The officer here approached the defendant who was “window shopping” and told him three times to remove his hands from his pockets, and, when he did, a gun fell to the ground. The defendant was commanded to comply, so it was a seizure under Mendenhall. People v. Jackson, 389 Ill. App. 3d 283, 329 Ill. Dec. 211, 906 N.E.2d 56 (2009).*

“[T]he narrow question before this court is whether a police officer, who has reasonable suspicion to believe that an individual was involved in a shooting that has just occurred, may conduct a limited protective search of the passenger compartment of a vehicle that the officer has just seen the individual get out of. We find that under those circumstances, consistent with Terry and Illinois law, a limited protective search of the passenger compartment of the vehicle for weapons is proper.” People v. Johnson, 2009 Ill. App. LEXIS 199 (January 8, 2009).*

The state did not rely in the trial court on defendant being on parole and the search being justified as a parole search, so it could not rely on it on appeal. The stop and search was without justification. People v. Vasquez, 902 N.E.2d 1194 (Ill. App. February 11, 2009).*

There was probable cause for defendant’s arrest when he gave an inculpatory statement. People v. Jackson, 391 Ill. App. 3d 11, 908 N.E.2d 72, 330 Ill. Dec. 220 (2009).*

Defendant’s consent was valid. The consent form had the wrong street name but right number, and this was a mere scrivener’s error because it was clear she was consenting to a search of her own apartment, not somebody else’s. Beattie v. State, 903 N.E.2d 1050 (Ind. App. 2009).*

During a traffic stop, the officer asked the defendant if he would talk to a detective about another matter. He agreed, and he was handcuffed and transported. That was without justification and violated the Fourth Amendment and the state constitution. Taylor v. State, 904 N.E.2d 259 (Ind. App. 2009).*

“[P]olice may not stop an individual for the sole purpose of compelling him to identify himself.” State v. Holly, 2009 Ohio 3081, 2009 Ohio App. LEXIS 2604 (8th Dist. June 25, 2009):

[*P15] Applying these principles, we find that the investigatory stop of Holly was unlawful. Despite the State’s argument that Holly was stopped because the police had a reasonable suspicion that he was engaged in drug activity, Detective Mitchell’s testimony was clear: the only reason Holly was stopped was to determine his identity. In America, however, the police may not stop an individual for the sole purpose of compelling him to identify himself.

Defendant 17 year old voluntarily accompanied three detectives to the police station for questioning. The court rejects that this 17 year old would have thought that she had to go with them. State v. Rogers, 19 So. 3d 487 (La. App. 5th Cir. 2009), released for publication November 13, 2009.*

Defendant’s possession of a samuri sword and other knives justified his patdown. State v. Ruff, 229 Ore. App. 98, 211 P.3d 277 (2009).*

Merely asking if officers can search a car is not a seizure under Mendenhall. The driver, however, was asked for consent, and defendant passenger was asked to get out of the car, and this was reasonable. People v. James, 391 Ill. App. 3d 1045, 910 N.E.2d 168, 331 Ill. Dec. 95 (2009).*

A mere request to see identification or to look at belongings is not a seizure. State v. Crum, 2009 Ohio 3012, 2009 Ohio App. LEXIS 2546 (2d Dist. June 19, 2009).*

Meth labs pose a danger, so exigent circumstances exist for an entry. State v. Timofeev, 2009 Ohio 3007, 2009 Ohio App. LEXIS 2624 (9th Dist. June 24, 2009).*

Idaho probation condition of random drug testing by any law enforcement condition was valid. State v. Purdum, 207 P.3d 182 (Ida. April 20, 2009), court of appeals decision posted here:

In this case, Purdum was placed on probation for possession of a controlled substance. The district court’s order of probation contained the following condition:

The Defendant shall submit to random blood, breath and/or urine analysis upon the request of the Court, his probation officer or any law enforcement official.

(Emphasis added). A random evidentiary test is, by definition, one that may occur at any time and at any place. Thus, the language of Purdum’s condition of probation is very similar to the language of the condition at issue in Gawron. That condition used the phrase “at any time and at any place by any law enforcement officer.” Purdum’s condition of probation constituted a similar express waiver of his constitutional right to be free from warrantless searches.

In addition, as was the case in Gawron, Purdum has not alleged that he did not accept the conditions of his probation or that his acceptance was involuntary or done unintelligently. See Gawron, 112 Idaho at 843, 736 P.2d at 1297. Rather, Purdum has argued on appeal, both before the Idaho Court of Appeals and this Court, that his consent was limited to the random evidentiary tests and that he did not consent to suspicionless seizure of his person for such testing.

The Idaho Court of Appeals directly addressed Purdum’s claim that his consent to submit to random evidentiary testing did not mean that he consented to a seizure for such testing: …

Officer had a report of a robbery with two Hispanic males dressed in hooded sweatshirts. There was no indication they were in a car, but he was looking for cars and it was 1 a.m. He saw a car with two men in it, about the time a car could have driven from the scene of the robbery, driving too slow and with the men slouched down so only their heads were available. When they saw the officer, they were “jumping around” inside the car. He had reasonable suspicion for the stop. State v. Nevarez, 210 P.3d 578 (Ida. App. 2009).*

A person who stops for an officer’s emergency lights has been seized. “Willoughby’s actions of remaining at the scene and stepping out of his car as Officer Gillmore approached constituted submission to the officers’ show of authority. Accordingly, we conclude that the trial court and district court properly concluded that Willoughby was seized for purposes of the Fourth Amendment.” The court follows and quotes State v. Morris, 72 P.3d 570 (Kan. 2003):

Where there is neither force nor obvious words or actions of submission, some courts have applied the Mendenhall approach without reference to Hodari. E.g., United States v. Buchanon, 72 F.3d 1217 (6th Cir. 1995). Other courts have determined that the individual’s inaction, albeit passive, is a form of compliance and a submission to authority. E.g., Lawson, 120 Md.App. at 617-18, 707 A.2d 947 ….

