affidavit states: “[P]adriagh8 accessed his [Yahoo!] account 288 times utilizing IP protocol address 68.116.165.4 between 4/7/08 and 5/21/08.” (Id. P 18 (emphasis added)). Paragraph 17 states: “IP log records from MySpace show that the user signed onto this MySpace account from IP address 68.116.165.4 multiple times between 8/23/07 and 5/22/08”. (Id. P 17 (emphasis added)). A fair reading of these statements is that, as of the date of the subpoenas, the Yahoo! and MySpace accounts had last been accessed by IP address 68.116.165.4 on May 21 and 22, 2008, respectively. Had the accounts last been accessed on some earlier dates, those earlier dates would have appeared in the affidavit in place of “5/21/08” in paragraph 18 and “5/22/08” in paragraph 17. 12 And because there is no dispute that IP address 68.116.165.4 belonged to defendant and was registered to 11 Morgan Drive, North Grafton, Massachusetts, on May 21 and 22, the affidavit fairly connects defendant to the screen name padriagh8 and the associated Yahoo! and MySpace accounts.

“Wide ranging” fraud in defendant’s medical practice justified a broad search warrant for records. United States v. Poulin, 671 F. Supp. 2d 822 (E.D. Va. 2009).*

The defendant was found to have consented to a search of his hotel room for drugs, and a search for drugs can go anywhere drugs could be found. A locked safe was found, and defendant refused to consent to opening it, so officers got a search warrant for it. United States v. Rios, 2009 U.S. Dist. LEXIS 111099 (M.D. Fla. November 4, 2009),* adopted United States v. Rios, 2009 U.S. Dist. LEXIS 111118 (M.D. Fla. November 30, 2009).*

Pre-Gant search was governed by Gant, and “good faith exception” would not be applied to get around it because it would be bad policy and would make Fourth Amendment rights exist merely in the discretion of the police. Fourth Amendment cases almost always are retroactive [Leon sure was]. United States v. Peoples, 668 F. Supp. 2d 1042 (W.D. Mich. 2009):

Expanding the good-faith doctrine to permit reliance on case law would take the exception in a new and untenable direction. It would for the first time permit use of illegally obtained evidence based on the good faith of the officer alone, unchecked by the judgment of either the legislature (as it was in Krull) or the judiciary (as it was in Leon, Evans, and Herring). It would permit an officer to determine whether she has probable cause to search, and then permit her unilateral determination to excuse suppression even after a court determines the search to have violated the Fourth Amendment. This expansion of the doctrine is untenable because good-faith reliance on case law is materially different than good-faith reliance on a warrant. A warrant is specifically addressed to the particular facts and targets at issue, and it is issued in advance of the actual search by the executive branch. Case law, in contrast, is inherently retrospective and focused on a situation other than the one at hand. Reliance on case law necessarily would require an officer to extrapolate from prior scenarios and determine, in the first instance, whether the prior cases are sufficient to establish probable cause in the new matter. This process would be significantly different from excusing the officer’s reasonable belief that a warrant exists, reasonable reliance on a later invalidated warrant, or reasonable reliance on a later invalidated statute.

. . .

Permitting a police officer to rely on case law as an excuse to suppression would circumvent the process of obtaining a reliable probable cause determination from a magistrate. Moreover, it would empower the executive branch to conduct an illegal search without penalty so long as the officer could point to a case from which he could reasonably extrapolate that his actions were legal. In short, officers would have the first crack at interpreting the Fourth Amendment and determining what the law permits in a new situation, without risking any sanction if they overstep. This is precisely contrary to the general separation of powers established by the Constitution, and to the particular application of that principle in the Fourth Amendment.

. . .

Extending Leon good-faith to include reliance on court precedent thus involves an interpretive step on the part of the police that is totally absent from and unjustified by any previous Supreme Court application of a good faith exception to the exclusionary rule. It also cuts out of the process the general requirement of neutral, third-party review that is fundamental to protecting the rights guaranteed by the Fourth Amendment. Extending the good-faith exception to cover an officer’s good-faith interpretation of case law would in short order become functionally indistinguishable from an exception that applied whenever an officer could establish good faith on most any basis. This would effectively allow the exception to swallow the rule and would seriously undermine the protection of the Fourth Amendment. Accordingly, this Court rejects the Government’s request to extend the good-faith exception to include reliance on court precedent.

