Defendant arrested two blocks from his car was not a “recent occupant” under Thornton. United States v. Mathis, 653 F. Supp. 2d 806 (E.D. Tenn. 2009) (case was decided five days before Gant):

In this instance, Defendant was arrested approximately two blocks away from the Vehicle. The arrest took place approximately five minutes after Defendant had left the Vehicle, and the officers returned Defendant to the Vehicle shortly after arresting him. The Court finds that while Defendant’s temporal relationship with the Vehicle was appropriate under Thornton, his spatial relationship to the Vehicle was simply too great. Given the distance between Defendant and his Vehicle at the time of Defendant’s arrest, the Court cannot find that a search of the Vehicle was appropriate under either a theory of officer safety or a concern for the preservation of evidence, the two bases for Thornton.

Nor has the government offered any evidence or argument providing any other legal basis in support of a warrantless search of the car. There is no evidence or argument that the Vehicle would have been seized by the police prior to the discovery of drugs, nor any evidence as to police policy regarding routine inventory searches prior to seizure, thus the government has not raised, and therefore cannot rely on, a theory of inevitable discovery to salvage the search at issue. United States v. Musick, 291 Fed. Appx. 706, 721 (6th Cir. 2008) (recognizing the validity of a warrantless inventory search pursuant to standard police policy). Nor can the Court find under the facts before it that the police had probable cause to search the Vehicle, which would have protected the search under the automobile exception to the warrant requirement. See Md. v. Dyson, 527 U.S. 465, 467, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (U.S. 1999) (describing the automobile exception). The only basis for a finding of probable cause would be the fact that defendant was carrying $1,580 in cash and two cell phones, neither of which is sufficient under the totality of the circumstances to create probable cause for a warrantless search of the Vehicle.

Affidavit for child pornography search warrant failed to show probable cause, but the good faith exception saved the warrant. United States v. Harner, 2009 U.S. Dist. LEXIS 78238 (D. Minn. August 4, 2009):

Here, the affidavit is padded with a lengthy description of how Internet distribution of child pornography works and how “typical” computer investigations of child pornography proceed. This information is not sufficiently particularized to the Defendant and must be disregarded. The remaining information in the affidavit that does relate to the Defendant also fails to establish probable cause. The affidavit provides no evidence that the 16 suspect files were advertised as child pornography; it simply offers a conclusion that the suspect IP address “was offering to participate in the distribution of child pornography.” (Gov’t Ex. 1 at Application.) This conclusion is not supported by sufficient evidence that a search of Defendant’s residence would uncover evidence of wrongdoing. First, less than 1.5 percent of the 1,156 files on the Defendants’ computer matched SHA1 values from the ICAC list — hardly overwhelming evidence that the Defendant knowingly possessed prohibited files. Second, the affidavit provides no information as to how the ICAC compiled its list of child pornography files or how the ICAC determined that the files on its list meet the legal definition of child pornography under state or federal law. Third, the affidavit does not even provide a description of the 16 files on the ICAC list that allegedly match the files on Defendant’s computer. Without a description of the files, it is impossible to tell whether these files are photos or videos, much less whether the photos or videos depict child pornography. This means that even if it were reasonable to believe that the Defendant’s files matched the 16 ICAC files, the magistrate had no way to tell whether the 16 ICAC files met the legal definition of child pornography. Therefore, without more, the statement that 16 of 1,156 files Defendant’s computer had SHA1 values matching 16 files on the ICAC list is insufficient to establish probable cause to believe that a search of Defendant’s residence would result in evidence of wrongdoing.

This leaves only the evidence that of one half of one video file found on Defendant’s computer depicted a female engaged in sexual activities. Although the affidavit states that the female seen in the video was between 13 and 15 years of age, it provides no indication of how this age determination was made. The affidavit provides no “basis of knowledge” for the conclusion that the female depicted in the partial video file is between the ages of 13-15, or even that the female is under 18 (such as, for example, evidence of an examination of the file by a pediatrician or other qualified expert). Certainly, the bare statement that the conclusion about a post-pubescent individual’s age was based on Officer Hanson’s general “training and experience” is facially insufficient to establish probable cause. Gates, 462 U.S. at 239. Further, the affidavit concludes, without explanation or analysis, that the file is prohibited child pornography as defined by Minn. Stat. § 617.247. Under Minnesota v. Cannady, a 2007 Minnesota Supreme Court case analyzing and interpreting this statute, in order to prove a violation of Minn. Stat. § 617.247 the government must prove that 1) not only are the persons depicted in pornographic work actually under the age of 18, but also 2) that the individual who possessed the pornographic work actually knew that the persons depicted were under the age of 18. Cannady, 727 N.W.2d 403, 407-09 (2007). The affidavit fails to provide sufficient evidence to support a finding of probable cause as to either element.

In sum, the Court concludes that the officer’s application here is insufficient to support a finding of probable cause, and that therefore the search warrant was issued in violation of the Fourth Amendment.

