Defendant’s furtive gesture justified a protective search of defendant’s person during a traffic stop. The court went to great lengths to explain how defendant’s failure to respond to questions added to it. State v. Bridges, 2009 WI App 66, 319 Wis. 2d 217, 767 N.W.2d 593 (2009), review denied by
2009 WI 99, 2009 Wisc. LEXIS 328 (2009).*

Defendant’s gesture was consent. “The Court concludes that Ms. Reynolds’ gesture towards the headboard likewise constituted implied-in-fact consent on which Officer Harris reasonably relied when he searched for the guns.” United States v. Reynolds, 2009 U.S. Dist. LEXIS 36687 (D. Me. April 21, 2009).*

Juvenile’s stop was justified based on the fact he was obviously truant. Officer also had articulable suspicion that he and his cohorts were about to commit a burglary. In the Interest of J. T., 297 Ga. App. 636, 678 S.E.2d 111 (2009).*

Defendant’s stop was only “9 minutes old” when he consented to a search of the vehicle which was found valid. Stagg v. State, 297 Ga. App. 640, 678 S.E.2d 108 (2009).*

The spirit of Randolph does not require officers ask the defendant here for consent. Here, the officers bypassed the defendant and asked his girlfriend. State v. Johnson, 9 So. 3d 1084 (La. App. (5th Cir. 2009).*

A traffic stop that led to a nearly immediate drug dog sniff was not extended and the dog sniff was valid under Caballes. Padilla v. State, 180 Md. App. 210, 949 A.2d 68 (2008):

Therefore, under the Fourth Amendment, “[u]sing a dog is accepted as a perfectly legitimate utilization of a free investigative bonus as long as the traffic stop is still genuinely in progress.” State v. Ofori, 170 Md. App. 211, 235 (2006). But, “[o]nce a traffic stop is over, there is no waiting for the arrival, even the imminent arrival, of the K-9 unit.” Id. As Judge Moylan wrote for the Court, the use of a drug dog in a traffic stop is “an effective investigative tool if the police can squeeze it in before the buzzer sounds. …” Id. at 238.

Appellant does not dispute that there was reasonable suspicion to justify his initial traffic stop for speeding. Moreover, given that the dog alerted within twelve minutes of the inception of the traffic stop, at a point when Trooper Kennard had not yet received the results of the registration and license check, appellant does not contend that the traffic stop was impermissibly extended in order to conduct the scan. Nor does appellant dispute that the dog’s alert provided the trooper with probable cause to further detain appellant and to search the vehicle.

Following Maine and the Eighth Circuit, the Alabama Supreme court holds that an operating meth lab is exigent circumstances for dispensing with a search warrant. Williams v. State, 995 So. 2d 915 (Ala. Crim. App. May 30, 2008).*

Defendant was not seized. While the officer’s blue lights were on, the defendant got out of his car with his hands raised even though he was not asked out of the car. Doucette v. State, 10 So. 3d 117 (Ala. Crim. App. 2008), cert. denied 129 S. Ct. 2011, 173 L. Ed. 2d 1105, 2009 U.S. LEXIS 2891 (U.S., 2009).*

Police received a shots fired call and came to defendant’s property, and could ID him as the source. They thus had authority to conduct a protective sweep of the premises for possible victims, which defendant conceded at the hearing. United States v. Martinez, 2009 U.S. Dist. LEXIS 88407 (S.D. Tex. September 25, 2009).*

Defendant was stopped for a seat belt violation, and the smell of marijuana wafted from the car. The officer asked why he could smell marijuana, and the defendant handed him a joint. The officer asked if there was more in the car, and the defendant said that there was at his house, which he then consented to. United States v. Thomas, 2009 U.S. Dist. LEXIS 88618 (W.D. Tenn. July 20, 2009).*

Seizure of pornographic magazines in a sex assault case were proper and within the scope of the search warrant. Rasmussen v. State, 2009 Ark. App. 586, 2009 Ark. App. LEXIS 731 (September 16, 2009):

The affidavit stated that appellant likely possessed items used to arouse and entice children, including sexually-oriented photographs, videos, and magazines depicting adults and children. The covers of the magazines in question were replete with references to depictions of “young girls” and “teens,” bore photographs of nude girls or young women in suggestive poses, and were found in a location within the reasonable scope of the search for the items expressly specified in the affidavit. Considering the totality of the circumstances, we think that the pornographic magazines seized from appellant’s home were within the scope of the search authorized by the warrant. In any event, under Ark. R. Crim. P. 13.3(d), if the officer prosecuting the search discovers things not specified in the warrant that he reasonably believes to be subject to seizure, he may also take possession of things so discovered. George v. State, supra.

