Defendant’s presence at a search of his house is not required to “maintain his consent.” Stating that a locked room was his daughter’s room was not revocation of consent. United States v. Hicks, 631 F. Supp. 2d 725 (E.D. N.C. 2009).*

Defendant was arrested for masturbating in a mall parking lot, and a search of his wallet produced a laminated photograph of an erect penis being touched by a young boy, which apparently had been photoshopped together. Defendant had also been arrested twice before for sex offenses with children and was unregistered. This was PC on the totality of circumstances for child porn being in his house and on his computer. After the execution of the warrant, defendant consented to a search of the computer, but a warrant was later issued for it, too. United States v. McArthur, 573 F.3d 608 (8th Cir. 2009).*

Defendant’s car had be impounded because the registration was invalid and none of the occupants was capable of driving it. Officers also suspected the vehicle had been involved in a bank robbery. An inventory of the car produced nothing. A search warrant was obtained and it was searched again finding an apparent red dye spot from the exploding dye pack. “The Fourth Amendment protection from unlawful search and seizure was not violated because the vehicle was not searched until a warrant was obtained.” United States v. Griffin, 2009 U.S. Dist. LEXIS 63819 (E.D. Pa. July 23, 2009).*

Defendant’s understanding of his rights in a consent to search situation was shown by the fact that he later objected to a search. He was not native born, but he had been naturalized for four years and testified in English. United States v. Tran, 2009 U.S. Dist. LEXIS 63869 (W.D. Mo. July 6, 2009).*

Defendant hid his fake IDs in his girlfriend’s purse, which were found during a search incident of her purse after defendant’s arrest in his car. “This case presents the issue of whether an arrested occupant of a vehicle has a fourth amendment right to suppress the contents of a container that was searched without a warrant and without consent after a nonarrested occupant of the vehicle removed the container from the passenger compartment during the traffic stop. The State argues that Officer Bird’s search of Rivera’s purse was lawful as incident to defendant’s arrest.” While the SI of her purse violated Gant, this is a near replica of Rawlings, and defendant had no standing to challenge that search. People v. Frias, 912 N.E.2d 1236 (Ill. App. 2009):

Our consideration of the factors leads us to conclude that defendant lacked a legitimate expectation of privacy in the purse. Defendant presented no evidence that he had any ownership or possessory interest in the purse. Rivera testified that she owned the purse and that only she held it. Rivera held the purse on her lap while she was seated in the car, and when the officer motioned for her to exit the vehicle, she placed the purse on her right shoulder. Likewise, no evidence was adduced that defendant had ever used the purse in the past.

The trial court inferred that defendant had an expectation of privacy in Rivera’s purse because he entrusted his personal items to her, as his girlfriend, to keep in the purse. While the record shows that defendant was Rivera’s boyfriend and that they were residing together, the record does not show that defendant gave Rivera the social security cards with the understanding that she would conceal them in her purse. The trial court found that defendant could reasonably expect that Rivera would prevent the public from having access to her purse, but nothing in the record supports the inference that defendant intended or had the ability to control Rivera’s disclosure of the contents of the purse. Furthermore, defendant presented no evidence of his subjective expectation of privacy even though he could have so testified at the suppression hearing without the fear that his testimony would later be used to convict him. See Rosenberg, 213 Ill. 2d at 79.

The only fact tending to establish defendant’s legitimate expectation of privacy in the purse was his relationship with the purse’s owner. The trial court relied on their intimate boyfriend-girlfriend relationship to distinguish this case from Rawlings. In Rawlings, the defendant challenged the search of an acquaintance’s purse in which he had previously placed contraband. The court held that he did not have a legitimate expectation of privacy in the purse, because he had known the acquaintance for only a few days; he had never sought or received access to the purse; and he had no right to exclude other persons from access to the purse. Rawlings, 448 U.S. at 104, 65 L. Ed. 2d at 641, 100 S. Ct. at 2561. Although there is no evidence in the record regarding the length of time defendant and Rivera had known each other, their relationship admittedly appears to be more intimate than the one in Rawlings. But the nature of their relationship, standing alone, does not automatically grant defendant a legitimate expectation of privacy in Rivera’s personal belongings. We conclude that, in the absence of a legitimate expectation of privacy in Rivera’s purse, defendant is not entitled to a suppression of its contents. Therefore, the trial court’s suppression of the allegedly fraudulent social security cards must be reversed.

Two searches from 1991 and 1998 were admitted into evidence in defendant’s conspiracy trial. He was acquitted in the 1991 case in state court, but the evidence was admissible in a separate proceeding in federal court because it involved a separate sovereign. The 1998 search was a search incident that was valid then and at the time of trial, and the 2009 decision in Gant would not be applied to this in plain error review. United States v. Deitz, 577 F.3d 672, 2005 FED App. 03410P (6th Cir. 2009).

As to the 1991 search and acquittal:

However, the complex conspiracy at issue in Count 1 of the superseding indictment encompasses substantially different elements from those at issue in the violation of Kentucky statutes prohibiting possession of and trafficking in controlled substances. See United States v. Clark, 254 F. App’x 528, 532-33 (6th Cir. 2007) (rejecting plaintiff’s sham-prosecution argument where the state prosecution for simple drug possession was different in nature from the federal drug-conspiracy charge). Also, nothing in the record suggests that Kentucky authorities “did not make their own determinations” regarding whether to prosecute Deitz following the 1991 seizure. Id. (rejecting defendant’s sham-prosecution argument where “‘the separate sovereigns have made independent decisions to prosecute'”) (quoting United States v. Angleton, 314 F.3d 767, 774 (5th Cir. 2002)). Therefore, we reject Deitz’s Double Jeopardy argument.

