A request to “look” for anything illegal would be commonly understood to mean consent to do a “quick search.” State v. Brown, 294 S.W.3d 553 (Tenn. 2009):

In this case, as in Troxell, a reasonable person would have understood the request to “look” as seeking permission to conduct a search. The expressed area of the search was “in the vehicle.” The expressed object of the search was illegal drugs. “A reasonable person may be expected to know that [illegal drugs] are generally carried in some form of a container” and rarely strewn across the floor of a vehicle. Jimeno, 500 U.S. at 251. Trooper Hoppe expressly limited the duration of the search by asking if he could take a “quick” look. Applying a common-sense interpretation to the entire verbal exchange, a reasonable person would have understood that the consent to search included consent to conduct a quick search of the interior of the vehicle and to handle any containers that might hold illegal drugs. The record shows that Trooper Hoppe promptly conducted the search and almost immediately found the package on the floorboard of the vehicle. At that point, the search was well within the scope of consent.

The defendant was arrested and a search incident occurred. The court finds the search valid under prior law or Gant, so Gant‘s retroactivity does not have to be decided. State v. Brown, 2009 Tenn. Crim. App. LEXIS 857 (October 8, 2009). [Note: This case is a Gant fumble: Since the defendant was handcuffed and in custody, it looks like a search incident, but the case is wrong to talk about search incident. Instead, it may have been valid as a search under the automobile exception, but the opinion is not clear.]

Officer’s catch, search, and release of the defendant who was only formally arrested, two months later as a result of the search was an arrest by all accounts. The trial courts denial of the motion to suppress on the ground it was not an arrest was reversed. Belote v. State, 411 Md. 104, 981 A.2d 1247 (2009).

The officer had reasonable suspicion for the detention from the CI’s first hand accounts, and the information was not stale. A drug dog’s failure to alert does not undo reasonable suspicion. United States v. Hanson, 2010 U.S. Dist. LEXIS 26189 (N.D. Iowa March 19, 2010):

United States v. Lakoskey, 462 F.3d 965, 976-77 (8th Cir. 2006); see United States v. Ramirez, 342 F.3d 1210, 1213 (10th Cir. 2003) (“We will not require investigators to cease an otherwise reasonable investigation solely because a dog fails to alert, particularly when we have refused to require that a dog sniff test be conducted at all.”); United States v. Jodoin, 672 F.2d 232, 236 (1st Cir. 1982) (Breyer, J.) (holding that a “dog’s failure to react does not … destroy the ‘probable cause’ that would otherwise exist. It is just another element to be considered.”); United States v. Sullivan, 625 F.2d 9, 12 (4th Cir. 1980) (upholding detention when a “dog did not show a ‘full alert'” but “did show an interest in one blue bag”).

The search of the defendant’s premises for an AK-47 was reasonable. He was seen walking down the street with the gun and a brick in a high crime area, and he disappeared into a house. The officer followed him to the house, saw a bullet hole in the wall, and defendant came out weaponless and agitated. His story did not match what the officer observed. The officer went in the house and moved around a bedspread. United States v. Portee, 2010 U.S. Dist. LEXIS 26304 (N.D. Ind. March 20, 2010).*

Three apparent hand-to-hand drug transactions then entering and leaving a known drug house was reasonable suspicion. United States v. Fletcher, 2010 U.S. Dist. LEXIS 26230 (E.D. Pa. March 18, 2010).*

Defendant consented to look in his bedroom for proof of identity. It was not, however, limited to one place defendant suggested it might be. United States v. Mackey, 334 Fed. Appx. 32 (8th Cir. 2009)* (unpublished).

The District Court’s finding that defendant’s consent to search the cab and trailer of his tractor trailer was supported by the evidence. United States v. Norwood, 333 Fed. Appx. 97 (7th Cir. 2009)* (unpublished).

Under Groh, attachment does not have to be attached, as long as it is referred to. “[E]ven if the Defendant was presented the warrant without the attachments, some circuits have held that it is sufficient either for the warrant to incorporate the supporting document by reference or for the supporting document to be attached to the warrant itself. United States v. Silva, 2009 U.S. Dist. LEXIS 47873 (W.D. Tex. June 8, 2009).*

SCOTUS decides Virginia v. Moore: An arrest with probable cause but in violation of state law does not violate the Fourth Amendment. The decision was unanimous with Ginsburg concurring. Virginia v. Moore, 553 U.S. 164, 128 S. Ct. 1598, 170 L. Ed. 2d 559 (2008) (docket here; the list of briefs here). The syllabus:

Rather than issuing the summons required by Virginia law, police arrested respondent Moore for the misdemeanor of driving on a suspended license. A search incident to the arrest yielded crack cocaine, and Moore was tried on drug charges. The trial court declined to suppress the evidence on Fourth Amendment grounds. Moore was convicted. Ultimately, the Virginia Supreme Court reversed, reasoning that the search violated the Fourth Amendment because the arresting officers should have issued a citation under state law, and the Fourth Amendment does not permit search incident to citation.

Held: The police did not violate the Fourth Amendment when they made an arrest that was based on probable cause but prohibited by state law, or when they performed a search incident to the arrest. Pp. 3-13.