B. Even Though No Probable Cause Existed To Support The Search Warrant, The Leon Good Faith Exception Applies

Search warrant for premises permitted search of a car parked in the closed garage. United States v. Valazquez, 2009 U.S. Dist. LEXIS 79500 (W.D. Okla. September 3, 2009).*

IRS summons does not implicate the Fourth Amendment. Hibben v. United States, 2009 U.S. Dist. LEXIS 78699 (E.D. Tenn. June 19, 2009).*

The officers’ attempt at procuring a search warrant failed several statutory requirements because of his lack of training and experience. They sought help from other officers and failed to get it. The town JP also failed to so some things, but none of it rises to the level of bad faith to justify suppressing the search. The officers acted with good faith throughout, and that was sufficient to invoke the GFE to the exclusionary rule. (Half the opinion is quoting from Leon and Herring because of their relevance to the outcome.) United States v. Monroe, 2009 U.S. Dist. LEXIS 80479 (W.D. N.Y. March 17, 2009):

This lack of knowledge and experience is not “sufficiently deliberate” so as to “trigger the exclusionary rule;” nor is it “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring, supra, 172 L.Ed.2d at 507. The actions of Sergeant Lott and Detective Walters do not constitute “deliberate, reckless, or grossly negligent conduct” and therefore, it is RECOMMENDED that defendant’s motion to suppress the evidence seized pursuant to the search warrant at issue herein be in all respects DENIED.

Although Rule 12 does not state what a defendant has to show to get a suppression hearing, under Third Circuit precedent the defendant needs to show a colorable factual dispute to get a suppression hearing. United States v. Boyd, 652 F. Supp. 2d 546 (D. Del. 2009).

Consent to search a car for drugs includes anywhere drugs can be hidden. Defendant’s approach of the officers was not a withdrawal of the consent. He was waived off for officer safety. United States v. Jimenez, 2009 U.S. Dist. LEXIS 80410 (E.D. Tenn. September 2, 2009).*

The search warrant in this case authorized both the seizure and search of defendant’s computer for child porn. The actual search occurred after the ten days for seizure, but this was not a constitutional violation (citing many cases). United States v. Cameron, 652 F. Supp. 2d 74 (D. Maine 2009).*

The stop of defendant was justified because the vehicle matched the description of a vehicle and occupants involved in a break-in within three minutes of the anonymous call and within a block in a high crime area. It was the only vehicle like it. United States v. Barrera-Omana, 2009 U.S. Dist. LEXIS 80413 (D. Minn. August 14, 2009).*

The officer had cause to stop the defendant’s vehicle based on the driver’s admissions on the tape during the stop. His implausible travel plans gave reasonable suspicion. United States v. Jimenez, 2009 U.S. Dist. LEXIS 80590 (E.D. Tenn. February 23, 2009),* adopted United States v. Sanders, 2009 U.S. Dist. LEXIS 80569 (E.D. Tenn. June 11, 2009).*

Forced taking of DNA from a prison inmate violated his Fourth Amendment rights because his offense was not a qualifying offense under California law, but defendants were entitled to qualified immunity from suit. Koch v. Lockyer, 340 Fed. Appx. 372 (9th Cir. 2009) (unpublished):

Prisoners have diminished privacy rights, and as such, limited freedom against searches and seizures of their body, including the collection of their DNA. Cf. United States v. Kriesel, 508 F.3d 941, 947 (9th Cir. 2007). However, even the limited security right Koch had against forcible extraction of his DNA outweighs the government’s interest in obtaining his DNA, since the state legislature had not expressed such an interest at the time his DNA was collected. Cf. United States v. Kincade, 379 F.3d 813, 839 & n.39 (9th Cir. 2004) (en banc) (upholding compulsory DNA collection from certain federal violent criminal offenders in absence of individualized suspicion that they had committed additional crimes, where the legislature expressed a legitimate governmental interest in that DNA collection and “the evenhandedness of [the] statute contribute[d] to its reasonableness” (quoting Rise v. Oregon, 59 F.3d 1556, 1561 (9th Cir. 1995)).

In this case, given the absence of individualized suspicion, probable cause, a legislative act endorsing this type of DNA collection, or “special needs” to justify that collection, Appellees’ forcible collection of Koch’s DNA was unreasonable. Cf. United States v. Knights, 534 U.S. 112, 118 (2001) (holding that “the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests” (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). Therefore, Appellees violated Koch’s Fourth Amendment rights by forcibly taking his DNA under these circumstances.

