Plaintiff’s claim she was unreasonably Tasered during a traffic stop survives summary judgment because it was not objectively reasonable as a matter of law. Brown v. City of Golden Valley, 574 F.3d 491 (8th Cir. 2009)*:

Given the circumstances surrounding the Tasering and arrest, we are not convinced that Zarrett’s use of force was objectively reasonable as a matter of law. Sandra’s conduct did not amount to a severe or violent crime. Zarrett suspected that Sandra had committed an open bottle violation, a misdemeanor punishable by not more than ninety days’ imprisonment or a fine of not more than $1,000, or both. Minn. Stat. §§ 169A.35 (open bottle law); 609.03(3) (punishment when not otherwise fixed). Zarrett contends that the district court failed to consider the seriousness of the crimes of fleeing from an officer in a motor vehicle and driving while intoxicated. Whatever the officers’ suspicions may have been with respect to Richard’s possible intoxication, they had no reason to believe that Sandra had had anything to do with the manner in which Richard had responded to their flashing lights. Accordingly, the district court did not err in determining that the crime at issue was Sandra’s potential violation of Minnesota’s open bottle law.

Sandra posed at most a minimal safety threat to Zarrett and the other officers and was not actively resisting arrest or attempting to flee. In light of the fact that Zarrett testified that he had ample time in which to come around from the driver’s side of the car to the passenger’s side, there is nothing to indicate that he was faced with the need to make any split-second decisions, nor can the circumstances fairly be described as constituting a “tense, uncertain, and rapidly evolving” situation. Graham, 490 U.S. at 397.

[Posted 7/26]

A Fourth Amendment claim is not cognizable in a § 2255 proceeding. As an IAC claim for not challenging a search incident, it is not clear that defendant would have prevailed. In any event, reliance on Gant is unavailing because it was not the law at the time this case concluded. United States v. Madsen, 2009 U.S. Dist. LEXIS 64172 (D. Idaho July 23, 2009):

The Court is aware that the Supreme Court recently narrowed the applicability of Belton to situations where “the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search” and where “it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” See Arizona v. Gant, 129 S. Ct. 1710, 1714, 1719, 173 L. Ed. 2d 485 (2009). It may be arguable that under Gant, the search of Madsen’s vehicle may not have been upheld. However, the reality is that Gant was not the law at the time of counsel’s decision not to challenge the search. See Ingram v. City of Los Angeles, 2009 U.S. App. LEXIS 10783, 2009 WL 1396833, *1 n.1 (9th Cir. May 20, 2009) (unpublished) (noting in the context of a § 1983 action that Gant was not clearly established law at the time of the incident in question).

Defendant was the subject of surveillance for drug activities, and the officers followed him home, blocking his car in his driveway. They told him they wanted to pat him down. There was no reason to believe that defendant was armed or committing a crime. Navamuel v. State, 12 So. 3d 1283 (Fla. App. 4th DCA 2009).*

Defense counsel was not ineffective for not arguing lack of PC in the face of clear PC. Sanders v. United States, 2009 U.S. Dist. LEXIS 64222 (E.D. N.Y. July 27, 2009).*

Plaintiffs’ claim that six Imans were arrested without probable cause and detained for six hours at MSP airport, essentially for praying in the airport, which startled other passengers, survives summary judgment. They were returning home from a conference of Imams in Minneapolis (where, one suppose, they will not go again). Shqeirat v. United States Airways Group, 645 F. Supp. 2d 765 (D. Minn. 2009).*

Defendants came out of a house under surveillance for suspected drug activity overnight, but the officers had no PC as to the house. The mere fact of coming out of the house in the early morning hours is not reasonable suspicion of anything. They lacked any facts of a suspected crime. United States v. Traviesa, 2009 U.S. Dist. LEXIS 41595 (N.D. Fla. May 6, 2009):

Because the officers suspected criminal activity was being conducted inside of the 6550 residence, they decided to conduct surveillance on the location. However, the mere fact that the occupants of the car emerged from a house which was suspected of being involved in narcotics activity is insufficient to provide reasonable suspicion that criminal activity involving these particular Defendants was afoot. …

There is a dearth of evidence to support reasonable suspicion that criminal activity involving these Defendants or this truck was underway. There was no search warrant issued for the 6550 residence or property. There was no evidence that contraband had been moved from the house to the truck. In fact, officers testified that as they drove by the truck, there was nothing inside the truck bed. This was not a high crime area. The time that the Defendants were spotted leaving the house was not in the middle of the night or in the very early morning hours when people engaged in criminal activity may try to conceal their actions. There is no evidence that the windows of the truck were tinted or that the drivers tried in any way to avoid detection. There is no evidence that the Defendants saw the officers from the inside of the house and left in order to evade capture. No informant contacted police and told them that criminal activity was taking place in the 6550 residence. No informants had identified these Defendants as people involved in criminal activity. The connection between the occupants of the 6550 and the occupants of the other marijuana grow operations was tenuous, at best. Officers’ testimony indicated that but for the decision by the Marion County officers to take down another house in the investigation, the officers would not have stopped the Defendants in the truck.

