Government failed to show justification for its protective sweep, and suppression order affirmed. A protective sweep requires knowledge, not ignorance. United States v. Archibald, 589 F.3d 289, 2009 FED App. 0423P (6th Cir. 2009):

It is well-settled that arrest warrants are not search warrants. Steagald v. United States, 451 U.S. 204, 212-13, 101 S. Ct. 1642, 68 L. Ed. 2d 38 (1981). Thus, the Supreme Court has identified two types of warrantless protective sweeps of a residence that are constitutionally permissible immediately following an arrest. The first type allows officers to “look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Buie, 494 U.S. at 334. The second type of sweep goes “beyond” immediately adjoining areas but is confined to “such a protective sweep, aimed at protecting the arresting officers[.]” Id. at 334-35. The first type of sweep requires no probable cause or reasonable suspicion, while the second requires “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Id. at 334. The Supreme Court also “emphasize[d]” that this second kind of sweep is “not a full search of the premises,” but “extend[s] only to a cursory inspection of those spaces where a person may be found” and should last “no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart the premises.” Id. at 335-36.

. . .

Clearly, Buie requires more than ignorance or a constant assumption that more than one person is present in a residence. In Colbert, we stated that a lack of knowledge as to whether others were in a home necessarily failed the Buie standard because that standard requires “articulable facts,” not ignorance:

In fact, allowing the police to conduct protective sweeps whenever they do not know whether anyone else is inside a home creates an incentive for the police to stay ignorant as to whether or not anyone else is inside a house in order to conduct a protective sweep. Finally, and perhaps most importantly, allowing the police to justify a protective sweep on the ground that they had no information at all is directly contrary to the Supreme Court’s explicit command in Buie that the police have an articulable basis on which to support their reasonable suspicion of danger from inside the home. “No information” cannot be an articulable basis for a sweep that requires information to justify it in the first place.

Colbert, 76 F.3d at 778. Accordingly, cases that have found that noises emanating from a residence supported a reasonable belief in the presence of other individuals have required contributing facts or stronger evidence than what is presented here supporting the officers’ suspicions that more than one person was present. See, e.g., United States v. Talley, 275 F.3d 560, 562 (6th Cir. 2001) (“officers heard a loud commotion and the sounds of several individuals running throughout the apartment and up and down the stairs”); United States v. Stover, 474 F.3d 904, 910-12 (6th Cir. 2007) (officers observed two cars parked in driveway of duplex — one registered to defendant and the other to a “local criminal” who resided at a different address — and heard noise and movement in house before defendant came downstairs); United States v. Taylor, 248 F.3d 506, 511, 514 (6th Cir. 2001) (holding that protective sweep was justified where officers obtained consent from defendant’s brother to enter defendant’s apartment, heard shuffling noises indicating the presence of multiple persons, had information that defendant was a drug and weapons dealer suspected of numerous murders, saw a marijuana stem in plain view, and observed defendant’s brother behaving nervously).

Defendant’s stop was without reasonable suspicion. The officer claimed that a cracked taillight with tape on it violated state law, but it did not. This was a mistake of law not fact, and suppression was warranted. United States v. Rosvall, 651 F. Supp. 2d 1274 (D. Utah 2009):

The U.S. Court of Appeals for the Third Circuit considered such a situation in Delfin-Colina, 464 F.3d at 398. In that case, a Pennsylvania state trooper had stopped the defendant after noticing a necklace or pendant hanging from the rearview mirror of the truck. The trooper later testified that he believed that having “anything” hanging from the rearview mirror violated Pennsylvania law. Id. at 395. But the trooper was wrong. As the court recognized after reviewing the relevant statute, an object hanging from the rearview mirror violated Pennsylvania law only if it was “positioned in such a way as to materially obstruct, obscure or impair the driver’s vision through the front windshield.” Id. at 395 (quotation omitted). In concluding that the district court did not err in denying the motion to suppress, the Third Circuit explained that a “mistake of law is only unreasonable when the officer does not offer facts that objectively show that the identified law was actually broken.” Id. at 399. And because the Pennsylvania trooper had testified that the hanging item was long enough to touch the dashboard and not stationary, more than likely obscuring the driver’s vision, the trooper met his burden. Therefore, the court concluded that the trooper’s mistake of law was not per se unreasonable.

Such is not the case here. Officer Gray failed to provide specific, articulable facts that the condition of the Explorer’s taillight was actually in violation of Utah law. Accordingly, the court concludes that the stop was unreasonable. Cf. Tibbetts, 396 F.3d at 1138 (“[L]egal justification must be objectively grounded.” (quotation omitted)); Commonwealth v. Felty, 443 Pa. Super. 559, 662 A.2d 1102, 1103 (Pa. Super. Ct. 1995) (concluding that “the facts, as found by the suppression court, do not support the conclusion that the police possessed reasonable and articulable grounds to stop [the defendant’s] car”)

Because the government failed to satisfy its burden and demonstrate that the stop was lawful, Mr. Rosvall’s motion is granted.