Officer who observed a convenience store patron apparently drunk could stop the motorist on reasonable suspicion of DUI when the patron left and drove off. State v. Hessel, 2009 Ohio 4935, 2009 Ohio App. LEXIS 4175 (12th Dist. September 21, 2009).*

Police had PC for defendant’s stop in his car. He had been under investigation for 8 months, they had 106 recorded conversations, and they knew he would have drugs in his car. People v. Stroud, 392 Ill. App. 3d 776, 911 N.E.2d 1152, 331 Ill. Dec. 922 (2009).*

While officers searched car on specific PC for a weapon and found it, officers were not required to end the search with that. Other evidence could have been found and was. United States v. Casteel, 638 F. Supp. 2d 1089 (S.D. Iowa 2009):

The Court finds that Agent White’s testimony undercuts any reasonable belief that the Bonneville contained either additional firearms or ammunition because his conclusions were based upon personal interactions with Defendants, which the Court finds far more credible than generic training and experience. The Court, nevertheless, finds that Agent Kessler had probable cause to search the Bonneville, even after finding the two weapons Tiran Casteel bought, because a fair probability existed that paperwork evidencing this crime or other crimes would be found in the car. Tiran Casteel solicited the sale of firearms over the internet, and the Court finds that it would be reasonable to expect Tiran Casteel to print off some of his internet communications, including any communications used to arrange the meeting with Agent White, or even a map containing driving directions, and bring them to the meeting, which would be evidence of the crime. Id. at 178. Likewise, the Government could also reasonably believe that the receipt book used to produce the receipt for Agent White would be located in the Bonneville. Id. at 98, 167. Since this paperwork could have been hidden in either the bag or the box containing the coins, Agent Kessler had probable cause to search these items. Therefore, the Court DENIES Defendants’ motion to suppress the evidence stemming from the search of the Bonneville because the Court can find no constitutional defect.

Every conceivable search issue was raised on direct appeal, but not the one on post-conviction. “His attorneys’ apparent refusal to raise these arguments on direct appeal, however, only signals to the Court the likelihood that the grounds now asserted were considered to be without merit at the time.” Burman v. United States, 2009 U.S. Dist. LEXIS 65277 (D. Md. July 29, 2009).*

Officers were entitled to qualified immunity in a SWAT team raid that led to them killing a man inside the house where he refused to get down, ran into a bedroom with officers in pursuit, picked up a shotgun and racked a shell into the chamber and was shot. He fell into a closet with the gun still in hand, and raised the gun again and was shot again. Whittier v. Kobayashi, 581 F.3d 1304 (11th Cir. 2009), Whittier v. Bruna, 2009 U.S. App. LEXIS 19473 (11th Cir. August 31, 2009) (unpublished):

Within the context of warrantless searches, we have held the mere presence of contraband, without more, does not give rise to exigent circumstances. United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991). At the same time, however, we have also repeatedly noted the dangerous, and often violent, combination of drugs and firearms, see, e.g., United States v. Hromada, 49 F.3d 685, 689 (11th Cir. 1995) (“Guns and violence go hand-in-hand with illegal drug operations.”), and several of our sister circuits have concluded this combination may give rise to reasonable suspicion of danger and justify a no-knock entry, see United States v. Stevens, 439 F.3d 983, 988-89 (8th Cir. 2006) (affirming a magistrate judge’s conclusion that a no-knock search was justified based upon the presence of drugs and a sawed-off shotgun in a common area of the house); United States v. Washington, 340 F.3d 222, 227 (5th Cir. 2003) (stating information that “the suspect was selling drugs and was typically armed … exceeds the level this circuit has found sufficient to establish a reasonable suspicion of danger”).

In this case, we conclude Bruna and Visners are entitled to qualified immunity because a reasonable officer could have had reasonable suspicion that knocking and announcing his presence would have been dangerous under the circumstances facing the SWAT team. Those circumstances included serving a search warrant on the home of a suspected drug dealer (Diotaiuto), who had ready access to firearms and occupied the premises when the SWAT team arrived to serve the warrant. Indeed, based upon the information available to the SWAT team, Diotaiuto (1) received and sold narcotics, including cocaine and marijuana, at his residence; (2) had a criminal history; (3) carried a concealed semi-automatic handgun on his person; and (4) possessed a shotgun that he kept in his bedroom. This information, which was contained in the SWAT team’s operational plan and received and reviewed by the members of the team, provided a “particularized and objective” basis for a reasonable officer to suspect the situation had a potential for violence and to believe exigent circumstances existed to justify a no-knock entry.

The fact that the operational plan called for a knock and announce prior to entry does not alter our analysis. Even assuming the operational plan, which was prepared prior to the service of the warrant, speaks for what Bruna and Visners actually believed as they stood “in the stack” outside the Whittier/Diotaiuto residence, the officers’ subjective beliefs regarding the circumstances are irrelevant to the qualified immunity inquiry. See Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S. Ct. 2727, 2737-38, 73 L. Ed. 2d 396 (1982) (discarding the subjective component of the qualified immunity inquiry and adopting the “objective reasonableness” standard); Jackson, 206 F.3d at 1165 (“[T]he standard for determining if an officer violated clearly established law is an objective one and does not include inquiry into the officer’s subjective intent or beliefs.”). Moreover, we have held an officer is entitled to qualified immunity even when he reasonably, but mistakenly, believes reasonable suspicion is present, see Brent, 247 F.3d at 1303; it makes little sense to not afford the same protection to an officer who, sensitive to the rights citizens enjoy under the Constitution, initially, but mistakenly, believes the situation involves a constitutional protection, but later learns it does not.