On similar facts to the above, officers tailed the car and made a traffic stop and then lawfully fished around for consent. State v. Corley, 383 S.C. 232, 679 S.E.2d 187 (2009).*

Officers listened to defendants in a hotel room by putting their ear to the common door between them, but that was not unreasonable, and defendant lacked standing to contest the entry since he was there for drug dealing as a temporary guest. The co-defendant argued that the warrantless entry into his hotel room was unreasonable, but the court finds that it does not have to decide that question because there was a search warrant with an independent source. United States v. Hearn, 563 F.3d 95 (5th Cir. 2009).*

Plaintiff, a female truck driver, was arrested for disorderly conduct for giving the finger to a truck stop security guard after he accused her of being a prostitute. She was pulled out of her truck and left standing in the parking lot wearing only panties for 20 minutes, and she was driven to jail without any other clothes. While there was at least PC for the arrest, she stated a claim for the actions of making her stand in the parking lot and taking her to jail undressed. Green v. City of Texarkana, 2009 U.S. Dist. LEXIS 41979 (W.D. Ark. May 14, 2009).*

The search warrant for defendant’s snowmobile involved in a hit-and-run was valid. It was seen from defendant’s driveway during the investigation. “Defendant cannot argue that this search was illegal simply because his driveway causes a visitor to travel deeper onto his property than other driveways.” State v. Mosner, 407 N.J. Super. 40, 969 A.2d 487 (2009).*

Seeing defendant remove a gun from his waist and put it in his truck was, “at a minimum, reasonable suspicion to believe that defendant unlawfully possessed a weapon.” People v. Littleton, 62 A.D.3d 1267, 878 N.Y.S.2d 540 (4th Dept. 2009).*

Two trash searches were barely enough to get a search warrant for defendant’s property. Considering deference given a SW, it was enough. Here, it was combined with years’ old information from a CI, and that part was insufficient. Accurately describing the cars parked outside is an observation anybody could make. Flores v. State, 287 S.W.3d 307 (Tex. App. — Austin 2009):

The garbage container in which Farkas found the marihuana residue was sitting in front of the suspect premises, but it was also in or beside a city street and accessible to any neighbor or passer-by. Neither appellant nor Wardell was seen placing the garbage bags in question, or any other trash, in the container, and there was no other statement of fact in the affidavit suggesting a connection between the marihuana residue found in the garbage and either appellant, Wardell, or the suspect premises. On the other hand, the fact that Farkas found marihuana residue in the trash container outside the residence at 1920 Ramona Circle on two different occasions suggests that the incriminating material had not been placed there by a neighbor or some passer-by, but that it actually came from inside the house. The situation is analogous to the “doctrine of chances,” which states that unusual events are unlikely to repeat themselves inadvertently or by happenstance. See Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005); see also 2 John Wigmore, Evidence § 302 (Chadbourn rev. 1979). This presents a very close question, but keeping in mind the deference that is due the magistrate’s determination of probable cause, we conclude that the affidavit gave the magistrate a substantial basis for concluding that there was probable cause to search the premises for marihuana.

When there is consent, there is no need for probable cause. The trial court’s finding of consent is supported by the record. State v. McCambridge, 2009 Ohio 2021, 2009 Ohio App. LEXIS 1678 (5th Dist. April 27, 2009).*

Letters in a padlocked closet were within the scope of the search warrant which included papers. The trial court erred in finding that they were not in plain view. State v. Richardson, 2009 Ohio 2020, 2009 Ohio App. LEXIS 1681 (5th Dist. April 27, 2009).*

Officers with reasonable suspicion when confronting the defendant about a drug deal they stopped him for could ask him about whether he had a gun without Mirandizing him. Drug dealers often have guns, and guns are dangerous. United States v. Sinclair, 2009 U.S. Dist. LEXIS 42542 (D. S.C. May 18, 2009):

The proposition that drug trafficking is highly linked with dangerous weapons and violence involving such weapons is so obvious and well-established that this Court need give no further enumeration or proof of its veracity. In the present case, as explained above, law enforcement had reasonable suspicion that Defendant had a large quantity of marijuana in his automobile, and intended to sell a large quantity of marijuana to the informant. Given the well-established link between drug trafficking and gun violence, law enforcement therefore also had reasonable suspicion that Defendant was armed and dangerous. To hold otherwise would constantly put law enforcement officials in situations where they would be investigating and questioning suspected drug dealers who would be afraid of being apprehended and eventually punished, but who could very well have weapons on their persons. Such situations would undoubtedly lead to violence against law enforcement officers.

Accordingly, asking Defendant if he had any weapons on his person, and the subsequent taking of the gun into custody, was lawful, and the Court denies Defendant’s Motion to Suppress this evidence.

Officer’s stop of what he thought was a suspicious person leaving a house was without any factual support and lacked reasonable suspicion. That stop led to a dog sniff. United States v. Molina, 626 F. Supp. 2d 1073 (D. Idaho 2009).*

A 911 call came from a library patron advised that the defendant was looking at child pornography in a library. Based on all the factors available to the officer, he had reason to talk to defendant who had a computer and looked furtively when the officer came in. When confronted, he said that the officers should “give him a break” because he was “sick.” This was reasonable suspicion. United States v. Talley, 2009 U.S. Dist. LEXIS 42682 (W.D. Va. May 19, 2009).*

Parents could not be ordered to undergo UAs as a condition of a juvenile’s delinquency proceeding without specific evidence of wrongdoing. State v. Moreno, 2009 UT 15, 624 Utah Adv. Rep. 14, 203 P.3d 1000 (2009), rehearing denied 2009 Utah LEXIS 117 (Utah, Feb. 20, 2009):

[*P16] The second component of a test of a condition’s reasonableness is whether there is a logical connection between the parent’s conduct, the minor’s conduct, and the court order. If the court order is premised on a belief that there may be drug use in the home, then there must be, at minimum, sufficient evidence to suggest that drug use is in fact occurring in the home. Finally, if the goal of the order is to reform the minor’s drug use, the order must be related to drug use rather than to another aspect of the parent’s behavior unrelated to drugs. By requiring that to be reasonable the conditions imposed by the court order bear some relationship to the behavior of both the minor and the adult, the test we announce today ensures that court-ordered restrictions and expectations conform to generally accepted parenting norms. A court order requiring a parent to complete drug testing that has no connection with the circumstances of the case would not be reasonable.