Defendant at trial denied any knowledge of a weapon found in a crawlspace and disavowed it. Therefore, no privacy interest of his was involved, even under Washington’s automatic standing rule. In re Pers. Restraint of Davis, 211 P.3d 1055 (July 21, 2009).*

A named Title III interceptee has standing. If someone claims his voice was captured in a wiretap of another, he needs to file an affidavit to that effect to have standing. United States v. Rodriguez, 2009 U.S. Dist. LEXIS 74007 (S.D. N.Y. August 19, 2009).*

[posted 8/24]

The NYPD policy that officers who discharge their firearms resulting in death or injury must be subjected to a breath test is constitutional. Lynch v. City of New York, 589 F.3d 94 (2d Cir. 2009):

We hold as follows: (1) the District Court did not make a “clearly erroneous assessment of the evidence” when it found that the primary purpose of the breathalyzer policy was not the NYPD’s “general interest in crime control” and thus fell under the “special needs” doctrine of our Fourth Amendment jurisprudence; (2) the fact that crime control was one purpose–but not the primary purpose–of the breathalyzer policy does not bar the application of the “special needs” doctrine to the breathalyzer policy; and (3) based on the record at this stage of the proceedings, the breathalyzer policy is reasonable under the three-factor balancing test of the “special needs” doctrine. We conclude, therefore, that the District Court’s denial of plaintiffs’ motion for a preliminary injunction was not an abuse of discretion.

. . .

Finally, we recognize that the NYPD’s reputation in the eyes of the public is directly tied to its effectiveness as a police force. See, e.g., Pappas v. Giuliani, 290 F.3d 143, 149 (2d Cir. 2002) (explaining that negative “public perception … [can] harm the mission of the Police Department”); see also Lidster, 540 U.S. at 425 (noting that information volunteered by the public plays a “vital role in police investigatory work”). Thus, to the extent that the breathalyzer policy improves the NYPD’s public reputation, it furthers an important governmental interest.

In light of each of these factors, we conclude that “‘the special need[s]'” asserted by the NYPD outweigh the “‘privacy interest advanced'” by plaintiffs. Amerson, 483 F.3d at 83 (quoting Cassidy, 471 F.3d at 75). Accordingly, we hold that, on the record before us, plaintiffs have not demonstrated a “likelihood of success on the merits,” Plaza Health, 878 F.2d at 580, because the breathalyzer program is reasonable under the Fourth Amendment, based on this record. As a result, the District Court did not abuse its discretion in denying plaintiffs’ motion for a preliminary injunction.

In a case involving the arrest of persons actually innocent, the police failure to include every known fact in an arrest affidavit did not show that they made a misstatement that misled the magistrate. Also, a prosecutor reviewed the papers before filing. Ewing v. City of Stockton, 588 F.3d 1218 (9th Cir. 2009)*:

The Ewings contend that the officers omitted other information casting doubt on Shirk’s identification of Heather. But “[t]he government need not include all of the information in its possession to obtain a search warrant …. The omission of facts rises to the level of misrepresentation only if the omitted facts ‘cast doubt on the existence of probable cause.'” United States v. Johns, 948 F.2d 599, 606-07 (9th Cir. 1991) (quoting United States v. Dennis, 625 F.2d 782, 791 (8th Cir. 1980)); see also United States v. Streich, 759 F.2d 579, 586 (7th Cir. 1985) (noting that Illinois v. Gates does not require officers to apprise a judicial officer of everything); United States v. Luciano, 785 F. Supp. 878, 881 (D. Mont. 1991) (“Certainly, an investigating officer cannot be expected to include the sum total of all of his investigation in the affidavit supporting a search warrant.”). None of the details appellants cite cast doubt on the existence of probable cause.

Jaywalking arrest, even as a minor misdemeanor, justified a search incident. State v. Spain, 2009 Ohio 6664, 2009 Ohio App. LEXIS 5570 (10th Dist. December 17, 2009).*

In a Ybarra-type bar raid, defendant, along with all the other patrons, consented to a search of his person even though there was no reasonable suspicion as to him. State v. Carpenter, 2009 Ohio 6614, 2009 Ohio App. LEXIS 5552 (9th Dist. December 16, 2009)* (Apparently they were all free to leave? I don’t see it.).

Officer’s testimony as to cause of stop was sufficient to find reasonable suspicion for the stop as a matter of law, and the trial court erred in granting the motion to suppress. State v. Gustafson, 2009 Iowa App. LEXIS 1650 (December 17, 2009).*

Evidence was in equipoise on the question of credibility of the witnesses for justification for defendant’s stop, and the trial court’s finding that the state failed to meet its burden of proof was affirmed. State v. Kollasch, 2009 Iowa App. LEXIS 1659 (December 17, 2009).*

Because defendant’s arrest was with probable cause, the motion to suppress evidence seized from him was properly denied. State v. Loving, 775 N.W.2d 872 (Minn. 2009).*

Defendant’s furtive movements justified telling him to get out of the car, and contraband was seen in plain view. State v. Rogers, 2009 Iowa App. LEXIS 1619 (December 17, 2009).*

In a complex mail and wire fraud and securities investigation, the search warrant for a large volume of records was not overbroad. It necessarily had to be to “follow the money.” United States v. Phillips, 588 F.3d 218 (4th Cir. 2009):

Indeed, especially in cases such as this one–involving complex crime schemes, with interwoven frauds — courts have routinely upheld the seizure of items described under a warrant’s broad and inclusive language. See, e.g., United States v. Jacob, 657 F.2d 49, 52 (4th Cir. 1981). For example, in Andresen v. Maryland, the Supreme Court upheld the seizure of an extensive array of documents under a warrant that authorized the seizure of items “together with other fruits, instrumentalities and evidence of crime at this [time] unknown.” 427 U.S. 463, 479, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976). This circuit has similarly allowed the seizure of a “broad range of things” on the basis of language permitting officers to seize “fruits, evidence and instrumentalities of false claims submissions” and items “including, but not limited to” business records. Srivastava, 540 F.3d at 280, 289. The warrant in the case at bar bears striking similarities to those upheld in the aforementioned precedent.

