A claim that a minor in the house was in imminent danger was justification for an emergency entry. (n.1: A state search and seizure constitutional claim has to be separately analyzed. [It would have lost on these facts anyway.]) State v. Ryder, 114 Conn. App. 528, 969 A.2d 818 (2009)*:

We hasten to add that “this limited privilege to investigate emergencies without a search warrant is subject to judicial scrutiny. … The reasonableness of police activity must always pass judicial muster according to objective, empirical criteria before the court.” (Citation omitted.) People v. Mitchell, 39 N.Y.2d 173, 179, 347 N.E.2d 607, 383 N.Y.S.2d 246 (cited with approval in State v. Colon, 272 Conn. 106, 143, 864 A.2d 666 [2004], cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 [2005]), cert. denied, 426 U.S. 953, 96 S. Ct. 3178, 49 L. Ed. 2d 1191 (1976). That being said, in light of the facts found by the court, we agree that, on the basis of what Officer Kelly knew at the time he entered the defendant’s home, he had a reasonable belief that a minor was in imminent danger inside the house. As such, the entry was reasonable, and the defendant’s fourth amendment rights were not violated.

Defendant had no privacy interest in a box stopped for a look in a DHL facility. Also, RS is not the standard for stopping a box. State v. Garrison, 2009 Ariz. App. LEXIS 136 (May 9, 2009).*

The officers acted reasonably in conducting a protective sweep, considering the risk there was an armed person inside. State v. Lee, 320 Wis. 2d 536, 771 N.W.2d 373 (2009):

P16 The officers were faced with a Hobson’s choice if they did not enter the apartment to perform a protective sweep. If they waited on the landing and guarded the drugs for the time necessary to obtain a warrant, they may have found themselves in grave danger. If they retreated in an attempt to avoid the potential danger, an occupant would likely destroy the evidence. Nothing in the record suggests that the amount of drugs the officers saw through the open door was too voluminous to be easily disposed of, and Lee does not argue to the contrary. Moreover, retreating would not necessarily obviate the potential risk to the officer’s safety during the time it took to decide to return down the stairs and then to do so. We conclude that articulable facts exist to demonstrate that the officers had reasonable suspicion that individuals may be hiding in the apartment who would pose a danger to them, and that a warrantless entry into the apartment for purposes of conducting a protective sweep of the apartment was justified.

. . .

P19 As we discuss above, the officers in the present case found themselves in the middle of an unstable situation–having to decide whether to stand guard over the open door to an apartment potentially occupied by armed individuals prepared to attack them while they took the time necessary to obtain a warrant, or instead to retreat and risk the destruction of the evidence, along with a continuing risk of attack. These circumstances posed the sort of special risks that did not exist in Kiekhefer which required the officers to act immediately and to forego obtaining a warrant.

The record supported the conclusion that the defendant abandoned his property in an apartment he was evicted from. He had a week to get out, and he came back twice during the week to get things, but he didn’t come back after that. The police search two weeks after his last visit did not violate his rights. State v. Howe, 159 N.H. 366, 986 A.2d 631 (2009).

IAC claim remanded to the Superior Court for findings. If the search was a warrantless home search, it likely was unreasonable. If it was a probation search, it likely was reasonable. Sullins v. State, 2009 Del. LEXIS 591 (July 23, 2009), on ramand, State v. Sullins, 2009 Del. Super. LEXIS 351 (Del. Super. Ct., Sept. 22, 2009) (search was clearly a probation search, so there).

Under the Washington Constitution, a dog sniff has its limits as to place and duration. This one was from a place where defendant had no reasonable expectation of privacy, next to a car, and defendant’s rights were not violated. State v. Hartzell, 153 Wn. App. 137, 221 P.3d 928 (2009):

¶12 Whether or not a canine sniff is a search depends on the circumstances of the sniff itself. State v. Boyce, 44 Wn. App. 724, 729, 723 P.2d 28 (1986). In Boyce, this court held that as long as the canine “sniffs the object from an area where the defendant does not have a reasonable expectation of privacy, and the canine sniff itself is minimally intrusive, then no search has occurred.” Boyce, 44 Wn. App. at 730.

¶13 The trial court correctly concluded that Hartzell did not have a reasonable expectation of privacy in the air coming from the open window of the vehicle. Hartzell was not in the SUV when the dog sniffed from a lawful vantage point outside the vehicle. The sniff was only minimally intrusive. The trial court did not err when it denied Hartzell’s motion to suppress the evidence.

[posted 11/22]

Police had information for weeks of drug sales and made a warrantless arrest after a vehicle stop on “warrants” from the detective section. They clearly had time to get an arrest warrant. The search incident of the car was invalid. State v. Jones, 183 Ohio App. 3d 839, 2009 Ohio 4606, 919 N.E.2d 252 (2d Dist. 2009).