[*P17] An example of the connection required can be found in child welfare cases. In those cases, before a parent’s parental rights may be terminated, sufficient record facts must be presented to satisfy the statutory elements for termination, including that termination of parental rights is in the best interest of the minor. M.G. v. M.S.H. (In re T.H.), 2007 UT App 341, P 11, 171 P.3d 480. In M.T.M. v. State (State ex rel. T.M.), the court determined that a father’s parental rights were correctly terminated because there was a connection between the court order terminating his rights and facts material to his relationship with the child, such as his past incidents of domestic violence that occurred in front of the children, his use of methamphetamine in the presence of the children that caused the children to test positive for methamphetamine residue, his failure to stay in drug treatment, and his refusal to stop leaving the children in the care of their mother, who was a habitual methamphetamine user. 2006 UT App 435, P 18, 147 P.3d 529. An analogous standard can be applied in child delinquency cases. The greater the nexus between the order and reformatory goal, the more likely an order and the conditions it imposes will be reasonable.

[*P18] While a connection between the facts of the case, the court order, and the rehabilitative goal is necessary for an order imposing conditions on the parent to be reasonable, this does not mean that court orders directed at parents require probable cause to believe that the parent is engaging in undesirable behavior in order to be reasonable. Nor does it require that there be probable cause to believe that the parent’s alleged behavior caused the delinquent behavior of the child for the order to be reasonable. Rather, where the condition imposed by the juvenile court does not impair the parent’s constitutional rights, an order will be reasonable if it is based on a more than wholly speculative belief that the parent is engaging in behavior that is likely contributing materially to the minor’s delinquent behavior.

Misdescription of address of rural property was not material where rural property is hard to identify by address because the address is not on a building and multiple buildings are often next to each other and the physical description of the property was quite adequate. There was no chance the officers searched the wrong building. Fentress v. Commonwealth, 279 S.W.3d 168 (Ky. App. 2008).*

Police came to defendant’s shop to talk to him about a domestic disturbance, and they saw tin foil boats for smoking meth in plain view, so the seizure was valid. Koster v. State, 374 Ark. 74, 286 S.W.3d 152 (2008).*

Defendant was stopped for having no lights on his trailer, and the officer decided to put him in the patrol car. The officer asked if he minded being patted down for weapons and he answered “Yeah.” That was a refusal of consent, and the trial court’s finding was not clearly erroneous. State v. Leigh, 2008 SD 53, 753 N.W.2d 398 (2008).*

The state showed nexus to defendant’s house for a search warrant. On his digital camera were found upskirt pictures of a minor, and it was reasonable to assume that, although the crime occurred in defendant’s business, that additional pictures would be found in his home. State v. Byrne, 972 A.2d 633 (R.I. 2009):

The trial justice failed to articulate what additional underlying facts were, in his view, necessary to establish a reasonable inference that defendant took the camera home. In this case, the affiant alleged that defendant took several pictures of the child-victim’s undergarments with a camera and further alleged that, in several shots, the camera was focused under the child’s skirt. Although the alleged crime occurred at defendant’s place of business, and the only reference to defendant’s home was in the final paragraph of the affidavit (although the home was described with particularity in the warrant), it is our view that a reasonable inference could be drawn from these facts that the camera–the instrumentality of the crime and a handheld, easily transportable item of personal property–could be found at defendant’s residence. Short of surveillance or actual observation of defendant taking the camera home, we are hard-pressed to envision what additional facts connecting the camera to defendant’s home could be alleged to support this inference. Evidence of actual observation is not a constitutional prerequisite for a finding of probable cause.

Trial court’s grant of a motion to suppress of the frisk of the defendant was against the preponderance of the evidence. The defendant’s actions created at least suspicion that he was armed and justified the frisk. State v. Moffatt, 2009 Tenn. Crim. App. LEXIS 438 (June 12, 2009).*

Court finds defendant’s claim that she thought she was signing a search warrant and not a consent to search was not credible. United States v. Porter, 2009 U.S. Dist. LEXIS 52183 (E.D. Wis. June 19, 2009).*

Defendant’s failure to file a motion to suppress before trial was a waiver of the motion. United States v. Thomas, 2009 U.S. Dist. LEXIS 52331 (E.D. Mo. June 18, 2009).*

Officer had reasonable suspicion that the defendant’s vehicle was involved in a crime where two identified vehicles fled the scene and were seen a mile away. When the cars were seen again, the officers had reasonable suspicion. That led to defendant’s arrest, and the resulting inventory of his car was valid. Lecates v. State, 975 A.2d 799 (Del. 2009).*