(a) Because the founding era’s statutes and common law do not support Moore’s view that the Fourth Amendment was intended to incorporate statutes, this is “not a case in which the claimant can point to a ‘clear answer [that] existed in 1791 and has been generally adhered to by the traditions of our society ever since,'” Atwater v. Lago Vista, 532 U.S. 318, 345. Pp. 3-5.

(b) Where history provides no conclusive answer, this Court has analyzed a search or seizure in light of traditional reasonableness standards “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.” Wyoming v. Houghton, 526 U.S. 295, 300. Applying that methodology, this Court has held that when an officer has probable cause to believe a person committed even a minor crime, the arrest is constitutionally reasonable. Atwater, supra, at 354. This Court’s decisions counsel against changing the calculus when a State chooses to protect privacy beyond the level required by the Fourth Amendment. See, e.g., Whren v. United States, 517 U.S. 35. United States v. Di Re, 332 U.S. 581, distinguished. Pp. 6-8.

(c) The Court adheres to this approach because an arrest based on probable cause serves interests that justify seizure. Arrest ensures that a suspect appears to answer charges and does not continue a crime, and it safeguards evidence and enables officers to conduct an in-custody investigation. A State’s choice of a more restrictive search-and-seizure policy does not render less restrictive ones unreasonable, and hence unconstitutional. While States are free to require their officers to engage in nuanced determinations of the need for arrest as a matter of their own law, the Fourth Amendment should reflect administrable bright-line rules. Incorporating state arrest rules into the Constitution would make Fourth Amendment protections as complex as the underlying state law, and variable from place to place and time to time. Pp. 8-11.

(d) The Court rejects Moore’s argument that even if the Constitution allowed his arrest, it did not allow the arresting officers to search him. Officers may perform searches incident to constitutionally permissible arrests in order to ensure their safety and safeguard evidence. United States v. Robinson, 414 U.S. 218. While officers issuing citations do not face the same danger, and thus do not have the same authority to search, Knowles v. Iowa, 525 U.S. 113, the officers arrested Moore, and therefore faced the risks that are “an adequate basis for treating all custodial arrests alike for purposes of search justification,” Robinson, supra, at 235. Pp. 11-13.

272 Va. 717, 636 S. E. 2d 395, reversed and remanded.

The prior post about the Virginia holding is here.

SCOTUSBlog’s post is here.

As for news, see NYTimes.com and WaPo.

Comment: As a matter of Fourth Amendment law, I have to admit that I agree. Where the Virginia court failed here was in not basing this decision on its state constitution. In a quick look in 2 Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims and Defenses Ch. 11 (4th ed. 2006), I did not find any cases holding that the Virginia Constitution would be read more broadly. (This was a cursory look.) But, many of the original thirteen states do so because their state constitutions pre-dated the Fourth Amendment or they value privacy more than the federal government. If Virginia means it, then it can do what many states do on remand from the Supreme Court: Find that their state constitution provides more protection because they disagree with the power given police under the Fourth Amendment. That regularly happens. Can Virginia do it here?

Officer saw defendant in what he “felt” was a high crime area, and defendant was carrying a styrofoam cup. Defendant was told to “come here” and he said he was “just drinking” and did not want to be hassled. The officer thus had reason to believe he was drinking in public, so the stop was valid. United States v. Jones, 584 F.3d 1083 (D.C. Cir. 2009):

It cannot be gainsaid that the Fourth Amendment protects, as Justice Brandeis’ oft-cited observation points out, “the right to be let alone,” Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting), in a party atmosphere or otherwise. See Terry, 392 U.S. at 8-9. Merely walking away, even quickly as appellant did, upon the arrival of the uniformed police officer would not provide articulable suspicion of criminal wrongdoing by appellant. Cf. Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000). The officer did not testify he thought appellant was fleeing from the police, only that his pace of movement, in contrast with others in the group, was what caused the officer to notice him. Merely holding a styrofoam cup, covered or uncovered, would not tip the balance, even when the same person was also holding a paper bag under his arm. Cf. United States v. Powell, 483 F.3d 836, 838 (D.C. Cir. 2007).

However, before appellant was seized by the police, he voluntarily stated to a uniformed officer who had just exited his car, “I ain’t doing nothing. I’m just drinking.” In response, as the officer approached he ordered appellant to “Come here,” i.e., “to reverse his line of travel, [and] stop his exit from the scene,” Appellant’s Br. 14. The parties agree, as counsel for the government acknowledged during oral argument, that at this point appellant was seized for purposes of the Fourth Amendment. Terry, 392 U.S. at 16. Appellant’s voluntary statement tipped the balance from providing a mere hunch to articulable suspicion of possible ongoing criminal wrongdoing. With appellant’s statement the officer had a reasonable suspicion supported by articulable facts to make a Terry stop in order to investigate whether or not appellant was violating D.C. Code § 25-1001. Even though appellant may have intended to avoid any police interaction by asserting he was not violating the law, his statement was in the present tense about an activity that is criminal in certain circumstances. And it was late on Saturday night and people were gathered outside in a “party” atmosphere. The crowd was moving away from the police, and one of the partying persons had acknowledged while on the street and moving away quickly that he was drinking. That person also had the means to do so: a styrofoam cup in his hand into which to pour the contents of the brown bag under his arm.