Finding that a stolen vehicle report had been recalled after the vehicle was found did not require exclusion. This is similar in effect to Herring. The stolen vehicle report justified seizure of the vehicle, and a search of the vehicle located a bomb. United States v. Noster, 573 F.3d 664 (9th Cir. 2009):

Like the arresting officers in Hensley, there is no dispute that Officers Capa and Murphy acted in reasonable reliance on the stolen vehicle database to conclude that the car was stolen and thus “seizable” pursuant to California law. See Cal. Veh. Code § 22651(c) (providing that an officer may remove a vehicle from a public street where “a report has previously been made that the vehicle has been stolen”). Moreover, because we impute Officer Beene’s probable cause to believe that the vehicle was evidence of criminal fraud to the two officers, see Hensley, 469 U.S. at 233, their seizure and search of the truck was also reasonable under the Fourth Amendment. …

“Although Officer Tully thereafter immediately began to question Muniz to ‘take consent or develop reasonable suspicion,’ this follow-on questioning did not change the consensual encounter into an illegal detention. The district court did not clearly err in its determination that the post-Terry-stop questioning was a consensual encounter.” United States v. Muniz, 340 Fed. Appx. 193 (5th Cir. 2009) (unpublished).*

Defendant’s probation search was justified by reasonable suspicion. United States v. Boynton, 337 Fed. Appx. 801 (11th Cir. 2009) (unpublished).*

The Tenth Circuit discusses at length the basis for a stop under NM law for dealer tags that the officer thought at first were missing, but determined that they were valid, and that should have ended the stop. Continuing the stop was unreasonable. United States v. Pena-Montes, 589 F.3d 1048 (10th Cir. 2009)*:

Viewing the government’s asserted factors in concert, we conclude that Officer Hernandez lacked a “particularized and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002) (quotation omitted). To conclude otherwise would grant permission to the APD to detain and question every car with a dealer plate driving along Central Avenue after most dealerships are closed. Cf. Aguilar, 155 P.3d at 773. We decline to sign this blank check. As in McSwain, the law enforcement officer should not have questioned the driver of the vehicle after his sole cause for suspicion was dispelled. Here, that suspicion was dispelled when Hernandez observed the dealer plate in the Yukon’s window. At that point, an officer’s permissible conduct is limited: “As a matter of courtesy, the officer could explain to drivers in [these] circumstances the reason for the initial detention and then allow them to continue on their way without asking them to produce their driver’s license and registration.” McSwain, 29 F.3d at 562. Because Hernandez failed to follow this guidance and chose to further pursue his investigation without a basis in reasonable suspicion, his actions violated the Fourth Amendment.

United States v. Monghur, 576 F.3d 1008 (9th Cir. 2009), posted here, was amended 588 F.3d 975 (9th Cir. 2009): Defendant did not waive his reasonable expectation of privacy in a closed container when he revealed it contained a gun in a jailhouse telephone call that he would know would be recorded.

Copar Pumice Co. v. Morris, 2009 U.S. Dist. LEXIS 114195 (D. N.M. October 23, 2009), on an illegal administrative search, resulted in a jury verdict of $1.00. Prior opinions: Copar Pumice Co. v. Morris, 2009 U.S. Dist. LEXIS 56840 (D. N.M. July 6, 2009) (posted here); Copar Pumice Co. v. Morris, 632 F. Supp. 2d 1055 (D. N.M. 2008) (posted here); Copar Pumice Co. v. Morris, 2008 U.S. Dist. LEXIS 42350 (D. N.M. March 21, 2008) (posted here).

Defendant’s search incident occurred nearly three years before Gant, and it was lawful at the time but not lawful under Gant. The court chooses to apply the good faith exception to a pre-Gant search incident attempting to forecast that the Eighth Circuit will follow the majority. United States v. Gray, 2009 U.S. Dist. LEXIS 113436 (D. Neb. December 7, 2009).

There is an impeachment exception to Title III, the same as in the Fourth Amendment. While this is a Title III case, it discusses the history of the impeachment rule under the Fourth Amendment, starting in 1954. United States v. Simels, 2009 U.S. Dist. LEXIS 113151 (E.D. N.Y. December 4, 2009).

By statute, a Washington probation officer must have reasonable cause before a probation search can occur, and, under the Washington exclusionary rule, the inevitable discovery rule does not apply here. State v. Winterstein, 167 Wn. 2d 620, 220 P.3d 1226 (2009).

Even with consent revoked, the government has plenty of probable cause in their investigation to get a search warrant, so the search was valid by inevitable discovery. United States v. Pickett, 2009 U.S. Dist. LEXIS 114234 (E.D. Mich. December 8, 2009).*

There is no reasonable expectation of privacy in a telephone call from a police interrogation room that the police were able to record the defendant’s end of. Perhaps recognizing that the argument was borderline frivolous, the defendant argued that his speaking in Spanish manifested a REP. People v. Zamora, 220 P.3d 996 (Colo. 2009):

On appeal, Zamora contends that he had both a subjective and objective expectation of privacy in his phone statements because he spoke in Spanish. Assuming, without deciding, that Zamora demonstrated he had an actual, subjective expectation of privacy in his phone conversation by speaking in Spanish, we conclude that his expectation of privacy was not objectively reasonable. Objective reasonableness depends on “whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” Oliver v. United States, 466 U.S. 170, 182-83, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). The objective reasonableness expectation is a fact-specific inquiry which takes account of all circumstances and is not tied to a single factor nor controlled by a specific formula. People v. Oynes, 920 P.2d 880, 882 (Colo. App. 1996); see also People v. Tufts, 717 P.2d 485 (Colo. 1986) (whether an expectation of privacy is legitimate depends on objective factors, not the individual’s subjective intent).