We join this line of cases in terms of outcome, doing so by following the line of cases which hold that Hodari, and in this state our decision in [State v. Weaver, 915 P.2d 746 (1996)], requires a finding that the accused submitted to the show of authority. In this case, Morris did not attempt to leave when officers pulled in behind him with their emergency lights flashing. Upon seeing the flashing emergency lights of the officer’s patrol car, Morris complied with the officer’s “show of authority” enjoining him to remain. He did not flee; instead, he complied with the assertion of authority. We find that Morris was seized within the contemplation of the Fourth Amendment to the United States Constitution ….

This stop was without reasonable suspicion. State v. Willoughby, 211 P.3d 91 (Ida. 2009).*

Postal employee impliedly consented to search of his car by driving it on to post office property. He was aware that could happen. United States v. Collamore, 2009 U.S. App. LEXIS 10691 (10th Cir. May 19, 2009).*

Government showed that defendant consented to a search of his property and there was no language barrier because they talked to him about various things which he understood before consent was sought. United States v. Huraibi, 2009 U.S. Dist. LEXIS 42904 (W.D. N.Y. May 21, 2009).*

Passing reference to voluntariness in a motion to suppress was not IAC because counsel probably focused more on the other issues, in light of the presumption of competence of counsel. Bustamante v. United States, 2009 U.S. Dist. LEXIS 42935 (N.D. Ill. May 21, 2009).*

TSA search for contraband was invalid as not a search for items prohibited from airplanes. The search continued after it was apparent that there were no prohibited items. United States v. Fofana, 620 F. Supp. 2d 857 (S.D. Ohio 2009):

The evidence also established that before the envelopes were opened, Fofana’s bags had already been thoroughly searched and that opening the envelopes containing the passports did not serve safety-related ends. By the time the envelopes were opened, the bags had been examined through the x-ray machine, tested for explosives residue, and emptied during a thorough hand search by Stroud. Stroud had also already manipulated the envelopes by hand, discovering that they were thin and unbendable. Although Mirow testified that a bulky “mass” of paper, such as 100 one-dollar bills or a book, would need to be investigated to ensure that nothing dangerous was disguised within the mass, his testimony suggests that something as thin as a passport would not be bulky enough to trigger that concern. (5/13/2009 Hr’g Tr. 40-42 (testifying that 5 bills would not be bulky enough to require scrutiny).)

The Government argues that Stroud’s subjective intent is irrelevant because, in the context of administrative searches, the purpose driving the search is assessed at the programmatic level. Edmund, 531 U.S. at 44-47 (explaining that cases dealing with administrative searches “have often required an inquiry into purpose at the programmatic level”). But, the Government failed to establish through evidence that opening the envelopes containing the passports was necessary to serve the programmatic purpose of an airport screening search, i.e., to unearth weapons or explosives. As already explained, the bulk of the evidence presented suggests that it was not. While it is conceivable that, as the Government argues, an envelope containing a passport-sized item might need to be opened, despite the use of other screening technologies, to detect a small prohibited item hidden inside, the Government has not supported that argument with evidence. For example, the TSA did not present, or submit for in camera review, SOPs or other regulations stating that all items, including non-bulky business-sized envelopes, must be opened as part of a secondary screening to ensure that there are no prohibited items contained within. It is equally conceivable to the Court that a combination of x-ray screening and external manipulation would be sufficient to exclude the presence of weapons or explosives in the envelopes Fofana was carrying. In fact, Stroud testified to that effect. (5/13/2009 Hr’g Tr. 97-99.)

Defendant did not cite the Fourth Amendment in his claim that he was held unreasonably long before he gave a statement, so he could not rely on the Fourth Amendment on appeal. United States v. Kirkland, 2009 U.S. App. LEXIS 11722 (7th Cir. June 1, 2009).

Court credits officer that defendant dropped a baggy of drugs when he was approached by the police. United States v. Walker, 2009 U.S. Dist. LEXIS 45850 (E.D. Mo. June 2, 2009).*

Defendant was seized when the officer who stopped him on I-80 said he was free to go but the car was staying for a dog sniff. The officer lacked RS at the time. People v. Davenport, 392 Ill. App. 3d 19, 910 N.E.2d 134, 331 Ill. Dec. 61 (2009), Rehearing denied 910 N.E.2d 134, 2009 Ill. App. LEXIS 674, 331 Ill. Dec. 61 (Ill. App. Ct. 3d Dist., June 29, 2009):

