“Evans claims that the Federal Protective Service (“FPS”) officers who conducted an investigative stop of her vehicle violated her Fourth Amendment rights by exceeding their jurisdictional authority under 40 U.S.C. § 1315. We disagree and affirm. In doing so, we hold that the FPS officers reasonably exercised their investigative and protective authority pursuant to § 1315 when they left federal property to surveil Evans’s vehicle. We further hold that Evans’s conduct, specifically, her tailgating of the FPS officers’ marked police vehicle and her visible hand gestures, which simulated the firing of a gun, provided the FPS officers with probable cause to arrest her, regardless of her presence on non-federal property.” United States v. Evans, 581 F.3d 333, 2009 FED App. 0341P (6th Cir. 2009).

Officers had reasonable suspicion for his stop either from his driving or the three days of surveillance of his activities. A hidden compartment gave PC to search. United States v. Carmenate, 344 Fed. Appx. 941 (5th Cir. 2009) (unpublished):

Specifically, the visual inspection under Carmenate’s truck did not require his consent. See United States v. Muniz-Melchor, 894 F.2d 1430, 1434 (5th Cir. 1990). The subsequent discovery of suspicious markings created a reasonable belief that the truck contained a hidden compartment. See United States v. Inocencio, 40 F.3d 716, 724 (5th Cir. 1994). “[E]vidence of a hidden compartment supports ‘probable cause’ for a search/arrest.” United States v. Estrada, 459 F.3d 627, 633 (5th Cir. 2006) (internal citation omitted). When probable cause for a search exists, consent is not required. See United States v. Mendoza-Gonzalez, 318 F.3d 663, 666 (5th Cir. 2003) (stating that a search is permissible without a warrant as long as there is “either the consent of the owner to conduct the search or probable cause to believe that the vehicle contains contraband or other evidence of a crime”).

Gun was revealed by plain view of shining a flashlight into the defendant’s car during a traffic stop. United States v. Jackson, 2009 U.S. Dist. LEXIS 85974 (W.D. Pa. September 21, 2009).*

The search of defendant’s car for evidence of fraud was permissible under the automobile exception, and it was not a search incident. United States v. Owen, 2009 U.S. Dist. LEXIS 85929 (S.D. Miss. August 28, 2009).*

Defendant’s conclusory allegation that defense counsel did not file a motion to suppress was an insufficient ground for post-conviction relief. Tidwell v. United States, 2009 U.S. Dist. LEXIS 86115 (M.D. Ga. July 24, 2009).*

Defendant’s girlfriend sufficiently controlled the safe in her house and she could consent to police seizure of the safe, which was later opened with a search warrant. Defendant moved the safe to her house and only his things were in it. She knew the combination, and she told the police there was a gun in it and merely remained silent when the police expressed an interest in seizing the safe. United States v. James, 571 F.3d 707 (7th Cir. 2009).*

Trial court’s crediting officers over defendant’s completely implausible testimony as to defendant’s “standing” was not error. United States v. Cossio, 336 Fed. Appx. 909 (11th Cir. 2009) (unpublished).*

The officer called for defendant to come to talk to him, and defendant fled, dropping a gun. Seizure of the gun was valid. United States v. Knight, 336 Fed. Appx. 900 (11th Cir. 2009) (unpublished).*

19 month delay in getting search warrant for defendant’s seized computer was unreasonable. United States v. Freeman, 2009 U.S. Dist. LEXIS 58198 (D. Ore. July 8, 2009).*

Nexus was shown based on the probable cause and the premises [without saying what it was]. United States v. Danner, 344 Fed. Appx. 495 (11th Cir. 2009) (unpublished).*

Defendant’s hiding his hands, refusing to get back in his vehicle, not looking ahead when told to do so, and then attempting to strike the officer was reasonable suspicion. [Obviously the latter is enough to arrest.] United States v. Hollins, 336 Fed. Appx. 921 (11th Cir. 2009) (unpublished).*

Court declines to infer that the officer turned on his camera intentionally late in violation of state rules just to not record the alleged violations. His testimony was credited by the district court and that was enough. Dog’s alert was PC for a search. United States v. Wickersham, 344 Fed. Appx. 155, 2009 FED App. 0608N (6th Cir. 2009), cert. den. 2010 U.S. LEXIS 791 (U.S., Jan. 25, 2010) (unpublished).*

Application of the good faith exception to a search is reviewed de novo. The magistrate did not abandon her neutral and detached role, it did not lack indicia of probable cause, and the warrant specified the things to be seized and the place to be searched. United States v. Cruse, 2009 U.S. App. LEXIS 19116 (11th Cir. August 26, 2009) (unpublished).*