Courts consider several factors in determining the objective reasonableness of an expectation of privacy. A person generally has no reasonable expectation of privacy in communications held in the actual presence of a police officer. People v. A.W., 982 P.2d 842, 848 (Colo. 1999) (citing Katz, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576); see People v. Smith, 716 P.2d 1115, 1118 (Colo. 1986) (defendant who was accompanied to telephone by jailhouse personnel does not have a reasonable expectation of privacy in his telephone communications); cf. People v. Hart, 787 P.2d 186, 187-88 (Colo. App. 1989) (defendant had no reasonable expectation of privacy where police officers, who were lawfully situated in an adjacent motel room, could hear his conversation without the aid of any listening device).

The location where statements are made is also a factor in determining whether an objectively reasonable privacy expectation exists. People v. Lesslie, 939 P.2d 443, 447 (Colo. App. 1996). Statements made while in police car, People v. Palmer, 888 P.2d 348 (Colo. App. 1994), or inside a jail, People v. Blehm, 44 Colo. App. 472, 476-77, 623 P.2d 411, 415 (1980), may not give rise to an expectation of privacy. See also People v. Lee, 93 P.3d 544, 548 (Colo. App. 2003) (defendant did not have reasonable expectation of privacy in his telephone calls from county jail). However, statements made in a private area of a public restroom may be subject to an objective expectation of privacy. Lesslie, 939 P.2d at 446 (defendant had expectation of privacy within restroom because it was legitimate to assume conversation was shielded from the public).

Defendant’s vehicle showing up in the desert in a place under surveillance by the Border Patrol, preceded by two ATVs as apparent scout vehicles, was subject to being stopped under the extended border search doctrine. The use of a tire deflation device to stop the vehicle that would not stop was not an arrest. United States v. Guzman-Padilla, 573 F.3d 865 (9th Cir. 2009); United States v. Cota-Mora, 339 Fed. Appx. 714 (9th Cir. 2009) (unpublished):

The use of the tire deflation device did not render the attendant stop an “arrest” because the circumstances would not likely have caused a reasonable innocent person to believe that an indefinite custodial detention was inevitable, and because the application of force to the vehicle was justified. See id. Nor did the use of the device amount to excessive force: under the circumstances, any intrusion upon Cota’s rights was outweighed by the government’s interests in protecting its territorial integrity and interdicting the flow of illegal drugs without endangering the motoring public, and there was ample evidence in the district court that the deployment of the device was safe for all involved. See id. In the latter respect, while Cota claims that his vehicle began to swerve after his tires deflated, the record is devoid of any suggestion that this was the case, and is fully consistent with the government’s claim that the stop occurred without the slightest incident.

Defendant’s argument that there was a Franks violation because the officer did not make the hypertechnical argument that the officer omitted information that might be of some pertinence at trial fails. The question is PC for issuing the warrant, and there clearly was. United States v. Alexander, 574 F.3d 484 (8th Cir. 2009)*:

More fundamentally, however, Alexander’s statutory interpretation argument is beside the point because a magistrate reviewing a warrant application is charged with the duty of determining whether a “fair probability that contraband or evidence of a crime will be found in a particular place.” Hart, 544 F.3d at 914 (quotation omitted). Indeed, “[i]t is not necessary for an affidavit to include the name of the specific crime alleged.” United States v. Summage, 481 F.3d 1075, 1078 (8th Cir. 2007), cert. denied, 128 S. Ct. 875 (2008). “Rather, only a probability of criminal conduct need be shown.” Id. (quotation omitted). Absent a contrary ruling by a controlling authority, a neutral magistrate could reasonably assume that one does not sacrifice his or her privacy interest to the entire world whenever one permits another to view himself or herself in the nude. Thus, even if Det. Johnson had supplemented the affidavit with the information that Alexander was present in the secretly recorded videos, probable cause would have remained.

Defendant’s knock-and-talk led to a consensual search. United States v. Carter, 2009 U.S. Dist. LEXIS 61019 (S.D. W.Va. July 13, 2009).*

Defense counsel was not ineffective for not having forecast that the state supreme court would find a greater right to privacy in a motel register under the state constitution to entitle him to pursue an IAC claim. In re Pers. Restraint of Nichols, 151 Wn. App. 262, 211 P.3d 462 (2009).*

Positive UA of a parolee justifies a home search for drugs. United States v. Randle, 2009 U.S. Dist. LEXIS 64490 (E.D. Pa. July 24, 2009).