It takes little imagination to suspect that there might be alcohol in the styrofoam cup or the brown paper bag that appellant was holding. But it also is possible that appellant was merely drinking fruit juice or some other non-alcoholic beverage, or that the cup was empty and the bag contained closed containers or non-alcoholic items. So the officer pursued the minimal investigative step by approaching appellant and ordering him to “Come here” in order to determine whether or not appellant was drinking or possessing an open container of alcohol, and if so to place him under arrest for violation of D.C. Code § 25-1001.

Gant is retroactive, and a good faith exception is inappropriate, with separate analysis of the Fourth Amendment and state constitution. State v. McCormick, 152 Wn. App. 536, 216 P.3d 475 (2009). Retroactivity:

¶9 The Supreme Court has firmly established that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). Likewise, in Johnson, the Court decried the “actual inequity that results” when similarly situated defendants receive different treatment after a change in the law. United States v. Johnson, 457 U.S. 537, 556 n.16, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982) (emphasis omitted); see State v. Counts, 99 Wn.2d 54, 57, 659 P.2d 1087 (1983) (applying Johnson and adopting retroactivity in “all cases still pending on direct appeal at the time of the new decision”).

¶10 In Millan, we held that because Millan did not move to suppress at trial, he waived his Gant issue on appeal under RAP 2.5(a). State v. Millan, ___ Wn. App. ___, 212 P.3d 603, 607 (2009). But the reasoning in Millan is contrary to established law. Griffith, 479 U.S. at 328; Johnson, 457 U.S. at 556 n.16; Counts, 99 Wn.2d at 57-58. McCormick does not prevail on appeal because she moved to suppress at trial, but because justice demands that similarly situated defendants whose appeals are pending direct review deserve like treatment following a change in the law. Johnson, 457 U.S. at 556 n.16. We agree with the basic fairness represented by the Supreme Court’s holding in Griffith and Johnson and follow our Supreme Court’s recognition of these holdings in Counts. Griffith, 479 U.S. at 328; Johnson, 457 U.S. at 556 n.16; Counts, 99 Wn.2d at 57-58. We therefore reject Millan’s reasoning and hold that under both RAP 2.5(a) and controlling precedent, McCormick has preserved the matter for appeal because the Supreme Court’s opinion in Gant applies retroactively to all similarly situated defendants in Washington.

Good faith:

¶19 The State acknowledges that under State v. White, 97 Wn.2d 92, 109-10, 640 P.2d 1061 (1982), Washington does not recognize the federal good faith exception. In Buford, a district court analyzed Gant and the federal good faith exception at length and held that the exception did not apply. United States v. Buford, 623 F. Supp. 2d 923, 927 (M.D. Tenn. 2009) (concluding that because Buford would not have mentioned the gun unless the officers had conducted an unconstitutional search, evidence of the gun should be suppressed as fruit of the poisonous tree); but see United States v. Grote, 2009 WL 2068023 at *3 (E.D. Wash. 2009) (denying a motion for reconsideration that application of the good faith exception was merely an alternative ruling that did not constitute clear error on its part).

¶20 And recently, in Gonzalez, the Ninth Circuit rejected the good faith exception to the exclusionary rule in favor of the doctrine of retroactivity when faced with an argument nearly identical to the State’s position in this appeal. United States v. Gonzalez, ___ F.3d ___, 2009 WL 2581738 (9th Cir. 2009). The court reasoned that to apply the good faith exception would “‘violate[] the principle of treating similarly situated defendants the same’ by allowing only one defendant to be the beneficiary of a newly announced rule.” Gonzalez, 2009 WL 2581738 *2 (quoting Griffith v. Kentucky, 479 U.S. at 322-23). The court ultimately concluded, “Because both Johnson and Griffith remain binding precedent, we cannot apply the good faith exception here without creating an untenable tension within existing Supreme Court law.” Gonzalez, 2009 WL 2581738 *2.

¶21 Ultimately, the State fails to provide us with a sound basis for avoiding the White precedent, which our Supreme Court recently reaffirmed as a rejection of DeFillippo and its progeny. See State v. Chenoweth, 160 Wn.2d 454, 472 n.14, 158 P.3d 595 (2007) (“no good faith exception for arrests made under unconstitutional statute) (rejecting … DeFillippo”) (citing White, 97 Wn.2d at 92)). We follow White, and decline to apply the federal good faith exception. 97 Wn.2d at 109-10.

Merely holding on to defendant’s driver’s license after the warrants check came back clean while the officer was asking questions did not per se transform the stop into an unlawful detention. Gaynor v. State, 18 So. 3d 1052 (Fla. App. 2 DCA 2008).*

Not calling certain witnesses at the suppression hearing would not have changed the outcome, so defense counsel could not be ineffective. Simmons v. State, 247 S.W.3d 86 (Mo. App. 2008).*

Defendant’s continued detention after the traffic stop was based on the officer believing that the defendant was a person potentially armed, and that made it reasonable. Therefore, defense counsel was not ineffective for not challenging it. State v. Jones, 2008 Ohio 968, 2008 Ohio App. LEXIS 849 (4th Dist. February 25, 2008).*

Defendant abandoned the house he was living in it. The proof showed he had no intention of returning. State v. McKinney, 2008 N.C. App. LEXIS 2271 (December 16, 2008).