The 1998 search incident with plain error review:

In 1998, an unwarranted search incident to a custodial arrest constituted an exception to the warrant requirement of the Fourth Amendment where the search was necessary to assure an officer’s safety or preserve evidence. See United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). Thus, at the time of the incident in question, police could lawfully search an arrestee and the area “within his immediate control”–meaning the area from which he might gain possession of a weapon or destructible evidence. See Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). However, on April 21, 2009, the Supreme Court clarified its previous rulings on this issue. See Arizona v. Gant, 129 S. Ct. 1710, 1713, 173 L. Ed. 2d 485 (2009). In Gant, the Court held that authorities may not conduct an unwarranted search of the passenger compartment of a vehicle unless “it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.” Id. at 1713. Under Gant, the officers’ warrantless search of Deitz’s briefcase violated his Fourth Amendment rights because the officers had no reason to suspect that the briefcase contained evidence related to the offense of arrest–Deitz’s failure to show proof of insurance. Nevertheless, at the time the officers stopped Deitz in 1998, they could lawfully search the articles within Deitz’s control that might contain destructible evidence. See Chimel, 395 U.S. at 763; see also Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001) (holding that a custodial arrest for minor traffic infraction did not violate the Fourth Amendment). Therefore, no plain error occurred, and Deitz’s Fourth Amendment argument is without merit.

Search incident of defendant’s gym bag was invalid under Gant because defendant was arrested in a taxicab, handcuffed, the bag was in the taxi, and then the officers decided to search the gym bag. Suppression hearing was pre-Gant, and it was rebriefed after Gant. United States v. Allison, 2009 U.S. Dist. LEXIS 73808 (S.D. Iowa July 24, 2009):

Here, Defendant was handcuffed behind his back, leaning against the rear bumper of the taxicab, while surrounded by three law enforcement officers. Deputy Shepherd testified that Defendant was under control at the time Deputy Hedgecock removed the gym bag from the taxi-cab. Defendant had no ability to access the interior of the taxicab, much less the contents of the gym bag. Shipp, too, was in custody and had been placed in the back of Officer Purcell’s squad car. The Government produced no testimony either that the taxicab driver was a suspect or that the officers felt the need to secure the gym bag on his account. The law enforcement officers did not testify that the gym bag was itself of such “incriminating character to be immediately apparent” that it contained contraband. Minnesota v. Dickerson, 508 U.S. 366, 375 (1993). Consequently, the bag presented no concerns for officer safety that would justify a Terry search of the bag’s contents. See Gant, 129 S. Ct. at 1719; United States v. Lopez, 567 F.3d 755 (6th Cir. 2009).

Defendant was not under arrest at the time Deputy Hedgecock removed the gym bag from the taxicab. It was not until Officer Purcell performed a warrant check on Defendant, and discovered that Defendant had an outstanding warrant in Polk County for a probation violation, that Defendant was placed under arrest. Furthermore, even if Defendant had been under arrest at the time Deputy Hedgecock removed the gym bag, the law enforcement officers could not have reasonably “believe[d] evidence relevant to the crime of arrest might be found in the vehicle,” and therefore the search incident to arrest exception would not apply. Gant, 129 S. Ct. at 1719; see Lopez, 567 F.3d 755 (“There was no reason to think that the vehicle contained evidence of the offense of arrest, since that offense was reckless driving.”); United States v. Majette, No. 08-4427, 2009 WL 1154270, at *2 (4th Cir. Apr. 30, 2009) (finding that, where the crime of arrest was driving with a suspended license, the arresting law enforcement officer would not have had a reasonable basis to believe he would find evidence of the crime of arrest by searching the defendant’s car). … Consequently, Deputy Hedgecock had no basis upon which to search the gym bag and therefore was not justified in removing it or disturbing its contents.

A confusing complaint of conspiratorial allegations was properly dismissed but for the Fourth Amendment claim that stated enough to go forward for the time being. Remanded. Edge v. Payne, 2009 U.S. App. LEXIS 18818 (10th Cir. August 20, 2009) (unpublished).*

In a civil case over wrongful arrest, officers had exigent circumstances for entry into a domestic violence shelter for alleged drug overdose because of children there. Efforts to keep officers out of the shelter under its policy to require search warrants for entry only heightened the officer’s suspicions. Brooks v. Rothe, 577 F.3d 701, 2009 FED App. 0299P (6th Cir. 2009) (unpublished).*

Search of a glove compartment for a gun after the defendant said that there was gun in there was permissible under the automobile exception. United States v. Chatman, 2009 U.S. App. LEXIS 18783 (11th Cir. August 20, 2009) (unpublished).*

Police came to defendant’s apartment for a knock-and-talk, and they found the door open and saw the defendant in the kitchen area just inside the door wiping the counter with a paper towel and a scale with a straw and white powder on it. They entered without a warrant. There was no indication that the defendant was aware of their presence such that he was destroying the evidence, thus, an exigent circumstance, and the entry was unreasonable. Cote v. State, 14 So. 3d 1137 (Fla. App. 4 DCA 2009):

Comparing the case at hand with Gnann, Gilbert, and Garcia, when Detectives Mijal and Maldonado arrived at Cote’s apartment and observed the contraband through the open door, the record does not support that Cote was aware of the detectives’ presence. In addition, although Cote was seen wiping down the kitchen counter where the digital scale and the white powdery substance were located, we cannot infer from that that he was in the process of destroying that evidence. We cannot tell from this record what Cote was wiping from the counter. (Perhaps it was peanut butter and jelly from his lunch sandwich.) Yet the dissent argues it was a reasonable inference that Cote was next going to wipe the cocaine from the scale, hence the exigent circumstances to excuse obtaining a warrant. It is just as reasonable to infer that, unlike whatever Cote was wiping from the counter, the cocaine on the scale had a certain value to him – a cocaine user – and that he had no intention of destroying it, being unaware at that point of the police presence outside. Thus, when the detectives entered Cote’s apartment without a warrant, they–not Cote–created the exigent circumstance. And such exigency, under Gnann, Gilbert, and Garcia, does not justify a violation of the search warrant requirement of the Fourth Amendment.

