There is no reasonable expectation of privacy in the front of an envelope. Police went to defendant’s mail drop place and asked if he used the place, and an employee got three envelopes from his box and showed them to the officers. This was not an illegal search. They saw he used AT&T wireless, so they subpoenaed AT&T records. People v. Reyes, 178 Cal. App. 4th 1183, 101 Cal. Rptr. 3d 109 (4th Dist. 2009).*

Trial court’s finding of credibility of the cop settles the consent issue here. State v. Hilton, 2009 Ohio 5744, 2009 Ohio App. LEXIS 4830 (2d Dist. October 30, 2009).*

Defendant’s traffic stop was justified by the facts, so his racial profiling claim was irrelevant. Rodriguez-Bonilla v. State, 2009 Ark. App. 688, 2009 Ark. App. LEXIS 838 (October 21, 2009).*

Defendant mailed a letter out of jail which was intercepted by his girlfriend’s mother, and she turned it over to the police. Before even getting to the private search issue, this is a matter of lack of standing: He had no REP in a letter in the hands of a third person. State v. Martinez, 221 Ariz. 383, 212 P.3d 75 (App. 2009).

Ohio statute on taking DNA from offenders is constitutional based on special needs. Wilson v. Wilkinson, 608 F. Supp. 2d 891 (S.D. Ohio 2009).*

Defendant was riding a bicycle in a drug area, and he was stopped talking to somebody in a car. He rode toward the police car, realized it was a police car, and pedaled away from it. The officers then stopped him. Without getting to reasonable suspicion, the “plain feel” of the frisk was violated because it was apparent it was not a weapon. State v. Henderson, 2009 Ohio 1795, 2009 Ohio App. LEXIS 1508 (8th Dist. April 16, 2009).*

A 911 call said that two men were in a truck flashing a gun. Officers arrived and told the men to hold their hands out the window. The passenger was fidgeting and moving furtively as to the console. Officers saw a gun out of the console, and the seizure was justified. State v. Faggs, 2009 Ohio 1758, 2009 Ohio App. LEXIS 1478 (5th Dist. April 8, 2009).*

It was objectively reasonable for the police to suspect at the time of the traffic stop that the paper affixed to the rear license plate area of the vehicle was not an official registration document from another state; as a result, the officer had reasonable suspicion to believe the vehicle did not display valid proof of registration as required by Nebraska law and the traffic stop did not violate the Fourth Amendment. United States v. Sanchez, 2009 U.S. App. LEXIS 15375 (8th Cir. July 13, 2009).*

Officers received a call about an intoxicated man who was talking about wanting to buy meth and having a gun on a street lined with bars in a college town. They talked to him, ascertained that he was an unregistered sex offender, and asked where the gun was, without Mirandizing him. He asked if his girlfriend would be arrested, and the officers said she wouldn’t. He then told them where the gun was. The questions were not prohibited by the public safety exception to Miranda. He was not too intoxicated to consent to the search of his vehicle.United States v. Watters, 2009 U.S. App. LEXIS 15373 (8th Cir. July 13, 2009).*

Officers held liable for warrantless entry to arrest defendant for allegedly being DWI when there was an alleged accident with no property damage. Their “audacious” excuse for the entry of expecting plaintiff to be diabetic and going into a coma is rejected. Hopkins v. Bonvicino, 573 F.3d 752 (9th Cir. 2009):

On August 22, 2003, two San Carlos Police Officers broke into Bruce Hopkins’ home. They did not have a warrant, nor did they have probable cause. All that they had was a statement from a third-party that Hopkins had been involved in an extremely minor traffic incident, an incident so minor that it did not cause as much as a scratch on either of the vehicles involved, and that he appeared to have been drinking. Based on this information, the officers broke into Hopkins’ home with their flashlights shining and their guns drawn. When they found Hopkins, they handcuffed him, removed him from his house, and placed him under arrest.

The officers’ explanation for their warrantless entry is both simple and audacious: They claim that, after hearing that Hopkins had the smell of alcohol on his breath, they feared he was on the brink of a diabetic coma and broke into his house in order to offer medical assistance. According to one officer’s deposition testimony, they entered with their guns drawn because individuals suffering from diabetic emergencies “may sometimes be confused” and can be “combative.” Apparently, in the officer’s view, someone suffering from such a medical emergency may need to be deterred by deadly force. Hopkins, however, was neither confused nor combative because he was not suffering from a diabetic emergency — he was lying in his bedroom watching television, which is where the officers found him. Yet, after the officers discovered that he was perfectly healthy and non-comatose, they did not say “we’re glad to see that you are safe, sir; we’ll be on our way now.” They did not say, “Sorry for the disturbance and for damaging your property.” No, instead they handcuffed Hopkins at gunpoint, removed him from his home, placed him under arrest, and brought him to the San Mateo County jail for the final chapter in the case of the nonexistent diabetes.

Hopkins sued the two officers who broke into his house, their colleague who waited outside, and the City of San Carlos under 42 U.S.C. § 1983. He asserts three causes of action: unlawful warrantless entry of a home, unlawful arrest without probable cause, and excessive use of force. The defendants jointly moved for summary judgment on all counts–the officers asserting a qualified immunity defense and the City arguing that it should not be held liable under Monell v. N.Y. City Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). The district court denied the motion, and the defendant-officers now appeal. 1 Because “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) (quoting United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972)), and because the officers’ conduct here unequivocally violated Hopkins’ clearly established constitutional rights, we affirm the denial of summary judgment with respect to Officers Bonvicino and Buelow, although we hold that their colleague, Officer Nguyen, is entitled to qualified immunity.

. . .

The officers’ first argument is that because they were responding to a reported automobile accident they were authorized to enter Hopkins’ home to see if he was injured as a result of that incident. However, taking the alleged facts in the light most favorable to Hopkins, the police officers were aware that the purported accident did not cause so much as a scratch to either of the cars involved, as is confirmed by the photographs of the vehicles taken that evening by Officer Nguyen. Furthermore, after speaking with Talib — the woman who called the police and spoke with them before they entered Hopkins’ home, who was involved in the so-called “accident,” and who observed Hopkins exit his car both at the scene of the incident and back at his home — the officers, in their own words, learned “nothing” regarding the nature of the accident that “caused [them] to be concerned for Mr. Hopkins’ medical condition.” In short, there was absolutely no indication that the minor bump between the two cars was at all serious or that it had caused any type of medical emergency. Accordingly, the mere fact that the officers were responding to a minor “hit-and-run” cannot justify their warrantless entry into Hopkins’ home.