Officers had PC to believe that defendant was involved in hand-to-hand drug sales with cars that drove up. State v. Lee, 2009 Ohio 4536, 2009 Ohio App. LEXIS 3828 (4th Dist. August 27, 2009).*

Defendant was seized in her own home when the officer restricted her going to the bathroom to vomit and then watched her constantly and questioned her. State v. Martinez, 230 Ore. App. 492, 216 P.3d 347 (2009).*

Police officer came on a traffic accident, and defendant at first admitted he had been driving, and the officer suspected he was DUI. He was placed in the police car and questioned. The legality of the questioning did not have to be considered because the court found it harmless under all the circumstances considering the testimony at trial. Rockwell v. State, 215 P.3d 369 (Alas. App. 2009).*

Defendant consented to an entry of his motel room, and a gun and drugs in plain view were properly seized. United States v. Davis, 2009 U.S. Dist. LEXIS 79472 (W.D. Okla. September 3, 2009).*

The fact private security guards in Virginia are regulated and licensed by the state does not make them state actors in any case where they conduct a search and seizure. The fact the state had disciplinary authority over these guards does not make agency or that they were encouraged in their actions by the state. United States v. Day, 591 F.3d 679 (4th Cir. 2010), revg United States v. Day, 590 F. Supp. 2d 796 (E.D. Va. 2008) (posted here):

In these circumstances, we cannot agree with the district court that Virginia’s regulatory scheme served to “affirmatively encourage” Costa and Slader’s challenged conduct. Rather, Costa and Slader were simply empowered by the Commonwealth to make an arrest. This “‘[m]ere governmental authorization'” for an arrest by Costa and Slader, “‘in the absence of more active participation or encouragement,'” is insufficient to implicate the Fourth and Fifth Amendments. See Jarrett, 338 F.3d at 345 (quoting United States v. Walther, 652 F.2d 788, 792 (9th Cir. 1981)); cf. Poe, 556 F.3d at 1124 (explaining that “Oklahoma’s extensive statutory regulation of the bail bonds industry, coupled with conferring the powers of arrest,” was insufficient to establish governmental “knowledge of or acquiescence in the [bounty hunters’] challenged search” (internal quotation marks omitted)); Shahid, 117 F.3d at 327 (observing that “[t]he government cannot be said to have induced” the challenged search by mall security officers, who expected no “benefit or detriment from the government as a result of their actions”).

Defendant and two others were found to have no reasonable expectation of privacy in a friend’s house where they were seen entering the apartment, and others called police and the friend. The police entered and found the defendant flushing cocaine down the toilet. At best, the court found that the friend only was granting permission for him to enter after the fact. The police were investigating an illegal entry. State v. Chapman, 2009 Ohio 5757, 2009 Ohio App. LEXIS 4845 (9th Dist. November 2, 2009):

[*P13] Even if this Court were to conclude that the protection of the Fourth Amendment extends to all social guests, Mr. Chapman did not establish that he was a social guest. According to Justice Ginsburg, a guest may “share his host’s shelter against unreasonable searches and seizures” if the “homeowner or lessee personally invites [him] into her home to share in a common endeavor ….” Minnesota v. Carter, 525 U.S. 83, 106 (1998) (Ginsburg, J., dissenting). It is “[t]hrough the host’s invitation [that] the guest gains a reasonable expectation of privacy in the home.” Id. at 108 (Ginsburg, J., dissenting). Similarly, this Court has held in the context of premises liability that “[a] social guest is a person who comes onto the premises, pursuant to an invitation, presumably giving the possessor some personal benefit, intangible though it may be.” White v. Brinegar, 9th Dist. No. 16429, 1994 WL 232692 at *2 (June 1, 1994).

[*P14] In this case, there was no evidence that the tenant invited Mr. Chapman to her apartment. To the contrary, the testimony established that she did not know Mr. Chapman was in her home until a police officer asked her if he was allowed to be there. Although the tenant said Mr. Chapman had permission to be in her house, her “after the fact” acquiescence does not amount to an invitation as contemplated by the United States Supreme Court. Mr. Chapman, therefore, failed to establish that he had a legitimate expectation of privacy in the apartment under the Fourth Amendment of the United States Constitution.

“[W]here the warrant was executed at a one-bedroom residence in the middle of the afternoon, and in connection with a murder investigation, and when the officers had reason to believe that a suspect was inside the residence with access to a firearm, we are satisfied that it was not unreasonable for the officers to infer constructive refusal after they announced their presence and received no response within fifteen seconds.” Atchison v. United States, 2009 D.C. App. LEXIS 543 (October 29, 2009).

Defendant was arrested for obstructing a police officer, and a search incident of his car was unjustified. Gant was decided while the case was on appeal, and the state conceded it governed the search. People v. Bridgewater, 235 Ill. 2d 85, 918 N.E.2d 553, 335 Ill. Dec. 208 (2009):

Here, defendant was handcuffed and inside Officer Morrow’s squad car when the vehicle search took place. This is not the “rare case” where an officer could not prevent the arrestee’s access by handcuffing and securing him away from the vehicle. Further, defendant was arrested for obstructing a peace officer after exiting his vehicle and walking into the store. The offense was based entirely on defendant’s failure to obey Officer Morrow’s commands. The officers could not have reasonably believed evidence of obstructing a peace officer could be found inside defendant’s vehicle.

New Mexico rejects Whren under the State Constitution and decides that the officer’s subjective intent for a stop may be inquired into by the defense to prevent abuse. State v. Ochoa, 2009 NMCA 2, 146 N.M. 32, 206 P.3d 143 (2008), released for publication January 13, 2009, certiorari granted, No. 31,430, December 30, 2008:

[*31] Third, the State argues that New Mexico’s historical treatment of pretext claims does not justify our departure from Whren. The State refers us to cases in which we have rejected pretextual traffic stop claims where there was an objectively valid basis for the stop. See State v. Pallor, 1996 NMCA 83, PP 14-15, 122 N.M. 232, 923 P.2d 599; State v. Benjamin C., 109 N.M. 67, 69, 781 P.2d 795, 797 (Ct. App. 1989); Mann, 103 N.M. at 663-64, 712 P.2d at 9-10. Again, these cases do not apply the interstitial analysis of state constitutional claims.