While the four Mendenhall factors are absent from this case, we believe [Off.] Thulen engaged in coercive conduct similar to the conduct contained in the Mendenhall factors. Initially, we note that Thulen’s numerous statements to the defendant and the other travelers that they were free to go are not dispositive. People v. Goeking, 335 Ill. App. 3d 321, 780 N.E.2d 829, 269 Ill. Dec. 357 (2002). In fact, Thulen’s actions suggested otherwise. After convincing Cagle to wait in the squad car, Thulen ordered the defendant to put her shoes on and exit her vehicle. When the defendant complied, Thulen asked her for consent to search and conduct a canine sniff of the vehicle. The defendant refused. In response, Thulen told the defendant and the other travelers that they were free to go, but he was detaining the vehicle until he could perform the canine sniff. Thulen told them they could walk away, hop the fence, or have Thulen call someone for a ride. However, these were not viable options for people traveling on an interstate highway between Colorado and Michigan. We hold that a reasonable person in this situation would not have felt free to leave. See Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870; Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556, 239 Ill. Dec. 25. Inasmuch as the defendant was an out-of-state traveler on an interstate highway with no mode of transportation, Thulen’s show of authority subjected the defendant to a seizure. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870; Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556, 239 Ill. Dec. 25.

[I had this issue years ago. Since walking on the highway or hitchhiking on an Interstate highway were offenses, it naturally follows that the driver cannot be told “you’re on your own, but all your car and your stuff is staying here” when you are, to you, in the middle of nowhere in a different state. This is no different that the seizure of the plane tickets in Mendenhall.]

Indiana recognizes that the emergency doctrine can apply to animal welfare entries where the evidence of animal maltreatment was really ugly and the neighbors had already entered the defendants’ yard to feed the dogs and saw that they were starving and some were dying. The entry led to proof that the defendant was involved in promoting dog fighting. Davis v. State, 907 N.E.2d 1043 (Ind. App. 2009) (Note: The facts underlying exigency here are strong. Where the gray area ends remains to be seen.)

Search warrant for business records in the ongoing Dr. Wecht case in Pittsburgh was overbroad and not particular enough for the Fourth Amendment. Because he was permitted a private practice while acting as ME, there was no meaningful limitation on the seizure of records. The affidavit also was not incorporated into the warrant. Moreover, the defendant was unable to determine what was to be seized. United States v. Wecht, 619 F. Supp. 2d 213 (W.D. Pa. 2009):

Our Circuit Court of Appeals has instructed that “the breadth of items to be searched depends upon the particular factual context of each case and also the information available to the investigating agent that could limit the search at the time the warrant application is given to the magistrate.” ACEF, 461 F.3d at 395 (interpreting the holdings of United States v. Leary, 846 F.2d 592 (10th Cir.1988); United States v. American Investors of Pittsburgh, 879 F.2d 1087 (3d Cir.1989); and United States v. Kepner, 843 F.2d 755 (3d Cir.1988)). Accord United States v. Adjoin, 452 F.3d 1140, 1148 (9th Cir. 2006) (in determining whether a warrant is sufficiently particular, court will consider, among other things, whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued.”). Accordingly, “the use of generic classifications in a warrant is acceptable when a more precise description is not feasible.” Christine, 687 F.2d at 760 (citing cases).

Here, however, the Government was possessed of information which, had it been incorporated into the warrant, would have substantially clarified the description of items to be seized so as to focus the executing officers’ attention on the actual target of the search — the boxes of private autopsy files that had been removed from the ACCO. The omission of this information resulted in a warrant whose description was simply too vague to meaningfully guide the officers’ search.

Notwithstanding these problems, the Government vigorously disputes the Defendant’s characterization of the Penn Avenue Warrant as a general warrant based on what the Government views as two important search criteria: content and number. That is, the face of the warrant informed the officers that they were looking only for boxes that held private autopsy files and, moreover, the officers could seize only “approximately twenty” such boxes. These limitations, the Government insists, are significant enough that the Penn Avenue Warrant should be considered, at most, overbroad, but not general, since the warrant did not allow the officers unlimited discretion to seize anything within the premised that they wished.

I do not find this theory persuasive, however. As I have discussed above, the requirement that the boxes had to contain private autopsy files is not a particularly meaningful limitation, given that the location of the search was the Defendant’s private pathology office — a place where boxes of private autopsy files would likely exist in substantial numbers. See United States v. Abrams, 615 F.2d 541, 546 (1st Cir. 1980) (limitation in a warrant seeking the seizure of business records must be a meaningful one).

Furthermore, as I have observed, and as the Government candidly acknowledged at argument, the numerical caveat (“approximately twenty boxes”) provides no basis for differentiating between those boxes removed from ACCO and other boxes of private autopsy files likely to be found on the premises. At the end of the day, an officer executing this warrant would not be able to determine with reasonable certainty which items were being sought and would essentially have to guess which boxes (and how many, for that matter) to seize. 11 The warrant thus facially authorized government agents to rummage through a substantial volume of the Defendant’s work product and decide for themselves what to take. The violation of the Defendant’s Fourth Amendment rights in this respect is not mitigated by the mere fact that the governmental intrusion encompassed only the universe of boxes containing the Defendant’s private autopsy files rather than the entire content of his business office. The scope of the search, as authorized by the warrant, was still unreasonable.

. . .

. . . One Pennsylvania court has described the distinction between generality and overbreadth as follows:

These are two separate, though related, issues. A warrant unconstitutional for its lack of particularity authorizes a search in terms so ambiguous as to allow the executing officers to pick and choose among an individual’s possessions to find which items to seize. This will result in the general “rummaging” banned by the fourth amendment. See Macron v. United States, 275 U.S. 192, 195, 48 S. Ct. 74, 75, 72 L.Ed. 231 (1927). A warrant unconstitutional for its overbreadth authorizes in clear or specific terms the seizure of an entire set of items, or documents, many of which will prove unrelated to the crime under investigation. The officers executing such a warrant will not rummage, but will “cart away all documents.” Application of Lafayette Academy, 610 F.2d 1, 3 (1st Cir.1979).