It is not required under Franks for a CI who was already described as an admitted burglar and drug abuser to be described as under the influence at the time he gave the information. State v. McGrane, 2008 Iowa App. LEXIS 1247 (December 17, 2008).*

A person who borrows a car with consent of the owner has standing. Here, the state put on nothing to show no standing. [Isn’t the question of standing the defendant’s burden?] Brown v. State, 19 So. 3d 85 (Miss. App. 2008).

Keeping a driver’s license continued a stop, and the officer’s words and actions in opening the vehicle door communicated that the defendant had to comply. State v. Icard, 190 N.C. App. 76, 660 S.E.2d 142 (2008):

Moreover, even if the pickup truck could have pulled forward to exit the parking lot, Officer Moore maintained possession of Mr. Coleman’s license and registration for the duration of this encounter, essentially preventing him from leaving. Another officer arrived and parked his vehicle to the right of the truck, with his takedown lights shining on the passenger side. Combined with Officer Moore’s words and actions in opening the door to the pickup truck after Defendant had essentially refused to cooperate with his requests for information, we conclude that an objective evaluation of the totality of these circumstances “would have conveyed … to a reasonable person[,]” including one who was a passenger in the pickup truck, that “[s]he was being ordered to restrict [her] movement.” California v. Hodari, 499 U.S. 621, 628, 111 S. Ct. 1547, 113 L. Ed. 2d 690, 698 (1991). As such, the police in this instance “restrained the liberty of a citizen,” Bostick, 501 U.S. at 434, 115 L. Ed. 2d at 398, and the encounter was subject to the protections of the Fourth Amendment.

Record supported the conclusion that defendant consented to a strip search. State v. Neal, 2008 N.C. App. LEXIS 835 (May 6, 2008):

In the instant case, however, a reasonable person would have understood from the circumstances and exchanges between the officers and Defendant that the police intended to conduct a strip search of Defendant. See Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302. Officer Watkins informed Defendant that he needed to conduct a “better” search to determine what was in Defendant’s pants and that a female police officer was on her way. Defendant consented to a “more thorough” search. Officer Mauney asked Defendant if she understood what was going to happen; Defendant responded that she did. Defendant was “extremely cooperative” during the search and never indicated that her consent did not extend to a strip search. Being taken to a women’s restroom was another sign that the police intended to search inside of Defendant’s clothing.

Comment: This holding is, to me, completely indefensible and grants all deference to the police. This case shows mere acquiescence to a claim of authority. Does anyone know that they can object to a search under these circumstances, or are they just going along? The legal presumption is that every warrantless search is reasonable, and the proof here shows only that the defendant was “going along.” Merely “going along” is not consent.

Defendant was a passenger in a taxicab stopped for a traffic offense, and he did not have a seatbelt on. The officer asked for his ID and he was getting nervous. He was ordered out of the cab. The order to exit the cab was without sufficient justification under the circumstances, which are analyzed in great detail. Commonwealth v. Brown, 75 Mass. App. Ct. 528, 915 N.E.2d 252 (2009):

The dangers that police officers face in automobile stops like the one that occurred here should not be taken lightly. Nonetheless, the exit order issued to the defendant in this case was based on a hunch and a desire to “get some information from each party, separate them and talk with them and get some information from them.” “Although in hindsight [Trooper Cohen’s] hunch proved to be correct, we view the reasonableness of the search and seizure from the vantage preceding the discovery of the [firearm], and on that basis the actions of the police here exceeded constitutional grounds.” Commonwealth v. Hooker, 52 Mass. App. Ct. at 688. The order denying the motion to suppress is reversed.

Defendant left behind fake IDs and drugs in a hotel safe, and the hotel opened it. The police search that followed was unreasonable under the OR Constitution. State v. Stokke, 231 Ore. App. 387, 220 P.3d 59 (2009).*

Defendant’s arrest for murder was with probable cause, so his statements are not supressed. State v. Johnson, 2009 Tenn. Crim. App. LEXIS 870 (October 15, 2009).*

Officer could reasonably believe that the woman who shared a bedroom with the defendant could consent to a search of the room. State v. Graves, 2009 Tenn. Crim. App. LEXIS 876 (October 13, 2009).*

A knock-and-talk on a motel room in the early morning hours was unreasonable. The defendant consented to a fruitless search of the room and his car. Defendant’s girlfriend, under the covers naked, who did not speak English so a translator was procured, was “badgered” into further consent because she “didn’t want trouble,” and she produced drugs from under the covers. Hardin v. State, 18 So. 3d 1246 (Fla. 2d DCA 2009):

Despite the fruitless searches of the car and motel room, the deputies badgered Ms. Sierra, telling her that they knew she had drugs. They promised not to charge her if she cooperated. Ms. Sierra responded that she wanted no trouble. The deputies continued to badger her. Ms. Sierra relented and handed them a purse containing cocaine from under the sheets. The male deputies then left the room while Ms. Sierra dressed. In the parking lot, Mr. Hardin shouted that the drugs were his. He was arrested.