[*32] In Pallor, we rejected the defendant’s claim that the officers’ traffic stop was a pretext to investigate drug activity because the officers had a reasonable suspicion that the defendant was engaged in drug activity. 1996 NMCA 83, PP 13-14, 122 N.M. 232, 923 P.2d 599. In Benjamin C., we applied two federal standards to the child’s claim of pretext: (1) the purely objective probable cause/reasonable suspicion standard that was adopted in Whren, and (2) the more probing federal standard applied at the time by the Tenth Circuit in United States v. Guzman, 864 F.2d 1512 (10th Cir. 1988), overruled on other grounds by United States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995). Benjamin C., 109 N.M. at 69, 781 P.2d at 797. Guzman applied the “would have” approach to pretextual stops: “In the same circumstances would a reasonable police officer have made the stop in the absence of an invalid purpose? Under Guzman, [a] stop [i]s unreasonable not because the officer secretly hope[s] to find evidence of a greater offense, but because it [i]s clear that an officer would have been uninterested in pursuing the lesser offense absent that hope.” Benjamin C., 109 N.M. at 69, 781 P.2d at 797 (alterations in original) (internal quotation marks and citations omitted). Because the child in Benjamin C. did not articulate what ulterior motive the officers had for the stop, we had no basis to engage any meaningful Guzman analysis. See id. In Mann, we applied the federal standard under the Fourth Amendment to the defendant’s claim that the initial stop was pretextual. 103 N.M. at 663-64, 712 P.2d at 9-10. Further, like Benjamin C., the Mann opinion gives no indication what the pretextual purpose might have been.

[*33] Since Mann, this Court has been inconsistent in its approach to allegations of pretextual stops, reflective of the varying federal standards before Whren, and we have been hesitant to establish a definitive standard. See, e.g., State v. Apodaca, 112 N.M. 302, 304, 814 P.2d 1030, 1032 (Ct. App. 1991) (observing that the district court made a specific finding that the officer did not have a pretextual purpose in stopping the defendant); Bolton, 111 N.M. at 35, 801 P.2d at 103 (refusing to decide “whether to adopt a sole-bad-purpose test or a primary-bad-purpose test-or even whether to adopt a subjective test at all” where a defendant challenged his stop at a state police roadblock administered by both the state police and United States Border Patrol agents, on pretext grounds, but concluding that “the district court was entitled to find, based on the evidence before it, that the purpose of the roadblock in this case was legitimate”); Benjamin C., 109 N.M. at 69, 781 P.2d at 797 (articulating both the probable cause/reasonable suspicion standard and the “would have” standard).

[*34] Although no New Mexico case until today has decided the validity of pretextual stops under our state constitution, we have admonished pretextual practices, revealing a distinct inclination to remove police pretext from the range of reasonable police conduct. See, e.g., State v. Lowe, 2004 NMCA 54, P 22, 135 N.M. 520, 90 P.3d 539 (stating that where officers attempt to “inquire about weapons as a ploy leading to other bad faith action to uncover criminal activity based on speculation or bare suspicion, [w]e make it very clear that an abuse of these precautionary measures to protect against harm from weapons should not be tolerated by district courts and will not be tolerated by this Court when those measures smack of pretext or ruse”); see also Ryon, 2005 NMSC 5, PP 34-37, 137 N.M. 174, 108 P.3d 1032 (refusing to permit officers to “use the [emergency assistance] doctrine as a subterfuge or pretext when the real purpose of the search is to arrest a suspect or gather evidence without probable cause”); State v. Prince, 2004 NMCA 127, P 19, 136 N.M. 521, 101 P.3d 332 (facing a claim of pretext and refusing to permit the officer to ” use a lawful stop to fish for evidence of other crimes” and expand the traffic stop into a drug investigation that was not supported by reasonable, articulable suspicion); State v. Montoya, 116 N.M. 297, 303, 861 P.2d 978, 984 (Ct. App. 1993) (“This pretext doctrine is generally justified as a means of restricting what would otherwise amount in practice to unbridled police discretion in certain circumstances, such as detentions for traffic offenses.”).

[*35] Finally, the State argues that diverging from Whren is not needed to protect New Mexico citizens from unreasonable searches and seizures. The State argues that the police do not have unlimited discretion under Whren because they are limited by probable cause and reasonable suspicion. At the same time, the State admits that officers must decide who to stop and when because it would not be possible to strictly enforce the multitude of traffic laws. We agree. However, we limit that discretion to avoid bad faith. Police officers may enforce any and all traffic laws, so long as it is done with reasonable suspicion and in good faith for that purpose.

Defendant’s telling his PO that he lived with his girlfriend, even though it was not the official address on the agency records, was sufficient to search that place as his under the parole exception. State v. Bolden, 13 So. 3d 1168 (La. App. 5th Cir. 2009).

Valid traffic stop and smell of burnt marijuana justified search of tow truck defendant was driving. State v. Savoie, 15 So. 3d 207 (La. App. 5th Cir. 2009).*

Officer had reasonable suspicion without a mistake of law for the stop of the defendant. (Court elaborates on mistake of law and reasonable suspicion.) State v. Hubble, 2009 NMSC 14, 146 N.M. 70, 206 P.3d 579 (2009), released for publication April 28, 2009.*

Citizen informant’s face-to-face tip to officer that defendant was drinking and driving provided reasonable suspicion for defendant’s stop even though the officer did not get the man’s name. State v. Satter, 2009 SD 35, 766 N.W.2d 153 (2009):

[*P21] In the totality of these circumstances, given the increased reliability of face-to-face tips, the precise identification of the van, the strong basis of the tipster’s knowledge, the immediacy with which he reported his observations, the lack of facts left to corroborate, and the minimal intrusion of a vehicle stop on the occupants’ liberty compared to the potential, imminent threat of the observed behavior, this tip was sufficiently reliable to create reasonable suspicion.