Officer could order defendant out of his vehicle during a traffic stop under Mimms. The officer saw the slide of a gun in the car. United States v. Anderson, 2009 U.S. Dist. LEXIS 57381 (E.D. Va. July 6, 2009).*

The trial court was permitted to disbelieve the defendant’s testimony that she was told she was required to cooperate. Handy v. State, 298 Ga. App. 633, 680 S.E.2d 646 (2009).*

Inventory search permitted officer looking in crushed up cigarette pack. State v. Davis, 2009 Ohio 1660, 2009 Ohio App. LEXIS 1370 (5th Dist. April 3, 2009).

Consent to “look in” the trunk was consent to search. Davis v. State, 297 Ga. App. 319, 677 S.E.2d 372 (2009).

“Probable cause is a decidedly amorphous concept that invokes an unstructured analysis,” and “‘[a]rticulating precisely what *** “probable cause” mean[s] is not possible.’ Ornelas v. United States (1996), 517 U.S. 690, 695, 116 S.Ct. 1657, 134 L.Ed.2d 911.” Here, it cannot be said that the trial court was wrong in determining that there was PC. State v. Huber, 2009 Ohio 1636, 2009 Ohio App. LEXIS 1347 (2d Dist. April 3, 2009).*

Defendant was stopped for, first, turning away from a police car, and then backing down a street which the court finds is “‘Unprovoked flight upon seeing police officers'” (Wardlow), and there was reasonable suspicion based on that where attention was drawn to the defendant by a radio call. State v. Chadwell, 2009 Ohio 1630, 182 Ohio App. 3d 256, 912 N.E.2d 618 (2d Dist. 2009)* (Note: This is dependent on the backing up because merely turning away cannot be RS).

On the arrest of the passenger in a car, the officer was justified in conducting a search incident of the interior under Belton and Thornton. The trial court erred in granting the motion to suppress. State v. Williams, 2009 Ohio 1627, 2009 Ohio App. LEXIS 1356 (2d Dist. April 3, 2009).*

“[T]he Fourth Amendment applies to child welfare workers. Doe v. Heck, 327 F.3d 492, 510 (7th Cir. 2003).” The complaint here stated a claim to at least survive a 12(b)(6) motion that plaintiff school child was subjected to a seizure at her school by child welfare workers interviewing her. Loftus v. Clark-Moore, 2009 U.S. Dist. LEXIS 57266 (S.D. Fla. July 7, 2009).*

Defendant, a mere bailee of marijuana in boxes, lacked standing to challenge the search and seizure of the boxes. “[D]efendant affirmatively denied owning the boxes and did not claim that he had any other possessory interest as a bailee or otherwise.” United States v. Robles, 2009 U.S. Dist. LEXIS 57462 (D. Kan. July 7, 2009).*

“[D]efendant’s consent to a search of the house extended to any locked rooms in the house.” United States v. Hicks, 631 F. Supp. 2d 725 (E.D. N.C. 2009).*

Gant did not alter the plain view doctrine, and defendant’s search was justified by plain view. United States v. Franklin, 2009 U.S. Dist. LEXIS 57131 (N.D. Ind. July 6, 2009).*

Odor of marijuana is probable cause, but it has to be directed to a particular person. State v. Guzman, 2008 VT 116, 184 Vt. 518, 965 A.2d 544 (2008):

We agree that the odor of marijuana, detected by a trained and experienced police officer, can provide a reasonable basis to believe that marijuana is present. We also agree that the odor alone may not always be sufficient to arrest an individual. The facts of this case, however, fall well within the reasonable standard enunciated by the Wisconsin Supreme Court:

the odor of a controlled substance may provide probable cause to arrest when the odor is unmistakable and may be linked to a specific person or persons because of the particular circumstances in which it is discovered or because other evidence at the scene or elsewhere links the odor to the person or persons.

State v. Secrist, 589 N.W.2d 387, 394 (Wis. 1999).

Owner and operator of a boat off Puerto Rico had the ability to consent to toolbox on the boat that was given to one of the passengers to deliver in PR. This was apparent authority. “The containers were not locked, nor were they identified as Carrasco’s personal property.” Defendant’s suppressed confession could be used to impeach him when he testified. United States v. Carrasco, 540 F.3d 43 (1st Cir. 2008).*

Portable breath test is a search. Here, there was reasonable suspicion for it because defendant was 50 miles off his stated course and apparently under the influence. State v. McGuigan, 2008 VT 111, 184 Vt. 441, 965 A.2d 511 (2008).*

Defendant was validly stopped for trespassing, and the officer could ask him about drugs without violating the Fourth Amendment or state constitution. State v. Hendon, 222 Ore. App. 97, 194 P.3d 149 (2008).