Knowledge that the passenger in a vehicle that was stopped had just been involved in a drug transaction was justification for a pat down. United States v. Hardy, 2009 U.S. Dist. LEXIS 70 (N.D. Iowa January 5, 2009), relying on United States v. Oliver, 2008 U.S. App. LEXIS 26394, 2008 WL 5333835 (8th Cir. December 23, 2008).*

Similarly, a felony stop at gunpoint is justified by knowledge of a just occurring hand-to-hand drug transaction. United States v. Brewer, 2009 U.S. Dist. LEXIS 71 (N.D. Iowa January 5, 2009).*

The question was probable cause for arrest, and it isn’t the level of proof required for conviction [not that appellant actually argued that]. Here, the police sufficiently corroborated the CI to justify the stop. Pullan v. State, 104 Ark. App. 78, 289 S.W.3d 180 (2008).*

Defendant did not demontrate that he abandoned his rental property because the rent was unpaid. The evidence demonstrates that he did not abandon it. A computer was taken and checked by the government for child porn. As soon as he realized it was gone, he made a theft report. There was a private search of the computer, and the police exceeded that in substantial part. United States v. Crist, 627 F. Supp. 2d 575 (M.D. Pa. 2008)*:

Here, the evidence does not support a finding of unequivocal intent by Crist to abandon the computer. Crist returned to the house on August 10, twenty six days after his rent became overdue. No eviction proceedings had begun. Nor had Crist received notice that his property would be removed. In fact, when the Sells were hired to clean out his house, Crist was in the process of “sorting through things.” Tr. 54. He returned to the premises in the midst of the Sells’ removal of his belongings and proceeded to search for certain items. His strong reaction to the missing computer and nearly contemporaneous filing of a police report to retrieve his missing property, demonstrate anything but a “clear and unequivocal” intent to abandon the property. From this evidence, the Court finds that there is insufficient evidence to conclude that Crist intended to abandon his computer.

. . .

This reasoning requires the Court to find that the Government’s post-EnCase search of Crist’s computer violated the Fourth Amendment. The Government’s warrantless search of Crist’s computer exceeded the scope of the private search because the Government was not substantially certain the computer contained only contraband. The Government only had substantial certainty that five files on Crist’s computer were contraband; Crist’s expectation of privacy was not extinguished as to the contents of the thousands of other files unseen by Hipple. Thus, even if the initial EnCase analysis had not violated the Fourth Amendment, the evidence found on Crist’s computer must be suppressed because the further search of Crist’s computer exceeded the scope of the private search in violation of the Fourth Amendment.

Using a peer to Peer (P2P) file sharing program for sharing child pornography is a waiver of any expectation of privacy in the computer to anybody who could access it. United States v. Stults, 575 F.3d 834 (8th Cir. 2009):

Several federal courts have rejected the argument that an individual has a reasonable expectation of privacy in his or her personal computer when file-sharing software, such as LimeWire, is installed. See, e.g., United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir. 2008) (holding that the defendant lacked a reasonable expectation of privacy in the downloaded files stored on his computer, meaning that an agent’s use of a file-sharing software program to access child pornography files on the computer did not violate the defendant’s Fourth Amendment rights); United States v. Perrine, 518 F.3d 1196, 1205 (10th Cir. 2008) (holding that defendant had no expectation of privacy in government’s acquisition of his subscriber information, including his IP address and name from third-party service providers, where the defendant voluntarily transmitted such information to Internet providers and enabled P2P file sharing on his computer, which permitted anyone with Internet access the ability to enter his computer and access certain folders); United States v. Barrows, 481 F.3d 1246, 1249 (10th Cir. 2007) (“[The defendant] claims that he invited no one to use his computer and therefore expected its contents to remain private. Yet he surely contemplated at least some third-party access: he knowingly networked his machine to the city computer for the express purpose of sharing files.”); United States v. Brese, No. CR-08-52-D, 2008 WL 1376269, at *2 (W.D. Okla. April 9, 2008) (unpublished) (“The Court finds that, notwithstanding any subjective expectation that Defendant may have had in the privacy of his computer, it was not reasonable for him to expect privacy in files that were accessible to anyone else with LimeWire (or compatible) software and an internet connection.”); United States v. Borowy, 577 F. Supp. 2d 1133, 1136 (D. Nev. 2008) (“In this case, [the defendant] did not have a legitimate expectation of privacy in files he made available to others using P2P software.”).

We hold that Stults had no reasonable expectation of privacy in files that the FBI retrieved from his personal computer where Stults admittedly installed and used LimeWire to make his files accessible to others for file sharing. One who gives his house keys to all of his friends who request them should not be surprised should some of them open the door without knocking. As a result, “[a]lthough as a general matter an individual has an objectively reasonable expectation of privacy in his personal computer, we fail to see how this expectation can survive [Stults’s] decision to install and use file-sharing software, thereby opening his computer to anyone else with the same freely available program.” Ganoe, 538 F.3d at 1127 (internal citation omitted). Even if we assumed that Stults “did not know that others would be able to access files stored on his own computer,” Stults did know that “he had file-sharing software on his computer; indeed, he admitted that he used it–he says to get music [and to download pornography].” Id. As a result, Stults “opened up his download folder to the world, including Agent [Cecchini].” Id. “Having failed to demonstrate an expectation of privacy that society is prepared to accept as reasonable, [Stults] cannot invoke the protections of the Fourth Amendment.” Id.