Defendant’s stop was based on first hand reliable information from a CI with a record of past performance that was timely. Perez v. State, 295 S.W.3d 681 (Tex. App.–Amarillo 2009).*

Sole proprietor a medical P.A. could bring a claim for seizure of its records. Lewis v. Okla. State Bd. of Chiropractic Examiners, 2009 U.S. Dist. LEXIS 41445 (W.D. Okla. May 15, 2009).*

There was PC for the stop of defendant’s vehicle, and the continued detention because the passenger was a wanted violent criminal. That is a compelling public interest. State v. Grogger, 2009 Tenn. Crim. App. LEXIS 937 (November 17, 2009) (passenger’s case: State v. Johnson, 2009 Tenn. Crim. App. LEXIS 870 (Tenn. Crim. App. October 15, 2009) (PC for the stop)):

It is hard to fathom a more compelling public interest than securing the arrest of people wanted for violent crimes. Taylor, 41 P.3d at 688. Probable cause to arrest Johnson “constituted an objectively measurable reason for stopping Defendant’s vehicle, and thus adequately circumscribed the ‘standardless and unconstrained discretion … of the official in the field’ with which Prouse was so concerned.” Id. (citing Prouse, 440 U.S. at 661). In accordance with these principles, we conclude that, because the stop of the vehicle was supported by probable to cause to arrest Johnson, the Defendant’s Fourth Amendment rights were not violated, and he was not improperly seized by the car stop. See also id. (citations omitted).

Defendant was a casual visitor at the house of another, and the house was the subject of a protective sweep for weapons from a “multi-defendant violent criminal act.” The protective search was valid. State v. Akins, 2009 Tenn. Crim. App. LEXIS 944 (November 18, 2009)

The protective search was valid here because the defendant had been part of a multi-defendant, violent criminal act that resulted in the shooting death of the victim. For the protection of the arresting officers, it is reasonable that they would search the defendant’s room for other conspirators. The detective who conducted the sweep specifically testified that he was concerned that someone might be hiding in the closet. During the protective sweep, the officers discovered the gun in plain view. Based on the record, the defendant has failed to demonstrate that the evidence preponderates against the trial court’s findings that a valid search occurred or that the trial court erred in failing to suppress the gun as evidence.

Request for a consent to search a car was general, as was defendant’s grant of consent: “go ahead.” Therefore, the search of the glove compartment was reasonable. State v. Baker, 232 Ore. App. 112, 221 P.3d 749 (2009).*

Defendant was stopped on a bicycle for not having a light, and the officer violated the state constitution by asking whether he was on probation. State v. Montoya, 232 Ore. App. 278, 221 P.3d 833 (2009).*

USMJ erroneously concluded that the “status quo” entry of the defendant’s house was unjustified by exigent circumstances under the totality of the circumstances. United States v. Jones, 2009 U.S. Dist. LEXIS 110239 (M.D. Fla. November 24, 2009).*

Under Oregon’s “but for” test, the state’s concession that the arrest was illegal put on it the burden of showing that there was no minimal link between the arrest and the statement. A Miranda warning is not a “universal solvent” to wash away the illegal arrest. Here, the state failed in its burden. State v. Robbins, 232 Ore. App. 236, 221 P.3d 801 (2009).*

The state concedes that the stop was too long and the consent was invalid. State v. Orcutt, 232 Ore. App. 268, 221 P.3d 835 (2009).*

The officer’s justification for stopping defendant on August 31st on a motorcycle was that he was suspected of eluding her “last winter” on an ATV. The trial court found the stop in a barber shop was without reasonable suspicion of wrongdoing, and it was supported by the evidence. State v. Massingill, 2009 Ohio 6221, 2009 Ohio App. LEXIS 5212 (8th Dist. November 25, 2009).*

Boston College Police are state actors subject to the constitution in general but not when they conducted a search under the “Conditions for Residency” for a reported weapon possessed in violation of school policy. Drugs were found, and admissible in a criminal proceeding. The defendant consented after consulting with his father. Commonwealth v. Carr, 76 Mass. App. Ct. 41, 918 N.E.2d 847 (2009):

Boston College’s Conditions for Residency 2007-2008 also provides:

“RIGHT OF ENTRY

“The University reserves the right to enter resident student rooms and conduct a plain view search for: reasons of health, maintenance, upholding community standards (including safety and discipline) or inspections. Regular inspections will be conducted by staff in all areas. Except in cases of an emergency, a complete search of the contents of a student’s room will only be made with: (a) his/her consent; (b) with a University Search Warrant issued by the Vice President for Student Affairs or his/her designee; or (c) with a duly authorized search warrant from a local court.”

Applying the principles set forth in Leone to the circumstances here, we hold that while the Fourth Amendment and art. 14 apply to the conduct of Boston College’s campus police, in this circumstance the officers’ private function affects the constitutionality of their conduct and renders it reasonable. See Commonwealth v. Leone, 386 Mass. at 334-338 (decided solely on Fourth Amendment grounds). See also Commonwealth v. Considine, 448 Mass. at 301, nn.13-14 (1997) (suggesting in dictum that any search or seizure of contraband by State police officer acting on invitation of private school officials is permissible). The initial entry into the defendants’ room and the discovery and seizure of the facsimile handgun and other weapons were actions reasonably undertaken by the police on behalf of the legitimate interests of their employer Boston College, a private institution and not a State actor. See Commonwealth v. Leone, 386 Mass. at 335-336. In consequence, their entry into the room without a search warrant does not offend Federal or State constitutional requirements.