FIO (Field Interrogation Observation) amounted to a stop and a seizure when the officers retained defendant’s ID without reasonable suspicion to run a warrant check. Commonwealth v. Lyles, 453 Mass. 811, 905 N.E.2d 1106 (2009):

In a case that is factually analogous to the present one, the Supreme Court of Tennessee in State v. Daniel, 12 S.W.3d 420, 427-428 (Tenn. 2000), concluded that a defendant was seized within the meaning of the Fourth Amendment to the United States Constitution and art. I, § 7, of the Tennessee Constitution when, after requesting and examining the defendant’s identification, a police officer retained the identification to run a computer check for outstanding warrants. The court stated that the officer’s conduct in merely approaching the defendant, inquiring what was going on, and asking to see his identification did not constitute a seizure because it appeared that this encounter was not accompanied by physical force or a show of authority. Id. at 427. It was the officer’s retention of the defendant’s identification to run a computer check for outstanding warrants that, in the court’s view, transformed a consensual police-citizen encounter into a seizure of the defendant. Id. The Supreme Court of Tennessee cogently recognized, as do we here, that an individual is effectively “immobilized” without his identification, and that abandoning one’s identification is not a practical or realistic option. Id. As such, the court opined, no reasonable person would believe that he could simply terminate the encounter by asking the officer to return the identification. Id. See United States v. Jordan, 958 F.2d 1085, 1087-1088, 294 U.S. App. D.C. 227 (D.C. Cir. 1992) (holding that, for purposes of Fourth Amendment, retention of defendant’s driver’s license during police questioning constituted seizure); People v. Mitchell, 355 Ill. App. 3d 1030, 1034-1035, 824 N.E.2d 642, 291 Ill. Dec. 786 (2005) (concluding that officer’s retention of defendant’s identification to run computer warrant check following consensual police-citizen encounter constituted seizure within meaning of Fourth Amendment); Salt Lake City v. Ray, 998 P.2d 274, 278, 2000 UT App 55 (Utah Ct. App. 2000) (same). See also 4 W.R. LaFave, Search and Seizure § 9.4(a), at 428 & n.81 (4th ed. 2004) (collecting cases where encounter becomes seizure when law enforcement official holds individual’s identification papers or other property).

Here, what began as a consensual police-citizen encounter matured into a seizure of the defendant, with respect to which the officers lacked reasonable suspicion of criminal activity. Given that Officer O’Connor’s knowledge of the outstanding warrant was the fruit of the defendant’s unlawful seizure, the evidence recovered from the defendant during the booking procedure must be suppressed, as required by art. 14. See note 1, supra. See also Commonwealth v. Borges, 395 Mass. 788, 795, 482 N.E.2d 314 (1985). Accordingly, we affirm the order allowing the defendant’s motion to suppress.

Officer came to the defendant’s door in Minnesota and smelled burning marijuana from smoking. When the door was answered and he asked about it, it was admitted that they were smoking marijuana inside. Even though the officer did not articulate it, the entry was justified by exigent circumstances for destruction of evidence. He told the woman on the couch to get up, and she didn’t. Later, a gun was found in the couch, and it was linked to a murder in Louisiana. State v. Robinson, 2009 La. App. LEXIS 802 (4th Cir. May 13, 2009)* (no conflict of laws issue in this case).

Defendant was arrested for murder while driving his car, and officers found a note in the car which could be seen through the window which was pertinent to the investigation, so it could be seized under the plain view doctrine. State v. Bauman, 15 So. 3d 177 (5th Cir. 2009).*

Second protective sweep 15-20 minutes after first one ended was not objectively reasonable. While a “one sweep rule” is not the law, there must be an objective basis for the second sweep, and here there was none. Commonwealth v. Peters, 453 Mass. 818, 905 N.E.2d 1111 (2009):

There undoubtedly are circumstances in which two warrantless protective sweeps of a home in quick succession, one rapid without attention to detail to locate a potential assailant or assailants, and the second more deliberate in search of persons who may be injured, would both fall within the permissible scope of the emergency aid exception. We do not declare a “one sweep rule” through this decision. A second warrantless protective sweep may be lawfully conducted but only when, in light of all the circumstances known to the officers at the time, there continues to be an objectively reasonable basis to believe that there is someone in the home in need of assistance. We simply do not find that there continued to be an objectively reasonable basis here.

Unauthorized driver of a rental car has no standing to challenge its search. This is an offense against the rental company. United States v. Luster, 324 Fed. Appx. 224 (4th Cir. 2009) (unpublished).* (Note: There is a circuit split. The new edition of the treatise due out at the first of the year explains it all.)

Plaintiff’s arrest on a warrant in a cop killing case was without probable cause. He was sought out and arrested primarily to get his gun for ballistic testing, and the gun was determined not to be the murder weapon. Two defendants were involved in getting the warrant and they were not present when the warrant was served, and they were still liable. Merely being related to another suspect is not probable cause. Poolaw v. Marcantel, 2009 U.S. App. LEXIS 9483 (10th Cir. May 4, 2009).*

Hotel employee saw a gym bag with a large quantity of cocaine in it in a room. The police were alerted, and they replaced the cocaine with faux cocaine. The police search was no greater than the private search that happened without their prior knowledge. Defendant was arrested after he left the room with the gym bag. United States v. Story, 565 F.3d 721 (4th Cir. 2009) (unauthorized).*

Disputed facts remained on whether plaintiff’s trailer was unreasonably searched without a warrant when a fugitive was arrested outside of the trailer. Reese v. Monroe County Sheriff’s Dep’t, 327 Fed. Appx. 461 (5th Cir. 2009) (unpublished).*

Defendant was stopped on a train in his compartment in a drug courier profile stop. He had $100,120 in a briefcase, and the government was seeking to forfeit it. Removing the briefcase from the train for a dog sniff was not contrary to Place and was reasonable under the circumstances. Inevitable discovery supported the seizure despite an illegal search of the briefcase. Seizure was based on a dog alert on the money. No drugs were found. Remanded for trial. United States v. Marrocco, 578 F.3d 627 (7th Cir. 2009):

Our conclusion that the officers were permitted to seize the briefcase and remove it from the train does not end our inquiry. After the officers removed the briefcase, and before they obtained a warrant or even probable cause to search it, Officer Romano opened the briefcase and observed its contents. There is no doubt that this warrantless search was constitutionally impermissible. We therefore must determine the constitutional significance of that unlawful search on our analysis.