Perhaps aware of the tenuous nature of this first argument, the officers put greater weight on their second purported medical emergency: the argument that they had reason to believe that Hopkins was suffering from or on the brink of a diabetic coma. This claim, however, is equally baseless, and, if permitted to serve as the basis for the warrantless home intrusion, would allow police officers to ignore the Fourth Amendment almost at will. No one disputes that a diabetic coma is a medical emergency, which it clearly is. Rather, the question before us is whether Officers Bonvicino and Buelow had an “objectively reasonable basis” to suspect that Hopkins was in fact suffering from a diabetic coma. Snipe, 515 F.3d at 951. Taking the facts in the light most favorable to Hopkins, the only information the officers possessed that would support such a conclusion is as follows: (1) Talib said she smelled alcohol on Hopkins’ breath; (2) Talib described Hopkins as appearing slightly intoxicated; and (3) Hopkins did not respond when the officers knocked on his door. The officers argue that, because an individual suffering from the initial phases of a diabetic coma can, to an untrained observer, appear intoxicated and can have a “sickly sweet” or “fruity” odor on his breath that a layperson might confuse with the smell of alcohol, their fear of a diabetic emergency was reasonable. This contention is unsupportable: the mere suggestion that someone has a smell resembling alcohol on his breath and appears slightly intoxicated does not create “reasonable grounds” to suspect a diabetic emergency sufficient to justify warrantless entry into a home. If it did, then, as the officers acknowledged at oral argument, any time the police receive information from a layperson that someone inside a home has the appearance of a person who has consumed alcohol the police will be authorized to enter that home without a warrant. This result would expand the “narrow[,] … rigorously guarded exception [] to th[e] warrant requirement” beyond all recognition, and simply cannot be the law. Stafford, 416 F.3d at 1073

The government’s apparently straight-faced argument that a criminal has no expectation of privacy when he commits a crime in his own property is rejected. “A criminal may assert a violation of the Fourth Amendment just as well as a saint.” (The government also argued that the defendant became a trespasser because the rent was a little behind even though the landlord had done nothing about it.) United States v. Washington, 573 F.3d 279 (6th Cir. 2009):

Next, the government contends that society does not recognize Washington’s expectation of privacy as reasonable because he was engaged in criminal activities in the apartment. See Br. Appellant at 31. Although it is certainly true a person cannot acquire an expectation of privacy in a structure that has been legally condemned such that any presence is forbidden, United States v. Whitehead, 415 F.3d 583, 587-88 (6th Cir. 2005), the use of a space for illegal activity does not alter the privacy expectations of a person who would otherwise have standing. Minnesota v. Carter, 525 U.S. 83, 91 (1998); see also id. at 109-10 (“As the Solicitor General acknowledged, the illegality of the host-guest conduct, the fact that they were partners in crime, would not alter the analysis. … If the illegality of the activity made constitutional an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.”) (Ginsburg, J. dissenting). In light of the fact that Washington had been lawfully residing in the apartment for several months, the notion that drug use or illegal activity eviscerates any right to challenge a search cannot possibly be sustained. A criminal may assert a violation of the Fourth Amendment just as well as a saint.

Identification of a witness is not subject to the exclusionary rule. It was also attenuated from the alleged illegal act. (This case also has an excellent two paragraph discussion of attenuation if you need it, at 7-8 of the pdf.) United States v. Carter, 573 F.3d 418 (7th Cir. 2009):

The Ninth Circuit has previously held that “it is not sufficient in demonstrating taint that … an illegal search uncovers the alleged perpetrator’s identity, and therefore ‘directs attention to a particular suspect.’ ” United States v. Smith, 155 F.3d 1051, 1061 (9th Cir. 1998) (citation omitted). The Eighth Circuit has reached a similar conclusion. United States v. Watson, 950 F.2d 505, 508 (8th Cir. 1991) (“[W]e conclude that where a law enforcement officer merely recommends investigation of a particular individual based on suspicions arising serendipitously from an illegal search, the causal connection is sufficiently attenuated so as to purge the later investigation of any taint from the original illegality.”). Setting aside the out of court identifications from the food court employees shown Carter’s ID card (the suppression of those identifications was proper, and anyway the government does not appeal the issue), the search supplied investigators with Carter’s name and (since the investigators had seen the illegally seized ID card) the knowledge that Carter matched the description of the bank robber. However, the fact that the search gave investigators a lead on a possible suspect does not make a subsequent identification of that suspect, given by a witness who had no knowledge of the illegal search and was not shown any of the evidence produced by it, subsequently inadmissible.

Finally, we conclude that neither the timing of the events nor the purpose and flagrancy of the search supports suppression in this case. While the government concedes that very little time separated Thome’s search of the apartment on 34th Place from the teller’s identification, “the time frame [is] only one factor to consider, and is never dispositive.” Ienco, 182 F.3d at 526. We have previously held that a search was attenuated from illegal conduct even where only a few minutes passed between the conduct and the search. See Parker, 469 F.3d at 1078-79.

Nor do we conclude that the purpose and flagrancy of the violation supports suppression. The district court found that this factor weighed against the admissibility of the evidence because “every activity was undertaken in an effort to develop the evidence against Carter. There was no purpose other than to confirm Carter’s name and to confirm if Carter was the suspect in question.” This way of phrasing the issue conflates the inquiry between flagrant and purposeful behavior, however. Courts have previously found that a Fourth Amendment violation was flagrant and purposeful where “(1) the impropriety of the official’s misconduct was obvious or the official knew, at the time, that his conduct was likely unconstitutional but engaged in it nevertheless; and (2) the misconduct was investigatory in design and purpose and executed ‘in the hope that something might turn up.’ ” United States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006) (quoting Brown v. Illinois, 422 U.S. 590, 605, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975)). Where the police erred but the record does not support an inference of bad faith, however, the violation was not flagrant. See United States v. Green, 111 F.3d 515, 523 (7th Cir. 1997); Fazio, 914 F.2d at 958 (“Because the primary purpose of the exclusionary rule is to discourage police misconduct, application of the rule does not serve this deterrent function when the police action, although erroneous, was not undertaken in an effort to benefit the police at the expense of the suspect’s protected rights.”).