Police saw defendant riding a bicycle on a sidewalk in violation of law, and he got off the bike and the officer could see the unmistakable L shape of a gun in his jeans. The officer was justified in approaching the defendant to detain him and ask about the gun. A patdown was justified. Defendant’s argument that it could have been a cellphone or an iPod is unpersuasive. United States v. Rios, 2009 U.S. Dist. LEXIS 74895 (S.D. N.Y. August 24, 2009).*

Defendant was shown to have consented to his search. His claim that it was at gunpoint was never presented to the district court and was waived. United States v. Sanni-Shittu, 2009 U.S. App. LEXIS 19011 (5th Cir. August 21, 2009) (unpublished).*

An automobile search was permissible of a car driven in an internet predator sting. The defendant did not have condoms, discussed in the chat sessions, on his person, but it was not determinative that they were not on his person. United States v. Zahursky, 580 F.3d 515 (7th Cir. 2009):

We conclude, however, that the record establishes that probable cause to search the vehicle existed even before the discovery that Zahursky didn’t have any condoms or lubricant on his person. First, the agents knew that Zahursky was the man they wanted. He arrived at Starbucks, the designated meeting place, in the make and color of car that he had described in his chats with Shelly. He was wearing the clothing he had told Shelly he would be wearing, and the agents could observe that his physical appearance fit the one he had described to Shelly. The agents also knew from the internet chats and email messages with Shelly that Zahursky planned to bring condoms and lubricant with him. Thus, they had probable cause, based on Zahursky’s own statements, to believe that Zahursky had these items, which would be evidence of a crime, see 18 U.S.C. § 2422(b), with him when he met Shelly on June 21.

Furthermore, it was reasonable to believe that Zahursky would have left these items in his car instead of taking them into Starbucks. He surely wasn’t going to use the condoms and lubricant inside Starbucks. Zahursky and Shelly had planned only to meet at the Starbucks before going to Lindsey’s sister’s dorm room where they planned to engage in sexual activity.

Identity evidence in an illegal entry case, including fingerprints, are not suppressible under a Fourth Amendment violation, if there was one. United States v. Aguila-Perez, 344 Fed. Appx. 521 (11th Cir. 2009) (unpublished), following United States v. Farias-Gonzalez, 556 F.3d 1181 (11th Cir. 2009), petition for cert. filed, (U.S. May 4, 2009) (No. 08-10195).*

Arresting men on defendant’s porch justified a protective sweep. Exigency also permitted a search for a child inside. United States v. Minniefield, 2009 U.S. Dist. LEXIS 77807 (W.D. La. August 13, 2009).*

An adjudicated juvenile defendant in juvie detention has virtually no Fourth Amendment rights in detention. Betts v. New Castle Youth Dev. Ctr., 2009 U.S. Dist. LEXIS 81182 (W.D. Pa. September 8, 2009).

Where objection to USMJ’s finding was based solely on the credibility of the witnesses, it was overruled. United States v. Sanders, 2009 U.S. Dist. LEXIS 80934 (E.D. Tenn. September 4, 2009).*

Court finds consent on the credibility of witnesses. United States v. Cole, 2009 U.S. Dist. LEXIS 81133 (D. Neb. August 25, 2009).*

CI’s reliability was shown by the fact it related the CI seeing a drug deal going down. United States v. Dyer, 580 F.3d 386, 2009 FED App. 0330P (6th Cir. 2009).*

Officers had reasonable suspicion (without telling us what it was). United States v. Sadler, 344 Fed. Appx. 861 (4th Cir. 2009) (unpublished).*

Defendant consented to his search, but the court puzzlingly almost refers to the “right to be let alone.” United States v. Frazier, 2009 U.S. Dist. LEXIS 91670 (W.D. Mo. September 14, 2009):

The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ….” U.S. CONST. amend. IV. As made clear in the Fourth Amendment, the constitution does not forbid all searches and seizures, but only unreasonable searches and seizures. Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L. Ed. 2d 1669 (1960). Nonetheless, as the United States Supreme Court pointedly noted over one hundred years ago:

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

Union Pacific Railroad Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L. Ed. 734 (1891).