Mr. Marrocco contends that, because of the unlawful search, the results of the dog-sniff test and the evidence of the briefcase’s contents, drug-tainted money, must be suppressed. He asserts that there is no way to determine whether the officers would have discovered the funds, or the connection between the funds and any illegal activity, in the absence of the unlawful conduct. The Government, however, maintains that the district court erred in suppressing the evidence of the results of the dog-sniff test. Although it admits that the officer’s visual inspection of the contents of the briefcase was improper, it contends that the challenged evidence should have been admitted under the inevitable discovery doctrine.

We agree with the Government that the officers inevitably would have discovered both the funds and the evidence that the funds were associated with narcotics. The first prong of the inevitable discovery test has been met because the officers could have obtained, based on the results of the dog-sniff test, an independent legal basis for searching the briefcase; namely, the results of the dog-sniff test would have supported the issuance of a warrant. See United States v. Washburn, 383 F.3d 638, 643 (7th Cir. 2004) (“[W]e have held that a positive alert by a trained drug dog gives rise to probable cause to search a vehicle.” (citations omitted)). Mr. Marrocco claims that we cannot rely on the results of the dog-sniff test because it is not clear that the officers would have ordered that test in the absence of the illegal search. We disagree. At the time the search took place, the officers already knew that the briefcase contained a large sum of money; Mr. Fallon had told them this much when he stated that the briefcase contained $50,000. The unlawful search of the briefcase yielded nothing more than a confirmation of Mr. Fallon’s earlier admission.

. . .

The fact that the results of the dog-sniff test would have supported a warrant is not sufficient, however; the Government must also show, under the second prong of our inevitable discovery inquiry, that the officers inevitably would have sought the warrant and conducted a lawful search. In this circuit, when the Government seeks “to use the doctrine of inevitable discovery to excuse its failure to have obtained a search warrant,” it must “prove that a warrant would certainly, and not merely probably, have been issued had it been applied for.” United States v. Tejada, 524 F.3d 809, 813 (7th Cir. 2008).

We are convinced that the Government has satisfied this burden. ….

. . .

Indeed, even if the inevitable discovery doctrine was waived or inapplicable, we would have to conclude that the results of the dog-sniff test were admissible. The illegality of Officer Romano’s opening of the briefcase with a knife had no effect on the subsequent discovery that the money was tainted by drugs. The officers already knew of the presence of the money. Opening the briefcase gave them no knowledge about whether the money was tainted. That knowledge was completely dependent on the dog-sniff test. Therefore, the causal connection between the illegality of Officer Romano’s search was so far attenuated from the crucial evidence as to make invocation of the suppression doctrine inappropriate. See United States v. Carter, No. 09-1608, 2009 U.S. App. LEXIS 15845, *16 (7th Cir. July 20, 2009); United States v. Ienco, 182 F. 3d 517, 526 (7th Cir. 1999); see also Brown v. Illinois, 422 U.S. 590, 609, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975) (Powell, J., concurring); United States v. Fazio, 914 F.2d 950, 957 (7th Cir. 1990).

Comment: Just ten days ago, once again, the American Chemical Society released a study (video here, press release here; Time article here) that 90% of the currency in the U.S. is contaminated with cocaine residue sufficient for a dog alert, so it means essentially nothing. [See these stories from 1994 and 1995.] Even Brazil is 80% and China up to 20%. See the Time story:

As anyone who’s seen the Johnny Depp movie Blow knows, bills are often contaminated when they are rolled up and used to snort cocaine. (According to the study, bills for $5, $10, $20 and $50 tended to have higher amounts of cocaine compared to $1 and $100 notes.) But, as the prevalence of drug-dusted dollars conveys, it isn’t just people snorting and selling cocaine who might have some residue in their wallets. Once a small amount of the substance is introduced, it can spread among bills as they intermix in cash registers, day to day transactions, and bank counting machines, meaning, if you live in a city, you’ve probably had a laced bill mingling with your money at some point. Yet, don’t worry, you’re not likely to face any legal trouble or fail any company drug tests as a result: the amounts of cocaine found on bills ranged from a minuscule .006 micrograms to 1,240 micrograms—an amount comparable in weight to about 50 grains of sand, according to the researchers.

Motion to suppress granted for lack of reasonable suspicion for patdown. United States v. Washington, 2009 U.S. Dist. LEXIS 73205 (N.D. Ind. August 17, 2009)*:

The record before the court doesn’t disclose what led the officers to a reasonable suspicion that Mr. Washington was armed or dangerous. None of the officers involved was asked why he or she held such a suspicion. Counsel for the government offered some suggestions in final argument on the motion: the Buick did not stop immediately; the Buick seem to speed up after the first turn; the driver seem to disappear from site upon stopping; the passenger’s hand came out of the front window; movement was seen in the car; Mr. Washington appeared to be nervous. Such observations might lead an experienced police officer, such as those involved in this stop, reasonably to suspect the rear seat passenger was armed and dangerous. But none of the officers explained why that was so, or even said that it was so.