The entry was not in furtherance of a criminal investigative function, but to address a violation of Boston College’s policy that prohibited weapons in the dormitory (whether lawful or unlawful, real, or counterfeit) and authorized confiscation of such items found in plain view. The police acted on reliable information from two identified students that Carr, who resided in room 114 Gonzaga Hall, possessed a knife. Adding to the concern was the report that another student had seen a gun or the butt of a gun inside Carr’s room. Although the report of the gun, being anonymous, lacked the reliability of that regarding the knife, the fact that the police harbored concern of an even more serious infraction is immaterial. See Commonwealth v. Blevines, 438 Mass. 604, 608 (2003) (officer’s subjective purpose not relevant when search permissible on objective standard).

Presence in a high crime area, waving at two women in a car, walking over to talk to them, and turning and going back to his car on seeing the police car is not reasonable suspicion. State v. Hodges, 2009 Ohio 3378, 183 Ohio App. 3d 160, 916 N.E.2d 527 (8th Dist. 2009):

[*P11] The propriety of an investigative stop by a police officer must be viewed in light of the totality of the surrounding circumstances. State v. Bobo (1988), 37 Ohio St.3d 177, paragraph one of the syllabus. Officer Hicks testified that he stopped appellee because he suspected the passenger of drug-related activity. His suspicion was heightened by the location of the gas station in a high drug area, and by the early morning hour. Hicks testified that his suspicion of drug-related activity was based upon his observance of the van passenger’s actions in waving to females in another car parked in the lot, walking toward that car, and then turning around and going back to the van when he spotted the police car. Hicks stated that if the passenger had continued on and kept talking to the females, he probably would not have done anything.

[*P12] This court has repeatedly held that an individual’s presence in a high drug area does not suspend the protections of the Fourth and Fourteenth Amendments. See, e.g., State v. Simmons, Cuyahoga App. No. 89309, 2007 Ohio 6636; State v. Scales, Cuyahoga App. No. 87023, 2006 Ohio 3946; State v. Chandler (1991), 54 Ohio App.3d 92, 97.

[*P13] Moreover, this court has previously held that “an individual’s walking toward an occupied car and then, upon observing the police, retreating from the scene, is not sufficient to justify an investigative stop, even in an area of high drug activity.” Simmons at 9114, citing State v. Fincher (1991), 76 Ohio App.3d 721.

The evidence at trial failed to show that defendant was guilty of DUI drugs because there was no blood test to confirm it. Alleged erratic driving shows nothing about driving under the influence of a particular drug. The question of the officers’ obtaining the drug from defendant is moot and not reached. Commonwealth v. Griffith, 2009 PA Super 120, 985 A.2d 230 (2009).*

The court finds that the officer did not first search defendant’s vehicle by sticking his head inside. The trooper smelled marijuana, and that justified the search. United States v. McMillin, 2009 U.S. Dist. LEXIS 58130 (D. Neb. July 8, 2009).*

Defendant’s consent was given 14 minutes into this stop, and it was found voluntary and not the product of an overlong detention. United States v. Davis, 645 F. Supp. 2d 541 (W.D. N.C. 2009).*

“Defendant’s custodial status alone, however, does not render her consent involuntary.” The facts show it was voluntary. United States v. Vargas-Garcia, 2009 U.S. Dist. LEXIS 57732 (W.D. Tex. May 15, 2009).*

The government showed sufficient exigent circumstances with probable cause to justify a warrantless entry after a beeper alerted the officers. United States v. Salas, 2009 U.S. Dist. LEXIS 92550 (D. Guam October 2, 2009):

The court is not persuaded by Defendants’ arguments against the exigent circumstances theory. First, Defendants emphasized Officer McDonald’s admissions, on cross-examination, that the beepers do not give very detailed information as to their location, and that their signal range “depends on the terrain.” But such facts could only go to the question whether the officers had probable cause to believe that the package was in Defendant Paulino’s house, and, as shown above, the court’s analysis of that question does not somehow require that the beeper have provided accurate, detailed location information. Rather, under Alaimalo, it is enough that the officers saw Defendant Paulino carry the package out of Shirley’s; followed him and Defendant Salas to a driveway in Ipan-Talofofo; and entered the house at the top of the driveway–the house that had Defendants’ cars parked in front of it. See Alaimalo, 313 F.3d at 1193. What was important to the court’s analysis was that beepers accurately indicate when breach has occurred, as it is this information that created the exigency. And, again, Officer McDonald testified that the beepers are (in his experience) 100% accurate in this regard.

Inconsequential errors in the affidavit for the search warrant were not material under Franks and did not affect the finding of probable cause. United States v. Yokshan, 658 F. Supp. 2d 654 (E.D. Pa. 2009):

The Defendant fails to establish the necessary “substantial preliminary showing” to warrant a Franks hearing since the Defendant cannot demonstrate that the purported omissions are necessary to a finding of probable cause in light of the plethora of available corroborating evidence. In short, the Defendant highlights minor and/or inconsequential discrepancies that are insufficient to overcome the presumption of validity with respect to the Affidavits in support of the Warrants.

Plaintiff alien who complained of being searched and detained unnecessarily because she was on a no-fly list and could not get off of it who voluntarily left the country abandoned her Fourth Amendment claims by leaving and not seeking damages for her detention–-just future injunctive relief. Ibrahim v. Dep’t of Homeland Sec., 2009 U.S. Dist. LEXIS 64619 (N.D. Cal. July 27, 2009):

Although plaintiff has standing to reach the merits, her argument on the merits is compromised by the fact that she is an alien who voluntarily left the United States and thus voluntarily left her constitutional rights at the water’s edge. She asserts that placing her name on the no-fly list violates her right to freely exercise her religion, her right to freely associate with other Muslims and Malaysians, her right to be free from unreasonable searches and seizures, her right to equal protection, and her right to procedural due process. The Constitution, however, does not apply extraterritorially to protect non-resident aliens outside our country.