The rationale for these holdings is straightforward. In cases of this sort, investigators must “follow the money” to gradually unravel the lengthy paper trail left by a defendant’s illegal operations. See Srivastava, 540 F.3d at 291-92. As the Supreme Court explained, complex fraud cases often require investigators to assemble a “jigsaw puzzle” by piecing together “many bits of evidence” that, “taken singly, would show comparatively little.” Andresen, 427 U.S. at 480-81, n. 10. For “in the context of a fraud investigation, the relevant evidence will in many instances be fragmentary, discovered in bits and pieces, and thus difficult to either identify or secure. Standing alone, a particular document may appear innocuous or entirely innocent, and yet be an important piece of the jigsaw puzzle that investigators must assemble.” Srivastava, 540 F.3d at 291. In choosing to uphold contested seizures pursuant to inclusive language, courts have insisted that the “complexity of an illegal scheme may not be used as a shield to avoid detection.” Andresen, 427 U.S. at 480-81, n.10; see also Srivastava, 540 F.3d at 291.

We thus decline to allow Phillips to create a safe harbor from the complexity of his schemes. His crimes were multiple and intricate. Phillips perpetrated his crimes in-person, by U.S. mail, by telephone, and on the Internet. He lied about his name, income, and social security number; he used a fake driver’s license; he ran up costly bills with fraudulent credit cards that he never paid off; he funded a gambling habit with a stolen identity; and he wrote countless bad checks. To investigate and prosecute crimes of this nature, the government may need a diverse and extensive set of documents at its disposal. The language of the warrant anticipates that very possibility. The warrant thus sufficiently authorized the seizure of the contested evidence here, even if that evidence was not specifically listed and meticulously described.

Search of a stash house for hostages was on exigent circumstances, so police did not have to plan in advance to get a search warrant. [“Standing” was an issue, but it did not have to be decided.] United States v. Mancinas-Flores, 588 F.3d 677 (9th Cir. 2009):

In light of the principle that an ongoing hostage situation presents exigent circumstances, we find that the search of the stash house was reasonable. In the original phone call, the smugglers threatened to kill and rape the hostages if the ransom remained unpaid. The smugglers agreed to give family members until October 10th to pay the ransom before harming the hostages, but ICE did not locate the stash house until October 10th, and thus time was running out. Further, testimony at the hearing on the motion to suppress indicated that the officers’ conclusion that they did not have time to obtain a warrant once they pinpointed the location of the stash house was reasonable. Both an ICE agent and a SAU officer testified about instances in which they waited too long to enter a stash house, resulting in people being raped or killed.

Defendant argues that even if there were exigent circumstances, the government should have prepared in advance to obtain a warrant, and its failure to do so rendered the search unreasonable. He points out that between October 6, when ICE learned of the hostage situation, and October 10, when it located the stash house, ICE took no steps to prepare an application for a warrant or ensure that it could obtain a telephone warrant upon locating the stash house. However, under the circumstances presented, the government was not required to anticipate exigent circumstances and prepare in advance to obtain a warrant.

Officers had probable cause for defendant’s arrest based on observation of apparent delivery of drugs where he had five priors, too. United States v. Burnside, 588 F.3d 511 (7th Cir. 2009)*:

We think the police officers in this case were armed with more than a sufficient amount of information at the time of Burnside’s arrest to constitute probable cause. First, the officers were aware of Burnside’s five prior felony convictions for the manufacture or delivery of a controlled substance. Second, the officers knew that Burnside was currently on parole from Minnesota for a drug-related offense. Third, Officer Batterham received reliable information from two different informants who claimed that Burnside was a large-scale drug dealer; furthermore, the information supplied by one of the informants buttressed and was consistent with Officer Batterham’s knowledge of Burnside’s alias, Shorty Bank Roll. Fourth, officers observed Burnside participating in conduct consistent with drug trafficking. Fifth, after Burnside failed to use a turn signal and officers initiated the traffic stop, Burnside drove erratically, made a hurried call on his cell phone, and appeared to make a flight attempt.

The affidavit for the search warrant adequately showed facts connecting defendant’s premises to the drug dealing to support a search warrant for the house. He left the house to go directly to a drug deal. State v. Saine, 297 S.W.3d 199 (Tenn. 2009), revg in part State v. Saine, 2008 Tenn. Crim. App. LEXIS 289 (April 4, 2008):

The affidavit explained that the officers followed Mr. Saine directly from his residence to the prearranged location where recording and transmitting equipment enabled the officers to observe Mr. Saine selling cocaine to the informant. The officers then followed Mr. Saine directly back to his residence. From these facts, the magistrate could reasonably infer that the supply of drugs was located in Mr. Saine’s residence. See id. § 3.7(d) n.165 (citing state and federal cases with similar holdings from various jurisdictions); cf. Smith, 868 S.W.2d at 572 (finding that the affidavit established probable cause to search the defendant’s residence where the objects sought were of a type kept at one’s residence and the defendant admitted to returning directly home after being with the victims on the night of the murder).

