M.D.Fla.: PC and exigent circumstances required for entry into home; three justice opinion in Segura rejected

The government must show PC and exigent circumstances for an entry into the home. The three justice opinion in Segura urged by the government is not followed because it makes no sense and is now often criticized. United States v. Jones, 2009 U.S. Dist. LEXIS 110251 (M.D. Fla. October 8, 2009):

To support its argument that it was not necessary to establish exigent circumstances, the Government cites to Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L. Ed. 2d 599 (1983). The Government claims Segura distinguished between a search of a dwelling and a seizure of a dwelling to preserve the status quo and held that “securing a dwelling on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents.” (Doc. 67, p.15). Interestingly, the portion of the Segura decision cited by the Government is in a section of the opinion joined in by only two Justices. Additionally, this Court notes that the portion of Segura relied upon by the Government has been sharply criticized. See United States v. Wright, 696 F.Supp. 164, 170, n.8 (E.D. Va. 1988) (citing Dressler, A Lesson in Incaution, Overwork, and Fatigue: The Judicial Miscraftsmanship of Segura v. United States, 26 Wm. & Mary L.Rev. 375, 422 (1985) (“Segura is a disaster as a written opinion”); Note, The Securing of the Premises Exception: A Search for the Proper Balance, 38 Vand.L.Rev. 1589 (1985) (“The most distressing feature of Segura is that the Chief Justice has created an exception [to the warrant requirement] without identifying any corresponding need”)); see also 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 6.5(c), pp. 417-424 (4th ed. 2004).

In Search and Seizure, Professor LaFave suggested that the Segura Court did not really approve of warrantless entry absent exigent circumstances. Id. at 419. He noted that the majority “parse[d] the police conduct in Segura into its ‘seizure’ and ‘search’ components, and with respect to the ‘seizure’ part [was] not really taking into account the fact of entry.” Id. To support this proposition, LaFave quoted the following passage in Segura:

Securing of the premises from within, however, was no more an interference with the petitioners’ possessory interests in the contents of the apartment than a perimeter “stakeout.” In other words, the initial entry-legal or not-does not affect the reasonableness of the seizure. Under either method-entry and securing from within or a perimeter stakeout-agents control the apartment pending arrival of the warrant; both an internal securing and a perimeter stakeout interfere to the same extent with the possessory interests of the owners.

Id. at 419-20 (quoting Segura, 468 U.S. at 811, 104 S.Ct. at 3389). LaFave noted that the Segura Court “only said that the seizure aspect (which, were it to exist in isolation, would mean maintaining control without entry) is permissible on probable cause even if there are not exigent circumstances.” Id. at 420. LaFave elaborated that the four dissenters appeared to agree on that point as they stated they assumed “impoundment would be permissible even absent exigent circumstances if it occurs ‘from the outside’ — when the authorities merely seal off premises pending the issuance of a warrant but do not enter.” Id. (quoting Segura, 468 U.S. at 824, n. 15, 104 S.Ct. at 3396).

This Court is persuaded by the analysis provided by LaFave. Moreover, given the criticism of Segura, and the fact that this Court was unable to locate (and the Government did not cite) any Eleventh Circuit cases adopting the holding cited by the Government, the Court finds the Government must show both probable cause and exigent circumstances existed at the time the officers entered the homes at 228 and 230 San Jose. As such, the Court must next determine whether exigent circumstances supported the officers’ decision to enter the two homes.

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CFC: No jurisdiction over a Fourth Amendment claim

The Court of Federal Claims lacks jurisdiction over Bivens claims against individual officers. [The Court of Federal Claims has no jurisdiction over what happens in the criminal justice system.] Taylor v. United States, 2008 U.S. Claims LEXIS 462 (October 29, 2008):

Nothing in plaintiffs’ complaint raises the specter of an unreasonable search and seizure by defendant. More fundamentally, for purposes of this court’s jurisdictional analysis, the Fourth Amendment is not a money-mandating constitutional provision. See, e.g., Fry v. United States, 72 Fed. Cl. 500, 507 (2006) (“As a matter of law, the Fourth Amendment’s prohibition on unreasonable search and seizure … [is] not money-mandating.”); Hanford v. United States, 63 Fed. Cl. 111, 119 (2004) (“‘[V]iolations of 4th [A]mendment search and seizure’ are ‘excluded’ from the jurisdiction of this court because the Fourth Amendment is not a money-mandating constitutional provision.” (quoting Stephenson v. United States, 58 Fed. Cl. 186, 192 (2003))). Furthermore, although the Supreme Court held in Bivens “that a party may, under certain circumstances, bring an action for violations of constitutional rights against Government officials in their individual capacities[,] … [t]he Tucker Act grants the Court of Federal Claims jurisdiction over suits against the United States, not against individual federal officers.” Brown v. United States, 105 F.3d 621, 624 (Fed. Cir. 1997). The court, therefore, lacks jurisdiction to entertain these claims.