Commonwealth v. Santner, 454 A.2d 24, 25 n.2 (Pa. Super. 1982).

Here, the defect in the Penn Avenue Warrant cannot properly be characterized as one of overbreadth, as we are not confronting a situation where officers, armed with a clear and specific warrant, seized all of the items within certain particularly described categories, only to discover that probable cause did not support such a broad seizure. Rather, the fundamental problem with the Penn Avenue Warrant is that, by its terms, the warrant failed to give the executing officers sufficient direction as to which items were to be seized in the first place. See United States v. Sirmans, No. 07-2370, 278 Fed. Appx. 171, 172, 2008 WL 2127448 at **1 (3d Cir. May 8, 2008) (“To be sufficiently particular, the Fourth Amendment requires the warrant to describe items to be seized in a way that the officer conducting the search can identify them with reasonable effort.”) (citations omitted).

Just as important, the warrant failed to adequately inform the Defendant (or those representatives of his who were present) of the scope of the authorized search. See Groh, 540 U.S. at 561 (A particular warrant also “assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.”) (citations omitted). The problem here, in other words, is not one of over-inclusiveness but of ambiguity.

Officer observed defendant on a store parking lot, probably engaging in drug transactions, and followed him as he left, speeding. He pulled the defendant over, and defendant got out of the car and obviously had something in his mouth. That, too, was reasonable suspicion. State v. Schnyder, 10 So. 3d 303 (La. App. 5th Cir. 2009).*

Defendant had no reasonable expectation of privacy in his mail as a pretrial detainee (surveying dozens of cases). He mailed a letter which came back with insufficient address. The letter had a copy of an autopsy photograph referring to “my victim” which was admitted into evidence. Sparkman v. State, 184 Md. App. 716, 968 A.2d 162 (2009).

Three defendants being drunk in a garage was not an exigent circumstance that they could not be left alone, comparing it to the level of intrusion on their person by entering the garage and then searching them. State v. Waters, 181 Ohio App. 3d 424, 909 N.E.2d 183 (5th Dist. 2009).*

Defendant’s illegal arrest led to a statement that was not sufficiently attenuated from the arrest, and it was suppressed. State v. Gutierrez, 2009 Tenn. Crim. App. LEXIS 209 (March 25, 2009).*

ICE use of a ruse photograph to get permission to enter home to look for the person in the ruse when they are really looking for somebody they hope will be there is not free consent. United States v. Hernandez-Juarez, 2009 U.S. Dist. LEXIS 22031 (W.D. Tex. March 16, 2009):

Although this case does not deal with the use of police deception to the degree recited in Montes-Reyes, the Government has not met its burden of establishing that it secured Mrs. Hernandez’s consent voluntarily. Viewing the totality of all the circumstances, the ICE agents entered the most private of spaces, a home, without a warrant and with only a hunch that the person they were looking for would be inside. The ICE agents used a ruse upon a non-English speaking alien to obtain entry. The typical reasonable person would have understood that the exchange between the agent and Mrs. Hernandez would have amounted at most to allowing a search of the premises for the man in the ruse photograph. The questioning of a female American citizen with a nursing infant indicates that the agents used their fraudulent entry for the purposes of a general roundup once they realized that Junior was not in the premises.

The Court finds that voluntary consent was not given by Mrs. Hernandez. In the alternative, assuming consent was given, the consent was limited to a search for the unidentified man in the ruse photograph. See U.S. v. Parson, — F. Supp.2d –, 2009 WL 482243 (W.D. Pa. 2009) (agents who during course of child pornography investigation obtained consent to search residence by misrepresenting that defendant was possible victim of identity theft, scope of resultant search was limited to information relevant to investigation into identity theft); U.S. v. Pantoja-Ramirez, 2007 WL 4438977 (D. Idaho 2007) (scope of the search must not exceed the scope of the consent).

Seizure of an e-mail address from defendant’s wallet during a search incident was an issue that did not need to be even reached in this case because of the slight contribution to the evidence in the case as a whole, it was harmless beyond a reasonable doubt. United States v. Caramanis, 319 Fed. Appx. 647 (9th Cir. 2009) (unpublished).*

“Though an officer may question passengers and run a background check, he may not do so merely to delay the stop,” and that required reasonable suspicion. Here, the officer had it. United States v. Marquez-Diaz, 2009 U.S. App. LEXIS 5641 (10th Cir. March 18, 2009) (unpublished), opinion on rehearing 325 Fed. Appx. 637 (10th Cir. 2009).*

The officer who drafted the search warrant was not one of the original investigating officers, so there were negligent mistakes in the drafting that did not amount to a Franks violation. “However, even after excising the false statements from the affidavit, this Court finds that probable cause still exists in the search warrant.” United States v. Ross, 2009 U.S. Dist. LEXIS 21869 (N.D. W.Va. March 16, 2009).*

In the case of former U.S. Rep. Jefferson (D-LA), the violation of the Speech and Debate Clause is subject to the good faith exception. The D.C. Circuit had already held part of the search invalid under the Speech and Debate clause (United States v. Rayburn House Office Bldg Room 2113, 378 U.S. App. D.C. 139, 497 F.3d 654 (2007), posted here), and comity and judicial economy counseled against relitigating it the search. United States v. Jefferson, 615 F. Supp. 2d 448 (E.D. Va. 2009):

More persuasive is the government’s reliance on United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). In Leon, the Supreme Court made pellucidly clear that “the exclusionary rule is neither intended nor able to cure the invasion of the defendant’s rights which he has already suffered.” 468 U.S. at 906 (citation and internal quotation marks omitted). Instead, the rule represents “a judicially created remedy designed to safeguard … [constitutional] rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” Id. (citation and internal quotation marks omitted). Based on these principles, the Supreme Court held that evidence obtained in objectively reasonable reliance on a warrant is admissible even if the warrant is determined subsequently to be invalid. Id. at 922.