Defendant’s live-in girlfriend of three months had apparent authority to consent to a search of the premises which included taking defendant’s computer after she found child porn in the house. She essentially had unrestrained access. Even if she lacked actual authority, she had apparent authority. United States v. Nichols, 574 F.3d 633 (8th Cir. 2009):

Additionally, we note that even had M.L. lacked common authority, her consent was still effective because police officers had reason to believe she had common authority. A search is justified without a warrant where officers reasonably rely on the consent of a third party who demonstrates apparent authority to authorize the search, even if the third party lacks common authority. See Illinois v. Rodriguez, 497 U.S. 177, 188, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990). Apparent authority is present when “the facts available to the officer at the moment … warrant a man of reasonable caution in the belief that the consenting party had authority over the premises.” Id. (quotation omitted); see Almeida-Perez, 549 F.3d at 1171 (finding authority where the person providing consent had traveled freely in and out of the home, invited officers in, and was reposing on the front porch). Here, M.L. telephoned officers and had them meet her at the house. She met the officers at the door, explained to them her relationship with Nichols, freely operated the computer to show officers the disk’s contents, and appeared familiar with the home. These circumstances suggest that officers were justified in believing that M.L. was an occupant of the home capable of granting consent. For these reasons, we affirm the district court’s denial of Nichols’s motion to suppress.

Heavy object in pocket + reluctant to remove hands = reasonable suspicion. United States v. Pittman, 338 Fed. Appx. 147 (3d Cir. 2009) (unpublished).*

Firefighters entered defendant’s home in a bona fide emergency and saw child porn in plain view, and this validly formed the basis of PC for a search warrant. United States v. Hill, 338 Fed. Appx. 855 (11th Cir. 2009) (unpublished).*

In an internet traveler case where the defendant came from SC to KY, there was reason to believe that evidence would be found in his home in SC where the chats occurred after he was arrested in KY. United States v. Hill, 2009 U.S. Dist. LEXIS 119400 (W.D. Ky. December 22, 2009).*

Probable cause existed for defendant’s stop from a missing front license plate. After the stop, the defendant rolled down his window and marijuana smoke billowed out, and that was PC for search of the car. United States v. Dolson, 2009 U.S. Dist. LEXIS 119182 (D. Minn. August 10, 2009).*

Officer was justified stopping a man in a suit with a gun in a holster walking toward an “important public building.” That man was a criminal defense lawyer. This is what Terry is for. The officer also did not violate the lawyer’s rights by pointing a gun at him. Schubert v. City of Springfield, 589 F.3d 496 (1st Cir. 2009):

. . . The fact remains, however, that the officer saw a man carrying a gun in a high-crime area, walking toward an important public building.

Schubert contends that his clothing, his age, and the fact that he was carrying a briefcase are factors that should undercut the reasonableness of Stern’s suspicion. We are not persuaded. A Terry stop is intended for just such a situation, where the officer has a reasonable concern about potential criminal activity based on his “on-the-spot observations,” and where immediate action is required to ensure that any criminal activity is stopped or prevented. Terry, 392 U.S. at 20. We need not outline in detail the obvious and potentially horrific events that could have transpired had an officer noted a man walking toward the courthouse with a gun and chosen not to intervene.

Defendant drove on to the grounds of an FCI, and he acted suspicious. His stop was justified by reasonable suspicion. Also, the stop and search were justified by a 6′ x 10′ sign that warned defendant the vehicle was subject to search. United States v. Parker, 2009 U.S. Dist. LEXIS 69056 (N.D. N.Y. August 7, 2009).*

Consent does not require notice to the accused that he can refuse consent. United States v. Vaghari, 653 F. Supp. 2d 537 (E.D. Pa. 2009).*

The defendant was not stopped when an officer pulled up next to him while he was walking on the sidewalk and talked to him. United States v. West, 2009 U.S. Dist. LEXIS 69298 (D. Ariz. July 29, 2009):

The officers initiated the encounter with Mr. West by stopping their patrol vehicle by the side of a public street, parallel to Mr. West’s path of travel. The Tahoe’s position did not impede Mr. West’s travel on the sidewalk, nor did the officers order Mr. West to stop either verbally or by signaling with the Tahoe’s siren and overhead lights. The officers asked to have a word with Mr. West and confirmed that he had not done anything wrong, stating that they were merely talking to people in the area. The officers remained in their vehicle with their weapons holstered while questioning Mr. West. The officers asked to see Mr. West’s identification. Only when Mr. West reached into the duffel bag to retrieve his identification did Officer Nicks exit the vehicle to stand some distance away on the sidewalk.

Officers were told that defendant was communicating with a 14 year old girl, and they went to talk to him. They asked if they could look at his cell phone, and he turned it over. One officer hit the camera button and looked at the photographs on it. Defendant consented to a search of the cell phone. Lemons v. State, 298 S.W.3d 658 (Tex. App.–Tyler 2009):

We have reviewed the record as it pertains to Appellant’s giving consent. The epicenter of our inquiry is Thornhill’s request to Appellant that he be allowed to examine Appellant’s cellular telephone and Appellant’s nonverbal response of simply handing his cellular telephone to Thornhill. There is no indication from the record that would allow a reasonable person to conclude that Appellant intended to shape the confines of his forthcoming consent by the subject matter of the conversation between him and Thornhill in the moments preceding Appellant’s relinquishment of his cellular telephone to Thornhill. Instead, it is reasonable to conclude that Appellant’s surrender to Thornhill of his cellular telephone in response to Thornhill’s open ended request implied Appellant’s grant of equally unbridled consent for Thornhill to examine the phone and the information contained therein. See, e.g., Cannon v. State, 29 F.3d 472, 477 (2d Cir.1994) (holding that defendant’s answer to “go ahead” and look in car justified search of trunk). Moreover, Appellant’s failure to object to Thornhill’s continued search of his phone after bestowing on him such general consent to search was an indication that Thornhill’s search was within the scope of Appellant’s initial consent. See id.