“Standing” is a close question, but, assuming defendant had it, the search was lawful as by consent, which defendant did not have to have an ability to limit because he was positioned so he could not see it happen. United States v. Jimenez-Valenia, 2009 U.S. Dist. LEXIS 37911 (D. Utah May 1, 2009):

[T]he Tenth Circuit would prefer courts “‘not use the term ‘standing’ as shorthand for a defendant’s capacity to challenge a search,'” the court does so here for clarity. United States v. Smith, 531 F.3d 1261, 1266 n. 2 (10th Cir. 2008) (quoting United States v. Higgins, 282 F.3d 1261, 1270 n.3 (10th Cir. 2002)). This is the term used by the United States, Mr. Jimenez-Valencia and a great deal of the relevant case law. E.g., United States v. Worthon, 520 F.3d 1173, 1177-78 (10th Cir. 2008).

“The lawfulness of the search and seizure is not determinative of Smith’s right to return of the property under Rule 41(g).” United States v. Smith, 329 Fed. Appx. 682 (8th Cir. 2009) (per curiam).*

Defendant had no reasonable expectation of privacy in the VINs on stolen vehicles on a trailer she was pulling. Defendant’s pat search on booking was reasonable. She had no reasonable expectation of privacy that the police would not fly over her property and photograph it. United States v. Bain, 2009 U.S. Dist. LEXIS 37935 (D. Neb. May 5, 2009).*

Even if defendant could reopen his suppression hearing and guilty plea after Gant was decided, this was not a search incident under Gant. It was a Terry patdown based on reasonable suspicion. United States v. Kieckbusch, 2009 U.S. Dist. LEXIS 37928 (E.D. Wis. May 4, 2009).*

When asked about the contents of the car, defendant said that the car was not his. This amounts to a waiver of standing. United States v. Dickerson, 2009 U.S. Dist. LEXIS 38195 (N.D. Ohio April 28, 2009).*

When asked about a locked box in a car, defendant said the box was not hers. This is a waiver of standing. United States v. Morgan, 2009 U.S. Dist. LEXIS 38611 (W.D. Va. April 30, 2009).*

Defense counsel was not ineffective for not filing a [completely] meritless motion to suppress a trash search at the curb. United States v. Myers, 2009 U.S. Dist. LEXIS 37963 (D. S.C. April 14, 2009).*

Under law at the time the SW was issued, the description “child pornography” without a reference to “lascivious”ness was fatal in the S.D.N.Y. as a lack of PC for the CP. However, the good faith exception applied and the search warrant would not be suppressed. United States v. Voustianiouk, 2009 U.S. Dist. LEXIS 67642 (S.D. N.Y. August 3, 2009).*

A Rule 41(g) motion does not require that the search be illegal. Here, the property was alleged by the government to be stolen property, so his motion is denied until ownership is resolved. United States v. Johnson, 2009 U.S. Dist. LEXIS 67233 (W.D. Ky. August 3, 2009):

Rule 41(g) states that “[a] person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return.” Fed. R. Crim. P. 41(g) (emphasis added). The lawfulness of the searches and seizures alone is not determinative of Defendant’s right to recover the property. United States v. Smith, Nos. 07-2732, 08-1993, 08-1994, 329 Fed. Appx. 682, 2009 WL 1175515, at *1 (8th Cir. 2009). Therefore, Rule 41(g) applies even where items were lawfully seized.

Defendant’s stop was valid, and ICE agents arrived almost immediately to investigate his immigration status, so defendant was not unreasonably detained. He validly consented after that. United States v. Dameshghi, 2009 U.S. Dist. LEXIS 66819 (D. Utah July 31, 2009).*

Massachusetts had already held that a search warrant was required for installation of a GPS tracking device on defendant’s minivan. Commonwealth v. Balicki, 436 Mass. 1, 8 (2002). It now holds that a warrant was required to track the vehicle after installation. Commonwealth v. Connolly, 454 Mass. 808, 913 N.E.2d 356 (2009):

We conclude that a warrant was required here because the initial installation of the particular device clearly constituted a seizure under art. 14. The installation required not only entry by the police into the minivan for an hour, but also operation of the vehicle’s electrical system, in order to attach the device to the vehicle’s power source and to verify that it was operating properly. Moreover, operation of the device required power from the defendant’s vehicle, an ongoing physical intrusion. See Karo, supra at 729 (Stevens, J., dissenting) (insertion of beeper in vehicle is physical invasion and seizure because it infringes on owner’s exclusionary right).

In addition, and apart from the installation of the GPS device, the police use of the defendant’s minivan to conduct GPS monitoring for their own purposes constituted a seizure. When an electronic surveillance device is installed in a motor vehicle, be it a beeper, radio transmitter, or GPS device, the government’s control and use of the defendant’s vehicle to track its movements interferes with the defendant’s interest in the vehicle notwithstanding that he maintains possession of it. The owner of property has a right to exclude it from “all the world,” see Karo, supra at 729 (Stevens, J., dissenting), and the police use “infringes that exclusionary right.” Id. The interference occurs regardless whether the device draws power from the vehicle and regardless whether the data is transmitted to a monitoring computer. It is a seizure not by virtue of the technology employed, but because the police use private property (the vehicle) to obtain information for their own purposes.