Comment: Anybody who didn’t see Gant coming just wasn’t paying attention.

Search incident after a warrant came back during a traffic stop was unreasonable under the search incident doctrine. Loose panels were seen, and the officer called for a drug dog. [The court analyzed the search incident doctrine at common law and showed how it became twisted through Belton.] State v. Valdez, 167 Wn. 2d 761, 224 P.3d 751 (2009):

A search was permitted incident to arrest under common law based upon concerns for officer safety and to secure evidence of the crime of arrest so as to preserve it for trial. Ringer, 100 Wn.2d at 691-93 (citing Leigh v. Cole, 6 Cox Crim. L. Cas. 329, 332 (Oxford Cir. 1853) and Dillon v. O’Brien, 20 L.R. Ir. 300, 316-17 (Ex. D. 1887)). These justifications permitting a warrantless search incident to arrest are not simply products of judicial fancy, but of principled necessity. Cf. State v. Gunwall, 106 Wn.2d 54, 60, 720 P.2d 808 (1986) (where this court warned against the practice of announcing a decision based upon state constitutional law without establishing the principled basis upon which that decision is founded). The necessity inherent in these justifications is two-fold. First, necessity justifies why the search need be conducted at all. It is necessary to permit a search for weapons or destroyable evidence where a risk is posed because, should a weapon be secured or evidence of the crime destroyed, the arrest itself may likely be rendered meaningless–either because the arrestee will escape physical custody or because the evidence implicating the arrestee will be destroyed. Ringer, 100 Wn.2d 692-93 (citing Leigh, 6 Cox Crim. L. Cas. at 332 and Dillon, 20 L.R. Ir. at 316-17). Second, necessity justifies the search incident to arrest being done without a search warrant. Quite simply, time is of the essence. In some circumstances, a delay to obtain a search warrant might be shown to provide the opportunity for the arrestee to procure a weapon or destroy evidence of the crime.

However, the search incident to arrest exception has been stretched beyond these underlying justifications, permitting searches beyond what was necessary for officer safety and preservation of the evidence of the crime of arrest. This trend in article I, section 7 jurisprudence was substantially adopted from a similar trend in Fourth Amendment jurisprudence. See Stroud, 106 Wn.2d at 160-64 (Durham, J., concurring in the result); Ringer, 100 Wn.2d at 690-99. As characterized by Justice Frankfurter in the Fourth Amendment context, the trend of cases “merely prove[s] how a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision.” United States v. Rabinowitz, 339 U.S. 56, 75, 70 S. Ct. 430, 94 L. Ed. 653 (1950) (Frankfurter, J., dissenting).

Questioning defendant and seeking consent without reasonable suspicion to continue the stop made it an unreasonable seizure. State v. Berry, 232 Ore. App. 612, 222 P.3d 758 (2009).

Officers had reasonable belief person wanted in arrest warrant for violation of supervised release was on the premises of the place entered, so the entry was valid. United States v. Pretends Eagle, 2009 U.S. Dist. LEXIS 120206 (D. Neb. December 23, 2009).*

Gant applied to a suppression hearing held before it was decided under the general rules of Fourth Amendment retroactivity. Here, there were no findings of fact, but the record is clear, and the search was unreasonable. State v. Gilbert, 2009 Ohio 5528, 184 Ohio App. 3d 642 (2d Dist. 2009):

[*P33] In the case before us, the search is not justified under either branch of the standard established in Gant. When the search occurred, multiple police officers were at the scene, and all occupants of the car had been removed and were under police control. Thus, at the time of the search, no occupant had access to, or was within reaching distance of, the vehicle’s passenger compartment. There is also no indication that the search was initiated to discover evidence relevant either to the crime that had been committed by the driver, or the crime for which there was an outstanding warrant to arrest the front-seat passenger. The driver of the car had been arrested for driving under suspension, and the car would have contained no evidence relevant to that crime. A passenger in the front seat had also been arrested on an outstanding warrant for robbery, but there is no indication that the officers were searching for evidence relevant to that crime, or that evidence was likely to be present relevant to that crime, which would have occurred some time in the past, since a warrant had been issued. Rather than resulting from a quest for relevant evidence of the crime that caused the stop, the search was the type of search incident to an arrest that officers have routinely conducted under the authority of Belton. As the United States Supreme Court stressed in Gant:

[*P34] “It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment-the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.” Gant, 129 S.Ct. 1710, 1720, 173 L. Ed. 2d 485.