Search warrant for a computer for evidence of drug activity could include trophy photos of drugs, and that led to the police coming upon child pornography. The warrant was sufficient and permitted seizure of child porn after it was discovered. (It was also argued by the government that the search of the computer was justified by the automobile exception, despite it being a closed container. The court was unimpressed with that argument, but did not have to decide it because of the warrant.) United States v. Burgess, 576 F.3d 1078 (10th Cir. 2009).*

Franks violation fails because, even if the omitted information was included, PC was still present. The warrant was not general because there was no unfettered discretion in the executing officers. The warrant sought documents, and finding a computer at the scene justified a seizure of the computer. United States v. Dieu Phan, 628 F. Supp. 2d 562 (M.D. Pa. 2009):

Likewise, the seizure of the computer was also justified. The search warrant authorized the seizure of documents related to Lynda Dieu Phan’s business and payroll. Computers often contain documents related to business. Moreover, in this case, the computer was found in Lynda Dieu Phan’s home office, in which the agents discovered many documents related to Lynda Dieu Phan’s business. Under these circumstances, it follows that other documents relating to Lynda Dieu Phan’s business would also be contained in the computer. Accordingly, the incriminating nature of the computer was immediately apparent, and the officers’ seizure of the computer was justified.

Exigent circumstances or a warrantless in home arrest was not justified because the officers’ information that the defendant would flee to another state was really thin. United States v. Perez, 2009 U.S. Dist. LEXIS 43843 (M.D. Pa. May 21, 2009):

With respect to the first point, the Court was not convinced — as a factual matter — that officers had a genuine concern about Defendant’s potential flight to New Jersey or elsewhere that could not have been addressed by placing 510 Minor Street under surveillance pending the issuance of a warrant. Although the government produced testimony that surveilling the house was difficult given the layout and demographics of the neighborhood, the Court does not perceive how these concerns equate with concern over securing the house and area around it. Indeed, there was testimony that Corporal Harris and others spent considerable time in the neighborhood over the course of the afternoon on April 21st and while surveillance may have been compromised it does not automatically follow that officers were unable to secure the location while a warrant could be obtained, particularly as it was not clear that officers needed to maintain secret surveillance of Perez’s residence as part of its plan to arrest him.

The Court well appreciates the considered judgment that law enforcement officers must exercise, particularly in fast moving investigations such as was taking place on April 20th and April 21st. Nevertheless, the Court must consider that factor among many others within the context of the facts the government developed during the evidentiary hearings. The Court ultimately found the evidence regarding Defendant’s potential flight to New Jersey to be especially thin, and all the more so given Defendant’s apparent ties to the area such as his home and family. Moreover, no officer testified that they were in “hot pursuit” of Defendant at any point during this investigation that might justify a warrantless arrest to prevent escape. Furthermore, the Court does not find support in the record for the assertion that officers were powerless to secure the area around 510 Minor Street pending issuance of a warrant. For all of these reasons, the Court does not find a risk of Defendant’s imminent flight justified his warrantless arrest.

Court asked for briefing on the effect of Gant on the search incident at issue and concludes it has none. Defendant’s obstruction during the search was a new crime, and a search incident was proper then. Also, there was PC to believe evidence would be in the car. [That doesn’t necessarily make sense, does it? What’s the evidence of obstruction? It does not matter in this case, but the language is troubling for the future.] United States v. Perdoma, 2009 U.S. Dist. LEXIS 43785 (D. Neb. May 22, 2009).*

Defendant’s arrest was without probable cause and a warrant off a vague NCIC printout, and the court concludes that the arrest has to be suppressed under Herring because the officers were not acting in objective good faith in relying on the vague report as proof of an arrest warrant. United States v. Toledo, 615 F. Supp. 2d 453 (S.D. W.Va. 2009):

As stated, this Court must be guided by an analysis of the ability to deter Fourth Amendment violations and the culpability of law enforcement officers. This analysis is “objective, not an inquiry into the subjective awareness of arresting officers.” Herring, 129 S. Ct. at 703. Here, “‘a reasonably well trained officer would have known that the search was illegal’ in light of ‘all of the circumstances.'” Id. (quoting Leon, 468 U.S. at 922 n.23.)) The actions of Lt. Smith and Sgt. Westfall are a far cry from those of the sheriff’s department personnel in Herring. In this case, there was no warrant that gave these officers authority to arrest Defendant; rather, they presumed such authority despite receiving contrary information. They were not merely negligent, but rather “reckless[] or grossly negligent.” Id. at 702. Such conduct can, and should be, deterred. To this end, the Court rejects the Government’s argument that this case involved good faith, mistaken but objectively reasonable, reliance on an invalid warrant.