This inference was further supported by Detective Roberts’s experience that drug dealers ordinarily keep their drugs, the proceeds of drug sales, and financial records related to their business in their residences. See United States v. Miggins, 302 F.3d 384, 393-94 (6th Cir. 2002) (citing a long line of cases); compare United States v. Kenny, 505 F.3d 458, 461-62 (6th Cir. 2007) (holding that the affidavit showed a nexus when the defendant was arrested for manufacturing methamphetamine at another location, which “is only a step away from dealing”), with United States v. McPhearson, 469 F.3d 518, 526 (6th Cir. 2006) (holding that the affidavit did not show a nexus when the defendant was arrested on his porch with cocaine in his pocket).

The smell of marijuana coming from defendant’s car was justification for its search. The trial court reached the right result but for the wrong reason. Perry v. Commonwealth, 55 Va. App. 122, 684 S.E.2d 227 (2009).*

An anonymous report of a weaving 18-wheeler is sufficient for inquiry. Here, the truck was already stopped when the officer parked in front of it. State v. Hanning, 296 S.W.3d 44 (Tenn. 2009):

We hold that in this case the anonymous tip reporting reckless driving indicated a sufficiently high risk of imminent injury or death to members of the public to warrant immediate intervention by law enforcement officials and justified the brief investigatory stop because the offense was reported at or near the time of its occurrence, and the report indicated that the caller was witnessing an ongoing offense; the report provided a detailed description of the truck, its direction of travel and location; and the investigating officer verified these details within moments of the dispatch reporting the tip.

Compare Virginia v. Harris posted here.

Analyzing in detail the law of probation and parole searches, which is well worth the read, the Tennessee Supreme Court reverses the court of criminal appeals, State v. Turner, 2008 Tenn. Crim. App. LEXIS 321 (April 29, 2008), posted here, and holds that a parole search requires no justification whatsoever. State v. Turner, 297 S.W.3d 155 (Tenn. 2009):

While we agree that these are appropriate factors to consider when reviewing whether a warrantless and suspicionless search of a parolee is unreasonable and therefore unconstitutional, we also recognize that a suspicionless search could be characterized as “arbitrary.” See Black’s Law Dictionary 112 (8th ed. 2004) (“1. Depending on individual discretion ….”). A search of this type is not necessarily unreasonable, however. Therefore, the totality of the circumstances surrounding a warrantless, suspicionless search of a parolee must be examined to determine whether the search is constitutionally unreasonable. For example, a pattern of repetitive searches while the parolee is at work or asleep would be unreasonable. Searches intended to cause the parolee some harm would be unreasonable. A search conducted out of personal animosity would be unreasonable. Indeed, there may be other situations where a warrantless, suspicionless search of a parolee is unreasonable. A suspicionless search of a parolee subject to a warrantless search condition, and which is conducted out of valid law enforcement concerns, is not unreasonable.

There is no reasonable expectation of privacy from a view from the front porch because it is part of the entrance way. It is not curtilage. Commonwealth v. Gibbs, 2009 PA Super 181, 981 A.2d 274 (2009):

[*P10] The issue of whether a front porch constitutes curtilage has not been addressed by the Pennsylvania Appellate Courts. Our sister states which have addressed the issue are divided. However, even those courts which have found that a front porch constitutes curtilage have generally found no Fourth Amendment violation where the porch in question was used by the general public. See, U.S. v. Titemore, 437 F.3d 251, 259 (2d Cir. 2006) (finding no reasonable expectation of privacy in deck attached to home where it constituted part of the principal entryway); Murphy v. Gardner, 413 F.Supp.2d 1156, 1167-68 (D.Colo. 2006) (unenclosed front porch which contained homeowner’s mailbox and newspaper rack did not constitute curtilage for Fourth Amendment purposes); Davis v. State, 907 N.E.2d 1043, 1049-50 (Ind.App. 2009) (noting that police entry onto private property does not violate the Fourth Amendment when the police have a legitimate investigatory purpose and limit their entry to places that visitors would be expected to go like porches, as the Fourth Amendment does not protect items or activities which are knowingly exposed to the public); State v. Brisban, 989 So.2d 923, 927-29 (La. 2002) (no Fourth Amendment violation where police, while standing on a front porch, observed defendant cutting crack cocaine; while front porch was curtilage, defendant had only a limited expectation of privacy because it could have been approached by anyone). Thus, we find that the record supports the suppression court’s conclusion that the officers viewed the contraband from a lawful vantage point.

Failure to dim headlines was a sufficient basis for a stop and a plain view of a baggie of cocaine. State v. Gist, 2009 Ohio 4791, 2009 Ohio App. LEXIS 4051 (2d Dist. September 11, 2009).*

Consent was inferred from defendant’s statement that the officer could look in his pocket for money in response to a question from the officer. Evidence at both trial and the suppression hearing may be considered in determining an appeal from denial of a suppression motion. Thomas v. State, 297 S.W.3d 458 (Tex. App.–Houston (14th Dist.) 2009).*

Even under the more expansive Washington Constitution, there is no privacy interest in the common area of a commercial storage facility. State v. Lakotiy, 151 Wn. App. 699, 214 P.3d 181 (2009).*

Defendant had been locked out of his room by hotel security, but he had not been evicted yet. He retained an expectation of privacy in his hotel room. The private search doctrine of Jacobsen is limited to pure contraband in the container, following the Sixth Circuit in United States v. Allen, 106 F.3d 695 (6th Cir. 1997). The government also failed in showing that inevitable discovery permitted admission of the gun found into evidence. United States v. Young, 573 F.3d 711 (9th Cir. 2009):