[*P35] Accordingly, under the new standard established in Gant, the police were not justified in conducting a warrantless search of the automobile in which Gilbert was a passenger. Since the search was illegal, any evidence discovered thereafter as a result of the search, including the cocaine and marijuana, and Gilbert’s statements, should have been suppressed as the “‘fruit of the poisonous tree.'” Wong Sun v. U.S. (1963), 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441.

Having tags to the wrong vehicle is reasonable suspicion for a stop, and here it led to a plain view. State v. King, 2009 Ohio 5530, 2009 Ohio App. LEXIS 4658 (2d Dist. October 16, 2009).*

Officers acted reasonably in entering an apartment that they were told by the landlord had been vacated. They seized a bullet. State v. Green, 2009 Ohio 5529, 2009 Ohio App. LEXIS 4655 (2d Dist. October 16, 2009).*

Inevitable discovery supported seizure from a car that the court found no PC for an automobile search. However, an inventory search which was authorized would have discovered the evidence, despite the fact the court does not believe the officer. United States v. Martinez-Pena, 2009 U.S. Dist. LEXIS 87578 (N.D. Iowa September 23, 2009)*:

The first prong of the test is more problematic. The only evidence at the suppression hearing regarding the location of the drugs was from Bob Jones, who testified he saw the methamphetamine as soon as he opened the driver’s side door. The court has found this evidence not to be credible, both from the photographs and from the fact that both of the other officers who had a reasonable opportunity to do so failed to notice anything in the driver’s side floorboard. Nevertheless, it also seems reasonable that during a thorough inventory search of the vehicle, Todd Jones and Miller would have checked underneath the seats for items that should be placed on the inventory list. The court therefore finds that inevitable discovery of the illegally-seized evidence during the inventory search was “more likely than not.” See Bourjaily v. United States, 483 U.S. 171, 176, 107 S. Ct. 2775, 2779, 97 L. Ed. 2d 144 (1987); see also Thomas, 524 F.3d at 861-62 (Colloton, C.J., concurring). As a result, the drugs need not be suppressed.

Defendant was not seized when the officer parked behind the defendant’s legally parked car, walked to the front and started asking questions. The fact the car was blocked, however, and defendant could not leave, was a seizure. United States v. Hicks, 2009 U.S. Dist. LEXIS 87884 (E.D. Pa. September 23, 2009):

Viewing the totality of the circumstances, however, this Court concludes that the occupants of the vehicle were seized when Officer Haser, whose vehicle was blocking the Intrepid from leaving, instructed the driver, Hicks, to shut off the car engine and Hicks complied. At that point in time, Defendants were faced with a uniformed officer with a holstered weapon who had asked the driver to roll down the window and also instructed the driver to shut off the engine. Furthermore, the Intrepid was blocked in such a way that to terminate the encounter, the driver would have had to back up from his parked spot and maneuver his car around Officer Haser’s patrol car. To accomplish this, the driver would have either had to defy Officer Haser and start the engine again or Defendants would have had to exit the vehicle and abandon the car with the officer only a few feet away. Instead, Hicks complied with Officer Haser’s show of authority and shut off the engine. A reasonable person in the situation in which the occupants of the Intrepid found themselves would not feel free to ignore the police officer and go about his or her business. See United States v. Jones, 562 F.3d 768, 772 (6th Cir. 2009) (“Here, by blocking in the Nissan, the officers had communicated to a reasonable person occupying the Nissan that he or she was not free to drive away.”).