In sum, the State was required to prove by clear and convincing evidence that Appellant’s consent to a search of his cellular telephone was unequivocal; in other words, that Appellant’s expression of consent was, viewed in the totality of the circumstances, capable of only one reasonable interpretation. See Reasor, 12 S.W.3d at 818; Allridge, 850 S.W.2d at 493. Having applied a deferential standard of review to the trial court’s determination of historical facts, we conclude that a reasonable person could have interpreted Appellant’s handing his cellular telephone to Thornhill in response to Thornhill’s open ended request as an unlimited consent to examine the information contained therein. See Mendoza-Gonzalez, 318 F.3d at 667. Therefore, we hold that the trial court acted within its discretion by finding that the State proved by clear and convincing evidence that Thornhill’s search of Appellant’s cellular telephone was within the scope of Appellant’s consent. Appellant’s sole issue is overruled.

In Arizona v. Johnson, 129 S. Ct. 781, 788, 172 L. Ed. 2d 694 (2009), on remand, the Arizona Court of Appeals concludes that the defendant passenger was lawfully searched because the officer had reasonable suspicion defendant was armed. State v. Johnson, 220 Ariz. 551, 207 P.3d 804, 556 Ariz. Adv. Rep. 17 (2009).

Surveillance officer saw defendant violate a traffic law and radioed for assistance, and an officer with a drug dog was dispatched for the stop. The entire stop took only ten minutes, and it was reasonable. State v. Nash, 2009 Ohio 2477, 2009 Ohio App. LEXIS 2080 (5th Dist. May 26, 2009).*

A defendant stopped with PC for DWI has no constitutional right to refuse a breath or blood test. State v. Hill, 2009 Ohio 2468, 2009 Ohio App. LEXIS 2093 (5th Dist. May 22, 2009).*

Including the omitted information that defendant contended was willfully withheld did not negate the probable cause, so the motion to suppress is denied. State v. Bell, 2009 Ohio 2335, 2009 Ohio App. LEXIS 2112 (12th Dist. May 18, 2009).*

Defendant’s stop was unreasonably continued, so the consent was not valid. State v. Huggett, 228 Ore. App. 569, 209 P.3d 385 (2009):

Although Andresen would have been free to question defendant about matters unrelated to the traffic offense during an “unavoidable lull” in his investigation of the offense, he was not similarly free to question him about unrelated matters as an alternative to going forward with the next step in processing the infraction, such as the writing or issuing of a citation.

Defendant had been seen by a CI the day before the search with two ounces of meth, and the CI told the police. This was not stale information, and it gave reasonable suspicion for the stop. State v. De La Rosa, 228 Ore. App. 666, 208 P.3d 1012 (2009).*

Defendant’s stop was with probable cause for leaving a known (as opposed to a suspected) drug house, and there was an objective basis for the stop. State v. Corley, 2009 S.C. App. LEXIS 166 (May 14, 2009).*

Defendant was on supervision, and his PO told the police to call them if they contacted him. The officer encountered the defendant on a theft allegation, and called the PO who told the officer that defendant had a search condition. Defendant said that he wanted to hear that from the PO himself, so the officer handed the phone to defendant. “While still talking to [the PO], defendant put both hands up and told [the officer], ‘You can search me.’ {The officer] took the phone from defendant and terminated the call.” That was valid consent to search. State v. Wammack, 228 Ore. App. 520, 208 P.3d 1000 (2009).*

Having previously been seen by the officer doing hand to hand drug deals and then following officer home apparently in “some amateurish counter-surveillance in support of their illegal drug activity” was reasonable suspicion. United States v. Matthews, 330 Fed. Appx. 364 (3d Cir. 2009)* (unpublished).

The officer asked a witness yes or no leading questions, and that alone does not mean that there was not probable cause for issuance of a search warrant for the plaintiff’s property. Omitted information did not show that there was no probable cause for the search warrant. Blanchard v. Lonero, 2009 U.S. Dist. LEXIS 44855 (E.D. La. May 28, 2009).*

Plaintiff claimed that planting of drugs in a public place violated his Fourth Amendment rights, which here it wasn’t. The court leaves open the question whether a Fourth Amendment violation could occur in a different context. Papierz v. Jackson, 339 Fed. Appx. 587, 2009 FED App. 0533N (6th Cir. 2009) (unpublished).*

That defendant’s consent was valid was obvious, and defense counsel could not be ineffective for not challenging it. United States v. Bowden, 2009 U.S. Dist. LEXIS 67526 (W.D. Mich. July 30, 2009).*

Motion to suppress that failed to articulate a ground was summarily denied. United States v. Smith, 2009 U.S. Dist. LEXIS 67672 (D. Minn. July 10, 2009).*