When the police want to seal part of a search warrant application to protect the identity of their informant, they cannot keep the original in the police department. It is a judicial record that belongs to the court. People v. Galland, 146 Cal. App. 4th 277, 52 Cal. Rptr. 3d 799 (4th Dist. December 28, 2006):

The instant case presents a vivid example of why our courts are the preferred record keepers in judicial proceedings. Hankins presented a search warrant with supporting affidavit to the magistrate on August 9, 2001. In 2006, without the benefit of the original warrant affidavit or authenticated copy retained by the superior court, the parties seek this court’s independent review of the magistrate’s probable cause determination and the trial court’s subsequent rulings on motions to suppress and for discovery. The documents included in the appellate record are too far attenuated from the magistrate’s determination of probable cause to serve as a legitimate basis for any decision on the warrant’s validity. The events subsequent to the magistrate’s determination, Hankins retention of the crucial part of the warrant affidavit, the court’s initial handling of the hearing on Galland’s motions to disclose that document, and its subsequent and belated review, which yielded an entirely new page to add to it, provides no reasonable belief in the authenticity of any of the documents not retained by the court after the filing of the return.

The most important part of a search warrant is the affidavit of probable cause. Without good reason, Hankins and his department retained the original affidavit, which no longer exists because of that agency’s actions, and the appellate record supplies scant evidence on which this court can place its confidence in what is included in the record. How much more disturbing to the average citizen to discover the law enforcement agency involved in a criminal case retained the document that provided legal justification for a search of home, possessions, and person. Human nature precludes an unquestioning faith in a legal procedure that cannot guarantee objectivity and proper respect for important documents. Public confidence in our judicial system is founded on its ability to serve as a neutral player in the proceedings before it. Reliable record keeping is a basic component of public trust.

A search incident to a warrant is a governmental invasion of individual liberty and property. The abuse of that process led to the adoption of the Fourth Amendment and legislation prescribing mandatory procedures to be followed when a warrant is issued and thereby given judicial sanction. (Sgro v. United States (1932) 287 U.S. 206, 210.) Essential to this protection is the state’s ability to ensure the authenticity of the supporting affidavit of probable cause. Simply having any judicial officer review an affidavit of probable cause at any point in the criminal proceedings and then conclude the magistrate must have reviewed the same document provides no such assurance. When a police officer submits a written affidavit of probable cause, the issuing magistrate assumes the responsibility of ensuring probable cause existed for the search. It would be much easier to shoulder this responsibility if the magistrate ensures the original affidavit in its entirety is timely filed with the court clerk. We find support for our conclusion in the various statutes governing search warrants.

. . .

We are aware of the practical concerns generated by requiring the magistrate to ensure the entire search warrant affidavit, including any portion ordered sealed, be timely filed with the superior court clerk. Police officers frequently need to secure a search warrant in the middle of the night. Magistrates often live miles from the closest branch of the superior court. The press of work may prohibit the officer affiant from waiting at the courthouse door to file documents. Nevertheless, the entire warrant affidavit becomes a court document when it is presented to a magistrate in support of a search warrant. From then on, the document is a matter of public record to be treated like a public record. It is not evidence of guilt to be produced in a subsequent criminal trial and therefore properly retained by the investigating law enforcement agency. Consequently, to avoid the constitutional and statutory violations that occurred here, the affiant officer must also ensure the entire warrant affidavit, including any portion ordered sealed by the magistrate, is filed with the clerk of the superior court at the officer’s earliest opportunity.

No expectation of privacy in a stolen truck in the defendant’s driveway. United States v. Malady, 209 Fed. Appx. 848 (10th Cir. 2006)* (unpublished).

Defendant’s girlfriend had apparent authority to consent. She left the premises intending not to return but did. She actually consented while not physically there during the hiatus, but that was not fatal to consent. United States v. Ryerson, 2006 U.S. Dist. LEXIS 93244 (W.D. Wisc. December 22, 2006):

Ryerson contends that Lawicki possessed neither actual nor apparent authority to consent to a search of 911 Gillette Lane. Ryerson is incorrect. Lawicki almost certainly had actual authority to consent to the searches. She had lived in the house with Ryerson and their child continuously for over ten months prior to the first search. Lawicki had left for her mother’s with the baby on February 5, 2006 with the stated intent not to return, but in fact she changed her mind and she did return to the area to retrieve the baby from Ryerson. Because Lawicki was scared of Ryerson and his minions, she did not stay in the house between February 5-10, but this does not establish that it was not still her residence. After all, Ryerson didn’t stay there between February 5 – 10 either; during the relevant time period the house was unoccupied. n2 There was no legal or physical impediment to Lawicki continuing to live at 911 Gillette during this time; she simply chose not to do so. Therefore, I conclude that Lawicki had actual authority to consent to the searches on February 9 and 10, 2006.

Two police officers in the same department cannot conspire to violate civil rights under § 1983. Magee v. City of Daphne, 2006 U.S. Dist. LEXIS 93183 (S.D. Ala. December 20, 2006).*

A Fourth Amendment claim litigated on direct appeal cannot be reviewed on a § 2255 claim. United States v. Figueroa, 2006 U.S. Dist. LEXIS 93218 (D. Nev. December 20, 2006).

Where the government does not show that a Rule 41(g) motion for return of property will interfere with a grand jury investigation, it can be granted. A Rule 41(g) motion is not a motion to suppress. The history shows it. Doane v. United States, 2009 U.S. Dist. LEXIS 61908 (S.D. N.Y. June 1, 2009) (USMJ Pitman):