A party to a business dispute was temporarily ousted by Sheriff’s deputies enforcing a court order. The business dispute led to an order of possession, a stay, and a bankruptcy and a stay of the stay until it was dissolved. The Sheriff’s deputies had qualified immunity. Dever v. Kelly, 348 Fed. Appx. 107, 2009 FED App. 0656N (6th Cir. 2009) (unpublished).*

Under Gant, the search incident of defendant’s backpack was unreasonable because he was handcuffed and could not access it. Under Second Circuit authority, “exigent circumstances [can] justify a warrantless search of a closed container only when the police have reason to believe a container is concealing a dangerous instrumentality and that the hidden danger poses an imminent threat to either the arresting officers or the surrounding public.” Here, the police did not have that either. “Special exigencies” may permit it. United States v. Morillo, 2009 U.S. Dist. LEXIS 94396 (E.D. N.Y. October 9, 2009), USMJ R&R 2009 U.S. Dist. LEXIS 94421 (E.D. N.Y. August 12, 2009):

Even without exigent circumstances, “[t]here may be cases in which the special exigencies of the situation would justify the warrantless search of a suitcase.” Arkansas v. Sanders, 442 U.S. 753, 763 n.11. The Supreme Court in Chadwick noted that “there may be other justifications for a warrantless search of luggage taken from a suspect at the time of his arrest; for example, if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station house without opening the luggage and disarming the weapon.” 433 U.S. at 15 n.9 (citing Johnson, 467 F.2d at 639).

The circumstances of this case fit squarely into this justification for conducting a warrantless search of luggage. Morillo’s furtive and evasive behavior gave the officers reason to believe he was hiding something potentially dangerous in his backpack at the time of his arrest. Officer Finnegan testified that “I need to know what’s — what’s in that backpack and also what’s going in my car as I transport it to the stationhouse.” (July 2, 2009 Tr. 10-11.) According to Officer Finnegan, this was necessary for the safety of himself, his partner, the prisoner and the people around. (See R & R 11.)

Based on the information that they knew at the time of Morillo’s arrest, Officers Lancer and Finnegan had reason to believe that Morillo was hiding a dangerous instrumentality in his backpack. Morillo had fled on his bicycle, continued fleeing on foot after crashing his bicycle, and then resisted arrest. This was in response to the officers’ request for identification and their statement that the stop was directed at Morillo riding his bicycle on the sidewalk. Morillo’s disproportionate response–attempting to avoid potential liability for violating the New York City Administrative Code by exposing himself to further criminal liability during the course of his failed get-away-properly gave the officers reason to suspect that Morillo fled and resisted arrest because he did not want a greater wrong uncovered.

Because police officers, in this age of terrorist-related threats, are on their guard for suspicious packages and furtive behavior in public places, Officers Lancer and Finnegan reasonably could have thought that Morillo was fleeing from a potential search of his own backpack. The circumstances in this case, therefore, justified the officers’ steps to affirm their suspicions by opening Morillo’s backpack before transporting it in their police car.

“[T]he police received information about a reported domestic violence incident involving one man and one woman in a residence at the end of a dead-end street, and minutes later happened upon a car containing one man and one woman driving away from that dead-end. The totality of these circumstances justifies a brief investigative detention in order to ascertain whether the individuals in the car were those involved in the reported criminal activity.” United States v. Delano, 348 Fed. Appx. 258 (9th Cir. 2009) (unpublished).*

A protective sweep of a motel room was justified because of the number of people seen coming and going from in there. United States v. Carrillo, 2008 U.S. Dist. LEXIS 110320 (C.D. Cal. October 30, 2008).*

A search incident of defendant’s van towed to the police station for search was invalid under Gant. Aldin v. State, 21 So. 3d 68, 34 Fla. L. Weekly D 2046 (Fla. 3 DCA 2009).

At FlexYourRights.com is “10 Rules for Dealing with Police,” their long awaited DVD.

YouTube has wired car video of Border Patrol allegedly conducting an unlawful immigration checkpoint stop, with annotations, no less.

At least watch how the Border Patrol stops and inquires at immigration checkpoints. It’s not what this Anglo has seen driving through checkpoints on I-5 in California and I-19 in Arizona.

Hat tip to VeteransAgainstPoliceAbuse.org.

Juvenile detention strip search policy was unconstitutional because of its excessiveness. Mashburn v. Yamhill County, 2010 U.S. Dist. LEXIS 23969 (D. Ore. March 11, 2010):

The YCJDC strip searches are also, to put it charitably, astonishingly thorough. A boy is required “to lift his scrotum so that staff can inspect the area directly below the testicles.” (Kraemer Aff. (# 29) Ex. 1 at 2.) If a boy is uncircumcised, “he is instructed by staff to pull back the foreskin so that the area beneath the foreskin can be inspected.” (Id.) Girls are required to lift their breasts “so that staff can inspect the area directly below.” (Id. at 4.)