Aliens within the United States are entitled to the protection of certain constitutional rights. “[I]n extending constitutional protections beyond the citizenry, the [Supreme] Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the judiciary power to act.” Johnson v. Eisentrager, 339 U.S. 763, 771, 70 S. Ct. 936, 94 L. Ed. 1255 (1950) (holding that the right to a writ of habeas corpus did not extend to enemy aliens captured and imprisoned abroad). Aliens, like Ibrahim, who are not within the territorial jurisdiction of the United States are not entitled to such protection. See United States v. Verdugo-Urquidez, 494 U.S. 259, 269, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990) (holding that the Fourth Amendment did not apply to the search and seizure by United States agents of property owned by a Mexican citizen and located in his Mexican residence).

Defendant had no standing to challenge search of a vehicle he abandoned. United States v. Acuna, 339 Fed. Appx. 723 (9th Cir. 2009) (unpublished).*

Defense counsel was not ineffective for not challenging seizure of evidence lawfully obtained by a search incident. Sumner v. Davis, 340 Fed. Appx. 937 (4th Cir. 2009) (unpublished).*

Protective sweep of defendant’s house was proper after his arrest when he took a few minutes to get to the door and officers could hear movement inside. The fact he was handcuffed and under arrest and could be removed was not determinative. United States v. Moore, 2009 U.S. Dist. LEXIS 68452 (N.D. Ind. August 4, 2009):

The officers in this case arrived at Moore’s residence to serve an arrest warrant on a misdemeanor. Both officers testified that while it took Moore several minutes to respond to the knock on the door, he eventually answered the door and was placed under arrest without incident. However, the officers further testified that they heard “movement” coming from the back of the house prior to Moore opening the door and that Moore had approached the door from the back of the house, returned there and then came back and answered the door.

Given the above facts, there is little question (and the Defendant concedes the point) that the officers had justification to conduct a “cursory inspection” of the areas immediately adjoining the point of arrest. The officers testified credibly that they heard footsteps and other shuffling about in the back bedroom area prior to the defendant answering their door knock. Further, the officers, through the broken peep hole in the door, observed the defendant coming towards the door from the back bedroom area. Nevertheless, the Defendant asserts that the scope of the search, mainly the secondary search of the closet by Officer Borton, falls outside the protective sweep doctrine.

. . .

As tempting as it is to isolate the conduct of the officers, it is clear from the evidence in the record that they were acting together to conduct the protective sweep and ensure officer safety. Officer Borton testified credibly that he looked into the recesses of the closet because he believed someone could have been secreted there and Officer Reed had only quickly shined his flashlight there. And, the fact remains that all the seized evidence was found in a place where persons could have been hiding. Officer Borton located these items without moving any items or rearranging anything. Rather, he looked into the recesses of the closet to determine whether an individual was hiding there and, while doing so saw the items in plain view. Because he was completing the cursory inspection in search of individuals who may have been hiding in the closet and posing an immediate danger to his safety and the safety of the other officers, the court is hard-pressed to characterize the search as overly intrusive especially in light of the policy interest of ensuring officer safety set forth in Buie. 3 Accordingly, the Defendant’s Motion to Suppress is DENIED.

The smell of marijuana was sufficient to create more than reasonable suspicion for a dog sniff, which, remarkably, the parties refer to as an “air scan.” n.1 “An ‘air scan,’ as the parties use the phrase, appears to be nothing more than directing a drug dog to determine whether the scent of narcotics is present in a particular area.” United States v. Salley, 341 Fed. Appx. 498 (11th Cir. 2009) (unpublished)* (if it’s a dog sniff, call it that, not an air scan; mechanical sniffers are not that far away).

Government did not have to prove actual authority to consent because apparent authority is enough. United States v. Penney, 576 F.3d 297, 2009 FED App. 0276P (6th Cir. 2009).*

Objection to checking a box on a form for a category of what was to be seized is in the nature of a “hypertechnical error,” even if it was error. In any event, the good faith exception would save the warrant. United States v. Alston, 2009 U.S. Dist. LEXIS 68870 (S.D. W.Va. August 6, 2009).*

Defendant’s tractor trailer was speeding, and, on the stop, the log book showed reasonable suspicion just on reading it. A drug dog was called, and it alerted. The stop was valid and was appropriately extended on reasonable suspicion. United States v. Arango-Lopez, 340 Fed. Appx. 154 (4th Cir. 2009) (unpublished):

Arango-Lopez was traveling over the speed limit and Trooper Stines possessed sufficient cause to stop him, request his license, registration, and other documents pertaining to commercial trucking, and examine them. Arango-Lopez argues that Trooper Stines had neither a reasonable suspicion nor probable cause to detain him beyond the initial traffic stop. Trooper Stines testified that during the initial traffic stop and review of Arango-Lopez’s documentation he became suspicious of the legitimacy of Arango-Lopez’s trucking business and itinerary, thus justifying continued detention. Trooper Stines testified that during the questioning Arango-Lopez appeared extremely nervous and the nervousness did not dissipate once Stines informed him that he was merely writing him a warning ticket. Arango-Lopez’s bills of lading and log book also contained inconsistencies, including a large load of expensive electronics in an unsealed trailer, an unexplained day-and-a-half stop in Arkansas, and a circuitous route that was hundreds of miles longer than the more heavily-patrolled direct route. Based on the totality of the circumstances, Trooper Stines had a reasonable suspicion that Arango-Lopez was involved in criminal activity to detain him beyond the initial stop.