A repossessor of a car has apparent authority to consent to a search of the car he is repossessing. The question is not whether the repossession is legal; rather, it is whether it was reasonable for the officer to believe that it was. Also, defendant who denied ownership of car before search was held to have no standing to challenge it search. He was a mere passenger anyway. United States v. Alexander, 573 F.3d 465 (7th Cir. 2009):

Alexander argues that the officers’ reliance on Bowman’s consent was unreasonable because the repossession violated state law. Wisconsin law authorizes a merchant to repossess collateral provided that the merchant does not commit a breach of the peace. Wis. Stat. Ann. § 425.206(2)(a). According to Alexander, the statute prohibits repossession when resistance by the debtor or a third party merely threatens a breach of the peace. For authority he relies on Hollibush v. Ford Motor Credit Co., 179 Wis. 2d 799, 508 N.W.2d 449 (Wis. Ct. App. 1993). But Hollibush does not stand for the proposition that the mere fear of resistance by the debtor is a breach of the peace. Instead, Hollibush held that the creditor’s agent breached the peace by repossessing the debtor’s vehicle when the debtor or her fiance told the agent not to repossess the vehicle. Id. at 455. Similarly, the other case relied on by Alexander also involved repossession in the face of the debtor’s objection, which was found to be a breach of the peace. See First & Farmers Bank of Somerset, Inc. v. Henderson, 763 S.W.2d 137, 140 (Ky. Ct. App. 1988). Here, neither Fjelstad, Alexander, nor, for that matter, Richmond, objected to the repossession. Besides, the concern here is whether the officers could have reasonably believed that the repossessor had authority to give consent. Evaluation of the reasonableness of their belief in the context of the Fourth Amendment is not dependent on every nuance of Wisconsin repossession law. The facts known by these officers were sufficient to support a reasonable belief that Bowman had such authority.

One does not have a right to a Miranda warning before a taking of a DNA sample. State v. Baldwin, 290 S.W.3d 139 (Mo. App. 2009).*

No IAC for not pursuing a search and seizure claim where defendant lacked standing. In re Pers. Restraint in re Davis, 151 Wn. App. 331, 211 P.3d 1055 (2009).*

The record shows that defendant consented to the search of his bedroom and he voluntarily produced drugs and money. Commonwealth v. Gonzalez, 2009 PA Super 137, 979 A.2d 879 (2009).*

Defendant consented to a search of his car, and the officer patted down the defendant without any reasonable suspicion because it was his policy. The patdown was unreasonable and suppressed. Rodriguez v. State, 16 So. 3d 317 (Fla. App. 2DCA 2009).*

First patdown produced nothing, and there was no constitutional basis for a second. Ballenger v. State, 16 So. 3d 1022 (Fla. App. 2 DCA 2009):

Once the first pat-down was finished without producing any threat to the officer, the constitutional underpinning of a pat-down evaporated, and the deputy should have removed the handcuffs from Ms. Ballenger. “Courts have generally upheld the use of handcuffs in the context of a Terry stop where it was reasonably necessary to protect the officers’ safety or to thwart a suspect’s attempt to flee. … Absent other threatening circumstances, once the pat-down reveals the absence of weapons[,]” the use of handcuffs is improper. Reynolds v. State, 592 So. 2d 1082, 1084, 1085 (Fla. 1992). Once Ms. Ballenger had been searched for weapons, any suspicion that she posed a threat vanished. As in Reynolds, in this case “the suspect [] offered no resistance, [was] not particularly belligerent, and did not make any threats. Under these facts, the use of handcuffs after the pat-down was not reasonably justified under the circumstances.” Id. at 1086. The use of the handcuffs is not the sole basis for our reversal, although it is a factor under these circumstances.

Unlike the first pat-down, the second pat-down was constitutionally improper. In order to legally pat-down a detainee without consent or a warrant, “the officer must be able to articulate some basis which would support a reasonable belief that an individual is armed.” D.L.J. v. State, 932 So. 2d 1133, 1134 (Fla. 2d DCA 2006). When the second deputy patted down Ms. Ballenger, she had already been subjected to a pat-down revealing no weapons, and her hands remained cuffed behind her back. At the suppression hearing, the second officer offered no justification for the second pat-down, saying only that the first deputy requested it. Under these circumstances, there was no reasonable basis to believe that she was armed or posed a threat. Accordingly, the second pat-down was a violation of Ms. Ballenger’s Fourth Amendment rights, and the evidence it produced must be suppressed.

An officer approached a group in a housing project, and defendant refused to talk to him and “darted” into an apartment. The officer gave chase and defendant dropped drugs inside. The entry violated Payton. Byrd v. State, 16 So. 3d 1026 (Fla. App. 2 DCA 2009):

Here, the arresting officer described a consensual encounter with some men who he suspected might have been trespassing at a public housing complex. Byrd decided not to speak with the officer and left, as he was free to do. See Popple v. State, 626 So. 2d 185, 186 (Fla. 1993) (stating that in a consensual encounter, a citizen may either comply with a police officer’s requests or ignore them; the citizen is free to leave). The officer did not order Byrd to stop. He followed Byrd into the residence because he “didn’t know if he had a gun, or what the case may be.” He offered no facts to support this suspicion. He just thought that something wasn’t right.

The type of mere suspicion presented here would be insufficient to support even an investigatory stop. See id. It is clearly inadequate to establish the kind of “grave emergency” necessary to rebut the presumption that a warrantless entry into a residence is unreasonable. Indeed, in its order on the motion to suppress the circuit court correctly determined that the officer’s attempt to stop Byrd was not supported by a founded suspicion of criminal activity.