. . .

The deputies initiated the “knock and talk” encounter in the early morning hours. Although not dispositive, the lateness of the hour “add[s] to the intimidating circumstance[s]” faced by Mr. Hardin and his wife. See Kutzorik, 891 So. 2d at 648.

The number of deputies who descended on the motel room suggests that Ms. Sierra acquiesced to law enforcement authority. See Miller, 865 So. 2d at 588 (holding that the presence of three officers in uniform was a considerable show of authority sufficient to create the perception that a major criminal investigation was underway). In Kutzorik, the presence of three uniformed police officers in the defendant’s small trailer implied coercion. 891 So. 2d at 648. Here, Mr. Hardin’s motel room was not very big or spacious. See Royer v. State, 389 So. 2d 1007, 1018 (Fla. 3d DCA 1979) (holding that being in a small enclosed area confronted by two police officers presents an almost classic definition of imprisonment), aff’d, 460 U.S. 491 (1983).

When Ms. Sierra handed over the contraband, three deputies were in the room; Mr. Hardin remained outside with a K-9 officer. That two of the deputies in the room were men makes it even more likely that the naked Ms. Sierra was intimidated by the show of authority. See Malinski v. New York, 324 U.S. 401, 407 (1945) (holding that questioning defendant in a hotel room with only a blanket covering him was a tactic of humiliation and the subsequent consent invalid).

Defendant’s arguments about lack of PC for his arrest and search of his car are essentially hypertechnical arguments about what the officers did and did not do. Because PC is not defined by a “neat set of legal rules,” the officers did not have to credit defendant’s denial of involvement when questioned nor question him further before arresting him. United States v. Sain, 2009 U.S. Dist. LEXIS 93786 (W.D. Tenn. October 7, 2009).*

Defendant who occasionally stayed in his mother’s house, but not in the previous two weeks, had no reasonable expectation of privacy in the premises to contest a search. United States v. Alexander, 2009 U.S. Dist. LEXIS 91297 (W.D. La. September 16, 2009)*:

In this case, Alexander clearly did not reside at the home, nor was he a co-tenant or co-owner of the home. Alexander testified in his Affidavit that he was a frequent visitor at his mother’s home, that he often kept personal belongings at her home, and that he fairly frequently stayed overnight. Alexander cites Minnesota v. Olson, supra, in support of the proposition that “staying overnight in another’s home is a longstanding social custom that serves functions recognized as valuable by society.” However, Olson is distinguishable because, in that case, the defendant had spent the night previous to his arrest in the house which was the subject of the search at issue. In the instant case, there is no evidence in the record that Alexander had spent the night at the subject premises in over two weeks prior to the search, much less on the evening just before the search.

Additionally, Alexander cites Rose v. United States, 629 A.2d 526 (D.C. 1993) for the proposition that the close kinship of the defendant and the owner of the searched premises is relevant in determining standing, even without an overnight stay. The facts in Rose are likewise distinguishable. Alexander has failed to offer any evidence that he had a key to the home or that he had unencumbered access to the home. See also United States v. Haydel, 649 F.2d 1152 (5th Cir. 1981). Further, Alexander failed to offer evidence that he had the ability to exclude others from the home when he wanted privacy.

Officers came up to defendant’s parked car and asked the driver and the passenger simultaneously for their identification. No matter how nice the officers were, it was still a stop. Defendant gave a false name in response to an unlawful stop because there was no reason to stop the defendant’s car. State v. Anderson, 231 Ore. App. 198, 217 P.3d 1133 (2009) (en banc).*

Defendant has no constitutionally recognized privacy interest in an emergency room room where he was being cared for after an accident where he was DUII under State v. Cromb, 220 Ore. App. 315, 185 P.3d 1120, rev den, 345 Ore. 381, 195 P.3d 911 (2008), decided after this case was submitted. His consent to a BAC test was not voluntary. State v. Machuca, 231 Ore. App. 232, 218 P.3d 145 (2009) (en banc)*:

Thus, in light of Newton and the other factors discussed above (the facts that defendant had just been arrested, had been injured in a car accident, and was under the influence of intoxicants), defendant’s consent was not voluntary for the purposes of Article I, section 9. The trial court erred in denying defendant’s motion to suppress on the basis that defendant voluntarily consented to the blood test.