The officers testified that the defendant consented three times. “Who is telling the truth? It boils down to an issue of credibility and inferences drawn from the totality of the circumstances. The United States has proven, by a preponderance of the evidence, that the officers have testified truthfully, and their version is believed. Accordingly, the court finds that Mr. Gaines consented to a search of his motel room and there was no violation of the Fourth Amendment. Therefore, it is recommended that his motion to suppress evidence (Doc. 26) be denied.” United States v. Gaines, 2009 U.S. Dist. LEXIS 92121 (E.D. Tenn. September 11, 2009).*

The officers had probable cause to arrest defendant in the common hallway of his apartment building. United States v. Carney, 661 F. Supp. 2d 732 (W.D. Ky. 2009).*

Public housing employees were not shown to be acting at the behest of law enforcement when they entered defendant’s apartment, notwithstanding the public housing’s zero drug tolerance. State v. Brittingham, 42 Kan. App. 2d 859, 218 P.3d 441 (2009):

Because Hutson and Schlesener’s status as public housing employees does not automatically invoke Fourth Amendment protections, we must determine whether they independently entered Brittingham’s apartment or whether their entry constituted government action. “In deciding whether a private person has become an instrument or agent of the government, two important inquiries are: ‘(1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends.'” Pleasant, 876 F.2d at 797.

We note United States v. Couch, 378 F. Supp. 2d 50 (N.D. N.Y. 2005), where off-duty police officers, who were acting in their capacity as representatives of a public housing authority and not as police officers when they performed a lease inspection, were not acting as agents or instruments of the government.

Despite Brittingham’s contention that Hutson and Schlesener’s entry into his apartment was pretextual because the public housing authority has a zero tolerance drug policy, there is no indication that Hutson’s and Schlesener’s initial entry into the apartment was for the purpose of finding drugs or was otherwise done at the direction of, or in involvement with, law enforcement. Hutson was not asked by law enforcement to inspect or search the room, and there was no police participation of any kind in Hutson’s or Schlesener’s entry. Nor is there any evidence that Hutson or Schlesener had any intent to assist law enforcement efforts. Rather, Hutson’s entry was a routine maintenance call for the purpose of determining whether the sewage issue had affected Brittingham’s apartment.

Defendant consented to search of his car for firearms and ammunition, which was stated in the consent form. Searching a wallet exceeded the scope of the consent. State v. Thornton, 121 Haw. 533, 221 P.3d 511 (2009):

Hence, “[c]onsent to search a general area will not validate the search of a specific area or item if that specific area or item is in fact surrounded by an independent privacy interest.” Mahone, 67 Haw. at 648, 701 P.2d at 174. Moreover, “[s]peculation or curiosity cannot provide the sole basis to legitimize warrantless searches or seizures.” State v. Reed, 70 Haw. 107, 114, 762 P.2d 803, 807 (1988); State v. Kaluna, 55 Haw. 361, 371, 520 P.2d 51, 59 (1974) (suppressing evidence of narcotics wrapped in a tissue and found during a pre-incarceration search because (1) “[f]rom an objective standpoint, it was unlikely that the small packet secreted a weapon which the defendant could have used to escape or harm her captors[,]” and “even if it had contained a small weapon, such as a razor blade, once the packet was in [the police matron’s] possession there was no further danger that the defendant could use it”; and (2) the defendant was originally arrested for attempted robbery and the police matron “had neither a belief that [the tissue] contained instrumentalities [of the crime of attempted robbery] nor any grounds to suspect that it contained drugs. Her sole purpose in unfolding the tissue was to satisfy her curiosity–a purpose which is clearly improper.”).

A search for firearms and ammunition pursuant to consent exceeds the scope of consent when either the characteristics of the area to be searched, or the investigating officer’s observations, do not reasonably suggest the presence of firearms or ammunition. See, e.g., State v. Younger, 305 N.J. Super. 250, 702 A.2d 477, 479-80 (N.J. Super. Ct. App. Div. 1997) (opening a closed, pliable, three-inch-by-two-inch vinyl change purse which had an identity card sticking out and contained heroin exceeded the scope of a consent to search for a handgun inasmuch as the police officer “conceded that the purse obviously could not have contained a gun and that anything sharp or hard that might have been inside it could have been felt without opening it” and the police officer also admitted that he had searched the purse for identification and ammunition); Foster v. State, 285 Ga. App. 441, 646 S.E.2d 302, 306 (Ga. Ct. App. 2007) (holding that the defendant’s consent to a “search of his pockets for weapons cannot be interpreted as having extended so far as to have authorized [the police officer] to remove the contents of [the defendant’s] pockets unless he came upon something that felt like a weapon or an object immediately identifiable as contraband. According to [the police officer], he felt neither.”). See also State v. Barnes, 58 Haw. 333, 339, 568 P.2d 1207, 1212 (1977) (“There was nothing in the conduct of the defendant, or in the nature and appearance of the brown paper bag, that could have led the officer reasonably to believe that it contained a weapon …. [I]n no way could the arresting officer have known of the marijuana in the brown paper bag without first seizing it and examining its contents.”); State v. Huether, 453 N.W.2d 778, 782 (N.D. 1990) (concluding that although the driver consented to a search for open containers of alcohol, the small paper bag tucked under the car seat “had neither the weight nor the shape of an alcoholic beverage container” and it “became obvious” that the bag could not have held a bottle or can “once the officer pulled it from under the seat”).