It is a crime to possess cocaine, and the package in Jacobsen contained “nothing but contraband.” 466 U.S. at 120 n.17. This case is distinguishable from Jacobsen because neither the hotel room nor the backpack contained only contraband. It is not a crime in most circumstances for a non-felon to possess a gun, and the hotel did not know at the time of its private search that Young was a felon. The hotel could not have been “virtually certain,” as the postal workers were in Jacobsen, that the gun was contraband, and the closed backpack supported a reasonable expectation of privacy. Stoner, 376 U.S. at 490; Nerber, 222 F.3d at 600; see also United States v. Ross, 456 U.S. 798, 822-23, 102 S. Ct. 2157, 72 L. Ed. 2d 572 & n.30-31 (1982). Until a hotel guest’s lease of the room expires or he checks out, the room is like a home. United States v. Jeffers, 342 U.S. 48, 51-52, 72 S. Ct. 93, 96 L. Ed. 59 (1951). A guest has a legitimate and significant privacy interest in the room’s contents, and does not lose his expectation of privacy against unlawful government intrusions into his closed briefcase or the contents of his computer hard drive when hotel staff sees the briefcase, laptop, or other belongings while cleaning the room or changing a light bulb. See id. Closed packages or containers, such as Young’s backpack, “are in the general class of effects in which the public at large has a legitimate expectation of privacy,” making warrantless searches of them “presumptively unreasonable.” Jacobsen, 466 U.S. at 114-15. Even in circumstances (none of which were present here) where government agents may lawfully seize a package to prevent loss or destruction of suspected contraband, “the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package.” Id.; Johnson v. United States, 333 U.S. 10, 14 n.14, 68 S. Ct. 367, 92 L. Ed. 436 (1948) (“Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.”).

During defendant’s traffic stop, routine questions led to him admitting that he was in possession of a shotgun. The questions were not unreasonable and were brief. United States v. Derverger, 337 Fed. Appx. 34 (2d Cir. 2009) (unpublished).*

Lengthy affidavit for search warrant in a multi-defendant conspiracy case failed to show probable cause as to this defendant, and it was so lacking that the good faith exception did not apply as to this defendant. United States v. Graska, 2009 U.S. Dist. LEXIS 112541 (E.D. Tenn. November 10, 2009):

There is nothing whatsoever to indicate that the first or second exceptions apply in this case. However, while this affidavit is not “bare bones” in the usual sense, it is detailed as to other persons and property, but not to the defendant or this property. The connection between the defendant and wrongdoing of any sort was not established by informants or by observations during investigation, but rather by facially innocent connections between the defendant and others for whom probable cause abounded. There is such a disparity between probable cause linking defendant to illegal activity that the Court cannot find that official belief in its existence to be reasonable. Accordingly, the Court finds that the good faith exception does not apply.

Since the existence of any connection between the defendant and the properties at 1806 and 1810 Roxella Street were only found during the illegal search, the subsequent consents and searches and items found thereby are the “fruit of the poisonous tree” and should likewise be suppressed.

Defendant who was a bailee of boxes did not have standing to challenge a search of the boxes. United States v. Morales, 2009 U.S. Dist. LEXIS 112613 (D. Kan. December 3, 2009).*

Defendant who was told that there was an arrest warrant for him who had a complete defense had standing to challenge the warrant. Ord v. District of Columbia, 587 F.3d 1136 (D.C. Cir. 2009).*

Police had probable cause for a search of the residence, but they determined not to get an anticipatory warrant and see what happened with a knock-and-talk to see if consent could be obtained, which it was. United States v. Jones, 647 F. Supp. 2d 1055 (W.D.Wis. 2009).* The court made this observation in n. 1:

Indeed, Officer Arnold testified that the police had mulled obtaining an anticipatory search warrant, but decided to wait and see what happened at the scene. Jones challenges this claim, but it’s a logical and efficient approach. Preparing a search warrant affidavit and jumping through the hoops to obtain a warrant is time-consuming and toilsome. That’s why police often gamble on obtaining consent at the scene before starting the warrant process. (It’s also why police push hard for consent, something that courts must scrutinize closely.) A corollary is that people who are asked to consent often agree because the alternative is to be locked out of their residence for a couple of hours before the search even begins. But choosing between two unpalatable choices does not render the decision involuntary. See United States v. Miller, 450 F.3d 270, 272-73 (7th Cir. 2006).

Search of defendant’s car was justified by the automobile exception and not limited by Gant. United States v. Williams, 2009 U.S. Dist. LEXIS 73997 (W.D. Ky. August 18, 2009).*

Plaintiff organizations lacked standing to challenge the FISA Amendments Act of 2008 because they were one step more removed than the plaintiffs without standing in ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007). Amnesty Int’l of the United States v. McConnell, 646 F. Supp. 2d 633 (S.D. N.Y. 2009).*

Ohio implied consent statute does not violate the Fourth or Fifth Amendment. State v. Hoover, 2009 Ohio 4993, 123 Ohio St.3d 418, 916 N.E.2d 1056 (2009):

[*P22] Hoover contends, however, that he has a constitutional right to revoke his implied consent and that being forced by threat of punishment to submit to a chemical test violates his rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution, which provide that persons, houses, and effects are protected against unreasonable search and seizure. However, Hoover has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication. See Cunningham, 15 Ohio St.2d 121, 44 O.O.2d 119, 239 N.E.2d 40, paragraph two of the syllabus; Schmerber, 384 U.S. at 770-771, 86 S.Ct. 1826, 16 L.Ed.2d 908. Asking a driver to comply with conduct he has no right to refuse and thereafter enhancing a later sentence upon conviction does not violate the constitution.