ICE’s knock and talk led to invalid consent, and the nature of the ICE officer’s testimony led the court to credit the defendant. The knock and talk occurred on a cold night at 9 pm and defendant told them to come back, but they did not want to leave. They also chose not to go across the street from their office and get a search warrant. Their testimony was vague and inconsistent, but the defendant’s was clear. “From all of the above, I conclude that the three ICE agents’ actions were the very anthesis of proper law enforcement practices and should not be condoned.” United States v. Freeman, 635 F. Supp. 2d 1205 (D. Ore. 2009):

For the reasons set forth below, I find Freeman’s account of the events that transpired on November 29, 2006, to be the most credible, and therefore rely on his testimony to resolve any disputes of fact and to make my findings in this case. For Freeman, what occurred that night was one traumatic event, which he described with detail, clarity, and consistency. In contrast, the three ICE agents–who each testified that in the course of his law enforcement career had conducted between fifty and one hundred “knock and talk” investigations–lacked detail and suffered from a number of inconsistencies in several important respects. I find that the three agents’ conflicting portrayals of what occurred that night at Freeman’s home lack credibility, and that the methods used to obtain information from Freeman are highly suspect.

The IRS agent’s affidavit for search warrant fairly presented probable cause to believe that plaintiff was involved in money laundering, so the defendants’ motion for summary judgment is granted on a Franks–Bivens claim. Thunder Island Amusements v. Ewald, 2009 U.S. Dist. LEXIS 55199 (N.D. N.Y. June 29, 2009).*

“It is somewhat unclear when the purpose of the traffic stop was complete in the instant case because no traffic citation was issued. The Court need not answer that question, however, as the Court finds that the officers had reasonable suspicion to detain the men for a Terry stop.” United States v. Hopewell, 2009 U.S. Dist. LEXIS 55272 (S.D. Ohio February 17, 2009).*

Defendant’s careless driving traffic stop was without probable cause, just because the driver was looking at the police and pulled off the freeway rather than be followed. Stokes v. State, 375 Ark. 394, 291 S.W.3d 155 (2009).*

Defendant’s custodial arrest for a traffic offense justified his search incident and search again on booking. People v. Taylor, 388 Ill. App. 3d 169, 327 Ill. Dec. 630, 902 N.E.2d 751 (2009).*

Officers lacked cause to stop the defendant who showed up at a loud party after the officers told them to quiet down, and they did. State v. Brown, 900 N.E.2d 820 (Ind. App. 2009).*

Conversation with the defendant which was within the normal time of a traffic stop was reasonable. McKnight v. State, 296 Ga. App. 38, 673 S.E.2d 573 (2009).*

There is no reasonable expectation of privacy in arrest warrants, which are public records. People v. Bailey, 232 Ill. 2d 285, 903 N.E.2d 409 (2009):

It has long been held that the existence of an arrest warrant is a matter of public record. Gist v. Macon County Sheriff’s Department, 284 Ill. App. 3d 367, 377 (1996). Recent decisions continue to adhere to this principle. See People v. Harris, 228 Ill. 2d 222, 233 (2008); People v. Roberson, 367 Ill. App. 3d 193, 201 (2006). By definition, a person cannot have a reasonable expectation of privacy in public matters. Because a warrant check does not implicate any area of privacy, it is not a search under sections 12-603.1(f) and 108-1(3), and it is not prohibited by those provisions. Accordingly, a motion to suppress filed on this ground would not have been successful.

Affidavit for search warrant was so lacking in probable cause that the officer could not rely on it, so the good faith exception did not apply. Here, the officer who executed the search warrant was the one who wrote the affidavit and applied for it. This arose in the context of an IAC claim. Ex parte Green, 15 So. 3d 489 (Ala. 2008), On remand at, Remanded by Green v. State, 2008 Ala. Crim. App. LEXIS 207 (Ala. Crim. App., Dec. 19, 2008):

The application of and rationale for the good-faith exception are particularly inappropriate where, as here, the officer is executing a search warrant that depends on his own affidavit. It is “‘disingenuous, after having gone to [a district judge] with the paltry showing seen here, to suggest, as the [State] suggests, that at bottom it was the [district judge] who made the error and the search and seizure are insulated because the officer’s reliance on that error was objectively reasonable.'” Ball v. State, 868 So. 2d 474, 475 (Ala. Crim. App. 2003) (Cobb, J., dissenting) (quoting United States v. Zimmerman, 277 F.3d 426, 438 (3d Cir. 2002)).

. . .

Given the glaringly defective affidavit, reasonably effective counsel would have challenged the search warrant and the admission of evidence obtained as a result of its execution. In failing to do so, Green’s trial counsel did not provide reasonably effective assistance. For these reasons, the judgment of the Court of Criminal Appeals is reversed, and the cause is remanded to that court for the entry of an appropriate order. (Emphasis in original)

The defendant had no reasonable expectation of privacy in the common areas of his mother’s apartment complex where he had an expectation of privacy in her apartment. “Contrary to Defendant’s contention, the presence of a locked entryway and a sign on the door stating ‘no visitors unless accompanied by a resident’ does not demand a different result.” United States v. Correa, 635 F. Supp. 2d 379 (D. N.J. 2009).*