Although Leon created a good-faith exception to the exclusionary rule in the Fourth Amendment context, Leon‘s rationale is nonetheless applicable and persuasive here. In this case, as the D.C. Circuit noted, “[t]here is no indication that the Executive did not act based on a good faith interpretation of the law, as reflected in the district court’s prior approval and later defense of the special procedures set forth in the warrant affidavit.” Id. at 664. Clearly, the agents’ reliance on the warrant issued by the district court was objectively reasonable. Moreover, the district court, confronted with an unprecedented question, meticulously and sensitively sought to craft search procedures that would accommodate Speech or Debate Clause concerns. Given this, there is no good reason to believe that the blanket suppression in this case of evidence not covered by the Speech or Debate Clause would have any deterrent effect and hence suppression of the unprivileged documents is unwarranted.

The proof is not in the pudding on execution of a search warrant that the warrant was not particular or lacked probable cause. The fact the exact things sought are not found does not mean the warrant was lacking probable cause. United States v. Gaschler, 2009 U.S. Dist. LEXIS 48449 (N.D. W.Va. June 3, 2009):

In his objections to the magistrate judge’s report and recommendation, the defendant contends that the magistrate judge erred by finding that probable cause supported the issuance of the warrant because the evidence actually seized from the defendant’s residence is vastly less than what the officers sought to seize, and because the property seized provides no evidence of child pornography. In the defendant’s view, the discrepancy between what was sought and what was seized demonstrates that the information supporting the affidavit was unreliable, and that, therefore, the search warrant lacked probable cause. This contention lacks merit. The pertinent inquiry is not, as the defendant suggests, whether the items sought to be seized must in fact be seized to establish probable cause at the time the search warrant is executed. Rather, the question is whether “the facts alleged in the warrant furnish probable cause to believe, at the time the search was actually conducted, that evidence of criminal activity was located at the premises searched.” United States v. McCall, 740 F.2d 1331, 1336 (4th Cir. 1984). In this case, the affidavit described detailed information from cooperating witnesses who were known to have previously provided reliable information, and the search warrant specifically sought, among other items, computer records, heroin, and firearms and ammunition. The facts set forth in the affidavit provided probable cause to believe that evidence of the alleged possession of child pornography and alleged drug dealing was located at the defendant’s residence at the time it was searched. Accordingly, this Court rejects the defendant’s objections.

[I’ve tried that argument myself because it intuitively seems correct that the product of the search shows that probable cause for the things sought to be seized is lacking when the things sought under the warrant are not found. But, there is little defense against the lying informant, and plenty of PC can be shown by a lying informant that the defendant possesses something that he doesn’t. Thus, the police are blameless in that.]

Defendant’s stop was based on a traffic violation, and it was not unreasonably extended because he was excessively nervous, could not explain where was going, and was in a high crime area. State v. Nelson, 2009 Ohio 2546, 2009 Ohio App. LEXIS 2141 (2d Dist. May 29, 2009).*

Under Montana’s rule that a teenager under 16 cannot consent to a search of the family house, the Montana Supreme Court holds that a 13 year old victim of sexual assault by her father in her bedroom could not consent to a search of the sheets of her bed, but could of her underwear, where there was his DNA on the sheets. Inevitable discovery was also held not to apply. State v. Ellis, 2009 MT 192, 351 Mont. 95, 210 P.3d 144 (2009) (5-2).*

The state showed nexus to a computer as a means of communication about concealing an affair where the affair was motive for murder. There was no direct evidence that a computer was used, but it was a reasonable inference. Guthrie v. Weber, 2009 SD 42, 767 N.W.2d 539 (2009):

[*P18] Therefore, the fact that the affidavit did not specifically state that Christensen and Guthrie corresponded by or with the use of a computer does not require us to declare that it was unreasonable for the issuing judge to infer that the computer would be a means of communication between Guthrie and Christensen. This affidavit provided a sufficient nexus between the crime and potential evidence on the computer, when considered in the totality of circumstances, mindful of the preference for searches conducted with a warrant. To conclude otherwise, to hold that the affidavit was insufficient to establish the narrow question whether there was sufficient probable cause for a “conspiracy,” or to rule that only paper correspondence could be seized, would be to read the affidavit in a hyper-technical manner, a position we have consistently rejected. …

Defendant was stopped for a traffic offense, and he consented early into the stop while the computer checks were being done, so it was not a prolonged stop. Proctor v. State, 298 Ga. App. 388, 680 S.E.2d 493 (2009).*

Police went to defendant’s home to do a knock-and-talk about drug use around children. Defendant came out and smelled of marijuana. He fled back into his house and the police followed, and the entry was supported by exigent circumstances. Minor v. State, 298 Ga. App. 391, 680 S.E.2d 459 (2009).*