Traffic stop for leaving the vehicle’s engine running was valid. Defendant’s statement “No, I don’t. You can go ahead and check” was consent. State v. Freeman, 2009 Ohio 5226, 2009 Ohio App. LEXIS 4418 (8th Dist. October 1, 2009).*

Limewire software connection to the Internet showed no reasonable expectation of privacy. State v. Thornton, 2009 Ohio 5125, 2009 Ohio App. LEXIS 4332 (10th Dist. September 29, 2009):

[*P12] Appellant knowingly exposed to the public the files found on Perry’s computer and the IP address associated with that computer through the use of the Limewire program on the computer. Therefore, he had no reasonable expectation of privacy in that evidence. United States v. Ganoe (C.A.9, 2008), 538 F.3d 1117, 1127 (no legitimate expectation of privacy in files defendant made available to public using Limewire software); United States v. Borowy (D.Nev. 2008), 577 F.Supp.2d 1133, 1136 (same); United States v. Forrester (C.A.9, 2008), 512 F.3d 500, 510 (no reasonable expectation of privacy in IP address); United States v. Li (Mar. 20, 2008), S.D. Cal. No. 07 CR 2915 JM, 2008 U.S. Dist. LEXIS 22283, *15 (same). In that situation, Fourth Amendment protections are not implicated because a search does not occur. See Keith, citing State v. Sheppard (2001), 144 Ohio App.3d 135, 141, 759 N.E.2d 823.

. . .

[*P14] Assuming without deciding that appellant has standing to raise this argument, 3 federal courts addressing this matter have consistently held that the remedy for a violation of the ECPA is a civil action for damages, not suppression. 18 U.S.C. 2708; United States v. Perrine (C.A.10, 2008), 518 F.3d 1196, 1202; United States v. Beckett (S.D.Fla. 2008), 544 F.Supp.2d 1346,1350; United States v. Sherr (D. Md. 2005), 400 F.Supp.2d 843, 848; United States v. Kennedy (D.Kan. 2000), 81 F.Supp.2d 1103, 1110. Therefore, even if Time Warner’s disclosure violated the ECPA, 4 that statutory violation would not provide appellant with a basis to suppress the subscriber information. Moreover, a customer does not have a reasonable expectation of privacy in subscriber information given to an internet service provider. Perrine at 1204; Sherr at 848.

Where two people were in the car and the search incident as to one was a close case under Gant, it wasn’t as to the other defendant, so that person’s search incident supported finding the evidence as to both. United States v. Stone, 2009 U.S. Dist. LEXIS 69396 (W.D. Ky. August 7, 2009).

Defendant’s failure to controvert the police version of a search in his papers does not get him an evidentiary hearing. United States v. Kennedy, 2009 U.S. Dist. LEXIS 69665 (D. Conn. August 10, 2009)*:

“[A]n evidentiary hearing on a motion to suppress ordinarily is required if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact … are in question.” United States v. Watson, 404 F.3d 163, 167 (2d Cir. 2005). “To sufficiently raise an issue of fact, the defendant, in moving for a suppression hearing, must include an affidavit of someone alleging personal knowledge of the relevant fact, and that fact must put the issue of the legality of the warrantless stop into contention.” United States v. Marquez, 367 F. Supp. 2d 600, 603 (S.D.N.Y. 2005). In the present case, the defendant has not filed an affidavit or otherwise called into question the facts in the police reports and evidence cited by the Government. Therefore, no hearing is necessary, and the Court will proceed to consider the defendant’s legal arguments in support of his motion to suppress.

Call for a drug dog that arrived in five minutes in a stop that was already reasonably short was reasonable. United States v. Chrestman, 2009 U.S. Dist. LEXIS 69622 (E.D. Mo. July 23, 2009).*

Police search after a private search that did not expand the private search was valid. United States v. Pontefract, 2009 U.S. Dist. LEXIS 69596 (W.D. La. June 18, 2009), amended 2009 U.S. Dist. LEXIS 70047 (W.D. La. July 9, 2009).*

Kansas law requires reasonable suspicion for a parole search, and defendant’s nervousness was not enough. Defendant consented, however. United States v. Johnson, 649 F. Supp. 2d 1227 (D. Kan. 2009).*

The officer’s finding of a false compartment during a consent search was probable cause. Revocation of consent at that point was too late. Espinoza v. State, 2009 Ark. App. 636, 2009 Ark. App. LEXIS 800 (September 30, 2009).*

Defendant did not testify at the suppression hearing, and he failed to prove standing. People v Lacey, 66 A.D.3d 704, 887 N.Y.S.2d 158 (2d Dept. 2009).*

Police got an anonymous letter about drug activity at defendant’s house, so they went to do a knock-and-talk. When she opened the door, the officers could smell marijuana. She then consented to a search. State v. Prosen, 19 So. 3d 594 (La. App. 3d Cir. 2009).*

Defendant lived in a high crime area, and he was the subject of a tip. The officer saw the police and fled into his own place. The officer gave chase, but got to the door and could not get in. Finally, he did, and it was unreasonable. State v. Harris, 21 So. 3d 437 (La. App. 3d Cir. 2009)*:

Although we do not find flagrant misconduct by the police, the fact remains that we do not know enough about the initial tip to find it sufficiently reliable. We do not find Defendant’s flight from his own front yard to his own room to be particularly suspicious even though the yard and his room exist within a high crime area and the yard contained possible drug paraphernalia. We cannot determine, based on the record, whether Defendant willingly opened the door to his room. We cannot know if Defendant consented to be escorted from his room or the temporal proximity of this escort to the ultimate consent to search. From Deputy Henson’s testimony, it is clear that Defendant did not willingly give his wallet to the officer. There is also no testimony regarding whether Defendant was told he did not have to comply with the officer’s request to search his wallet.