OFAC block on assets is a Fourth Amendment seizure under Soldal. Kindhearts for Charitable Humanitarian Dev. v. Geithner, 647 F. Supp. 2d 857 (N.D. Ohio 2009):

A Fourth Amendment seizure, in contrast, does not result in passage of title to the government or even necessarily permanent deprivation. A seizure affects a possessory interest: Id. at 1263. A Fourth Amendment seizure may often lead to permanent deprivation of the property “taken” by government officers, but that is not always so. Indeed, Fed. R. Crim. P. 41(g) provides a means for seeking return of seized property.

Viewing the consequences of a blocking order in a Fourth Amendment light, the court in Al Haramain stated that because “[e]ven a temporary deprivation of property” constitutes a seizure, an OFAC blocking action affects Fourth Amendment rights. Id. If merely “holding luggage for 90 minutes” constitutes a seizure, then surely placing an indefinite freeze on all an entity’s assets is as well. Id.

This conclusion is not only reinforced, but, indeed, made irrefutable on consideration of the fact that the very purpose of an OFAC blocking action is to “depriv[e] the designated person of the benefit of the property, including services, that might otherwise be used to further ends that conflict with U.S. interests.” Al Haramain, supra, 585 F. Supp. 2d at 1263. An OFAC block interferes with possessory rights, and is, in Fourth Amendment terms a seizure.

Defendant’s alleged illegal arrest did not taint his live-in girlfriend’s consent to search their home which was quite independent. United States v. Meece, 580 F.3d 616 (7th Cir. 2009):

The record in this case supports two theories as to why Lee consented to the search, neither of which helps Meece. Markham testified that when Lee consented to the search, she said that she had children in the house and that she was worried about the guns. Lee’s affidavit and testimony claimed that she consented to the search because she needed to pick up her child from daycare and Markham threatened that if Lee did not consent to the search, the officers would get a warrant, which could take hours, and that, during that time, Lee would not be allowed to leave the house. 2 Lee never even hinted that the news of Meece’s arrest prompted her consent; whether she consented to the search out of a concern for her children’s safety or because she needed to pick up her child from daycare is irrelevant.

Supervised release condition of searches without cause was not facially unconstitutional, and it was within the district court’s discretion. United States v. Camp, 344 Fed. Appx. 431 (9th Cir. 2009) (unpublished):

Camp contends that the district court erred by imposing a special condition of supervised release requiring him to submit to search or seizure “with or without a warrant and with or without reasonable or probable cause.” This search condition does not facially violate the Fourth Amendment. United States v. Dupas, 419 F.3d 916, 922 (9th Cir. 2005). Furthermore, the record reflects that the district court did not abuse its discretion by imposing the condition in this case. See 18 U.S.C. § 3583(d); see also United States v. Weber, 451 F.3d 552, 557-58 (9th Cir. 2006); Samson v. California, 547 U.S. 843, 854-55, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006).

Drawing of weapons and use of handcuffs during a Terry stop does not transform it into an arrest. United States v. Jackson, 2009 U.S. Dist. LEXIS 81159 (N.D. Ga. July 30, 2009).*

Administering PBT to minors suspected of underage drinking as permitted by a city ordinance was a search without any permissible exceptions. While local federal courts which held other city’s ordinances were not binding, they were persuasive. People v. Chowdhury, 285 Mich. App. 509, 775 N.W.2d 845 (2009):

The decisions in Spencer and Platte are both well-reasoned and consistent with existing Fourth Amendment law. Accordingly, we find Spencer and Platte to be persuasive, see Abela, 469 Mich at 607, and conclude that Troy Ordinance § 98.10.03 is unconstitutional on its face. Moreover, we agree with the Spencer court that “[t]here is nothing ‘special’ in the need of law enforcement to detect evidence of ordinary criminal wrongdoing,” and that “‘reasonableness generally requires the obtaining of a judicial warrant.'” Spencer, 292 F Supp 2d at 941 (citation omitted). The “special needs” exception to the search warrant requirement is quite simply not applicable on the facts of this case. Id.