As the foregoing language suggests, Rule 41(g) & (h) permit courts to order the return of illegally seized property without granting a motion for suppression. Under the version of Rule 41 in effect from 1944 to 1989, this was not the case, and granting a motion for the return of property required the suppression of that property at any subsequent hearing or trial. 1 As a result, many courts deferred pre-indictment Rule 41(e) motions unless a movant could show (1) the search was illegal, (2) that he is without an adequate remedy at law, and (3) that he would suffer some irreparable injury if relief is not granted. Premises Known & Described as 55 West 47th Street, Suites 620 & 650 v. United States, 712 F. Supp. 437, 440-41 (S.D.N.Y. 1989); Matter of Search of Premises Known & Described as 6600 Long Island Expressway, Suites 104 and 105, Maspeth, N.Y., 88-0906 M (CBA), 1988 WL 142662 at *2 (E.D.N.Y. Dec 28, 1988); In re Two Search Warrants Issued March 14, 1986, 110 F.R.D. 354, 356 (E.D.N.Y. 1986); Jordache Enters., Inc. v. United States, 86 Cr. 1 (LLS), 1987 WL 9705 at *2 (S.D.N.Y. April 14, 1987); In the Matter of the Application of John Campola, 543 F. Supp. 115, 117 (S.D.N.Y. 1982); Application of Sentinel Gov’t Sec., 530 F. Supp. 793, 796 (S.D.N.Y. 1982). The principal reason offered by these courts for engrafting an irreparable harm requirement onto the language of Rule 41(e) was that a pre-indictment suppression motion would unduly interfere with the function of the grand jury. See e.g. Matter of Search of Premises Known and Described as 6600 Long Island Expressway, Suites 104 and 105, Maspeth, NY, supra, 1988 WL 142662 at *1 (“the cases reason that to grant the motion pre-indictment would have the effect of suppressing evidence before the grand jury in derogation of the holding in United States v. Calandra, 414 U.S. 338 (1974) …”); Jordache Enters., Inc. v. United States, supra, 1987 WL 9705 at *2 (the minimal deterrence gained by allowing pre-indictment suppression motions would be outweighed by the interference that such motions would cause with the role of the grand jury).

In 1989, Rule 41 was amended and the provision that “if the motion (for the return of property) is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial” was replaced with the language “[i]f the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings.” See Fed.R. Civ.P. 41(e) (1989). The Advisory Committee Note explained that this change was intended to (1) keep pace with new developments in the exclusionary rule allowing the Government to retain and utilize unlawfully seized evidence in certain circumstances (i.e. grand jury proceedings) and (2) achieve a more equitable balance between the Government’s law enforcement interest and the property rights of owners.

Rule 41(e) is not intended to deny the United States the use of evidence permitted by the Fourth Amendment and federal statutes, even if the evidence might have been unlawfully seized. See e.g. United States v. Calandra, 414 U.S. 338, 349 n.6 (1978); United States v. Roberts, 852 F.2d 671 (2d Cir. 1988) (exceptions to exclusionary rule applicable to Rule 41(e)).

* * *

As amended, Rule 41(e) avoids an all or nothing approach whereby the government must either return records and make no copies or keep originals notwithstanding the hardship to their owner. The amended rule recognizes that reasonable accommodations might protect both the law enforcement interests of the United States and the property rights of property owners and holders. In many instances documents and records that are relevant to ongoing or contemplated investigations and prosecutions may be returned to their owner as long as the government preserves a copy for future use.

Advisory Committee Notes to the 1989 Amendments to Rule 41. As a result of the new language of Rule 41, granting a motion for the return of property does not inevitably result in the suppression of that property in subsequent proceedings. See 3A Charles A. Wright, Nancy J. King, Susan R. Klein, Sarah N. Welling, Federal Practice and Procedure § 673 at 753 n.10 (3d ed. 2009).

Defendant’s claim in a § 2255 post conviction that he did not have access to a critical witness that might show the search and seizure was illegal was not cognizable in a post-conviction proceeding where the defendant had a full and fair opportunity to litigate, absent a claim that the government was responsible for hiding the witness. The deterrent purpose of the exclusionary rule, also discussed in Stone, is not served by enabling the defendant to reopen the suppression hearing after the conviction is affirmed. Brock v. United States, 573 F.3d 497 (7th Cir. 2009):

Brock’s second argument is that this Court has summarized the opportunity for full and fair litigation of a Fourth Amendment claim by stating that it “guarantees the right to present one’s case, but it does not guarantee a correct result.” Cabrera, 324 F.3d at 532. Brock claims that he was denied the right to present his case because he has not been able to introduce this new evidence. But, read in context, Cabrera’s “right to present one’s case” simply refers to the right to have a judge listen to and consider the evidence a party actually presents at trial. It is the right to have a judge who has not closed his mind to the issues, is not bribed or sleepwalking, and is not “in some other obvious way subvert[ing] the hearing.” Id. at 531. Cabrera did not consider whether an opportunity for full and fair litigation requires that the evidence necessary to make the party’s best claim be available by the time of trial.

Most importantly, neither of these arguments bears upon the central issue in Stone and the one which we must ultimately decide: whether the deterrent benefit of applying the exclusionary rule in a particular situation outweighs the social costs of letting the guilty go free, expending limited judicial resources, and disturbing finality in criminal trials. Stone, 428 U.S. at 489-90, 491 n.31 (citation omitted). The deterrent calculus articulated in Stone is not dependent on when evidence surfaces, as long as the trial was administered in a just manner. Police mis-conduct will not be materially checked by fear that Fourth Amendment violations that go undiscovered during trial, appeal, and the three-year time period to file a motion for a new hearing, Fed. R. Crim. P. 33(b), will be discovered and used in a § 2255 motion, at least when there is no allegation that the officers prevented the defendant from finding the evidence. See Stone, 428 U.S. at 493. Any “additional incremental deterrent effect” this might have “would be outweighed by the acknowledged costs to other values vital to a rational system of criminal justice.” Stone, 428 U.S. at 493-94; see id. at 490 (“[T]he physical evidence sought to be excluded is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant.”).

Brock makes no claim that his trial or appeals were not fairly administered or that the government prevented him from locating Godsey. His unfortunate circumstance is that, for whatever reason, he did not locate Godsey until it was too late. Stone prevents Brock from bringing this § 2255 motion solely on the ground that newly discovered evidence would have triggered the exclusionary rule if presented earlier.

Business records in a car were subject to search on PC or search incident for fraud. Some records in this fraud case, however, were seized without PC. United States v. Mitan, 2009 U.S. Dist. LEXIS 63890 (E.D. Pa. July 23, 2009):

However, these are the only items for which Strosnider had developed sufficient probable cause to search. The Court finds that police could not have had a reasonable belief that any other Prime-Line related evidence was in the vehicle. The mere fact that Strosnider viewed a large volume of business-related documents in the car does not lead to the logical conclusion that these documents were related to the Prime-Line fraud. Therefore only the cards, UPS packaging, and Virtually Wireless items are admissible evidence related to Prime-Line Inc.