YCJDC could mitigate the length and intensity of its strip searches by taking steps to ensure that the child is not fully exposed for longer than is reasonably necessary to accomplish its search objectives. But aside from moving the child to private area, YCJDC makes no extra effort to preserve the privacy and dignity of the searched child. For example, a child spends the entire search completely naked even though a majority of the time-consuming steps described above–including searches of hair, ears, mouth, nose, hands, armpits, and toes–do not require complete nudity. The intrusiveness of these strip searches stands in contrast to other searches of juveniles that have been held constitutional and that did indicate extra effort to preserve the privacy and dignity of the searched child. For example, in Smook v. Minnehana County, the Eighth Circuit found it material that the detention center staff required a juvenile to undress only to her undergarments, which “placed her at the same level of undress as if she were at the beach in a swimsuit.” 457 F.3d 806, 811-12 (8th Cir. 2006) (internal quotation and citation omitted). Likewise, in Reynolds v. City of Anchorage, each detained girl was instructed “to remove her blouse and bra, put them back on, and then to remove her bottom clothing and underwear and bend over to allow a visual inspection of her rectal area.” 379 F.3d at 361. Even the juveniles subjected to the highly invasive strip searches at issue in N. G. v. Connecticut may have been provided robes during the search at issue. See 382 F.3d at 228 (noting that the strip search policy was amended in 2002, after plaintiffs were searched, to deauthorize visual inspections of a juvenile’s vaginal and anal body cavities, but not indicating whether use of robes predated the 2002 policy amendment).

B. The Relationship Between the Government Interest and Scope of the Strip Search

Defendants raise valid concerns about their obligations to care for and protect juveniles who are admitted to YCJDC. But the existence of that need, in and of itself, says little about the reasonableness of the search under the Fourth Amendment because a search may be too intrusive in light of the underlying interests justifying it. Accordingly, it is appropriate to ask whether there is a “valid, rational connection between the … regulation and the legitimate governmental interest put forward to justify it.” See Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987) (internal quotation omitted) (evaluating the constitutionality of regulations in adult prisons). Even accepting that defendants’ concerns are legitimate, the record does not show that a highly invasive strip search bears a reasonable relationship to the interests defendants identified.

. . .

The existence of less intrusive alternatives is more compelling in the context of a juvenile detention facility than in a prison. Even though the privacy interest of a detained juvenile is less than that of a student, the Constitution still requires some showing that the scope of the search is reasonable in light of a child’s acute vulnerability. Here, far from presenting evidence that the scope of a strip search is a reasonable means of furthering institutional security interests, the YCJDC has presented only vague references to “incidents” in which “drugs, contraband and other illegal items” were discovered during strip searches. (See Vesper Aff. (# 21) P 9.) Defendants have provided no evidence of what items were discovered, how many items were discovered, where these items were discovered, or even a rough estimate of what percentage of searches result in discovery of some sort of contraband. Mr. Vesper never even defines what he means by “contraband and other illegal items.” And defendants have been unable to identify a single instance in which contraband has been found in an area that would have been concealed by a juvenile’s underwear, as opposed to outer clothing.

The record also shows that Yamhill County could employ less intrusive alternatives without undermining its custodial obligations to care for the health and well-being of juvenile detainees. Although Mr. Vesper notes that the YCJDC strip searches have revealed evidence of abuse, self-harm or medical conditions, he identified only a single instance in which a strip search was necessary to uncover a medical condition hidden by a child’s underwear. …

Compare Bull v. City & County of San Francisco, 2010 U.S. App. LEXIS 2684 (9th Cir. February 9, 2010) (en banc) (6-5), panel opinion Bull v. City & County of San Francisco, 539 F.3d 1193 (9th Cir. 2008), permitting broad strip searches of pretrial detainees in the San Francisco jail, posted here.