Defendant charged with obtaining passport by a false statement in 2008 could not argue that his passport was unlawfully seized in 1998. Alleged unlawful seizure of the passport then was not relevant to the case now because the issue here was intent. United States v. Hack, 2009 U.S. Dist. LEXIS 30822 (C.D. Cal. March 27, 2009).*

District Court did not clearly err in finding that the defendant consented to the officer’s entry. United States v. Eastom, 2009 U.S. App. LEXIS 7761 (10th Cir. April 10, 2009) (unpublished).*

Defendant’s stop was with reasonable suspicion of a traffic offense, although it was a drug trafficking investigation. The CI told the police defendant hid drugs on his body, and defendant consented to a search of his sock which produced drugs. United States v. Borges, 2009 U.S. Dist. LEXIS 30790 (E.D. Wis. March 26, 2009).*

Removing defendant from the highway to the sheriff’s office after his stop was without reasonable suspicion and was a de facto arrest. United States v. Vega, 2009 U.S. Dist. LEXIS 49614 (S.D. Tex. June 11, 2009):

The Court is highly sensitive to seizing an individual on a public road or in a public place and taking the suspect to the confines of a police station without consent and without probable cause. In Mendenhall, the Supreme Court hinted that a similar removal of a suspect from a public location to a private location could offend the Fourth Amendment protections. United States v. Mendenhall, 100 S.Ct. 1870, 1878 (1980) (stating that it is arguable that the suspect’s rights were violated when she was moved from the airport concourse to the DEA office).

Under the present facts, Trooper Martinez acted unreasonably in relocating the defendant from a public location to the sheriff’s department. As stated above, reasonableness requires a balancing of the public interest with an individual’s right to be free from arbitrary intrusions by law enforcement. The seizure of an individual on a public road and removing him to the sheriff’s department, without consent or probable cause, is a severe intrusion upon that individual’s rights. The Court finds that under the present facts, this intrusion on Vega’s rights to travel and move freely far outweighed police interests. This seizure was tantamount to an arrest of the defendant. The government has not offered, and the Court has not found through its own research, any case law that would support this intrusive method of investigation.

Defendant was not prejudiced by defense counsel’s failure to challenge the protective sweep of his house. Although he was arrested outside, there were articulable facts there were others inside and guns present. He also consented. United States v. Berthelot, 326 Fed. Appx. 795 (5th Cir. 2009)* (unpublished).

The government showed that defendant voluntarily consented to the search of his computer for child porn. He was mature and he signed a consent form. The court finds as a fact that no threat was made to get him to consent. United States v. Gellinger, 635 F. Supp. 2d 859 (S.D. Ind. 2009).*

Search of an office in a portable trailer separate from an airport hanger where the hanger was the subject of a search warrant was unreasonable under the warrant. The good faith exception does not apply to execution issues like this. United States v. Garner, 2009 U.S. Dist. LEXIS 39562 (W.D. Wash. April 27, 2009):

Plaintiff argues that suppression of the evidence obtained is not an automatic consequence of an unreasonable search. Dkt. 55 at 7-9. Plaintiff asserts that the Court should rely on the good faith exception announced by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). Defendants counter with the Tenth Circuit’s holding in United States v. Angelos, 433 F.3d 738 (10th Cir. 2006), that the Leon exception does not apply when “the problem lies in the execution, and not the constitutionality, of the search warrant.” Id. at 746. Although the Court is unaware of any direct Ninth Circuit support for this proposition, the Circuit did explicitly distinguish the Angelos holding in United States v. Hurd, 499 F.3d 963, 969 n. 6 (9th Cir. 2007). In Hurd, the court upheld the district court’s denial of the defendant’s motion to suppress finding that “it was objectively reasonable for Officer Clifton to believe that Judge Kurshner authorized the search of Hurd’s residence, despite [Judge Kurshner’s] failure to initial the appropriate line on the search warrant.” Id. at 969. Specifically, the defendant argued that this holding would create an inter-circuit conflict with Angelos, but the court disagreed and stated that Angelos was “readily distinguishable.”

In this case, the Court finds that the execution of the search warrant was more similar to the Angelos scenario rather than the Hurd scenario. In other words, it was objectively unreasonable for the officers conducting the search to understand that the scope of the search warrant contemplated that the Royal Limousine Office would have been found outside of, and a significant distance from, the leased airport hangar. Therefore, the Court finds that the Leon good faith exception does not apply to overcome the suppression of the evidence seized from the trailer in violation of the Defendants’ constitutional rights.

Defendant’s stop was objectively reasonable and justified, and he validly consented after that. [Anders brief] United States v. Sands, 329 Fed. Appx. 794 (10th Cir. 2009)* (unpublished).