Along the same line of reasoning, Strosnider did not have probable cause to search for documents related to businesses other than Prime-Line or evidence of any other crime. Although Ross allows a search of “every part of the vehicle … that may conceal the object of the search,” 456 U.S. at 825, the precedents do not permit a search to go beyond that particular object.

Retest after hot UA was not purely for disciplinary procedures so it was admissible in a court martial under Mil. R. Evid. 313(b). United States v. Ayala, 2009 CCA LEXIS 266 (A.F. Ct. Crim. App. July 15, 2009) (unpublished):

A subsequent order to provide a urine sample for drug testing following a random, positive drug urinalysis test qualifies as an inspection under Mil. R. Evid. 313(b), the results of which are admissible at trial, provided the orders are made pursuant to an established, pre-existing policy or guideline and the subsequent order is not made for the purpose of obtaining evidence for use in a trial by court-martial or in other disciplinary proceedings. Bickel, 30 M.J. at 286-88.

In the case sub judice, the military judge made detailed findings of fact and conclusions of law. His findings of fact are not clearly erroneous and we adopt them as our own. Additionally, his decision was not based on an erroneous view of the law. While the wing staff judge advocate’s advice on the drug testing re-inspection policy focused exclusively on the use of such results for disciplinary purposes, the questioned policy makes clear that re-inspection was being done, not as a disciplinary tool, but to ensure “security, military fitness, and good order and discipline.” Moreover, the staff judge advocate’s advice on the basis for implementing the questioned policy cannot automatically be attributed to the wing commander. United States v. Hamilton, 41 M.J. 32, 37 (C.M.A. 1994).

Two controlled buys coupled with a trash search showed that the information for the search warrant was not stale. United States v. Akel, 2009 U.S. App. LEXIS 16952 (11th Cir. July 24, 2009) (unpublished).*

On de novo review of the USMJ R&R, consent was shown to be voluntary. United States v. Mohammed, 2009 U.S. Dist. LEXIS 65248 (M.D. Fla. July 24, 2009).*

Motion to suppress that stated that the gun found was not his and was in a car that did not belong to him showed no standing, and it was denied without an evidentiary hearing. United States v. Brown, 2009 U.S. Dist. LEXIS 65786 (D. Neb. July 30, 2009).*

Defendant with a suspended license was driving a car owned by an alleged friend; he did not show that he was driving with permission and then abandoned it when he was stopped; no standing. Even if standing is assumed, there was probable cause. United States v. Brown, 2009 U.S. Dist. LEXIS 65972 (S.D. Ind. July 30, 2009):

The government contends that the Defendant lacked a reasonable expectation of privacy in the Crown Victoria and that, therefore, any search conducted therein could not have violated the Defendant’s Fourth Amendment rights. The Defendant’s claim to a reasonable expectation of privacy is dubious at best. The Defendant testified that the Crown Victoria was registered to Cierra Tinker, a lady friend of his from whom he claims to have purchased the car. That assertion notwithstanding, the Defendant never established either how he came to be in possession of the car on the day of his arrest, or that he had the permission of the owner of the car to drive it. Assuming he possessed the subjective expectation of privacy–a point that he has not satisfactorily demonstrated and that his rapid abandonment of the vehicle during his flee attempt belies–the Defendant may be unable to establish an objective expectation of privacy as a matter of law. But because his driver’s license apparently was suspended at the time of this incident and he “should not have been driving any vehicle … his objective expectation of privacy in the truck was neither legitimate nor reasonable.” Id. We do not believe Defendant has established that he has standing to challenge the admissibility of the evidence found within the car, based on the afore-referenced principles. Nonetheless, we shall assume for purposes of conducting a complete analysis of Defendant’s legal contentions that he did have standing and continue our analysis of his remaining claims.

(This case at least exemplifies the rationale that showing standing in a borrowed car should not be a high burden because the court assumes that the defendant could come up with some evidence of standing.)

In an IAC claim, “a ‘meritorious’ motion to suppress with one that likely would have been granted, as opposed to a motion for which there is merely some good faith basis to pursue.” This one would not have been granted. Castruita v. United States, 2009 U.S. Dist. LEXIS 65778 (W.D. Tex. June 21, 2009).*

The consenter did not have common authority to access a locked gun cabinet where he lacked a key. He also did not have apparent authority. United States v. Sharp, 2009 U.S. Dist. LEXIS 71045 (E.D. Tenn. June 10, 2009):

While the Court acknowledges that guns in the closet once belonged to, or perhaps, in title only, continued to belong to, Mack Sharp, the testimony at the hearing and the facts of this case indicate that Mack Sharp no longer had access to the contents of the closet or the cabinet. All the evidence presented to the Court supported the conclusion that the Defendant possessed the only key to the closet and cabinet. In addition to not possessing the key, Mack Sharp did not indicate to officers that he had any knowledge of what key might open the closet and cabinet nor did he indicate that he ever accessed the closet and cabinet using the Defendant’s keys. In fact, from Ms. Sharp’s testimony at the hearing and the addition of padlock within a year of the search, it appears that very real efforts were being made to prevent Mack Sharp from accessing the closet or cabinet, due to his deteriorating health and the danger he might pose to himself and others were he able to access the firearms in the closet and cabinet.

As previously stated, a resident’s consent to search his home is not necessarily consent to search a closed object within the home. Karo, 468 U.S. at 725. Instead, “[a] valid consent to search the closed container must come from one who has common authority over the effects sought to be inspected, one who has mutual use of the property, and one who generally has joint access or control for most purposes.” Id. at 725-26. Further, relevant case law supports the Court’s reliance on the lack of a key or knowledge of how to open the containers when determining whether common authority existed. See United States v. Ayoub, 498 F.3d 532, 539 (6th Cir. 2007) (adopting the district court’s conclusion that possession of the key to a home is a strong indicia of authority); see also United States v. Chen, 629 F.Supp. 263, 270 (S.D.N.Y. 1986) (finding common authority in a locked safe in a closet where both parties had keys to the closet and knew the combination to the safe).