Defendant consented to a search, and it was no coercion if the officer actually said to him that the house would be secured until a warrant arrived, but, if there was consent, people could stick around. United States v. Jones, 647 F. Supp. 2d 1055 (W.D. Wis. 2009).*

Whether a protective sweep was justified was not required to be determined when there was already PC for the search, relying on United States v. Gillenwaters, 890 F.2d 679 (4th Cir. 1989). United States v. Jones, 2009 U.S. Dist. LEXIS 72626 (W.D. N.C. August 3, 2009).*

IRS summons did not violate the Fourth Amendment rights (or any other rights) of the taxpayer appearing pro so, so a contempt action would lie. United States v. Dye, 2009 U.S. Dist. LEXIS 73173 (W.D. Tenn. August 18, 2009).*

A city’s permitting officers to issue traffic tickets just outside the municipal border did not violate clearly established law, so qualified immunity applied. Prior cases in the circuit did not say that a traffic stop outside municipal boundaries violated the Fourth Amendment. Swanson v. Town of Mt. View, 577 F.3d 1196 (10th Cir. 2009).*

Strip search of detainees arrested and strip searched for protesting at an IMF meeting in DC stated a claim because the law was well settled because nearly all circuits have held strip searches without cause are unreasonable, and pointing to one case that might “muddy the water” was insufficient to show the law was well settled at the time of the strip search. Bame v. Dillard, 2009 U.S. Dist. LEXIS 75375 (D. D.C. August 25, 2009):

Until 2008 [sic?], every federal circuit court to have faced the issue (ten out of twelve) ruled that, under Bell, suspicionless strip searches of pre-trial arrestees charged with non-violent, non-drug crimes was unreasonable and thus unconstitutional. See Wilson v. Jones, 351 F.3d 1340, 1343 (11th Cir. 2001); Swain v. Spiney, 117 F.3d 1, 7 (1st Cir.1997); Masters v. Crouch, 872 F.2d 1248, 1250 (6th Cir. 1989); Weber v. Dell, 804 F.2d 796 (2d Cir. 1986); Stewart v. Lubbock County, 767 F.2d 153, 156 (5th Cir. 1985); Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985); Giles v. Ackerman, 746 F.2d 614, 616-18 (9th Cir. 1984) (per curiam), overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 (9th Cir. 1999); Hill v. Bogans, 735 F.2d 391, 394 (10th Cir. 1984); Mary Beth G. v. Chicago, 723 F.2d 1263 (7th Cir.1983); Logan v. Shealy, 660 F.2d 1007,1013 (4th Cir. 1981); but cf. Powell v. Barrett, 541 F.2d 1298 (11th Cir. 2008) (en banc) (allowing county jail’s blanket policy of strip searching all arrestees that were detained with the general inmate population). In other words, at the time of the searches at issue here (September 2002), all these courts, some for nearly twenty-five years, required at least reasonable suspicion to strip search a pre-trial or pre-arraignment arrestee charged with a non-violent, non-drug crime.

Defendant’s appeal that district court’s decision was clearly erroneous based on his version of stop having been rejected and having no evidence to support it was frivolous. United States v. Ayala-Cabrera, 2009 U.S. App. LEXIS 18916 (10th Cir. August 21, 2009) (unpublished).*

A dog alert is PC in the 10th Cir., and the court declines to impose a requirement that there be a “final indication” by the dog. “We hold that probable cause was satisfied by Rico’s alert to [*15] the odor of an illegal substance in the vehicle and that it was not necessary for the dog to indicate the exact source of that odor. Indeed, it might be dangerous to permit a narcotics dog to pinpoint the location of the drugs in certain circumstances, such as here, where the vehicle’s occupants were still inside and the dog was trained to indicate by barking, scratching, and biting at the source of the odor.” United States v. Parada, 577 F.3d 1275 (10th Cir. 2009).*

Defendant was followed by the police and when he was yelled at to stop, he reached to his waistband. He was finally handcuffed. Considering the nature of the place and the fact officers were unsure of who was around, they did not violate the Fourth Amendment by walking him to a safer location there for the actual patdown. United States v. Smith, 2009 U.S. Dist. LEXIS 33000 (N.D. Ohio March 31, 2009):

Moreover, the officers did not exceed their authority under Terry, transforming the temporary stop of Defendant Smith into a seizure incident to an arrest, by walking the Defendant downstairs and outside prior to patting him down. Courts have held that some movement of the suspect in the general vicinity of the Terry stop is permissible without converting what would otherwise be a temporary seizure into an arrest. See United States v. Montano-Gudino, 309 F.3d 501, 504 (8th Cir. 2002) (holding that the movement of the defendant from outside a storage facility into one of the rooms of the building constituted a proper temporary seizure); United States v. $109,179 in U.S. Currency, 228 F.3d 1080, 1085 (9th Cir. 2000) (concluding that moving a defendant a short distance to another room was part of a proper temporary seizure and holding that neither “handcuffing a suspect nor relocating a suspect automatically turns a detention into an arrest where these actions are reasonably taken for safety and security purposes”); United States v. Pino, 855 F.2d 357, 362 (6th Cir. 1988) (determining, in the context of a traffic stop — a “species of investigative detention” under Terry — that ordering an individual to move his car from the side of the highway to the interstate underpass was not “more intrusive than necessary to fulfill the purposes of the stop”).

Defendant fled back into his apartment seeking to avoid arrest and officers heard a commotion inside. This justified a protective sweep, and the officers did not manufacture exigency for a protective sweep. [If anything, the defendant did.] United States v. Zadiriyev, 2009 U.S. Dist. LEXIS 33074 (S.D. N.Y. April 17, 2009).*

Defendant’s patdown was justified because he refused to take his hand out of his pocket, and the odor of marijuana justified the search of the car. United States v. Bohanon, 629 F. Supp. 2d 803 (E.D. Tenn. 2009).*

Items to be seized were itemized in an attachment to the SW and affidavit, and the affiant was present for the search. There is no indication that the search exceeded the scope of the attachment, and there would be no suppression just for that. United States v. Russell, 2009 U.S. Dist. LEXIS 32947 (E.D. Ky. April 16, 2009).*

A hotel proprietor has the ability to enter for the safety of all customers of the hotel, but that was not a waiver of defendant’s expectation of privacy in his rented room from the police. There was a knock at the door by the police and an order to open the door or it would be broken down. That was not consent. The entry was thus invalid. State v. McBennett, 191 N.C. App. 734, 664 S.E.2d 51 (2008).