Just because a piece of testimony pointed out in a brief was not discussed in the USMJ’s R&R did not mean that it was not considered. The court was on notice, so it is assumed that it was considered. United States v. Todd, 2009 U.S. Dist. LEXIS 68240 (W.D. N.Y. August 5, 2009).*

Defendant was given access to his records, so his motion for return of records under Rule 41(g) was denied. United States v. Geekie, 2009 U.S. Dist. LEXIS 67770 (C.D. Ill. August 4, 2009).*

Government showed that defendant’s consent to enter to look for a person that turned into a continuation search for drugs was voluntary. United States v. Todd, 2009 U.S. Dist. LEXIS 68242 (W.D. Tex. May 1, 2009).*

When defendant’s records check came back clean, defendant should have been permitted to leave, and asking about drugs made the stop unreasonable. State v. Vogler, 297 S.W.3d 116 (Mo. App. 2009)*:

Defendant argues that, considering the totality of the circumstances, Loughridge’s conduct would have communicated to a reasonable person that he or she was not free to decline the officer’s requests or terminate the encounter. This Court agrees. In the usual traffic stop, the issuance of the citation or warning at the conclusion of the encounter helps indicate to the driver that he or she may leave. Here, however, Defendant was told at the outset of the traffic stop that he was only being given a warning. Nevertheless, he was detained by Loughridge for a record check. Defendant was instructed to return to his car and remain there, which he did. While Loughridge received the results of his radio check, he never conveyed that information to Defendant or told him he was free to go. When Loughridge returned to the Cadillac, he stood to the side of the open window and immediately asked Defendant if he had any illegal drugs or weapons in the car. Despite Defendant’s denial, Loughridge asked to search the vehicle. When Defendant exited the vehicle, Loughridge immediately asked Defendant if he had any weapons on his person. Again, despite Defendant’s denial, Loughridge asked to pat Defendant down. From the stop to arrest, this seven-minute encounter between Loughridge and Defendant was one seamless event. There was nothing to give a reasonable person any clear demarcation between the end of the traffic stop and the purported new, consensual encounter between officer and detainee. Therefore, we hold that the trial court clearly erred in deciding that the evidence collected from Defendant resulted from a consensual search.

The smell of marijuana was PC for a search of defendant’s car, and Gant was inapplicable. State v. Johnlouis, 22 So. 3d 1150 (La. App. 3d Cir. 2009).*

Defendant’s failure to include inventory in his motion to suppress precluded relying on that argument on appeal. State v. Ceaser, 2009 La. App. LEXIS 1863 (La. App. 3d Cir. November 4, 2009).*

During execution of a search warrant, “a cellular telephone was … an ‘implement[ ] … related to the illegal possession … or distribution of cocaine,’” where the affidavit also talked about the use of communication devices, so it could be seized under the warrant. Answering a call that came in just after it was seized was not unreasonable. Commonwealth v. Depina, 2009 Mass. App. LEXIS 1482 (December 8, 2009).

Just saying “steroids” in an affidavit for a search warrant was not insufficient because state law showed that injectable drugs were controlled. Commonwealth v. Takvorian, 75 Mass. App. Ct. 836, 917 N.E.2d 776 (2009).*

Undercover officers went to a crack addict and asked where they could buy crack, and he told them defendant’s apartment. They all went to the apartment and a crack deal was made, so that was probable cause for a search. The CI was corroborated. State v. Hall, 2009 Ohio 6390, 2009 Ohio App. LEXIS 5337 (2d Dist. December 4, 2009).*

A black padlocked cloth bag removed from the trunk of a car to be inventoried could not be inventory searched under the local policy. However, it was subject to search because the officer could smell marijuana in it. State v. Robinson, 2009 Ohio 6395, 2009 Ohio App. LEXIS 5336 (2d Dist. December 4, 2009).*

Failure to show nexus to the premises precluded application of the good faith exception to the search. Rice v. State, 916 N.E.2d 296 (Ind. App. 2009):

Although the trial court found Officer Yarnell’s affidavit lacking in indicia of probable cause such that official belief in its existence was entirely unreasonable, it also found the police conduct was not sufficiently deliberate that exclusion of the evidence could meaningfully deter it. The purpose of the exclusionary rule is to deter law enforcement officers from committing constitutional violations and therefore, evidence should be suppressed “only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional ….” Herring, 129 S. Ct. at 701 (quoting Illinois v. Krull, 480 U.S. 340, 348-49, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987)). We believe Officer Yarnell may be charged with knowledge that an arrest warrant issued on the basis of his affidavit was unconstitutional and as in Hensley, exclusion can therefore have a deterrent effect by ensuring future affidavits contain sufficient information from which a judicial officer can make a determination of probable cause and do not merely state conclusions as a substitute for adequate police investigation.

The officer entered defendant’s home after storms and a power failure for no apparent reason. His seizure of a glass pipe in plain view was unreasonable. Commonwealth v. Rowe, 2009 PA Super 215, 984 A.2d 524 (2009):

[*P7] On the strength of only an open doorway on an evening when there had been storms, Corporal Muse entered Appellant’s house and proceeded to go from room to room, calling out his status as an officer, checking whether anyone was home. When he arrived upstairs, he entered Appellant’s bedroom, where he observed an empty glass pipe sitting next to a computer on a desk, mail addressed to Appellant in the trash can, and a paycheck on a dresser top that was lodged in the bedroom closet.