The district court’s finding of consent during a knock-and-talk was supported by the evidence. United States v. Anthony, 345 Fed. Appx. 459 (11th Cir. 2009) (unpublished).*

The officer had reasonable suspicion to detain the motorist long enough to get a drug dog to the scene to conduct a sniff. United States v. Davis, 2009 U.S. App. LEXIS 20288 (11th Cir. September 11, 2009) (unpublished).*

Defendant’s 2255 claim that defense counsel was ineffective for not filing a motion to suppress to challenge the statements of the informant was not shown to be prejudicial. The government filed the affidavit with its response, and it shows that the motion would not be granted. United States v. Scott, 2009 U.S. Dist. LEXIS 82753 (N.D. Fla. April 7, 2009)*:

Defendant’s vague claim of unreliable informants and false information is insufficient to establish any basis for a motion to suppress, and certainly does not establish ineffective assistance of counsel. Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 2587-88, 91 L.Ed.2d 305 (1986) (“a good Fourth Amendment claim alone” does not demonstrate ineffective assistance of counsel for failing to raise it; “[o]nly those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be granted the writ and will be entitled to retrial without the challenged evidence.”) (footnote omitted). Defendant has not demonstrated error of counsel or prejudice.

False statement from a CI in a SW affidavit made the search warrant subject to suppression. The GFE does not apply in Pennsylvania. Commonwealth v. Antoszyk, 2009 PA Super 232, 985 A.2d 975 (Pa. Super. 2009):

Because the good-faith exception to the exclusionary rule does not apply in Pennsylvania, we hold that the trial court properly suppressed the evidence obtained solely through the deliberate misstatements the informant admittedly made to the affiant. In so holding, we conclude that this Court’s decision in Commonwealth v. Bradshaw, 290 Pa. Super. 162, 434 A.2d 181 (Pa. Super. 1981), was abrogated by the Pennsylvania Supreme Court’s decision in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), and we adopt the lead opinion from this Court’s decision in Commonwealth v. Clark, 412 Pa. Super. 92, 602 A.2d 1323 (Pa. Super. 1992) (plurality). Accordingly, we affirm.

Defendant was seized and would not have felt free to terminate the encounter when the lights of the police car were in his face and all occupants of the car were asked for their IDs. Commonwealth v. Au, 2009 PA Super 231, 986 A.2d 864 (2009).*

Inevitable discovery supported search of defendant’s car left on the side of the road that could have been towed for safekeeping. Commonwealth v. Bailey, 2009 PA Super 230, 986 A.2d 860 (2009).*

Telling the defendant that a drug dog was coming, it was apparent that the defendant would not have felt free to leave, so he was detained. State v. Mathis, 232 Ore. App. 286, 222 P.3d 39 (2009):

In the totality of those circumstances, after Banks told defendant that a drug dog was on its way, no objectively reasonable person in defendant’s position would have believed that she was free to leave pending the drug dog’s arrival. See, e.g., Hall, 339 Ore. at 19 (concluding that “it [is] difficult to posit that a reasonable person would think that he or she was free to leave at a time when that person is the investigatory subject of a pending warrant check”). Regardless of the imprecision and uncertainty inherent at the margins of the Holmes formulation, the totality of Banks’s conduct so transcended “ordinary social intercourse,” Holmes, 311 Ore. at 410, as to unambiguously communicate to defendant that a search was bound to occur and that she had no choice in the matter. See State v. Dahl, 323 Ore. 199, 207-08, 915 P2d 979 (1996) (police order to the defendant to come out of his house with his hands up constituted a show of authority, and an unlawful seizure under Article I, section 9, in that it effectively “deprived [the] defendant of any choice in the matter”); State v. Shaw, 230 Ore. App 257, 263, 215 P3d 105 (2009) (officer’s request that the defendant come over and speak with him was not a stop where officer did not engage in a show of authority “that would have indicated to defendant that he had no choice but to talk to him”).

A black drawstring bag found under the seat of defendant’s car that had been lawfully impounded could be inventoried under the local inventory policy, an ordinance. State v. Stone, 232 Ore. App. 358, 222 P.3d 714 (2009).*

Defendant’s stop was potentially unlawful, and the trial court failed to make a specific finding on the question of whether he was subjectively free to leave when he consented, so a remand was required. State v. Hemenway, 2009 Ore. App. LEXIS 1954 (December 9, 2009).*

Motion to suppress did not allege a violation of curtilage so it was not properly before the court of appeals, so that part of the court of appeals opinion as to curtilage is ordered striken and the conviction affirmed. Vaughn v. Commonwealth, 279 Va. 20 (2010), modifying Vaughn v. Commonwealth, 53 Va. App. 643, 674 S.E.2d 558 (2009):

In Vaughn’s motion to suppress filed in the circuit court, he argued, inter alia, that the search of the property violated the Fourth Amendment because “[t]here were insufficient underlying facts and circumstances presented to the officers for there to have been probable cause to believe that there was evidence located at the property that was subject to seizure[, c]onfiscation of the allegedly stolen items cannot be justified under any ‘plain view’ doctrine where the discovery was anticipated[, and t]here were no exigent circumstances to justify the warrantless search of the property.” While Vaughn did argue that the Fourth Amendment requirements for a warrantless search of a dwelling’s curtilage, i.e., probable cause and exigent circumstances, see Robinson, 273 Va. at 34, 639 S.E.2d at 221, were not met, Vaughn did not contest the lawfulness of the officer’s presence in his backyard where the stolen items were plainly in view, or cite any cases that dealt with the doctrine of implied consent.