Defendant was objectively stopped for a window tint violation, and it was discovered that he was driving on a suspended DL. Consent was sought and refused, but the officer testified he always did that even when an inventory was coming. Here, the inventory was valid under the department regulations, and a gun was found. Defendant’s argument that it was invalid as a search incident under Gant was not reached. United States v. Elliot, 2009 U.S. Dist. LEXIS 40222 (S.D. Cal. May 8, 2009).*

The consenter’s consent to searching the safe in their apartment was not limited by her concerns of breaking it open. She just did not want it damaged. United States v. Awoussi, 2009 U.S. Dist. LEXIS 39994 (D. Neb. May 11, 2009).*

Defendant’s racial profiling claim against the officer [not his first] fails because the defense failed to show that there was no objective basis for the stop. United States v. Benitez, 613 F. Supp. 2d 1099 (S.D. Iowa 2009).*

Plaintiff’s arrest and detention and strip searches as a “material witness” when he was to fly round trip to Saudi Arabia stated a claim and the Attorney General who authorized it only had qualified immunity. The AG does not get absolute immunity because this was an investigative function by the government’s public admissions. (Plus, plaintiff was never called as a witness in any case.) Al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009) (2-1):

According to the allegations of his first amended complaint, Plaintiff-Appellee Abdullah al-Kidd (al-Kidd), a United States citizen and a married man with two children, was arrested at a Dulles International Airport ticket counter. He was handcuffed, taken to the airport’s police substation, and interrogated. Over the next sixteen days, he was confined in high security cells lit twenty-four hours a day in Virginia, Oklahoma, and then Idaho, during which he was strip searched on multiple occasions. Each time he was transferred to a different facility, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was eventually released from custody by court order, on the conditions that he live with his wife and in-laws in Nevada, limit his travel to Nevada and three other states, surrender his travel documents, regularly report to a probation officer, and consent to home visits throughout the period of supervision. By the time al-Kidd’s confinement and supervision ended, fifteen months after his arrest, al-Kidd had been fired from his job as an employee of a government contractor because he was denied a security clearance due to his arrest, and had separated from his wife. He has been unable to obtain steady employment since his arrest.

Al-Kidd was not arrested and detained because he had allegedly committed a crime. He alleges that he was arrested and confined because former United States Attorney General John Ashcroft (Ashcroft), subordinates operating under policies promulgated by Ashcroft, and others within the United States Department of Justice (DOJ), unlawfully used the federal material witness statute, 18 U.S.C. § 3144, to investigate or preemptively detain him. Ashcroft asserts that he is entitled to absolute and qualified immunity against al-Kidd’s claims. We hold that on the facts pled Ashcroft is not protected by either form of immunity, and we affirm in part and reverse in part the decision of the district court.

. . .

We hold, therefore, that when a prosecutor seeks a material witness warrant in order to investigate or preemptively detain a suspect, rather than to secure his testimony at another’s trial, the prosecutor is entitled at most to qualified, rather than absolute, immunity. 14 We emphasize that our holding here does not rest upon an unadorned assertion of secret, unprovable motive, as the dissent seems to imply. Even before the Supreme Court’s decision in Bell Atlantic v. Twombly and Ashcroft v. Iqbal, it was likely that conclusory allegations of motive, without more, would not have been enough to survive a motion to dismiss. See, e.g., Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (facts pled must be accepted as true, but conclusory allegations need not be). Twombly’s general requirement that “[f]actual allegations must be enough to raise a right to relief above the speculative level,” 550 U.S. 555, applies with equal force to allegations that a prosecutor’s actions served an investigatory function. In this case, however, al-Kidd has averred ample facts to render plausible the allegation of an investigatory function:

. Al-Kidd’s arrest was sought a month after Al-Hussayen was indicted, and more than a year before trial began, temporally distant from the time any testimony would have been needed. See Genzler, 410 F.3d at 639 (“The timing of evidence gathering is a relevant fact in determining how closely connected that conduct is to the official’s core advocacy function ….”). Cf. Betts, 726 F.2d at 81 (arrest warrant issued day of trial); Daniels, 586 F.2d at 68 (same).

. The FBI had previously investigated and interviewed al-Kidd, but had never suggested, let alone demanded, that he appear as a witness. Cf. Betts, 726 F.2d at 80 (subpoena issued; prosecutor called witness day before trial to remind her that trial was to begin the next day); Daniels, 586 F.2d at 65 (plaintiff had already been served one subpoena; second subpoena was misplaced by U.S. Marshal).

. The FBI conducted lengthy interrogations with al-Kidd while in custody, including about matters apparently unrelated to Al-Hussayen’s alleged visa violations. Cf. Genzler, 410 F.3d at 641-43 (nature of questions asked witnesses relevant to whether interview served investigative function).

. Al-Kidd never actually testified for the prosecution in Al-Hussayen’s or any other case, despite his assurances that he would be willing to do so. Cf. Betts, 726 F.2d at 80 (“On Monday morning the trial proceeded and the prosecutor called plaintiff as his first witness.”); Daniels, 586 F.2d at 66 (“Plaintiff subsequently testified as a government witness when Phoenix’s trial resumed.”).

All of these are objective indicia, similar to those we cited in Genzler, 410 F.3d at 641-43, that al-Kidd’s arrest functioned as an investigatory arrest or national security-related preemptive detention, rather than as one to secure a witness’s testimony for trial. Finally:

. Ashcroft’s immediate subordinate, FBI Director Mueller, testified before Congress that al-Kidd’s arrest (rather than, say, the obtaining of the evidence he was supposedly going to provide against Al-Hussayen) constituted a “major success []” in “identifying and dismantling terrorist networks.” Mueller Testimony, supra. Cf. KRL, 384 F.3d at 1114-15 (prosecutor contemporaneously admits on radio program that follow-up search warrant was part of “a stand-alone investigation”).

We conclude that the practice of detaining a material witness in order to investigate him, on the facts alleged by al-Kidd, fulfils an investigative function.