Extreme nervousness was a strong factor in RS because it continued after the officer told the defendant he was giving a warning ticket. Dog alert supported search of the trunk. Yoeuth v. State, 2009 WY 61, 206 P.3d 1278 (2009).*

Officer was called when defendant complained that his girlfriend would not leave his apartment. When the officer got there, the girlfriend told him that the defendant had a crackpipe in his headboard. She did not have apparent authority to consent to the search because it was obvious that she did not live there. State v. Williams, 2009 Ohio 2040, 2009 Ohio App. LEXIS 1699 (8th Dist. April 30, 2009).*

Officer saw defendant’s van pull into a driveway in a high crime area, and a person known to be a drug dealer came out and reached into the driver’s window, leading the officer to suspect a hand-to-hand drug transaction. He saw nothing change hands. He followed the vehicle and pulled it over. When the defendant stopped at a convenience store, the officer stopped him and asked for permission to search his person, which he got, finding nothing. The officer asked the passenger who was the vehicle owner, and he declined to consent to a search of the vehicle, so the officer called for a drug dog. The detention was without reasonable suspicion. Panter v. State, 8 So. 3d 1262 (Fla. App. 1DCA 2009).*

Defendant parolee was ratted out by his girlfriend to his parole officer about his possession of drugs, and that justified the parole search of his house. United States v. Noble, 326 Fed. Appx. 125 (3d Cir. 2009) (unpublished).*

Defendant complained that the stop took too long for the drug dog to arrive. His admission that somebody smoked marijuana in the car that day “was additional reason to prolong the stop to allow the dog sniff.” United States v. Johnson, 2009 U.S. App. LEXIS 10072 (7th Cir. May 11, 2009) (unpublished).*

A suspect has standing to challenge a search of his own person, here a patdown that led to more, even though he lacks standing to challenge a search of the place where the police found him because he was a mere visitor. The record here was devoid of a reason for the patdown, and the motion to suppress was properly granted. State v. King, 287 Ga.
App. 680, 652 S.E.2d 574 (2007):

The state argues only that the Kings, as visitors to the premises, had no standing to contest the search thereof. Generally, “warrantless intrusion of a person’s home is prohibited by the Fourth Amendment, absent consent or a showing of exigent circumstances.” But the Fourth Amendment right against unreasonable searches and seizures is a personal one and may not be asserted vicariously. Thus, “[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” This principle, though correct, is inapposite, because, as shown above, King was aggrieved not only as a result of the search of the third person’s premises, but, in the first instance, as a result of the illegal search of his person. “A person does not lose the protection of the Fourth Amendment by entering the [home] of another.”

A murder suspect was believed to have put evidence in a garbage bag on the back porch of his trailer which was shared with others. One of the men inside was asked by the police to check it, and evidence was found. Because the garbage bag was outside and trash was gathered from multiple people, defendant cannot claim an expectation of privacy in the trash bag [even though it was on the curtilage]. The court also holds that the person who looked was not acting as an agent of the police. Hyde v. State, 13 So. 3d 997 (Ala. Crim. App. 2007).*

Defendant’s prior suspended sentence included a search condition “by any law enforcement officer,” and he was searched by a law enforcement officer with knowledge of the condition. The consent to search provision was valid. Downing v. State, 2007 Ark. App. LEXIS 643 (September 26, 2007)* (unpublished) (Comment: Arkansas is on the verge of adopting a rule that all cases are precedent, so unpublished cases back to 1979 will be citable. Other states have similar rules, and their unpublished cases appear here as well.)

Arkansas’ rule against pretextual stops did not apply because there was a valid basis for a traffic stop (broken taillight) that led to the search. Williams v. State, 2007 Ark. App. LEXIS 642 (September 26, 2007).*

A checkpoint at the entrance to a national park to guard against unlawful hunting in the park was minimally intrusive and not unconstitutional. Its purpose was prevention and deterrence, not arrests. Defendant was arrested for DUI. United States v. Fraire, 575 F.3d 929 (9th Cir. 2009):

Park rangers set up a vehicle checkpoint at the entrance to the Kings Canyon National Park to “mitigate the illegal taking of animals in the park” due to hunting, which is prohibited in the park. All vehicles were stopped for about 15 to 25 seconds, and their drivers asked about hunting. When Appellant Ricardo Fraire’s vehicle was stopped at the checkpoint, a ranger noted a strong odor of alcohol on Fraire’s breath. He subsequently was charged with driving under the influence and related offenses. In a motion to suppress, Fraire argued that the suspicionless stop of his vehicle was unconstitutional. We agree with the district court that it was not. We hold today that a momentary checkpoint stop of all vehicles at the entrance of a national park, aimed at preventing illegal hunting—which is minimally intrusive, justified by a legitimate concern for the preservation of park wildlife and the prevention of irreparable harm, directly related to the operation of the park, and confined to the park gate where visitors would expect to briefly stop—is reasonable under the Fourth Amendment.

. . .

The checkpoint in this case is analogous to the [DUI] checkpoint upheld in Sitz and is distinguishable from the checkpoint in Edmond. A critical factor in Sitz was the close connection between the checkpoint and the harm it was seeking to prevent. Id. at 39 (describing the “obvious connection between the imperative of highway safety and the law enforcement practice at issue” in Sitz); id. at 43 (emphasizing the “close connection to roadway safety”). Likewise, here, the checkpoint was situated at an entrance to the park and sought to counter illegal hunting within that park. Unlike the drug crimes addressed by the Edmond checkpoint, which occur throughout the nation, the wildlife offenses here are specific to national parks. Further, just as the Sitz checkpoint prevented an immediate harm to motorists, the checkpoint here prevents hunters from destroying a precious natural resource. It does so by catching poachers before they can kill additional animals, by deterring would-be poachers, and by educating the park-going public about the hunting prohibition. The goal was prevention, not arrests.