Police approached defendant who was standing on his porch to arrest him, and said “Police,” and he turned and ran inside. Inside, they could hear things being tossed. This was exigency for an entry in hot pursuit and led to a plain view. United States v. Hayes, 334 Fed. Appx. 222 (11th Cir. 2009) (unpublished).*

Defendant fled from his truck and that was an abandonment of the truck. He was not seized when he fled. United States v. Quintana-Grijalva, 332 Fed. Appx. 487 (10th Cir. 2009) (unpublished).*

The officer had reason to get the defendant out of a car considering it was stopped in a high crime area and the furtive movements in the car. United States v. King, 2009 U.S. App. LEXIS 12937 (7th Cir. June 16, 2009) (unpublished).*

When the officer approached the defendant, he developed PC to believe that the defendant was violating a “barment” order and was a trespasser who could be arrested. That led to RS of an open container violation. When questioning the defendant, his story was implausible, and that was further RS. United States v. Johnston, 2009 U.S. Dist. LEXIS 50402 (W.D. Va. June 3, 2009).*

Once the officer had reasonable suspicion for further detention, it was not unreasonable to have the defendant drive eight more miles on down the highway, the direction defendant was going, to where a drug dog was located to have a dog sniff. It was significant it was a state DOT parking lot and not a police station, and, on the totality, it was not an arrest. United States v. White, 584 F.3d 935 (10th Cir. 2009):

Defendants rely on United States v. Arango, 912 F.2d 441 (10th Cir. 1990), to argue that their investigative detention became an arrest when Trooper Dean directed them to the KDOT office. Arango, however, is distinguishable. In that case, a Utah highway patrol trooper stopped a truck for speeding. See 912 F.2d at 443. During the stop, the trooper became suspicious because, among other reasons, it appeared that the truck’s bed had been modified or altered. See id. The trooper never returned the driver’s license and the truck’s registration. See id. Instead, as a pretext for continuing to search the truck, the trooper “told Arango that he had to follow [the trooper] seven miles to the sheriff’s office in Richfield to post bail for the traffic citation.” Id. Arango, with a state patrol vehicle both in front and behind him, drove to the sheriff’s office. See id. Under those circumstances, this court held that “[o]nce the police told Arango to come with them to the sheriff’s office, the line between [investigative] detention and de facto arrest was crossed.” Id. at 447. Because the court concluded that the officer had probable cause to arrest Arango at that point, however, the court did not delve further into the factual intricacies that transformed that situation from an investigative detention into an arrest. See id.

There are at least three significant reasons why the case at issue here is distinguishable from Arango, as well as the cases on which Arango relies. First, here, Trooper Dean did not retain White’s paperwork. While this may seem like a minor detail, it bolsters the conclusion that White would be free to go on his way after the canine investigation, if the dog sniff dispelled the officer’s reasonable suspicions. Second, Dean saw the trip to the Alma KDOT as a means to expedite the drug dog sniff — and explained that to White.

Third, Dean asked White to go to a KDOT parking lot, and not a police station. While there are admittedly no bright lines in this area of jurisprudence, courts have reiterated that transporting a suspect to a police station weighs heavily in the reasonableness analysis. See Kaupp v. Texas, 538 U.S. 626, 630, 123 S. Ct. 1843, 155 L. Ed. 2d 814 (2003) (per curiam) (noting Supreme Court has “never sustained against Fourth Amendment challenge the involuntary removal of a suspect from his home to a police station and his detention there for investigative purposes absent probable cause or judicial authorization”) (quotation, alterations omitted); Shareef, 100 F.3d at 1508 (noting that “[t]ransportation of a defendant to the police station can not be justified absent probable cause to believe the defendant committed a crime”). For these reasons, we conclude Arango and the cases on which it relies do not control here.

“This case presents the novel issue of whether an individual can have a ‘reasonable expectation of privacy’ in a storage unit rented with a stolen identity.” He doesn’t. Using a stolen ID to rent the building was the crime of identity theft. United States v. Johnson, 584 F.3d 995 (10th Cir. 2009):

Even assuming that Johnson established that he had a subjective expectation of privacy in the storage unit, we conclude that he did not show that his expectation of privacy was one that society would recognize as objectively reasonable.

2. No One Approach Can Accurately Distinguish Whether a Defendant Has a Reasonable Expectation of Privacy

There is no talismanic test to determine whether an expectation of privacy is one that society is prepared to accept as reasonable. See O’Connor v. Ortega, 480 U.S. 709, 715 (1987) (plurality) (“We have no talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable.”). Instead, as LaFave’s definitive treatise notes, the Supreme Court has appeared to utilize four distinct but coexisting approaches to the “reasonable expectation of privacy” test, reflecting “four models of Fourth Amendment protection: a probabilistic model, a private facts model, a positive law model, and a policy model.” 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.1(b), at n.82.1 (4th ed. 2004 & Supp. 2008-09) (quoting Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503, 503 (2007)). Thus, at times the Court has looked to positive law, such as property and contract law, to determine whether a defendant could establish a reasonable expectation of privacy. See Rakas, 439 U.S. at 143 n.12, 148 (“[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society”; passengers could not establish a reasonable expectation of privacy because they “asserted neither a property nor a possessory interest in the automobile [searched] nor an interest in the property seized”); see also United States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir. 2001) (“[W]ithout a possessory or property interest in the vehicle searched, passengers lack standing to challenge vehicle searches.”) (internal quotation omitted); Kerr, supra, at 516-19. Other times the Court has considered whether government conduct interfered with social customs and norms and “the everyday expectations of privacy” that a reasonable person would expect to remain hidden. See Minnesota v. Olson, 495 U.S. 91, 98 (1990) (overnight social guest had reasonable expectation of privacy in host’s home; social customs and norms made it reasonable to expect that guest could object to government’s presence at the home); see also United States v. Rhiger, 315 F.3d 1283, 1286-87 (10th Cir. 2003) (social guests have legitimate expectation of privacy in the host’s home); Kerr, supra, at 508-12.