Consent to search defendant’s person included here implied consent to search the defendant’s mouth when it became apparent that defendant was hiding something in his mouth. In re S.D.R., 191 N.C. App. 552, 664 S.E.2d 414 (2008):

In the present case, the officer was investigating a potential larceny. When the officer requested a search, defendant consented. The officer began to question defendant after the search. The trial court received evidence that defendant became unresponsive to the officer’s questions and would not make eye contact. Furthermore, there was evidence that the officer observed something in defendant’s mouth. The police officer had reasonable suspicion that criminal activity was afoot. Reviewing this evidence in the light most favorable to the State, we must agree with the State’s contention that this evidence was sufficient to justify the adjudication.

Police surrounding defendant’s porch did not constitute an arrest. United States v. Tarleton, 2009 U.S. Dist. LEXIS 55197 (M.D. Ga. June 30, 2009):

Applying those factors, the Court concludes that Tarleton was not under arrest when the officers surrounded the porch. First, the officers surrounded the porch for a valid law enforcement purpose–namely, to investigate a potential drug transaction. Second, the officers had to approach the porch to investigate further. Had the officers simply sat back and done nothing, they would not have been acting diligently. Third, approaching the porch was not intrusive. At that time, the officers did not exert any physical control over Tarleton. Last, the officers surrounded the porch for a brief time. This conclusion is supported by the testimony of the Defendant’s own witness at the hearing. That witness stated that only a brief period of time elapsed between the time the officers exited their vehicles and actually entered the porch area.

Based on these factors, the Court finds that the act of surrounding the porch did not constitute an arrest. At most, it constituted a Terry stop, which was amply supported by reasonable suspicion. The reasonable suspicion arose from the tip from a known, reliable CI that Tarleton dealt drugs, and the CI’s call to Pippin stating that Tarleton was at his door to deliver drugs. Once Pippin received the information that Tarleton was on the front porch, the officers had reasonable suspicion to approach the CI’s home to investigate further.

Simple questions after the paperwork from the traffic stop was returned led to consent. United States v. Canipe, 569 F.3d 597, 2009 FED App. 0222P (6th Cir. 2009):

When Canipe signed the citation and Hagie returned his information, thereby concluding the initial purpose of the stop, Canipe neither refused Hagie’s immediate request for permission to search the truck nor asked to leave. In fact, Hagie obtained Canipe’s consent to search by asking two simple questions: whether Canipe had anything unlawful in his truck and whether Hagie could look. To the first question, Canipe responded that “he didn’t think so,” from which a fair inference of uncertainty or hesitation may be drawn. In light of Canipe’s lukewarm response and the reliable information Hagie had already acquired, it was reasonable that Hagie request permission to verify. See Erwin, 155 F.3d at 820, 822-23 (holding officers were “entitled to ask [] for permission to search” using a similar two-step questioning technique at the conclusion of a traffic stop).

For these reasons, we hold that Investigator Hagie’s brief detention and request for consent to search the truck following the initial stop were reasonable and did not transform the legal traffic stop into an unconstitutional seizure.

ICE officers had probable cause to look in defendant’s wallet from his statement that he was born in Mexico and had no immigration papers. The fact that the defendant might be sent back to Mexico without being prosecuted did not nullify the probable cause. United States v. Torres-Lona, 491 F.3d 750 (8th Cir. 2007):

Torres-Lona suggests that the absence of probable cause should be inferred from Cantrell’s testimony that at the time he took appellant into custody he did not believe that any charges would be brought against Torres-Lona. It was not until after questioning him further and investigating his employment history that Cantrell believed there might be grounds to prosecute him. Appellant’s argument fails to consider significant aspects of the case. First, agent Cantrell did not state that he took Torres-Lona into custody believing that no offense had been committed, but rather that no prosecutable offense had been committed. At that time he anticipated that Torres-Lona would be processed administratively for deportation as a result of his undocumented status. Morever, the existence of probable cause is not dependent on an arresting officer’s subjective belief. See United States v. Sledge, 460 F.3d 963, 967 n.3 (8th Cir. 2006).

We conclude that there was an objective basis to believe that Torres-Lona had violated immigration laws. Because his arrest was lawful under the Fourth Amendment, the search of his person incident to that arrest was also permissible under the Fourth Amendment. See United States v. Robinson, 414 U.S. 218, 235 (1973). The district court did not err in refusing to suppress evidence on this basis.

Defendant’s claim in his moving papers that probable cause was so lacking that the good faith exception could not apply was belied by the affidavit. Indeed, the court could not be sure which search was being challenged, so the motion was denied. United States v. Gonzalez, 2007 U.S. Dist. LEXIS 47274 (N.D. Tex. June 28, 2007).*

Defendant did not object to the taking of his blood by search warrant at trial, so under plain error review, it failed. It was presumed valid and he did nothing but unconvincingly argue to the contrary. Brown v. State, 11 So. 3d 866 (Ala. Crim. App. 2007), aff’d 2008 Ala. LEXIS 205 (Ala., Oct. 3, 2008).*

Appellant’s wife consented to a search of defendant’s computer looking for pictures of video voyeurism. He did not show that he was removed from the premises so he could not object to the search. It was valid under Randolph. United States v. Weston, 67 M.J. 390 (C.A. A.F. 2009), rev’g 66 M.J. 544 (N-M. Ct. Crim. App. 2008):

Appellant urges us to extend the holding of Randolph and adopt the reasoning of the United States Court of Appeals for the Ninth Circuit in United States v. Murphy, where the court discounted the significance of the physical presence and immediate challenge of the party not consenting to the search. 516 F.3d 1117, 1123-24 (9th Cir. 2008). Appellant further argues that we should look more generally to society’s widely shared social expectations in determining the reasonableness of consent searches. We decline to do so.