We also conclude that the warrantless search of the truck trailer was lawful. First, probable cause existed to support the search after a trained drug dog alerted to drugs in the truck trailer. Moreover, independent of probable cause, Arango-Lopez provided voluntary oral and written consent to the search. We therefore conclude that the district court did not err in refusing to suppress the evidence obtained during the search of the truck trailer or Arango-Lopez’s subsequent statements.

Defendant’s motion to suppress that mentioned constitutional violations without saying how his rights were violated could be resolved without a hearing. United States v. Tagliamonte, 340 Fed. Appx. 73 (3d Cir. 2009) (unpublished):

On appeal, Tagliamonte asserts, generally, that the “prior illegal entry … tainted the search warrant,” and that he is entitled to a hearing to “determin[e] the extent of the agents’ actions during the illegal search and the extent of any evidence found.” Appellant’s Br. at 20-21. Tagliamonte, however, does not explain how or why the initial unlawful entry “tainted” the subsequent search warrant. He does not argue, for example, that the warrant affidavit contained information gleaned from the warrantless search, or that information procured through lawful means, and included in the affidavit, was insufficient to sustain the issuance of the warrant. See Burton, 288 F.3d at 103. Nor does Tagliamonte contend that information gleaned from the initial search influenced the government’s decision to procure a search warrant. See United States v. Perez, 280 F.3d 318, 340 (3d Cir. 2002); United States v. Herrold, 962 F.2d 1131, 1144 (3d Cir. 1992). In short, Tagliamonte fails to articulate a causal link between the warrantless entry and the procurement of the search warrant–to explain how the search warrant, or the information included therein, impermissibly included “fruits” of the initial unlawful search. Accordingly, we conclude that any constitutional violation was harmless, and that the District Court’s decision to proceed without an evidentiary hearing was not improper.

Defendant lacked “standing” in his mother’s house where he claimed he slept occasionally, but there was no evidence of it. On the day in question, he showed up to borrow her van. United States v. Mason, 2009 U.S. Dist. LEXIS 69957 (D. Neb. July 17, 2009).*

Whether the CI was reliable was pretty much moot based on the “trash picks.” It didn’t take an expert to know what the trash picks revealed. United States v. Sykes, 2009 U.S. Dist. LEXIS 70259 (D. Wis. July 24, 2009):

Here, three times in five weeks the police found in Sykes’s trash between 13 and 44 “cornered” plastic baggies, 2 many powdered with white residue, which when tested (twice), showed the presence of cocaine. Detective Pittsley, a trained and experienced drug crime investigator, explained the significance of these 83 powdery sandwich bags to drug dealing, offering knowledge that has percolated into mainstream [*6] consciousness to the point that it hardly requires an expert’s opinion. This evidence easily established probable cause that someone was packaging cocaine for resale inside the house at 700 Raymond Road. Therefore, the search warrant was valid.

D. Utah applies clearly erroneous standard to defendant’s burden of proof to show a warrantless search unjustified. “Although the support for this determination is weak, it is consistent with the guidance that the court ‘grant deference to a trained law enforcement officer’s ability to distinguish between innocent and suspicious circumstances’ and that the defendant has the burden to prove that the motion to suppress should be granted.” The stop led to retaining identification and asking questions while holding the ID that converted the stop into a seizure requiring more. Nevertheless, defendant loses for not proving stop violated the Fourth Amendment. United States v. Wright, 2009 U.S. Dist. LEXIS 71665 (D. Utah August 13, 2009), citing United States v. Clarkson, 551 F.3d 1196, 1200 (10th Cir. 2009) (“‘The proponent of a motion to suppress bears the burden of proof.’ United States v. Moore, 22 F.3d 241, 243 (10th Cir. 1994)”, which actually says “Moore has not convinced us that those findings are clearly erroneous.”). [This opinion is so bad, it will never appear in the supplement or Fourth Edition.]

By filing a supplemental motion to suppress, the defendant did not intend to amend his motion to add a new theory, so SI was not an issue in this case. This inventory was valid and shown to be based on standardized procedure and limited to safekeeping and not just to search. United States v. Foots, 340 Fed. Appx. 969 (5th Cir. 2009) (unpublished).*

Fourth Amendment claim did not survive plaintiff’s death under Indiana law. Bentz v. City of Kendallville, 577 F.3d 776 (7th Cir. 2009).

A failed knock-and-talk at a motel room led to noise inside that the officers suspected the occupants were destroying drug evidence. The court rejected the defense contention that this was a police created exigency because there were no destruction of evidence prior to the knock on the door. United States v. Hendrix, 2009 U.S. Dist. LEXIS 73523 (W.D. Okla. August 19, 2009):

In contrast, the evidence in this case supports the officers’ claim that, after they identified themselves, they heard movement and toilet flushing and that, based on their experience, such activity signals the destruction of evidence. This activity further corroborated the information provided by the informant and reasonably presented a situation in which there was not sufficient time to obtain a search warrant. There is no evidence to suggest that Officers Hanes, Robertson, or Forbes acted in bad faith with the intent to circumvent the requirement of a search warrant; nor is there evidence that they employed unreasonable procedures or engaged in manipulative or abusive tactics in order to create exigent circumstances.

Accordingly, having considered the evidence in the record and the governing law in this circuit, the Court concludes that the government has satisfied its burden of proving that, given the totality of the circumstances, the officers had probable cause to believe that drug trafficking was ongoing in Room 327 of the Extended Stay America motel. Furthermore, the Court concludes that, based on the totality of the circumstances, exigent circumstances justified their warrantless entry into Room 327 because reasonable and prudent officers faced with those circumstances would have believed there was an imminent threat that evidence would be destroyed.