Ultimately, however, Professor Orin Kerr suggests that the first three models are primarily components to be considered in applying the ultimate fourth test. Kerr, supra, at 506. Indeed, seemingly since the advent of the reasonable expectation of privacy test in Katz5 scholars have emphasized that the “‘ultimate question’” of whether a privacy expectation is reasonable “‘is a value judgment.’” 1 LaFave, supra, § 2.1(d), at 443 (quoting Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 403 (1974)). “‘It is whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society.’” Id. (quoting Amsterdam, supra, at 403); see also Sherry F. Colb, What Is a Search? Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy, 55 Stan. L. Rev. 119, 124 (2002) (arguing that the reasonable expectation of privacy test that determines which police activity is outside the scope of the Fourth Amendment forces the courts to engage in a normative inquiry reflecting social norms).

3. Johnson Did Not Have a Reasonable Expectation of Privacy in a Storage Unit that his Girlfriend Rented with a Stolen Identity

People generally have a reasonable expectation of privacy in a storage unit, because storage units are secure areas that “command a high degree of privacy.” United States v. Salinas-Cano, 959 F.2d 861, 864 (10th Cir. 1992) (“Common experience of life … [s]urely teaches all of us that the law’s enclosed spaces … are frequently the objects of [our] highest privacy expectations.” (quotation omitted)). And an individual can have a recognized privacy expectation in a storage space even when he or she is not the lessee of the unit. See, e.g., United States v. Johns, 851 F.2d 1131, 1135-36 (9th Cir. 1988) (owner of objects in storage unit on which he paid part of rent had a reasonable expectation of privacy in the unit, even though his name did not appear on the lease); United States v. Chaves, 169 F.3d 687, 690-91 (11th Cir. 1999) (defendant had standing to challenge search of warehouse he did not rent, where defendant possessed the only key to the warehouse and stored personal and business papers there); 6 LaFave, supra, § 11.3(f), at 221 (citing cases).

However, the record indicates that Johnson’s rental of the storage unit at issue here was not orthodox. Specifically, Johnson directed Christensen to enter into the rental agreement using Haroldsen’s stolen identity. For several reasons, this fraud convinces us that the reasonableness of any privacy expectations Johnson might have had were undermined by his and Christensen’s decision to use Haroldsen’s identity fraudulently to obtain the unit. [It was identify fraud.]

While some courts have found an expectation of privacy when an individual uses an alias or a pseudonym, see, e.g., United States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992) (“[I]ndividuals may assert a reasonable expectation of privacy in packages addressed to them under fictitious names.”), such a situation is distinguishable because it is not necessarily illegal to use a pseudonym to receive mail unless fraud or a stolen identification is involved. Here, however, stolen identification was clearly involved. And because of the potential harm to innocent third parties, there is a fundamental difference between merely using an alias to receive a package and using another’s identity. Indeed, courts have similarly found that a defendant does not have a reasonable expectation of privacy in the contents of property that he had fraudulently purchased using another’s financial information. (bracketed material added)

The Volokh Conspiracy post on the case, by Orin Kerr, here.

California looking at cell phone search incident

A news article from Oakland today says that a hearing is tomorrow in a cell phone search incident case. It also mentions that the California Supreme Court has the issue pending.

Librarians and your privacy

A librarian in the St. Louis area writes that he works to protect the Fourth Amendment rights of library users in their reading materials, despite the assault of the Patriot Act.

Defendant lacked standing to challenge the search of an apartment where he “pretty much lived” and stayed a lot, until he ended up in jail. He was gone from the premises at the time of the search in jail. (Consent issue not decided.) State v. Messenger, 2010 Ohio 479, 2010 Ohio App. LEXIS 399 (3d Dist. February 16, 2010)*:

[*P16] Based upon the totality of the circumstances, we cannot conclude that the trial court erred in finding that Messenger failed to establish standing to challenge the constitutionality of the search of Mabe’s residence. The facts of this case are analogous to those in Williams, supra. Like the defendant-appellant in Williams, the residence searched belongs to another person (Mabe’s mother); Messenger possibly had some personal items (one or two shirts) in the residence; and Messenger was staying somewhere else at the time of the search (jail). 73 Ohio St.3d at 166. Although there was evidence that Messenger was staying at Mabe’s residence almost daily a year or two ago, for several months prior to the search Messenger was in jail and not an overnight guest in the house. The fact that Messenger was not an overnight guest at the time of the search is an important factor to consider. Williams, 73 Ohio St.3d at 166 (“*** there was no evidence that appellant was an overnight guest in the apartment at the time the police executed the search warrant.”) (emphasis added); State v. Davis (1992), 80 Ohio App.3d 277, 285, 609 N.E.2d 174 (distinguishing the facts therein from Minnesota v. Olson, supra, on the basis that the defendant was not an overnight guest the evening of the search, nor even a week prior to the search.).