Arizona v. Gant: Does it Matter? by Barbara E. Armacost of the University of Virginia School of Law in 2009 S.Ct. Rev. __ (2010). Abstract:

Prior to the Supreme Court’s recent opinion in Arizona v Gant, it was standard practice under New York v Belton for police to conduct a search incident to arrest (SITA) of the passenger compartment whenever they arrested the driver or a recent occupant of the vehicle. Police officers had begun to treat the SITA of a vehicle as a powerful investigative tool, using traffic stops and arrests to get a free search for evidence of more serious crimes. At least as a formal matter, Arizona v Gant changed all this. In Gant the Supreme Court reviewed a Fourth Amendment challenge to an automobile search incident to arrest conducted after the driver had been arrested, handcuffed and secured in the police car. The Court held that police may not do a SITA of an automobile once the arrestee “has been secured and cannot access the interior of the vehicle” unless it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” For all practical purposes this holding means the end of Belton SITAs. It is standard protocol for police to order a potential arrestee out of his automobile, frisk him, handcuff him, and secure him in the officer’s vehicle. This means that SITAs of automobiles will almost never be justified.

When Gant came before the Supreme Court, both law enforcement and the defense bar viewed it as a big deal. Defense attorneys urged the Supreme Court to eliminate the automatic Belton search, which was widely viewed as creating incentives for pretextual traffic stops and exploratory searches. Law enforcement officials argued against overruling Belton on the grounds that eliminating the vehicle SITA would compromise officer safety and hamstring police investigators. In my view, neither side got precisely what it wanted.

This article forecasts the implications of the Court’s holdings and analysis in Gant. Part I describes the judicial landscape that gave rise to the reconsideration of Belton and analyzes the Gant opinions. Part II explores the conflicting claims by police officers and the defense bar about the likely effect of Gant on police practices. I conclude that Gant’s first holding – effectively eliminating the vehicle SITA for traffic arrests — will make exploratory searches more costly but will not eliminate them. As to Gant’s second holding – that police may conduct a SITA if it is reasonable to believe evidence of the crime of arrest might be found in the vehicle – I fault the Court for using language that tracks neither probable cause nor reasonable suspicion. The Court’s Delphic language is sure to leave the lower courts in disarray. Part III considers the broader implications of Gant. I argue first that Gant represents another step in the march toward a Fourth Amendment jurisprudence of interest balancing. Second, while Gant articulated a coherent rationale for the SITA in a vehicle, the same rationale may have destabilized SITA law applicable to arrests in the home under Chimel. Finally, I challenge the familiar claim – made by those who argued against overruling Belton – that “bright line” rules are necessary in contexts that implicate concerns about police officer safety.

Who outside of academia calls a “search incident” a “SITA”?

Defendant was stopped in a car for a traffic offense, and she called a lawyer immediately. That, with her nervousness, justified calling for a drug dog which arrived within three minutes. State v. Stowe, 25 So. 3d 945 (La. App. 2d Cir. 2009)*:

It is clear that the defendant’s shaking hands, her passenger’s call to his “legal people” at the outset of the stop, her conflicting accounts of how she had arrived in Dallas, and her passenger’s prior Schedule II violation on Louisiana’s Interstate system (all of which the dash cam video confirms before Trooper Parker ended the traffic stop portion of the detention), gave the troopers additional reasonable suspicion by which to justify enlarging the scope of their investigation. See State v. Lopez, supra; State v. Burton, 93-828 (La. App. 3d Cir. 2/23/94), 640 So. 2d 342, writ denied, 94-0617 (La. 4/7/94), 641 So. 2d 203.

A K-9 unit arrived on the scene within three minutes of the defendant’s refusal of consent to a search. A dog’s sniffing around the exterior of the vehicle does not itself constitute a search. United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983). The certified dog’s subsequent alert, consistent with the other factors giving rise to the troopers’ reasonable suspicion, gave the troopers probable cause to search for contraband. See State v. Lopez, supra. Approximately six to seven minutes elapsed from the time the traffic stop ended and the time the dog alerted to the presence of narcotics. Under these circumstances, the record fully supports the finding of the trial court that the troopers were diligent in pursuing an investigation that was likely to confirm or dispel their suspicions quickly. Neither the initial traffic stop, nor the narcotics-related extension of the stop, was unlawful. As no rights were violated, the motion to suppress was properly denied.

A civil 42 U.S.C. § 1983 case in state court over seizure of adult materials for commercial sale was the improper method for adjudicating the legality of the seizure after a criminal case was filed, even though the corporation was not a party to the criminal case. Delta Retail 45, L.L.C. v. Cox, 26 So. 3d 200 (La. App. 2d Cir. 2009).* That does nothing for the rights of the corporation. Where is its remedy?