We agree with the trial court that Deputy Henson obtained consent to search the Defendant’s wallet. However, considering the officers’ conduct, and the many unknown facts surrounding this incident, we must conclude that the State failed to meet its burden to prove not only that Defendant gave his consent, but also that the consent was free and voluntary.

Defendant’s car was blocked by an officer, and he asked the officer to let him leave, which the officer did not. Instead, he was ordered out of the vehicle, and that became a seizure. State v. Johnson, 2009 Ohio 5377, 2009 Ohio App. LEXIS 4532 (8th Dist. October 8, 2009)*:

[*P19] However, when Detective Rasberry ordered appellee out of the vehicle, the encounter could no longer be classified as one where an individual would feel free to disregard the officer’s commands or feel free to leave. Detective Rasberry ordered appellee out of the car and opened the door of the car appellant was in. These actions are not indicative of a consensual request. Appellee was seized before Detective Rasberry opened the car door. As such, this interaction must be classified as an investigatory stop.

Although in an unpublished opinion, the Eleventh Circuit discusses at length “arguable probable cause,” actual probable case, and the interplay of state court decisions in determining whether the Fourth Amendment claim was “clearly established.” Poulakis v. Rogers, 2009 U.S. App. LEXIS 17714 (11th Cir. August 10, 2009) (unpublished).*

Plaintiff permitted officers in the home without a warrant, and shortly revoked consent. The officer then sought to arrest the plaintiff for impeding the investigation, essentially by refusing consent. His lawsuit was permitted to proceed because of the primacy of protection of the home. This protection of the home made the arrest violate “clearly established law.” Manzanares v. Higdon, 575 F.3d 1135 (10th Cir. 2009):

Further, to the extent that Higdon’s argument can be read as seeking an exception to the Fourth Amendment’s strictures on seizures in the home, we decline his invitation. We will not lower the drawbridge to invite police into a home without a warrant or an established substitute therefor whenever officers “feel” that a resident might impede an ongoing investigation. Such an exception would stand the Fourth Amendment on its head. See Randolph, 547 U.S. at 109 (exceptions to the warrant requirement must be “jealously and carefully drawn” (quoting Jones, 357 U.S. at 499)).

We accordingly reject both of Higdon’s purported justifications for remaining in the Manzanares home. Given the absence of probable cause, Higdon was constitutionally compelled to leave the home when Manzanares withdrew consent. Thus, a reasonable jury was compelled to find that Manzanares’ constitutional rights were violated when Higdon remained in his home without a warrant or valid exception to the warrant requirement after consent was revoked.

Denying plaintiff Jehovah’s Witnesses access to a Puerto Rico urbanization, apparently a gated community, did not violate Fourth Amendment rights because there was no seizure. Watchtower Bible Tract Soc’y of N.Y., Inc. v. Sanchez-Ramos, 647 F. Supp. 2d 103 (D. P.R. 2009).*

The Illinois Court of Appeals holds that the exclusionary rule does not apply absent police misconduct. It applies this holding to a case where there was no “stop,” instead of simply finding there was no stop. Here, the defendant’s car was already stopped on the side of the road, and the officer turned on his blue lights for safety reasons, a rule already well established to not be a stop. People v. McDonough, 917 N.E.2d 590 (Ill. App. 2009):

Given that the Supreme Court began its discussion in Herring by accepting the concession of the parties that a fourth amendment violation had occurred in that case, we distill the Supreme Court’s holding as supportive of the point this court made in Garriott 16 years ago: absent police misconduct, the exclusionary rule does not apply. The reason why is simple: if the justification for the exclusionary rule is solely to deter police misconduct (as the Supreme Court reaffirmed in Herring), then the necessary condition precedent for the exclusionary rule’s application is police misconduct. Thus, absent police misconduct, the exclusionary rule does not apply because there is no misconduct to deter.

The trial court here deemed defendant to be “detained” solely as a result of the trooper’s activating the overhead emergency lights on his police car. The court concluded that the trooper’s doing so violated the fourth amendment because, when the trooper activated those overhead lights, he had no legitimate basis for the “detention” he thereby caused. Based upon Herring and Garriott, we disagree with this conclusion because the trooper’s activation of his overhead emergency lights did not constitute police misconduct, even if the trial court were correct that this action constituted a violation of the fourth amendment.

C. No Police Misconduct Occurred in This Case

The rule that absent police misconduct, the exclusionary rule does not apply is dispositive in this case because we conclude that no police misconduct occurred here. We further conclude that the trooper’s activating his emergency lights as he pulled behind a stopped vehicle on a busy four-lane highway not only did not constitute misconduct, it was the entirely prudent and appropriate thing for the trooper to do. Indeed, his failure to do so could very well be viewed as dangerous.