Comment: So, in the Western District of Oklahoma, the warrant requirement no longer applies to knock-and-talks with the slightest imagination from the police. If the police already have something approaching PC under the “soft standard” of Gates, and the occupant refuses to open the door, the slightest noise inside (or even no noise if they want to make it up) will justify a warrantless police entry because, by knocking, the occupants know the police are there and must be destroying evidence. This is another remarkable and completely twisted holding.

Moving a gun from one room to another was not a “meaningful interference” with possession to constitute a seizure. Defendant consented to the seizure. United States v. Twitty, 2009 U.S. Dist. LEXIS 72092 (W.D. Tenn. April 2, 2009).*

Officers had information that defendant had guns and a statement from a witness that a gun was pointed at her. When the first gun was found, the officers could continue to search. United States v. Bradford, 340 Fed. Appx. 995 (5th Cir. 2009) (unpublished).*

The fact Gant was decided after defendant unconditionally pled guilty did not form a basis for allowing him to withdraw his plea. United States v. Darcus, 2009 U.S. Dist. LEXIS 109950 (E.D. Va. November 24, 2009)*:

Darcus argues that, wholly apart from the Moore factors, the decision in Gant provides a basis on which he should be permitted to withdraw his guilty plea. Generally, courts have held that the decision in Gant does not provide a fair and just reason for withdrawal of a guilty plea. See Monroe, 2009 U.S. Dist. LEXIS 51389, 2009 WL 1749374, at *2 (“[T]he Supreme Court’s decision in Gant has not been held to constitute ‘a fair and just reasons for requesting the withdrawal’ of a guilty plea.”); Mays, 2009 U.S. Dist. LEXIS 21165, 2009 WL 536912, at * 2 (“In this Court’s view, [Gant] does not constitute a fair and just reason to withdraw the plea.”). Rather, Gant may only provide a fair and just reason where the Government concedes that it does, or the guilty plea was conditional. See United States v. Megginson, 2009 U.S. App. LEXIS 19296, 2009 WL 2461856 (4th Cir. Aug. 12, 2009) (allowing the suppression of evidence based on the retroactive application of Gant when Darcus [sic] entered a conditional plea); United States v. Williams, 2009 U.S. Dist. LEXIS 48077, 2009 WL 1607624, at *1 (E.D. Mich. June 2, 2009) (allowing withdrawal when the Government conceded that it was fair and just).

Darcus’ plea of guilty was not conditioned on his ability to challenge the denial of his motions to suppress. Nor has the government conceded that Darcus should be allowed to withdraw his guilty plea. As a result, Darcus’ argument that the change in law alone should allow him to withdraw his guilty plea does weigh in favor of withdrawal.

Defendant was apparently involved in a hand-to-hand drug deal where he was sitting in his car at gas pumps in a high crime area but buying no gas. When the officer frisked him and no gun was found, the reasonable suspicion of wrongdoing was still not dispelled under the facts. Hicks v. State, 189 Md. App. 112, 984 A.2d 246 (2009).*

Misdemeanor arrest warrant permitted entry into defendant’s home. Payton is not so limited. United States v. Hall, 2009 U.S. Dist. LEXIS 90378 (W.D. N.C. September 28, 2009):

It is noteworthy that the only case cited in support of the Defendant’s interpretation of Payton is O’Rourke v. City of Norman, 875 F.2d 1465 (10th Cir. 1989), cert. denied 493 U.S. 918, 110 S.Ct. 280, 107 L.Ed.2d 260 (1989). O’Rourke involved the nighttime execution of a daytime bench warrant at a location which was known to be the residence of the emancipated suspect’s parents, but which was not known to be her home. The case turned on the fact that the warrant was not authorized for execution at night, not on the nature of the underlying offense. LaFave, 2 Search & Seizure, § 4.7(b) n.31 (4th ed.). In citing this case, defense counsel ignored the body of law holding that entry into a residence based on a misdemeanor arrest warrant “has been followed in similar cases with near uniformity by the federal courts.” Gooch, 506 F.3d at 1159 n.1. In fact, the Gooch court cited United States v. Ray, 199 F.Supp.2d 1104, 1112-13 (D.Kan. 2002), which followed Tenth Circuit precedent, Howard v. Dickerson, 34 F.3d 978, 981 (10th Cir. 1994), in which it was noted that “federal law require[s] a warrant before arresting an individual at home for a misdemeanor.” Accord, United States v. Meindl, 83 F.Supp.2d 1207 (D.Kan. 1999) (forced entry into defendant’s home to execute misdemeanor arrest warrant was proper). Indeed, the Defendant’s objection to the Memorandum and Recommendation on this issue is limited to one sentence. The Court rejects the Defendant’s argument and the objection is overruled.

“Notwithstanding SA Mayo’s omissions, the information provided in his supporting affidavit does not surmount to knowingly or recklessly misleading the issuing magistrate” under Franks. United States v. Banks, 2009 U.S. Dist. LEXIS 90073 (N.D. N.Y. September 29, 2009).*

State and federal officers may have collective knowledge for PC for a vehicle search. United States v. Feliz, 657 F. Supp. 2d 364 (E.D. N.Y. 2009).

Parole officer fulfilled his obligation by searching defendant’s house after defendant’s arrest to be sure that he was not otherwise violating the law. United States v. Elsberry, 2007 U.S. Dist. LEXIS 98760 (W.D. N.Y. May 29, 2007).*

Nineteen minute stop was not unreasonable under the circumstances. United States v. Williams, 2009 U.S. Dist. LEXIS 90063 (M.D. Fla. September 14, 2009).*