Applying these rules and case law to the facts described above, the Court concludes that Mack Sharp lacked common authority over the closet and gun cabinet. Mack Sharp was wholly without the ability to access the closet. He possessed neither the mutual use nor the joint access and control that support finding common authority, Karo, 468 U.S. at 725, and accordingly, the Court finds that Mack Sharp did not have the common authority to consent to a search of the closet and cabinet. Thus, any consent to search his home was not consent to search the locked closet and gun cabinet within his home.

Defendant got a Franks hearing, but he failed to prove that the statements were false. Since the statements were not false, the court did not have to determine whether it was intentional or reckless. United States v. Sharp, 2009 U.S. Dist. LEXIS 71050 (E.D. Tenn. May 11, 2009) (same case).*

Search of a work computer was valid because of the consent of the owner, despite defendant’s [partial] expectation of privacy from a password. United States v. Hart, 2009 U.S. Dist. LEXIS 72597 n. 83 (W.D. Ky. July 28, 2009):

Mr. Hart separately asserts that the warrantless search and seizure of the computer and its contents — as opposed to the mere discovery and location of the computer — violated his rights under the Fourth Amendment, thereby providing an independent basis for the evidence removed from it. See docket no. 44-2 at 4. Although there is no Sixth Circuit precedent directly on point, the magistrate judge finds sound and persuasive the opinion in United States v. Ziegler, 474 F.3d 1184, 1188-92 (9th Cir. 2007), in which the Ninth Circuit determined that, given an appropriate evidentiary foundation (private office not shared with others, a password protected computer), a person could establish that he had a reasonable expectation of privacy in his office that would require any searches of it and its contents (including a computer) to comply with the Fourth Amendment. See also American Postal Workers Union v. United States Postal Service, 871 F.2d 556, 559 (6th Cir. 1989)(evaluating the reasonableness of public employees’ expectation of privacy in their workstations and possessions and occasionally noting precedent pertaining to private employees); Bender’s Inc. v. Walker, 1 Fed. Appx. 317, 2001 WL 45116, **5 (6th Cir. 2001)(unpublished). Mr. Hart has not laid the appropriate evidentiary foundation, however, and, regardless, Mr. Hay’s valid consent to a search and seizure of a computer owned by his company returned the warrantless search and seizure to the realm of the constitutionally permissible. See United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974)(consent can validly be obtained from a third-party with common authority over the premises or effects to be searched) and see also Ziegler, 474 F.3d at 1191-92 (persuasively extending Matlock’s reasoning in light of other Supreme Court precedent to explain why an employer can consent to the search and seizure of computers owned by the company, even if they have been assigned to one employee for his exclusive use at work).

The exigency asserted by the government here amounts to a police created exigency. There was no true exigency for the warrantless entry in this case. United States v. Craig, 2009 U.S. Dist. LEXIS 72596 (N.D. Iowa June 10, 2009).*

Officer’s seeing what appeared to be crack cocaine in plain view in a car was PC to search it. United States v. Horsley, 2009 U.S. Dist. LEXIS 72752 (D. Ore. August 12, 2009).*

Defendant had no reasonable expectation of privacy in his brother’s bedroom where his gun was hidden by his brother. United States v. Koepnick, 2009 U.S. Dist. LEXIS 74147 (D. Idaho August 20, 2009).*

Officer testified on direct that defendant apologized for not wearing his seatbeat, and that was the basis for the stop. The video of the stop did not support that, and he admitted on cross-examination that maybe he confused this stop with another. The court found the government failed to make its burden of proof. United States v. Williams, 2009 U.S. Dist. LEXIS 74597 (M.D. La. August 20, 2009).*

A Texas magistrate who might not have technically been able to issue a search warrant did not create a Fourth Amendment violation. The warrant was clearly issued with PC and there was no contention that he was not neutral and detached. The warrant permitted seizure of drug evidence and anything else in violation of the law. In the context of this case, it was not impermissibly broad because the officers seized suspected contraband in plain view. Also, an ADA helped prepare the affidavit, and that counsels toward the good faith exception applying. United States v. Norsworthy, 2009 U.S. Dist. LEXIS 74234 (S.D. Tex. August 21, 2009).*

Search warrant for child porn that included a 2001 videotape defendant made was not stale because possession was shown to be ongoing. United States v. Dennington, 2009 U.S. Dist. LEXIS 74372 (W.D. Pa. August 21, 2009).*

“It all began with a broken license plate light. One thing led to another, and the ensuing traffic stop in Madison, Indiana has become the subject of elaborate and expensive litigation that requires this lengthy tour through wide tracts of Fourth Amendment law, federal civil rights remedies, and state tort law.” The officer smelled marijuana coming from the car, and he searched it finding only a trace amount. The three plaintiffs were taken to a fire station and strip searched, and a small quantity was found on one. A strip search for a small quantity of marijuana was unjustified in this case, and it survives summary judgment. Lessley v. City of Madison, 2009 U.S. Dist. LEXIS 74618 (S.D. Ind. August 21, 2009):

It should go without saying that strip-searches are highly invasive. See Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983) (“We can think of few exercises of authority by the state that intrude on the citizen’s privacy and dignity as severely as the visual anal and genital searches practiced here.”). Jackson, a female officer, performed the searches in a closed bathroom alone with the plaintiff being searched. Jackson ordered each plaintiff to remove all of her clothes except her bra and her underwear. She ordered each plaintiff (except Lessley, who eventually produced marijuana) to pull out her bra cups. Finally, she ordered each plaintiff to pull her underwear below her knees and to squat down. To support this extreme and warrantless invasion of the plaintiffs’ privacy, Royce had probable cause to believe that Lessley possessed marijuana. By the time these searches occurred, no officer had probable cause to believe that Messer or Rhodehamel possessed marijuana on their persons.

The lack of probable cause to believe that the strip-searches would reveal marijuana ends the inquiry as to Messer and Rhodehamel. If the pat-downs were unconstitutional without probable cause, the more invasive strip-searches were unconstitutional as well. The strip-search of Lessley also violated the Fourth Amendment. While probable cause supported the search, warrantless strip-searches are sufficiently invasive that more than probable cause that a small amount of marijuana will be found is required.