Defendant was stopped for speeding, had all the windows down in the rain, and made a furtive movement toward the center console and was on parole for a weapons offense. The officer then asked for consent to search and got it. State v. Fykes, 2009 Ohio 2926, 2009 Ohio App. LEXIS 2464 (6th Dist. June 19, 2009).*

Vermont prohibits search of a closed container seized from the person during arrest without exigent circumstances under its state constitution. Defendant was arrested for failure to pay a $21 fine, and he was subject to imprisonment. During booking, officers removed a velco sealed pouch from his person and searched it, finding cocaine. Such searches may be valid under the Fourth Amendment but not the Vermont Constitution. State v. Neil, 2008 VT 79, 184 Vt. 243, 958 A.2d 1173 (2008):

FN1. Vermont is not alone in its departure from federal precedent in this area. See, e.g., State v. Hardaway, 2001 MT 252, P 57, 36 P.3d 900 (the scope of a search incident to arrest must be commensurate with underlying purposes, and specific and articulable exigent circumstances are required); People v. Gokey, 457 N.E.2d 723, 724 (N.Y. 1983) (stating that under the New York Constitution, “a warrantless search incident to arrest [is] unreasonable unless justified by the presence of exigent circumstances”); Commonwealth v. Timko, 417 A.2d 620, 623 (Pa. 1980) (“[A]bsent exigent circumstances, a warrantless search of luggage or other personal property in which a person has a reasonable expectation of privacy is not permissible.”); State v. Stroud, 720 P.2d 436, 439 (Wash. 1986) (“[The] Washington State Constitution affords individuals greater protections against warrantless searches than does the Fourth Amendment.”); see also State v. Owens, 729 P.2d 524, 527-29 (Or. 1986) (fact of arrest sufficient to justify a search of closed containers only “when it is reasonable to believe that evidence of a crime for which the person was arrested could be concealed there”).

[*P10] Our divergence from federal precedent governing warrantless searches of closed containers is well-settled. In Savva, we held that under Article 11 the police are prohibited from searching a closed container found inside an arrestee’s vehicle without first obtaining a warrant, absent exigent circumstances. Id. at 90, 616 A.2d at 782. Very recently, in Bauder, we acknowledged the vitality of this holding, again expressly rejecting broad search-incident-to-arrest authority. 2007 VT 16, P 12. We reasoned that the federal bright-line tests “fail to do justice to the values underlying Article 11.” Id. Contrary to federal precedent, a warrantless search of a container is unreasonable under Article 11 unless the exigencies are “factually and narrowly tied” to the circumstances “that rendered a warrant application impracticable.” Id. P 20 (emphasis added). “Absent such circumstances, Article 11 simply forbids a warrantless search.” Id. The principles announced in Savva and Bauder control the case at bar.

[*P11] We are cognizant that Savva involved a closed container found in an arrestee’s vehicle, and not on his person, but we see no reason why a container seized from the pocket of an arrestee should be less protected than one seized from his vehicle.FN4 In Savva, we noted that the “automobile exception” to the Fourth Amendment was justified by the inherent mobility of the automobile, which reduced a person’s expectations of privacy and increased the risk of losing evidence. 159 Vt. at 80-81, 616 A.2d at 777. But we also held that personal luggage located in the motor vehicle of an arrestee is protected under Article 11. Id. Here, defendant had an expectation of privacy in the contents of the container in his pocket, as the defendant in Savva did in the contents of a container in his vehicle.

FN4. Importantly, we refrain from drawing distinctions between worthy and unworthy containers. Savva, 159 Vt. at 89-90, 616 A.2d at 782.

[*P12] When a reasonable expectation of privacy is implicated, the State has the burden of showing that the circumstances of defendant’s arrest justified a warrantless search. See Savva, 159 Vt. at 91, 616 A.2d at 783 (the burden is on the State to show “undue risk to the evidence-gathering process or public safety”); see also Kirchoff, 156 Vt. at 13, 587 A.2d at 996 (“[W]e differ from federal doctrine by placing on the State the burden to prove that a warrantless search of open fields is not prohibited under [Article 11].”). The State advances no meritorious argument in support of an exception to the requirement, or that the warrantless search was justified on any basis other than blanket search-incident-to-arrest authority, and the evidence must therefore be suppressed unless exigent circumstances existed. Bauder, 2007 VT 16, P 21.

A city rental housing inspection program was constitutional under the Fourth Amendment because there was a process for issuance of administrative warrants when the landlord would not consent. Stewart v. City of Red Wing, 554 F. Supp. 2d 924 (D. Minn. 2008):

Nor have plaintiffs demonstrated that injury to their Fourth Amendment rights is imminent. If landlords refuse consent to the City’s request for an inspection, the RDLC requires the City to seek an administrative search warrant. The reviewing judge is specifically authorized to condition or limit the scope of the warrant as appropriate. Plaintiffs’ argument that the inspection ordinance creates an imminent constitutional injury presumes that a state court judge, with the benefit of a full adversarial hearing, will be unable to condition or limit the scope of the warrant in a manner that complies with the Fourth Amendment. The Court finds the possibility of such injury to be highly speculative.

The use of blue lights is a stop, but defendant’s flight was a new crime, and that would not be suppressed. State v. Nelson, 275 S.W.3d 851 (Tenn. Crim. App. 2008).