Because the primary purpose of the checkpoint is distinguishable from the general interest in crime control, the checkpoint is not per se unconstitutional under Edmond. We must therefore determine its “reasonableness, hence, its constitutionality, on the basis of the individual circumstances.” Lidster, 540 U.S. at 426. Our first consideration is “the gravity of the public concerns served by the seizure[.]” Id. at 427 (quoting Brown, 443 U.S. at 51). In Faulkner, we described the gravity of the public concerns served by an informational checkpoint in a national park (preventing litter, promoting fire safety, reducing incidents of driving under the influence, eliminating property destruction and gang activity, and protecting the environment) as high. 450 F.3d at 472. Here, the public concerns, including the protection of wildlife and ensuring the safety of park visitors, are equally pressing.

The second consideration is “the degree to which the seizure advances the public interest[.]” Lidster, 540 U.S. at 426 (quoting Brown, 443 U.S. at 51). Fraire contends that the checkpoint cannot be upheld without some empirical data demonstrating its effectiveness.
. . .

Defendant who went on a high speed chase for 20 miles and then got out of the car and ran on foot never submitted to the officers’ show of authority. Defendant was finally caught up with as he was trying to break into a building in flight. United States v. Johnson, 2009 U.S. Dist. LEXIS 47365 (E.D. Pa. June 4, 2009).*

A probation search could not be based on an unlawful stop and nervousness observed from that, because nervousness alone is not reasonable suspicion. Adkins v. State, 298 Ga. App. 229, 679 S.E.2d 793 (2009).*

The Seventh Circuit affirmed the conviction of off-duty Milwaukee police officers for violation of civil rights for unreasonable searches and seizures and excessive searches as a result of a racially motivated melee from 2004. United States v. Bartlett, 567 F.3d 901 (7th Cir. 2009).

Police had an anonymous tip that a man “possibly” had a gun. That was an insufficient basis for a stop and frisk even in a high crime area. State v. Davis, 2009 Ohio 2538, 2009 Ohio App. LEXIS 2136 (2d Dist. May 29, 2009):

[*P19] Because no information was presented at the suppression hearing about the identity of the person who provided the tip that led to the search of Davis and the car, the trial court could not presume any pattern of past reliability on the part of the tipster. According to the testimony, the deputies did not verify any of the information provided in the telephone call. Although Davis did match the general description given by the caller, the state failed to present evidence that the source had any reliable knowledge of criminal activity. Neither the high level of criminal activity in the area nor the observation that Davis placed something in the glove compartment justified the search in the absence of any other reliability indicia of criminal activity.

Search incident of defendant’s car in his driveway was invalid. He was merely standing next to it and looking inside when the police showed up and he fled inside. He was not even a “recent occupant.” State v. Patton, 167 Wn.2d 379, 219 P.3d 651 (2009):

¶25 Unfortunately, the scope of the search incident to arrest exception under our article I section 7 has experienced the same sort of progressive distortion that the United States Supreme Court recently recognized resulted in the unwarranted expansion of the search incident to arrest exception under the Fourth Amendment. Arizona v. Gant, __ U.S. __, 129 S. Ct. 1710, 1718-19, 173 L. Ed. 2d 485 (2009). In Gant, the court observed that many lower courts have followed the broadest possible reading of the search incident to arrest exception as articulated in Belton, with the result that it has come to be regarded as “‘a police entitlement rather than as an exception justified by the twin rationales of Chimel.’” Id. at 1718 (quoting Thornton v. United States, 541 U.S. 615, 624, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004) (O’Connor, J., concurring in part)). Recognizing that the decision in Belton itself purported to follow Chimel, the Court in Gant issued a necessary course correction to assure that a search incident to the arrest of a recent vehicle occupant under the Fourth Amendment takes place “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Gant, 129 S. Ct. at 1719.

¶26 Article I section 7 requires no less. We have long recognized that our constitution’s express regard for an individual’s “private affairs” places strict limits on law enforcement activities in the area of search and seizure. See, e.g., O’Neill, 148 Wn.2d at 585-86. Today we hold that the search of a vehicle incident to the arrest of a recent occupant is unlawful absent a reasonable basis to believe that the arrestee poses a safety risk or that the vehicle contains evidence of the crime of arrest that could be concealed or destroyed, and that these concerns exist at the time of the search. While we believe this holding is consistent with the core rationale of our cases, we also recognize that we have heretofore upheld searches incident to arrest conducted after the arrestee has been secured and the attendant risk to officers in the field has passed. Today, we expressly disapprove of this expansive application of the narrow search incident to arrest exception.

¶27 Under a proper understanding of the search incident to arrest exception, the circumstances here simply do not involve a search incident to arrest. Patton was not a driver or recent occupant of the vehicle searched. There is no indication in the record that Patton even had keys to the vehicle. No connection existed between Patton, the reason for his arrest warrant, and the vehicle. Rather, Patton’s warrant was for failure to appear in court for a past offense unrelated to the eventual drug charge that arose from the car search. Thus, there was no basis to believe evidence relating to Patton’s arrest would have been found in the car. Nor did Patton’s brief proximity to the car give rise to safety concerns upon his arrest.