This court addressed a similar situation in Gray v. City of Columbus, where the court held that a police officer was not entitled to qualified immunity when she performed a strip-search and body-cavity search on a woman and her twenty-two month old son. 2000 U.S. Dist. LEXIS 7207, 2000 WL 683394 (S.D. Ind. Jan. 31, 2000). In that case, Gray and her son were passengers in a car. An officer pulled over the car, searched the car, and found burnt marijuana joints in the car. The officer arrested the driver and transported Gray and her son to the police station. Gray and her son were not arrested. While at the station, a female officer ordered Gray and her son to submit to the strip-searches in a bathroom. The court held that the searches were unconstitutional: “the suggestion that American law enforcement officers have the authority, without a search warrant, to use the power of their badges and uniforms to conduct a strip search and body cavity search of a person who is not under arrest is simply stunning.” Gray, 2000 U.S. Dist. LEXIS 7207, 2000 WL 683394, at *10.

Gray accurately described the law in the Seventh Circuit. Strip-searches are permitted only in limited circumstances. Royce has identified no case in this district, any circuit, or from the Supreme Court where a court approved a warrantless strip-search of an individual who was not under arrest, at an international border, or at a school. 9 To the court’s knowledge, the Seventh Circuit has approved warrantless strip-searches only in the arrest, school, and border contexts. See Campbell v. Miller, 499 F.3d 711, 718 (7th Cir. 2007) (holding that strip-search incident to arrest was not per se unreasonable when supported by a reasonable suspicion that contraband would be found, but holding that search was performed in an unreasonable manner when conducted in public view); Cornfield v. Consolidated High School Dist. No. 230, 991 F.2d 1316 (7th Cir. 1993) (school officials did not violate sixteen-year old student’s constitutional rights when they strip-searched him based on a reasonable suspicion that he was concealing drugs); Saffell v. Crews, 183 F.3d 655 (7th Cir. 1999) (customs inspector entitled to qualified immunity for strip-search at international airport’s customs checkpoint).

Defendant driving a borrowed car failed to show standing. United States v. Maldonado, 2009 U.S. Dist. LEXIS 76360 (D. Kan. August 26, 2009):

Here, it is uncontested that neither defendant owned or leased the vehicle. Instead, defendants assert only that the vehicle belonged to a friend, their boss.

“[A] defendant need not submit legal documentation showing a chain of lawful custody from the registered owner to himself.” Hocker, 333 F.3d at 1209. Where, as here, “the proponent of a motion to suppress is … not the registered owner … the proponent bears the burden of establishing ‘that he gained possession from the owner or someone with authority to grant possession.'” Id. (quoting United States v. Arango, 912 F.2d 441, 445 (10th Cir. 1990)). We consider: “(1) whether the defendant asserted ownership over the items seized from the vehicle; (2) whether the defendant testified to his expectation of privacy at the suppression hearing; and (3) whether the defendant presented any testimony at the suppression hearing that he had a legitimate possessory interest in the vehicle.” Allen, 235 F.3d at 489.

Eckhart, 569 F.3d. at 1274-75. See United States v. Parada, ___ F.3d ___, No. 07-3272 (Aug. 25, 2009).

In this case, none of the three factors above is shown by the evidence. No link between these defendants and the true owner of the vehicle has been shown.

Defendant’s stop for a single taillight was valid under Pennsylvania law. United States v. Johns, 2009 U.S. Dist. LEXIS 76507 (E.D. Pa. August 27, 2009).*

On Juris’s PaperChase is DHS announces increased oversight for US border laptop searches about explanations from Customs and Border Protection had directives issued for searches of laptop and electronic media. Also recently released is a Privacy Impact Statement.

I posted this comment tonight about the current goings on: Laptop searches at the US border implicate legitimate Fourth Amendment concerns. CBP thus far seems to have limited its laptop searches to child pornography, and then with reasonable suspicion, but what about the future:

CBP is searching laptop computers, a least in the litigated cases that I have seen, only for child pornography. And, they at least appear to be limiting these searches to those whom they have reasonable suspicion to believe are potentially transporting child pornography into the country. But, what happens when these searches begin to occur based on political speech, because one opposed the government position that happens to disagree with the opinion of the Customs agent making the decision (“the discretion of the officer in the field”)?

All the case law to this point is clear that reasonable suspicion is not required for a laptop search. No case has held that it is, and I don’t think that any will. That should not be surprising considering the Supreme Court held in 2004 in United States v. Flores-Montano that the reasonable suspicion requirement is limited to searches of the person and not personal belongings, and in 1971 that pictures and motion pictures could be examined at customs in United States v. Thirty-Seven Photographs. Thirty-Seven Photographs predated the widespread use of truly portable laptop computers by more than a decade.

Can the reasonable suspicion standard of border search law of searches of the person be readily imported into computer searches? Not likely. United States v. Montoya De Hernandez from 1985 left open the question whether reasonable suspicion was required for intensive border searches of the person, including strip and body cavity searches (n. 4: “It is also important to note what we do not hold. Because the issues are not presented today we suggest no view on what level of suspicion, if any, is required for nonroutine border searches such as strip, body-cavity, or involuntary x-ray searches.”).

The technology did not exist until the last four years, but what about backscatter technology that permits a virtual strip search at the border? [posted here & here] Virtually all persons subjected to it have no idea that it shows what one looks like under his or her clothes. It is not a mere x-ray. Should something that intrusive require reasonable suspicion? It doesn’t right now at the airports that use it for standard airport security. At least not yet because nobody has litigated yet that I am aware of. That will be an interesting case, because it should.

[posted 8/31]

Police removed a man from a movie theater. He entered with a gun in a holster on his hip, and the theater operators called the police. The plaintiff’s seizure violated the Fourth Amendment because it was not against the law to “open carry.” St. John v. McColley, No. 08-996 (D. N.M. September 8, 2009). See article: Federal judge rules police cannot detain people for openly carrying guns.

Applying the Hill [United States v. Hill, 199 F.3d 1143 (10th Cir. 1999)] factors, it is evident that Mr. St. John was seized. While watching a movie, Mr. St. John was approached by four armed officers who instructed him to stand up and and led him outside, away from the crowd, where they continued to restrain him until they had removed his lawfully possessed weapon. At his deposition, Officer McColley testified that, had Mr. St. John asked Defendants to release him, he “wouldn’t [have felt] safe letting [Mr. St. John] go at that point.” McColley Depo. 13:21-4 13:32. While outside, Defendants removed Mr. St. John’s wallet and handgun. They ran a check on the latter and only returned it at the end of their encounter. Because, from the time that Defendants approached Mr. St. John to the time when they physically released him, Mr. St. John reasonably believed that he was not free to leave, a seizure occurred.