Vermont upholds its DNA collection statute, over a vigorous dissent, which the majority criticizes. State v. Martin, 2008 VT 53, 184 Vt. 23, 955 A.2d 1144 (2008).*

“Even assuming the deputy seized Mr. Olivares-Campos within the meaning of the Fourth Amendment when he retained his license and registration, we hold that reasonable suspicion of criminal activity existed at that time sufficient to justify a lawful investigative detention. Mr. Olivares-Campos’s subsequent consent to the search of his truck therefore was not tainted by an illegal seizure, and neither does it bear any other indicia of unlawful coercion.” United States v. Olivares-Campos, 276 Fed. Appx. 816 (10th Cir. 2008) (unpublished).*

Threat to arrest a pawnshop operator (a closely regulated business) for refusing to open the safe during an administrative search was facially unreasonable, so the officer has no qualified immunity. 5 Borough Pawn v. City of New York, 2009 U.S. Dist. LEXIS 54069 (S.D. N.Y. June 22, 2009)*:

Clearly no reasonable officer could have thought that he was privileged to arrest a pawnshop owner who refused to allow him into a closed and locked safe without a warrant. The New York Court of Appeals’ decision in Keta and the Grasso Memo–which was official NYPD policy–make it perfectly clear that police officers are not privileged, under the New York State Constitution, to invade safes without a warrant. Marti, like every other NYPD officer, is presumed to know about Keta and the Grasso Memo, and so to know that he was not privileged to arrest a pawnshop owner or employee for doing what Cabrera did. The Grasso memo is quite clear–an officer is not allowed to make an arrest in such a situation. The memo authorizes an officer to issue a citation, secure the premises, and obtain a warrant if he has probable cause to believe that the safe contains stolen property. Marti did none of these things. Instead, he made an arrest–the one thing he was explicitly not allowed to do.

Since Marti allegedly disobeyed express instructions (i.e., the Grasso memo) about what state law requires in the situation he confronted, neither probable cause nor arguable probable cause for the arrest exists, and Marti’s motion for summary judgment declaring that he is shielded by qualified immunity for the First Arrest is denied.

The officers had PC for a vehicle search based on their surveillance, so Gant has no application. United States v. Almaraz, 2009 U.S. Dist. LEXIS 54138 (S.D. N.Y. June 26, 2009).*

The stop in this case was not unreasonably extended. The officer’s questioning during the writing of the ticket led to answers that were more hesitant and gave reasonable suspicion. United States v. Suitt, 569 F.3d 867 (8th Cir. 2009).*

As the officer approached defendant’s vehicle during a traffic stop, he could smell burnt marijuana. This was probable cause for a search of the car, and Gant was inapplicable. United States v. Davis, 569 F.3d 813 (8th Cir. 2009).*

In a § 2255 case, defendant’s insistence that trial and appellate defense counsel should have made a separate claim against seizure of the evidence was rejected. “Retaining documents tending to demonstrate Shelton’s guilt was not an unreasonable seizure by the government.” Defense counsel could not be ineffective. Also, the prior appeal apparently decided this question. United States v. Shelton, 2009 U.S. App. LEXIS 14181 (5th Cir. June 30, 2009),* direct appeal: United States v. Shelton, 337 F.3d 529 (5th Cir. 2003) (FYI, I was appellate counsel alleged to be ineffective.)

Parole search of defendant’s unauthorized residence was permitted on reasonable suspicion. United States v. Crutchfield, 2009 U.S. Dist. LEXIS 55760 (E.D. Pa. June 29, 2009).*

Police came to an apartment building to execute a search warrant, and they concluded that the number of house violations was substantial, and they called the housing code enforcers and they decided that the building should be condemned. They went from apartment to apartment to tell people to leave and look for stragglers. Defendant consented to the entry into his apartment that produced crack and his 262 month sentence. United States v. McGraw, 2009 U.S. App. LEXIS 14393 (7th Cir. July 2, 2009).*

Fed. R. Crim. P. 4(c)(3)(A), not state law, controlled as to the arrest, and the officer did not have to have the arrest warrant in hand or nearby. The finding that the officer’s testimony of a clerical error on the return of service of the search warrant was credible was entitled to deference and a clerical error did not invalidate the search. Because the officer discovered an active outstanding arrest warrant and executed it while it was still valid, the officer’s subjective intent was irrelevant. United States v. Bembry, 321 Fed. Appx. 892 (11th Cir. 2009)* (unpublished).

Trial court’s credibility determination of consent was affirmed. Defendant did not even remember signing consent form, but he admitted that his signature was on it. United States v. Young, 318 Fed. Appx. 407 (6th Cir. 2009)* (unpublished).

A partially obscured registration sticker covered by an Ohio Buckeyes license plate frame was reasonable suspicion in Kansas. United States v. Orduna-Martinez, 561 F.3d 1134 (10th Cir. 2009).*

Plain touch did not justify the search of defendant’s pocket. The officer felt something during a lawful patdown and had to continue squeezing it, past determining that it was not a weapon, to get a full sense of what it was. This was unreasonable. Court of appeals reversed. State v. Garvin, 166 Wn.2d 242, 207 P.3d 1266 (2009).