In this case, the trial court granted defendant’s motion to suppress because it found that the trooper had seized defendant in violation of his fourth-amendment rights the moment the trooper activated his overhead emergency lights. By so finding, the court essentially declared that whenever a police officer approaches an already stopped vehicle and activates his overhead emergency lights in the absence of reasonable suspicion that criminal activity has or will occur, regardless of the other circumstances that may be present, the officer’s action is unlawful and should be deterred by employing the exclusionary rule.

We disagree with the trial court. Its finding places a police officer in the unreasonable position of compromising not only his safety, but also the safety of any occupants of the stopped vehicle. Further, other motorists using the highway may be put at risk because of a police car parked on the highway shoulder without its emergency lights activated to warn of its presence.

. . .

In any event, we deem nothing of the trooper’s activities remotely close to the police misconduct the Supreme Court discussed in Herring that would trigger suppression. For instance, nothing about the trooper’s activation of his emergency lights represents “the flagrancy of police misconduct” that constitutes an important step in the calculus of applying the exclusionary rule. Herring, 555 U.S. at , 172 L. Ed. 2d at 506, 129 S. Ct. at 701. Nor do the trooper’s actions constitute “systemic error or reckless disregard of constitutional requirements” (Herring, 555 U.S. at , 172 L. Ed. 2d at 509, 129 S. Ct. at 704), or the “culpability of the police,” thereby suggesting “the potential of exclusion to deter wrongful police conduct” (Herring, 555 U.S. at , 172 L. Ed. 2d at 502, 129 S. Ct. at 698). In sum, the trooper did nothing improper in this case. Because no police misconduct is present, the exclusionary rule does not apply.

This case is an example of Fourth Amendment bias–the court does not like the Fourth Amendment, so it goes way beyond the requirements of the case to uphold the action of the police. The court could not just state there was no “stop” because that does not fit into its bias. Instead, it went for the exclusionary rule when that should not have even been the issue. This is Justice Frankfurter’s Rabinowitz caution in action; United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (dissenting opinion):

It is true also of journeys in the law that the place you reach depends on the direction you are taking. And so, where one comes out on a case depends on where one goes in. It makes all the difference in the world whether one approaches the Fourth Amendment as the Court approached it in Boyd v. United States, 116 U.S. 616 , in Weeks v. United States, 232 U.S. 383, in Silverthorne Lumber Co. v. United States, 251 U.S. 385 , in Gouled v. United States, 255 U.S. 298, or one approaches it as a provision dealing with a formality. It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution, or one thinks of it as merely a requirement for a piece of paper.

“[N]o court has engrafted an exigent circumstances requirement on the collective knowledge doctrine and to do so would make little sense.” United States v. McRae, 336 Fed. Appx. 301 (4th Cir. 2009) (unpublished).

Defendant who occasionally “crashed” in the basement of a friend’s place and disclaimed his connection to it lacked “standing.” United States v. Perry, 2009 U.S. Dist. LEXIS 56383 (M.D. Fla. July 6, 2009).*

In the ongoing Copar Pumice mine administrative search case, the court holds that there was consent to the entry and initial search and summary judgment was denied because of a fact dispute on whether the consent was exceeded. Copar Pumice Co. v. Morris, 2009 U.S. Dist. LEXIS 56840 (D. N.M. July 6, 2009).*

There is no Fourth Amendment claim against an employer using personnel files in a deposition when the employee sues. Roberts v. Mentzer, 2009 U.S. Dist. LEXIS 56358 (E.D. Pa. July 2, 2009).*

Discretion whether to tow and inventory does not make it unreasonable if it is justified. United States v. Gilbert, 2009 U.S. Dist. LEXIS 56826 (W.D. Pa. July 2, 2009):

While the officers who testified at the hearing all stated that they had no discretion in deciding whether to tow Defendant’s vehicle, assuming arguendo that the officers did in fact have such discretion, nothing in Opperman or Ilinois v. Lafayette, 462 U.S. 640, 103 S. Ct. 2605, 77 L. Ed. 2d 65 (1983), prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity. The record is completely void of any evidence to show that the police chose to tow Defendant’s vehicle in order to investigate suspected criminal activity.

Whether a resident under Payton or a guest under Olson, the arrest in this case was with a warrant and the entry was justified by the arrest warrant.

United States v. Kern, 336 Fed. Appx. 296 (4th Cir. 2009) (unpublished):

When a warrant has been issued authorizing the arrest of a suspect, law enforcement officers have “the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton, 445 U.S. at 603. Once an arrest has been made, officers are permitted to search “the arrestee’s person and the area within [the arrestee’s] immediate control.” Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969) (internal quotation marks omitted).

Whether Kern was a resident at the farm or an overnight guest is inconsequential to the resolution of this appeal because Kern was properly arrested pursuant to valid warrants and the firearms seized were in an area within his immediate control. If Kern was a resident, Payton permitted officers to enter the farm to effect his arrest. The same is true if Kern was an overnight guest as the privacy interest conveyed by this status, see Minnesota v. Olson, 495 U.S. 91, 98-99, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990), placed him within the confines of Payton. Nor may Kern complain that the entry onto the property to effect his arrest violated a third-party homeowner’s right to be free from an unreasonable search as “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978) (internal quotation marks and citations omitted). Thus, we conclude the district court did not err in denying the motion to suppress.