But the inquiry does not end there. The Fourth Amendment does not protect individuals from all seizures—only unreasonable seizures. See, e.g., United States v. Sharpe, 470 U.S. 675, 682 (1985). Under the Fourth Amendment, seizures such as Mr. St. John’s, termed investigatory detentions, are reasonable if they are (1) justified at their inception and (2) reasonably related in scope to the circumstances which justified the interference in the first place. U.S. v. DeJear, 552 F.3d 1196, 1200 (10th Cir. 2009) (quoting United States v. Johnson, 364 F.3d 1185, 1189 (10th Cir. 2004)). An investigatory detention is “justified at its inception” if “the specific and articulable facts and rational inferences drawn from those facts give rise to a reasonable suspicion a person has or is committing a crime,” id. (quoting United States v. Werking, 915 F.2d 1404, 1407 (10th Cir. 1990)), or where officers have a reasonable suspicion that a crime may be afoot. Id. See also, e.g., Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000); United States v. Sokolow, 490 U.S. 1, 7 (1989). “[I]nchoate suspicions and unparticularized hunches” are insufficient bases for a reasonable seizure. United States v. Lyons, 510 F.3d 1225, 1237 (10th Cir. 2007).

The undisputed facts establish that Mr. St. John’s seizure was unreasonable. Defendants lacked a justifiable suspicion that Mr. St. John had committed a crime, was committing a crime or was about to commit a crime. Indeed, Officer McColley conceded that he did not observe Mr. St. John committing any crimes and that he arrived at the theater with the suspicion that Mr. St. John was merely “showing a gun”, McColley Depo. 14:4, which is not illegal in the State of New Mexico. See N.M. Stat. § 30-7 et seq. Nor was there any reason to believe that a crime was afoot. When they found him, Mr. St. John was peacefully sitting through the previews for his second movie of the day. Officers had no reason to believe that Mr. St. John had been, was, or would be involved in any criminal activity whatsoever.5 Candidly, as the Ninth Circuit noted in a somewhat similar case, one would expect someone engaged in shady business to act in a more stealthy fashion than Mr. St. John did here. See Duran v. City of Douglas, Arizona, 904 F.2d 1372, 1377 (9th Cir. 1989).

Hat tip to OpenCarry.com

A knock-and-announce failure is subject to suppression, despite Hudson, which the court does not reflexively follow. The question, however, is certified to the Florida Supreme Court. Cable v. State, 2009 Fla. App. LEXIS 12890 (2DCA September 4, 2009):

The issue in the instant case, however, is not–as it was in Hudson–whether the evidence is subject to suppression under the Fourth Amendment. Instead, the issue is whether suppression of the evidence is a remedy that must be applied for the violation of the statutory knock-and-announce provision. The Florida case law recognizes the common law and constitutional background for the knock-and-announce statute. See Benefield, 160 So. 2d at 710 (stating that section 901.19 “appears to represent a codification of the English common law which recognized the fundamental sanctity of one’s home”); State v. Loeffler, 410 So. 2d 589, 593 (Fla. 2d DCA 1982)(stating that the purpose of the knock-and-announce statute “parallels that of the constitutional guarantees against search and seizure”). But the case law does not support the conclusion that the statute has no force independent of the requirements of the Fourth Amendment. Under the Florida case law, it is by no means clear that the exclusionary rule has been applied to violations of the knock-and-announce statute only because Fourth Amendment knock-and-announce violations were subject to the exclusionary rule. Indeed, Benefield applied the exclusionary rule for violations of the knock-and-announce statute long before the United States Supreme Court decided in Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995), that the common law knock-and-announce rule was also a “‘command of the Fourth Amendment.'” Id. at 931 (quoting New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985)). Thus, we conclude that Hudson does not displace the existing Florida precedent, which mandates the application of the exclusionary rule for violations of the knock-and-announce statute.

Note: I argued Wilson in 1995. It was almost unfathomable that the Court would find knock-and-announce a constitutional imperative then and then turn around and gut it eleven years later in Hudson by holding that its constitutional violation was essentially not a constitutional imperative since the exclusionary rule does not apply to knock-and-announce violations. I have argued in proper cases since Hudson that my state’s exclusionary rule should not apply to knock-and-announce violations. None has made it up on appeal yet. That is a little Quixotic since Arkansas did not find knock-and-announce to be a constitutional violation in the first place in 1994. After all, I was the petitioner against the state in Wilson.

Undercover officers attempted to make a buy from the defendant on the street, but it failed because he refused to deal with him. Another attempt was made by another officer to make a buy out of defendant’s house, and the officer came and knocked. The door was locked, and somebody other than the defendant let him inside. Once inside, the officer saw the defendant watching TV and asked about buying $100 of powder cocaine. The defendant was reticent to deal with him, although there were drugs on the coffee table. After a mildly incriminating conversation, the defendant still refused to sell to the officer, so a signal was given and others entered to freeze the scene pending a search warrant. This entry was unconstitutional. State v. Goodman, 290 Ga. App. 196, 660 S.E.2d 21 (2008):

Here, as noted by the trial court in its order, Roberson appeared on the doorstep of Goodman’s home unannounced and uninvited; the door was closed and locked; another officer had earlier been rebuffed when he attempted to buy drugs from Goodman at the home; a third party allowed Roberson into the home; and Goodman appeared cautious and unwilling to sell drugs to Roberson after he entered the home.

There was nothing in the record to indicate that Goodman ever consented to Roberson’s entry into his home or that Delgado was in any way authorized by him to allow such entry. See Georgia v. Randolph, 547 U. S. 103, 114 (D) (126 S. Ct. 1515, 164 LE2d 208) (2006) (Consent of co-habiting spouse unavailing in face of objection by defendant.); Smithson v. State, 275 Ga. App. 591, 594(1) (621 SE2d 783) (2005). Therefore, the trial court correctly found that Roberson’s entry into Goodman’s home was in violation of the Fourth Amendment. See State v. Kuhnhausen, ___ Ga. App. ___, 2008 Ga. App. LEXIS 126 (Case No. A07A2489, decided February 4, 2008).