Running wants or warrants on person stopped did not unduly prolong the stop, and there was no privacy interest in information in public records. The passenger was free to decline the officer’s request to see the ID as opposed to an official request which would have come next. [How can anybody refuse an ID request? Not that this necessarily mattered.] People v. Galarza, 391 Ill. App. 3d 805, 910 N.E.2d 1160, 331 Ill. Dec. 404 (2009):

Moreover, as in Harris, validating the information on defendant’s identification card with Collins’ dispatcher did not infringe on any privacy interest, because, absent facts to the contrary, any information contained in the police department’s computer system concerned matters of public record. Finally, as in Harris, an innocent passenger in defendant’s position would have felt free to decline to give Collins his identification. A request for identification is facially innocuous and does not allude to any official interrogation or increase the confrontational nature of the encounter with the police. Harris, 228 Ill. 2d at 248. As noted in Harris, we would be presented with quite a different situation if defendant had refused to give his identification to Collins and the officer had insisted that defendant comply. Harris, 228 Ill. 2d at 249.

Defendant parolee was at his girlfriend’s house when he was searched by the PO. He has no greater rights in his girlfriend’s house than he had in his own. United States v. Venson, 2009 U.S. Dist. LEXIS 46555 (W.D. Pa. June 3, 2009).*

Driving below the minimum speed was cause for a stop, even though the vehicle sped up after the defendant saw the officer. United States v. Alamilla-Hernandez, 2009 U.S. Dist. LEXIS 46836 (D. Neb. May 20, 2009).*

“[D]efendant lacked standing to challenge the search of the livery cab in which he was a passenger.” People v. Joseph, 2009 NY Slip Op 4287, 63 A.D.3d 420 (1st Dept. 2009).*

Massachusetts SJC upholds DUI roadblocks, including secondary screening based on observations, under Fourth Amendment and state constitution. Commonwealth v. Murphy, 454 Mass. 318, 910 N.E.2d 281 (2009); Commonwealth v. Swartz, 454 Mass. 330, 910 N.E.2d 277 (2009).

“We are not willing to assume that the Defendant, who was not singled out by the informant and was not observed by the officers to have been engaging in any criminal conduct, was in possession of narcotics and subject to warrantless arrest merely because he, along with three other people, was seated at a table upon which there was a dusting of cocaine residue. Because the officers lacked probable cause to believe that the Defendant had committed an offense, the search was not permissible as incident to a lawful arrest.” Suspicion must be individualized, and it does not apply to groups. State v. Richards, 2009 Tenn. LEXIS 348 (July 10, 2009) (dissenting opinion).

Defendant was stopped for having an unsecured ladder in the back of a pickup truck. “[B]ecause the trooper’s reasonable suspicion evaporated once he observed that the ladder was secure, the trooper had no reason to detain the defendants to perform the tasks incident to an ordinary traffic stop. Thus, the trooper unlawfully extended the scope of the stop by questioning the defendants regarding their travel plans and requesting identification.” State v. Diaz-Ruiz, 2009 Kan. App. LEXIS 767 (July 17, 2009).*

Entry into defendant’s home in “hot pursuit” was valid where officer attempted to stop DUI suspect right after a domestic disturbance call. She got out of her car and walked to her house, ignoring the officer’s order to stop. She got in the door with the officer right behind her. State v. Finnicum, 206 P.3d 501 (Ida. App. April 2, 2009):

Given these circumstances, Deputies McFarland and Vrevich acted lawfully when they followed Finnicum into the house because they were completing a justified arrest that had been set in motion in a public place. This conclusion is dictated by the United States Supreme Court’s decision in Santana. There, police possessing probable cause to arrest Santana for a drug offense went to her house, where she was standing in the doorway. As the officers approached, they shouted, “Police” and displayed their identification, whereupon Santana retreated into the vestibule of her home. The officers followed her through the open door and caught her in the vestibule. Addressing the question of “whether her act of retreating into her house could thwart an otherwise proper arrest,” the Supreme Court held that it could not. The Court concluded that “a suspect may not defeat an arrest which has been set in motion in a public place … by the expedient of escaping to a private place.” Santana, 427 U.S. at 43.

Here, Deputy McFarland had progressed further toward effectuating an arrest–by ordering Finnicum to stay by her vehicle–than had the officers in Santana who had merely yelled “Police” and showed their identification. Finnicum’s arrest was set in motion in a public place, and she may not gain refuge through her subsequent refusal to obey a lawful police order. Therefore, the deputies’ entry of Finnicum’s home to complete the arrest did not violate the Fourth Amendment.

Officer’s hunch was insufficient basis for a patdown. His observation of defendant loitering in front of a store known to be the site of drug distribution and drug-related arrests was not, by itself, sufficient to warrant a pat down. While defendant appeared nervous, the record did not show that defendant concealed or attempted to conceal his hands from the officer. There were no other relevant facts to suggest that defendant was involved in the distribution of drugs, such as hand-to-hand transaction, contact with others, or maintenance of a stash. Thompson v. Commonwealth, 54 Va. App. 1, 675 S.E.2d 832 (2009).*

Exigent circumstances did not justify the entry into defendant’s premises because officers waited an hour before deciding to enter, thereby showing that there was no exigency. There was also no probable cause shown in the affidavit for the search warrant. The motion to suppress was properly granted. State v. Mills, 2009 Tenn. Crim. App. LEXIS 337 (May 11, 2009).*

Search incident of defendant’s person was valid in Kansas on arrest for driving without insurance. Officer has discretion to cite or arrest. State v. Cox, 41 Kan. App. 2d 833, 206 P.3d 54 (2009).* (Note that this case was decided the day before Gant, but SI of a person being arrested is different from SI of his car.)