Being in a high crime area, flight on seeing the police, grabbing his pocket like securing a gun all added up to reasonable suspicion. He fell on gravel and the police caught up, and he admitted having a gun when collared. That was reasonable suspicion. Whitaker v. Commonwealth, 279 Va. 268 (2010).*

The officer’s “recent observations of Lawson leaving his apartment in his Jeep and apparently conducting drug transactions from his Jeep in a nearby park on multiple occasions, along with Tennis’ information indicating that Lawson was also selling cocaine from his apartment, clearly established reasonable articulable suspicion (if not probable cause) that Lawson was, or was about to be, engaged in criminal activity.” Lawson v. Commonwealth, 55 Va. App. 549, 687 S.E.2d 94 (2010).*

The government’s seizure of a medical marijuana supplier’s cash was based on a false affidavit by LAPD to create probable cause under state law. Without the affidavit, there was no probable cause, and judgment is entered for the supplier. United States v. $186,416.00 in United States Currency, 590 F.3d 942 (9th Cir. 2010):

This police misconduct is both highly objectionable and closely connected to the Feil declaration. The LAPD’s omission of crucial information from the warrant affidavit enabled its illegal search of UMCC’s offices and its seizure of the defendant currency. This, in turn, led directly to Feil’s declaration as, without a statement of ownership, UMCC would have been left without legal recourse to regain the currency that was illegally taken from its possession. Because this unbroken “causal chain” links the initial illegality and Feil’s subsequent statement, the Feil declaration is not “sufficiently an act of free will to purge the primary taint” from the LAPD’s unlawful actions. Brown, 422 U.S. at 602 (quoting Wong Sun, 371 U.S. at 486).

During a parole search where entry was by consent, and defendant was on parole for child pornography, officers were permitted to open the top of his computer connected to the internet. “The yet unanswered question of what Hamilton may have been trying to hide, coupled with the knowledge that Hamilton was on parole for possessing child pornography received over the internet and that he had told his parole officer that he owned a computer and accessed the internet, justified the officers’ actions in opening the lid to the laptop computer that was sitting on the table.” United States v. Hamilton, 591 F.3d 1017 (8th Cir. 2010).*

Defendant was handed his paperwork back, and he continued to talk to the officer. A question about drug trafficking in general did not necessarily implicate defendant’s conduct, and defendant consented to a search of his car. His general consent permitted a search of his backpack in the vehicle. United States v. Munoz, 2010 U.S. App. LEXIS 762 (8th Cir. January 13, 2010).*

In a child pornography case, the Seventh Circuit finds that a search warrant for evidence of video voyeurism sought in defendant’s house did not limit the government from using its software package to look for all picture and video files on defendant’s computer. Child pornography was found, too. If the court has to take a position at all, which the defense invited, it sides with the dissent in United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009) (en banc) (posted here) on the computer search issue. United States v. Mann, 592 F.3d 779 (7th Cir. 2010). (Also noted here.)

The government showed before the District Court, and on appeal, that the officers’ reliance on the search warrant was in good faith under Leon, and the search should not be suppressed, considering “the substantial societal costs” of suppression. While the government did not cross-appeal on the District Court’s finding of no probable cause, the Seventh Circuit virtually held that there was probable cause anyway. At any rate, reliance on the search warrant was reasonable and in good faith under Leon, so the search is not suppressed. United States v. Mitten, 592 F.3d 767 (7th Cir. 2010).*

“[A]nti-government rhetoric” language in the particularity description in a search warrant for the home and a hotel room of alleged tax protectors was vague and should be stricken from the search warrant. Many other records were legitimately seized because their evidentiary value was immediately apparent to the IRS agents executing the search warrant. Only five files, documents, binders, and books were suppressed. United States v. Dirr, 2009 U.S. Dist. LEXIS 123549 (E.D. Tenn. August 28, 2009)*, adopted United States v. Dirr, 2010 U.S. Dist. LEXIS 4309 (E.D. Tenn. January 20, 2010).*

The District Court erred in holding that the search warrant was so lacking in indicia of probable cause that the good faith exception did not apply. There was strong indication that child pornography images were e-mailed to defendant’s e-mail account, and the fact that the wait was 18 months between the e-mail and the search warrant was not stale on its face, since CP is usually kept. Also, the police went to an AUSA to get the search warrant approved before issuance. Suppression order reversed. United States v. Pappas, 592 F.3d 799 (7th Cir. 2010)*:

In this case, Pappas argues, and the district court held, that the affidavit supporting the warrant was so lacking in probable cause that the officers could not rely upon it in good faith. We disagree. Here, the affidavit clearly documented evidence establishing that at least eleven images of child pornography had been sent to Pappas’s email account and verifying that Pappas continued to maintain email access (thus indicating continued access to a computer on which child pornography could be stored). Additionally, prior to seeking a warrant, Agent Hanson consulted with an Assistant United States Attorney. Consulting “with the prosecutor prior to applying for [a] search warrant provides additional evidence of [that officer’s] objective good faith.” United States v. Bynum, 293 F.3d 192, 198 (4th Cir. 2002). See also United States v. Johnson, 78 F.3d 1258, 1264 (8th Cir. 1996) (stating that obtaining advice of a county attorney is an indication that an officer’s reliance on a search warrant was objectively reasonable); United States v. Brown, 951 F.2d 999, 1005 (9th Cir. 1991) (noting “an officer’s consultation with a government attorney is of significant importance to a finding of good faith … [and it is] of even greater importance where, as here, a point of law relating to the scope of a Fourth Amendment search and seizure was not yet settled at the time the warrant issued “); United States v. Taxacher, 902 F.2d 867, 872 (11th Cir. 1990) (explaining that officer’s consultation “with the local district attorney before seeking the search warrant, and then submit[ting] the matter to a neutral magistrate” was “indicative of objective good faith”).

Anonymous e-mails were sent to a church describing sex with young boys, and the police were able to search back through the e-mail’s IP information to an e-mail account in defendant’s wife’s name. The e-mails alluded to pictures. The search warrant for the computer and the e-mails did not specifically seek child pornography, but it did seek instrumentalities of the threats to have sex with young boys, and child porn qualified. A machine gun and silencer were also found in plain view. United States v. Williams, 592 F.3d 511 (4th Cir. 2010)*:

While the warrant did not explicitly authorize a search for child pornography, it did authorize a search for instrumentalities of computer harassment and “photographs … indicati[ve] of” this offense, which involves communicating “obscene, vulgar, profane, lewd, lascivious, or indecent language,” or making a “suggestion or proposal of an obscene nature,” or threatening an “illegal or immoral act.” Va. Code Ann. § 18.2-152.7:1. Particularly in the context of the threats made in this case, which indicated that the person sending the e-mails to the church was a pedophile, pornographic images involving children were relevant to demonstrating the authorship and purpose of the e-mails. The e-mails stated that the sender could not face life without having sex with the boys and that he could not attend the church again unless he could give oral sex to a specific boy at the church, whom he identified by the child’s actual name. In addition, the sender of the e-mail stated, “I know your boy’s names. I know where they go for lunch after church. I know where they live. I know when they come and leave school. There’s boys I’d love to sleep with right now. There is an endless supply. Boy dick is everywhere.”

In Wyoming, the State admits that defendant’s stop was pretextual but based on speeding, so it still wins. Fertig v. State, 2006 WY 148, 146 P.3d 492 (November 17, 2006). The court recognized that it is free to interpret its state constitution more broadly than the Fourth Amendment, and it analyzes all the factors involved and concludes that it should not. (This case has a good discussion of state court decisions that have departed from the U.S. Supreme Court on pretextual stops, and the Wyoming court concludes the better rule is to follow the Supreme Court.)

Pretextual arrest issue was foreclosed by facts that clearly showed officer saw defendant crossing the centerline and that defendant did not have a driver’s license. His consent to search the car was clearly heard on the videotape of the stop. Casey v. State, 97 Ark. App. 1,
242 S.W.3d 627 (2006).*

Defendant’s IAC claim failed on search issue where the defendant’s mother was present when the police showed up and asked about a gun. Defendant’s mother interrogated the defendant who admitted to the gun being under the porch, and that was a sufficient basis for the search for the gun. Counsel could not be ineffective. Ricks v. Commissioner of Correction, 98 Conn. App. 497, 909 A.2d 567 (November 21, 2006).*

Smell of marijuana plus a dropped bag of marijuana justified a search warrant for defendant’s house. Boldin v. State, 282 Ga. App. 492, 639 S.E.2d 522 (November 20, 2006):

Further, having found these facts, the trial court correctly ruled that White had probable cause to suspect that contraband was in Boldin’s residence. Although the odor of marijuana may not suffice by itself to provide probable cause for the search of a residence, the odor of burning marijuana is one of the factors which, under the totality of the circumstances, will support a finding of probable cause. Here, the officer also observed marijuana in a plastic zip-lock bag on the floor of the garage, after it fell from a garbage bag held by defendant as he fled into the house. The officer’s observation of objects within the garage from its threshold, that is, from a vantage point outside the home, “was a lawful ‘nonsearch plain view situation,’ ” supporting a finding of probable cause to suspect that contraband was in Boldin’s house.