[Note: This is so wrong, I am just stunned by this court’s obtuseness. You go to jail so you lose any expectation of privacy in the place you stay? So, a person in jail has no reasonable expectation of privacy anywhere because the involuntary act of being jailed is a waiver? I don’t know of another court to have ever held that. How easy is that for the police to manipulate? The court should have decided the consent issue and not created this mess. Based on this holding, we know how the consent issue would come out, don’t we? One would hope that the Ohio Supreme Court would fix this, or maybe the court on rehearing. The cases the court cites don’t even apply, so the analysis becomes almost comical. You can get better work out of a first year law student than this court.]

Defense counsel was not ineffective for not filing a motion to suppress because it would not have prevailed. The defendant’s vehicle, after his arrest, was being left on a highway, and would be a road hazard, so it had to be moved. Inventory followed. State v. Pierce, 2010 Ohio 478, 2010 Ohio App. LEXIS 392 (3d Dist. February 16, 2010).*

Defendant had no standing in the trailer of another where she kept 19 dogs which were being groomed and stored there. She did not live there. She had only an arrangement to keep her dogs there. She may have had a subjective expectation of privacy there, but it is not one that society recognizes as significant. State v. Wallen, 2010 Ohio 480, 2010 Ohio App. LEXIS 394 (3d Dist. February 16, 2010).*

An Internet Service Provider (ISP) is not a government agent when it provides information about an Internet user’s child pornography that it discovers which it is required to disclose under federal law. People v. Eames, 3274/2009 (Supreme Court, New York Co. February 3, 2010):

AOL is a private entity required by federal law to notify NCMEC if it detects the use of its service in violation of federal law prohibiting the possession and/or transmission of child pornography. 18 U.S.C. 2258A (formerly 42 U.S.C.A. 13032). The federal statute does not require AOL, or any other internet provider, to monitor their subscribers’ transmissions or to search their content. It is only required to notify NCMEC if it detects such materials. United States v. Richardson, supra; United States v. Jarrett, supra; Jarrett v. Commonwealth, supra; Florida v. Woldridge, supra.

The burden is on the defendant to demonstrate that an individual or an entity is an agent of government. People v. Cardona, 41 NY2d 333; People v. Snickles, 206 AD2d 675, lv denied 84 NY2d 872. To meet that burden the defendant would be required to demonstrate, for example that the government knew of or directed AOL to monitor its users, or that AOL monitored its users for government purposes. See, United States v. Jarrett, supra; Jarrett v. Commonwealth, supra; Florida v. Woldridge, supra. The defendant’s mere assertion that AOL is an arm of law enforcement does not satisfy that burden.

The police came in a civil assist to help remove property from the premises. The person they were assisting had been in a halfway house for 100 days and had moved out prior to that. While he had no common authority because he had moved and he no longer even had a key, he was given permission to enter to get his stuff, and he had the police come with him. A plain view resulted in the defendant’s arrest. State v. Rice, 2010 Ohio 531, 2010 Ohio App. LEXIS 430 (5th Dist. February 16, 2010).*

Plain feel of a short straw in a jacket justified going into the pocket for the drug paraphernalia. State v. Broaddus, 2010 Ohio 490, 2010 Ohio App. LEXIS 408 (2d Dist. February 12, 2010).*

A citizen complaint of DUI led the officer to follow the defendant who then drove left of center, so the officer had reasonable suspicion for the stop. State v. Wright, 2010 Tenn. Crim. App. LEXIS 142 (February 18, 2010).*

Parole searches are a condition of parole, and the officers had reason to search his house after having surveilled him for four days seeing activity consistent with drug dealing. State v. Johnson, 2010 Tenn. Crim. App. LEXIS 143 (February 18, 2010).*

Consent was valid, and third party’s (co-defendant’s) assistance in the search helps show voluntariness. United States v. Carlson, 2010 U.S. Dist. LEXIS 15106 (D. Neb. January 21, 2010), R&R adopted, 2010 U.S. Dist. LEXIS 15105 (D. Neb. February 22, 2010);* companion case of the consenter: United States v. Wiese, 2010 U.S. Dist. LEXIS 15107 (D. Neb. January 21, 2010), R&R adopted, 2010 U.S. Dist. LEXIS 15109 (D. Neb. February 22, 2010).* [This is a proposition that I can’t agree with because the person may be trying to prevent needless rummaging or destruction of property. This is fact intensive, and the consenter should testify to this at the suppression hearing to at least seek to show that this “cooperation” was not really consent.]

Police entry onto open fields did not violate the Fourth Amendment. The property found was 500′ from the house and there even was a regularly used easement in between. United States v. Young, 2010 U.S. Dist. LEXIS 15103 (S.D. W.Va. February 22, 2010).*

Traffic stop was validly based on having GPS attached to windshield. United States v. Geary, 2010 U.S. Dist. LEXIS 15309 (D. Iowa February 22, 2010).* [Since all non-built-in GPS devices are sold with these brackets, police now have a new excuse to stop anyone.]