Search of defendant’s car was invalid for lack of probable cause, but there was reasonable suspicion for a strip search [not a body cavity search] for drugs on the person. United States v. Scott, 987 A.2d 1180 (D.C. App. 2010):

Considering what is at stake, we agree with the majority of other courts that “reasonable suspicion” is a constitutionally sufficient justification for conducting a warrantless strip search incident to a lawful arrest. The search may include a visual body cavity inspection (but not a physical intrusion) if particularized reasonable suspicion exists to justify that step. We are not persuaded that the police must have probable cause to believe the strip search will yield a weapon or contraband, or that the police must first obtain a warrant to conduct the search in the absence of exigent circumstances. It is true that the Supreme Court adopted a probable cause standard and a warrant requirement in Schmerber for searches involving “intrusions into the human body.” 68 But as the Court recognized implicitly in Wolfish and Redding, strip searches “do[] not implicate the Court’s cases governing bodily intrusions … because [they do] not involve a ‘physical intrusion, penetrating beneath the skin.'” 69 There is a qualitative difference between a purely visual strip search, even one involving a visual body cavity inspection, and a physical intrusion such as a manual body cavity search, that warrants a difference in the level of justification required. As the New York Court of Appeals has explained:

Unlike manual body cavity searches, strip searches and visual cavity inspections do not create a risk of physical pain or injury to arrestees. Because a manual cavity search is more intrusive and gives rise to heightened privacy and health concerns, when weighed against the legitimate needs of law enforcement, we believe it should be subject to a stricter legal standard.

911 call of man threatening a woman with a gun justified entry of the home under Michigan v. Fisher. United States v. Porter, 594 F.3d 1251 (10th Cir. 2010).

Defendant’s consent was shown to be valid. He had been Mirandized but not informed of his right to refuse a search. United States v. Vongxay, 2010 U.S. App. LEXIS 2682 (9th Cir. February 9, 2010).*

Knock-and-talk was valid, and defendant consented to entry and produced a gun already in plain view without prompting. United States v. Parker, 594 F.3d 1243 (10th Cir. 2010)*:

“Can we come in and talk to you?” … [¶] Parker inquired whether the officers had a warrant. The officers responded that they did not have a warrant. Parker then stated: “Yeah, you can come in.” … [¶] As Detective Reiva stepped into the apartment, Parker stated: “I have a gun over there.” … The firearm was in plain view from the doorway, once Parker stepped out of the way.

A back seat passenger had no standing, but the others had a sufficient possessory interest to challenge the search. They did not have to testify to have standing; the video of the stop was sufficient. United States v. Delgadillo, 2009 U.S. Dist. LEXIS 98373 (D. Utah October 22, 2009):

Here, the court finds that uncontested evidence from the hearing is sufficient to establish standing for both men. First, Sergeant Nixon testified that the SUV’s registration listed Crystal Sanchez as one of the registered owners of the SUV. Second, the video of the stop contains uncontroverted statements by Mr. Banuelos and Mr. Delgadillo that Mr. Delgadillo borrowed the car from his wife Crystal Sanchez and that Mr. Banuelos was driving the car at the request of Mr. Delgadillo, who Mr. Banuelos believed owned the SUV.

This case is somewhat similar to Valdez Hocker, in which the court held that the driver had standing even though he borrowed the car from someone other than the registered owner, because the driver reasonably believed the lender had a familial relationship with the registered owner and had authority to lend him the car. 333 F.3d at 1209-10. The Valdez Hocker court also noted that if the defendant had claimed he personally obtained possession from the registered owner, as Mr. Delgadillo did, “he would ‘plainly have a reasonable expectation of privacy in the vehicle and standing to challenge the search of the vehicle.'” Id. at 1209 (quoting United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990)).

As a passenger, defendant had no standing interest in the vehicle to challenge its search. United States v. Ferguson, 667 F. Supp. 2d 567 (M.D. N.C. 2009).*

The false statements in the affidavit for the search warrant were not shown to be intentionally made, since defendant carried the burden on that [how do you prove that except by circumstances?], but, even so, excluding the information, it was not critical to the finding of probable cause. State v. Harrington, 2009 Ohio 5576, 2009 Ohio App. LEXIS 4702 (1st Dist. October 23, 2009).*