Nighttime probation search was justified by reasonable suspicion. The probation condition allowed a “search at any time.” There was a checklist for nighttime probation searches, but it was reasonable. There is no separate constitutional standard for a nighttime probation search. King v. State, 984 A.2d 1205 (Del. 2009).*

The defendant’s due process rights were not violated by the fact that an attorney who had represented him in a child custody matter drafted a search warrant for child porn in his house. There is no showing that, as a result of the attorney’s actions, the search warrant would not have issued had another person been involved. A neutral and detached magistrate still issued the warrant. United States v. Summage, 575 F.3d 864 (8th Cir. 2009):

To demonstrate a violation of due process, a defendant must establish that he was actually and substantially prejudiced. United States v. Gladney, 474 F.3d 1027, 1030 (8th Cir. 2007). Summage has failed to establish, or even allege, that he was prejudiced by Walton’s actions. He does not claim that Walton improperly used any information gleaned from her firm’s prior representation of him. Furthermore, although Walton presented the application for the search warrant, an independent magistrate judge issued the search warrant. Summage does not suggest that the magistrate judge was biased or acted inappropriately in issuing the search warrant. Summage also has not shown that, had the application been presented by a different assistant county attorney, the magistrate judge would not have issued the search warrant. Cf. Hunt v. Houston, 563 F.3d 695, 704 (8th Cir. 2009) (stating, in a habeas challenge under 28 U.S.C. § 2254, “[t]o demonstrate prejudice, [a party] must show a reasonable probability that, but for the alleged constitutional violations, the result of the proceeding would have been different”); …. Accordingly, we conclude that Summage’s due process rights were not violated.

Arrest of one 14 year old girl on suspicion of robbery was unjustified because the facts were lacking. They had PC as to the person she was sitting with because three people said she looked like one of the robbers. Sherouse v. Ratchner, 573 F.3d 1055 (10th Cir. 2009).*

Defendant had no reasonable expectation of privacy in his trash which was not on the curtilage at the time of the seizure. United States v. Timley, 338 Fed. Appx. 782 (10th Cir. 2009) (unpublished).*

Police were making their presence known in an area known for being high-crime. They encountered defendant and asked where he was going. He said “to my girl’s house.” They asked where that was, and he repeated “to my girl’s house” each time he was asked. The officer started to get out of the car and defendant fled. He had not been “stopped” at the time he fled. United States v. Smith, 575 F.3d 308 (3d Cir. 2009).*

Officer had reasonable suspicion to feel a bag for a weapon, and it was apparent by plain feel (Dickerson) that the package contained drugs, likely cocaine. United States v. Works, 338 Fed. Appx. 295 (4th Cir. 2009) (unpublished).*

During a regulatory stop of a truck, the officers had reasonable suspicion from “erratic logbooks and destinations, suspicious behavior in the form of nervousness, etc.” USMJ R&R adopted. United States v. Rosario, 2009 U.S. Dist. LEXIS 62620 (W.D. Mo. July 21, 2009).*

Court finds that traffic stop become a voluntary detention and the consent was valid. United States v. Flores, 2009 U.S. Dist. LEXIS 62434 (M.D. Ala. July 20, 2009).*

Brandon Mayfield, who settled his false arrest case against the government for $2M, did not have Art. III standing to challenge the FISA provisions of the PATRIOT Act after he settled. The existence of a past injury did not show that he was going to be searched again. Mayfield v. United States, 588 F.3d 1252 (9th Cir. 2009), lower court opinion Mayfield v. United States, 504 F. Supp. 2d 1023 (D. Or. 2007):

Mayfield unquestionably had standing to seek damages and injunctive relief when he filed the original complaint. The requirements for seeking such relief, however, differ from the requirements for seeking a declaratory judgment. See Lyons, 461 U.S. at 111. Having bargained away all other forms of relief, Mayfield is now entitled only to a declaratory judgment. Although it is undisputed that the government retains materials derived from the FISA searches and surveillance of Mayfield’s property, the only relief that would redress this alleged Fourth Amendment violation is an injunction requiring the government to return or destroy such materials. Under the terms of the settlement agreement, Mayfield cannot seek injunctive relief. 7 Nor is it likely that the government will return the materials of its own volition, as it is under no legal obligation to do so, and has stated in its brief that it does not intend to take such action. Finally, the district court did not– in conjunction with its opinion sua sponte order the government to return or destroy the derivative materials, but merely stated that “it is reasonable to assume that the Executive branch of the government will act lawfully and make all reasonable efforts to destroy the derivative materials when a final declaration of the unconstitutionality of the challenged provisions is issued.” Mayfield, 504 F. Supp. 2d at 1034.

See article in Pogo Was Right: Ninth Circuit rejects Patriot Act challenge for lack of standing.