See Law.com: 9th Circuit Blasts Feds for Post-9/11 Detention of ‘Material Witness’.

The search warrant for defendant’s home in a drug murder case lawfully revealed the victim’s belongings in plain view. United States v. Clay, 579 F.3d 919 (8th Cir. 2009)*:

The circumstances of this case are distinguishable from Clark. The officers searching Clay’s residence neither conducted an unbounded exploratory search nor recorded serial numbers of random items in the home seeking incriminating evidence of potential crimes. Furthermore, the incriminating nature of the items seized was immediately apparent to Agent Fehrenbach, who instantly connected the items to Johnson’s homicide. We hold that the seizure of these items during the warrant search did not violate the Fourth Amendment and that the district court properly denied the motion to suppress.

A motion to strike is not the proper method of challenging admission of evidence that should be the subject of a motion to suppress. Arrington v. Commonwealth, 53 Va. App. 635, 674 S.E.2d 554 (2009).

An officer in an unmarked car was tailing the defendant for suspicion of meth trafficking. When the defendant crossed the center line, he was stopped for the traffic offense, and he validly consented. Sapp v. State, 297 Ga. App. 218, 676 S.E.2d 867 (2009).*

Littering arrest justified a search incident, and meth was found. State v. Kirwin, 165 Wn.2d 818, 203 P.3d 1044 (2009), with concurrence and dissent.*

Obtaining telephone information is not a Fourth Amendment search. Discovery of a witness by gathering the telephone information was also subject to inevitable discovery [not to mention attenuation which is not applied to witnesses]. Fraise v. State, 17 So. 3d 160 (Miss. App. 2009).*

Defendant’s handcuffing was unreasonable and unnecessary under the circumstances, and the officer’s testimony could show no basis for it. People v. Stier, 168 Cal. App. 4th 21, 85 Cal. Rptr. 3d 77 (4th Dist. 2008):

Generally, handcuffing a suspect during a detention has only been sanctioned in cases where the police officer has a reasonable basis for believing the suspect poses a present physical threat or might flee. (In re Antonio B., supra, 166 Cal.App.4th at p. 442.) The more specific the information an officer has about a suspect’s identity, dangerousness, and flight risk, the more reasonable a decision to detain the suspect in handcuffs will be. (Washington v. Lambert, supra, 98 F.3d at p. 1190.) Circumstances in which handcuffing has been determined to be reasonably necessary for the detention include when: (1) the suspect is uncooperative; (2) the officer has information the suspect is currently armed; (3) the officer has information the suspect is about to commit a violent crime; (4) the detention closely follows a violent crime by a person matching the suspect’s description and/or vehicle; (5) the suspect acts in a manner raising a reasonable possibility of danger or flight; or (6) the suspects outnumber the officers. (Id. at pp. 1189–1190.)

In this case, the evidence presented by the prosecution at the suppression hearing does not establish Leahy had a reasonable basis for believing Stier posed a present safety or flight risk when Leahy handcuffed Stier. Although Leahy was conducting a narcotics investigation and knew narcotics users and dealers are sometimes armed, Leahy did not believe Stier had any narcotics. More importantly, Leahy did not have any specific, articulable facts suggesting Stier was armed. Leahy also did not have any information suggesting Stier had or was about to commit a violent crime. Instead, Leahy handcuffed Stier primarily because Stier was four to five inches taller than Leahy and Leahy “felt uncomfortable” about the height differential.

Defendant’s admission that he had marijuana on him during an illegal patdown for “officer safety” when he had no fear of defendant having a weapon was also suppressed because there was no intervening event. W.D.H. v. State, 16 So. 3d 121 (Ala. Crim. App. 2008), Released for Publication July 29, 2009.Writ of certiorari denied Ex parte Laakkonen, 2009 Ala. LEXIS 76 (Ala. Apr. 24, 2009).*

As a mere invitee to a hotel room for drug use, defendant had no standing to challenge the search of the room. He had no key and he was not staying the night. State v. Carter, 299 Ga. App. 3, 681 S.E.2d 688 (2009).*

As a frequent visitor, defendant had standing under Olson to challenge a search of the apartment he was visiting. Defendant was not present to object, so Randolph does not help him overcome the consent of the primary occupant. United States v. Foster, 2009 U.S. Dist. LEXIS 59161 (E.D. N.C. July 8, 2009).*

Suppression evidence of a vehicle stop was not binding on federal proceedings. In addition, the version in the unobjected to PSR is diametrically opposed to the version alleged in the 2255 petition. Defense counsel was not ineffective. Douglas v. United States, 2009 U.S. Dist. LEXIS 58701 (E.D. Tenn. July 2, 2009).*

Material omissions by inadvertence are not enough for a Franks violation. “At one point, Defendants even undercut their claim to a Franks hearing by arguing that even if the omissions were made ‘inadvertently or due to a lack of knowledge,’ probable cause does not exist. Of course, inadvertence or lack of knowledge on the part of the affiant is not enough; the defendant must instead adduce evidence that the affiant acted intentionally or with reckless indifference in failing to include the omitted material. See Franks, 438 U.S. at 171-72 (‘Allegations of negligence or innocent mistake are insufficient.’).” United States v. Poulsen, 2007 U.S. Dist. LEXIS 98531 (S.D. Ohio January 30, 2008).*