After a six year old child was not picked up at day care and the parents did not respond to telephone calls, a deputy picked up the child and drove him home. The child let himself in and nobody responded to shouts. The master bedroom door was locked, but easily unlocked, and the deputy went in figuring foul play. Inside, there was no one, but cocaine was seen. The defendant child’s father showed up and was arrested for the cocaine. The entry, no matter how well intentioned was not justified by exigent circumstances. Ortiz v. State, 2009 Fla. App. LEXIS 3460 (Fla. App. 5DCA April 24, 2009):

The State maintains, and the dissent agrees, that Fourth Amendment jurisprudence, and Riggs [Riggs v. State, 918 So. 2d 274 (Fla. 2005)], in particular, support the trial court’s conclusion that the deputy acted reasonably in entering Ortiz’s home without a warrant. However, unlike in Riggs, here, the State offered no evidence to demonstrate a reasonable belief that the child’s parents were: (a) inside the house and (b) might be in need of medical attention. When the deputy and child arrived at the house, there were no indications of foul play and no car in the driveway. The deputy testified that he only became concerned for the well-being of the child’s parents after he entered the house and found the locked master bedroom. The evidence in this case simply does not rise to the level found in Riggs.

The conclusion that the State did not establish that exigent circumstances existed justifying the warrantless entry into the residence does not detract from the trial court’s finding that the deputy’s actions were well intended to safely return the child to his family. However, “good intentions” do not control a determination of whether exigent circumstances exist to justify law enforcement’s warrantless entry into a home. The test for such a determination is an objective one, not a subjective one. See Rolling v. State, 695 So. 2d 278, 293-94 (Fla. 1997) (holding that to permit warrantless entry into home in emergency, objectively reasonable circumstances must exist that provide basis for officer to believe there is immediate need for police assistance for protection of life). Here, with no reasonable basis to believe the parents were in the home, let alone in need of assistance, there was no exigency demonstrated justifying the entry.

Update:

Different result on rehearing en banc: Ortiz v. State, 24 So. 3d 596 (Fla. App. 5th DCA 2009), posted here.

Officer found a child wandering the streets, and the child could not wake his parents or get them to come to the door. The officer acted reasonably in making his entry into the house and going into the bedroom to check on the parents who did not wake up. Drugs were found in plain view. The entry was reasonable. Ortiz v. State, 24 So. 3d 596 (Fla. App. 5th DCA 2009) (en banc) (prior opinion posted here):

The officer was fulfilling a laudable police function in attempting to reunite the child with his missing parents. He was not, it should be noted, acting to investigate and uncover a crime. We give weight to the fact that a proper function of the officer in these circumstances was to attempt to reunite the child with his parents, much as the supreme court implicitly did in Riggs.

Although the dissent concludes that there was no reason to believe that the parents were in the house and in possible need of medical or other assistance, we find ourselves in sharp disagreement with that proposition. At the time that’ the officer reached the house, the child indicated that his parents were inside and knocked on the door. When there was no answer forthcoming, the child led the officer to the unlocked garage door and either with or without the officer’s assistance, lifted the garage door. The officer could see a light on in the house, indicating that someone might be home, yet no one responded. Although the transcript does not say specifically, it appears that the child, followed by the officer, then entered the house through an unlocked door from the garage.

Had the officer acted unreasonably up to this point? We think not. Certainly the officer would reasonably conclude based on the historical facts and the inferences that would logically be drawn from them that something was not right, and that prudence would dictate that he follow the child into the home. He knew that the parents were quite late in picking up the child at the school and could not be reached by phone. At 7:30 p.m., an hour and a half after the child was first supposed to be picked up by his parents, the officer found himself with the child in the unlocked garage of the child’s home, and he could see a light on in the unlocked house. Still, no one responded to his knock. Viewing these facts objectively, could the officer reasonably conclude that something was wrong? We and the trial judge, who considered the live testimony presented, agree that the answer to this inquiry is, yes.

Upon entering the house, still having charge of the child, the officer still saw no sign of the parents. Although the child indicated that his parents were likely in the bedroom, the officer found that the bedroom door was locked from the inside, and there was no response to his knock or announcement. At every incremental stage of this evolving scenario the officer reasonably followed his instincts leading him to the conclusion that there could well be a medical emergency under way or worse. Upon entering the bedroom, the officer said, in fact, that he searched for a body. Instead he found the drugs in plain view. There was nothing unreasonable about the officer’s behavior or his apprehensions that he was dealing with an emergent situation that demanded prompt action.