DNA sampling after indictment under federal regulations [adopted under 42 U.S.C. § 14135a, 28 CFR Part 28, 73 FR 74932] is constitutional under the “special needs” exception. The court analyzed the DNA testing on conviction cases and concluded that “special needs” exception was appropriate here. (While this issue is being litigated all over, this is the first to come across Lexis, and it was decided two months ago, so there likely are others.) United States v. Pool, 645 F. Supp. 2d 903 (E.D. Cal. 2009):

Defendant argues that the situation here involving non-convicted, but charged defendants is different. Therefore, the court must use the “special needs” test because unlike the Kincade line of cases, defendant has not been convicted and has a presumption of innocence. Defendant’s Brief at 15. Defendant also contends that a general law enforcement need to take his DNA sample, the only reason that can apply here according to defendant, will not qualify as a “special need.” As a result, defendant concludes the sampling is unconstitutional. Defendant’s Brief at 15. Defendant points to the Supreme Court cases of Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L. Ed. 2d 205 (2001) and City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L. Ed. 2d 333 (2000). In Ferguson, the Supreme Court held that the use of a hospital’s diagnostic test to obtain evidence of drug use of pregnant patients for law enforcement purposes was an unconstitutional search. In Edmond, the Supreme Court struck down a vehicle checkpoint where the primary purpose was to detect evidence of ordinary criminal wrongdoing, the trafficking of illegal drugs.

Defendant’s argument fails. The programs in Ferguson and Edmond are distinguishable from the instant case. Those cases involved the search and seizure of motorists on a particular road or patients being admitted to a hospital. Importantly, there had been no judicial involvement in finding that each specific person to be tested had been involved in criminal wrongdoing. Rather, the government was simply fishing for substantive evidence with which to then go to a judge or otherwise commence criminal proceedings. As such, neither the motorists nor the patients could be compelled to give substantive evidence absent special needs beyond the mere general need to enforce the criminal laws.fn4 The instant case is worlds apart from that in the above two cited cases — defendant is subject to DNA testing after a judicial finding or grand jury determination of probable cause.

4. Suspicionless searches have been upheld where designed to serve “special needs, beyond the normal need for law enforcement.” See, e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L. Ed. 2d 564 (1995) (random drug testing of student-athletes); Treasury Employees v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L. Ed. 2d 685 (1989) (drug tests for United States Customs Service employees seeking transfer or promotion to certain positions); Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (drug and alcohol tests for railway employees involved in train accidents or found to be in violation of particular safety regulations).

The judicial or grand jury finding of probable cause within a criminal proceeding is a watershed event which should be viewed differently from mere pre-judicial involvement gathering of evidence. After such a judicial finding, a defendant’s liberty may be greatly restricted — even denied. As part of his pre-trial release, defendant may be deprived of his very liberty; he can be subject to electronic monitoring; he may be ordered to obey a mandatory curfew. Also, the court can order a defendant to refrain from traveling outside of the Eastern District of California without prior approval, not to possess a firearm and that he must reside at a location that is reviewed and approved by the Pretrial Services Officer. In a pornography case he can be directed to not have any communications with a minor without the child’s parent or guardian being present, cannot be found within 100 feet of a schoolyard, park, playground or other place frequented by children, cannot access the internet or possess a computer at his residence without prior approval. These conditions are almost identical to those conditions which can be imposed on a probationer or parolee for whom a DNA testing requirement has been found appropriate under a totality of the circumstances standard. The court finds that an up-front requirement for finding probable cause that the defendant has committed the charged felony places the issue much more closely with those cases utilizing a totality of the circumstances standard.

Defendant’s stop was not too long, and the district court erred in granting the motion to suppress. The length of the stop was added to by defendant’s “confused answers” to basic questions. United States v. Rivera, 2009 U.S. App. LEXIS 14746 (8th Cir. July 6, 2009).*

Removing defendant’s bag from a Greyhound bus effectively seized him, relying on United States v. Va Lerie, 424 F.3d 694 (8th Cir. 2005) (en banc). United States v. Alvarez-Manzo, 570 F.3d 1070 (8th Cir. 2009).*

Stop for speeding and then ordering defendant from his vehicle was reasonable. United States v. Anderson, 2009 U.S. Dist. LEXIS 57381 (E.D. Va. July 6, 2009).*

Once the cat was out of the bag as to the officers’ presence, a warrantless entry was permitted under Segura. The court already found that the officers would have otherwise gotten a search warrant and already had probable cause. United States v. Etchin, 2008 U.S. Dist. LEXIS 109187 (W.D. Wis. December 18, 2008).*

Gant came along after the USMJ made his R&R, but it did not alter the outcome. Defendant was stopped for a noise violation and officers saw an open container. Based on circumstances, they had reason to believe a gun would be in the console. That search occurred after defendant was handcuffed and walking to a police car. United States v. Bullock, 2009 U.S. Dist. LEXIS 58080 (E.D. Wis. June 23, 2009).*

Reviewing and signing a consent form that said that the consenter could refuse consent showed that the consent was valid. United States v. Myers, 335 Fed. Appx. 936 (11th Cir. 2009) (unpublished).*

“[P]lacing handcuffs on Defendant during this search would not have been so overly intrusive to exceed the scope of the Terry stop.” United States v. Lewis, 2008 U.S. Dist. LEXIS 90557 (W.D. Tenn. November 5, 2008).*

Defendant’s walking away from a parked vehicle when he saw a police officer the second time was reasonable suspicion. State v. Davis, 2008 Ohio 5756, 2008 Ohio App. LEXIS 4832 (10th Dist. November 6, 2008)* (Comment: A thoroughly unconvincing decision).

Blocking defendant’s path on foot with a police car is a stop. It is not functionally different from blocking the path of a car. State v. Lewis, 2008 Ohio 5805, 179 Ohio App. 3d 159, 900 N.E.2d 1084 (6th Dist. 2008).*