While “widely shared social expectations” underlie the reasoning in Randolph, 547 U.S. at 111 (“The constant element in assessing Fourth Amendment reasonableness in the consent cases, then, is the great significance given to widely shared social expectations …”), the Supreme Court specifically declined to overrule Matlock and drew the line with the physical presence at the threshold. See id. at 120-22. We decline to adopt the Ninth Circuit’s reasoning and thus do not expand the holding of Randolph at the expense of Matlock.

Where one party has joint access and control to a property and voluntarily consents to a search, the warrantless search is reasonable. Rather than Murphy, we find more persuasive the approach adopted by the United States Courts of Appeals for the Seventh and Eighth Circuits, which held that Randolph did not “permanently disabl[e] [a cotenant’s] shared authority to consent to an evidentiary search of her home.” United States v. Henderson, 536 F.3d 776, 777 (7th Cir. 2008); see United States v. Hudspeth, 518 F.3d 954, 960-61 (8th Cir. 2008).

Police who were actually investigating the possibility child porn was on defendant’s computer did not misrepresent what they were looking for when they said credit card fraud, but they really knew that defendant had used his credit card on a child porn website. Possibility of credit card fraud was enough. [HA!] People v. Prinzing, 389 Ill. App. 3d 923, 907 N.E.2d 87, 329 Ill. Dec. 768 (2009):

We find this case distinguishable from Daugherty and the other cases cited by defendant. It was undisputed that Detective Smith was informed by defendant’s credit card company that there was a disputed charge that had been resolved by crediting back the charge and a new card number having been issued. It was also undisputed that the disputed charge in June 2003 was around the time that the child pornography Web site charges had been incurred. While Detective Smith did not mention the potential for child pornography purchases, he was not required to provide defendant with every piece of information that he possessed while investigating the matter. In Daugherty, the theft case had been resolved and the police employed purely deceptive tactics to obtain consent whereas, in this case, the police had not resolved whether the disputed credit card charge was related to the child pornography Web site charges. The remaining cases cited by defendant involved the police affirmatively misrepresenting the defendants’ rights whereas here, the police made no such misrepresentations. Therefore, it was not against the manifest weight of the evidence to find that when Detective Smith asked for consent to search defendant’s computer for viruses that may have compromised his credit card information, Detective Smith did not engage in trickery, deceit or subterfuge, but, rather, he had a twofold purpose in his visit. Even if Detective Smith did use trickery, that would not necessarily render defendant’s consent involuntary, as trickery is just one factor the court may consider in determining the validity of consent. See People v. Minniti, 373 Ill. App. 3d 55, 69, 867 N.E.2d 1237, 311 Ill. Dec. 251 (2007) (discussing effect of police trickery on voluntariness of confession).

Having determined that defendant’s consent was voluntary, we now examine whether the police exceeded the scope of the consent. When determining whether a search is reasonable under the fourth amendment, we must determine first whether the officer’s action was justified at its inception and second whether it was reasonably related in scope to the circumstances that justified the intrusion in the first place. People v. Lampitok, 207 Ill. 2d 231, 241, 798 N.E.2d 91, 278 Ill. Dec. 244 (2003). In evaluating the scope of a defendant’s consent, the court considers what a reasonable person would have understood by the exchange between the officer and the defendant. People v. James, 163 Ill. 2d 302, 314, 645 N.E.2d 195, 206 Ill. Dec. 190 (1994). “[T]he parameters of a search are usually defined by the purpose of the search.” James, 163 Ill. 2d at 314.

In this case, principles of law and technology collide. The court in People v. Berry, 314 Ill. App. 3d 1, 11-12, 731 N.E.2d 853, 247 Ill. Dec. 80 (2000), addressed the scope of consent with respect to electronic devices, specifically a cellular phone. Relying on various federal cases, the Berry court stated that the lack of knowledge of what the officer is searching for does not change the effect of a “general” consent. Berry, 314 Ill. App. 3d at 12. If a consent to search is entirely open-ended, a reasonable person would have no cause to believe that the search will be limited in some way, and the consent would include consent to search the memory of electronic devices. Berry, 314 Ill. App. 3d at 12. The Berry court then considered the totality of the circumstances, which involved a detective asking to look at the defendant’s cell phone and the defendant responding “‘go right ahead.'” Berry, 314 Ill. App. 3d at 12. The officer, after receiving the defendant’s response, opened the phone and retrieved the phone number of the phone by pressing a button. Berry, 314 Ill. App. 3d at 13. The defendant knew when the detective asked to search the phone that he was investigating a murder and that he was trying to determine whether the defendant owned the phone, and the defendant placed no explicit limitations on the scope of the search, either when he gave his general consent or while the officer examined the phone. Berry, 314 Ill. App. 3d at 14. Therefore, the court determined that, based on the totality of the circumstances, the detective did not exceed the scope of the defendant’s general consent to search his phone when the detective activated the phone and retrieved the phone number. Berry, 314 Ill. App. 3d at 14.

Federal courts have also considered the scope of electronic device searches. …