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Fourth Amendment news

Google searching: Google Scholar

Google Scholar Beta to use Google for some legal research is now available. I included a link on the right margin.

See this article in Above the Law.

Article on the Exclusionary Rule

Excluding Illegally-Obtained Evidence and the Doctrine of Double Effect, by Sherry F. Colb.

“All Persons” search warrant

On the UNC School of Government Blog North Carolina Criminal Law, Search Warrants for “All Persons on the Premises”

Only the drug dog was apparently trained

Only in Arkansas: A convicted felon with a drug dog business was helping Mayflower AR police and carrying a sidearm with the permission of the Chief. On Law and Baseball see Traffic Stop: Fake Cop; Fake Dog. The Chief was suspended, and likely under investigation for being an accessory to both a FIPF charge and impersonating an officer. From the Arkansas Democrat-Gazette article linked above:

Sgt. Robert Alcon, Mayflower’s acting police chief, said Tuesday that the sheriff’s office “is conducting afull investigation into what happened.”

“The chief is kind of the focus of that investigation,” Alcon added.

But Alcon said, “in no way, shape or fashion was he [Brinkley] ever employed by the Mayflower Police Department. He was an independent contractor. He and the chief had some arrangement to use his services” for dogs in narcotics cases. “Things got a little out of control.”

Alcon declined to be more specific.

Mayflower, a town of about 2,230 residents, has five full-time police officers, including Shaw, and two part-time ones.

The Chief is toast.

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M.D.Fla.: SW not defective where it referred to data and not the computer itself

The search warrant for defendant’s property did not specifically say to seize computers, but it sufficiently referred to computer related data and stuff that it was more than reasonable to conclude under the good faith exception that computers were included. United States v. Smith, 2009 U.S. Dist. LEXIS 108911 (M.D. Fla. November 5, 2009) (USMJ’s R&R):

4) Data records related to the above computer related items, whether stored on paper (including computer printouts), on magnetic media such as tapes, cassettes, disk or memory devices such as optical disks, electronic address books, or any other storage media.
5) Any documents or other papers which contain set or sets or numbers or characters which may represent access codes or passwords for the computer, stored computer records, any on-line services, or other long distance carriers, and/or authorized credit agencies.
6) Computer printouts
7) Back-up copies of data and programs on floppy diskettes and other storage media. (Because computer stored data is so vulnerable, most computer users keep back-ups so if data is erased or deleted from the system itself, it may be recoverable on the back-up copies).
8) Data contained on all storage devices, including, but not limited to graphic and text files.

. . .

However, the list for the items to be searched contains many references to items relating to and found within computers including but not limited to storage devices for graphic and text tiles, data records relating to a computer, magnetic media, cassettes, disk or memory devices, and backup files. It was reasonable for the officers to seize the computers based upon the items listed in the Search Warrant. By seizing the computers the officers were within the terms of the search warrant and affidavit and were not conducting a general search.

The District Court adopted the R&R, United States v. Smith, 2009 U.S. Dist. LEXIS 108910 (M.D. Fla. November 19, 2009), adding:

The Court rejects defendant’s argument (Doc. # 46, p. 2) that the state Search Warrant had to comply with the federal definition of computer in 18 U.S.C. § 1030(e). The Court also rejects defendant’s argument (Doc. # 46, pp. 2-4) that allowing seizure of the computers as an authorized item would mean that the February 24, 2009 search warrant was unnecessary. A law enforcement officer’s authority to possess an object is distinct from his or her authority to examine its contents. E.g., Walter v. United States, 447 U.S. 649 (1980); United States v. Jacobsen, 466 U.S. 109 (1984); United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009). The second search warrant may or may not have been necessary, but its issuance does not detract from the validity of the first search warrant.

The Court agrees with the Report and Recommendation’s alternative finding (Doc. # 41, pp. 11-12) that the good faith exception to the exclusionary rule, as articulated in United States v. Leon, 468 U.S. 897 (1984), is satisfied in this case. The good faith exception applies to this type of issue, Travers, 233 F.3d at 1330, and the facts support its application to this case.

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Government seeks CDT rehearing

Government seeks full 27 judge rehearing in United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009) (en banc), posted here, according to the venerable legal newspaper, USAToday. See the Washington Examiner, too.

Obviously, this case is going up since the Solicitor General filed the petition.

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Fourth Amendment news

Also in the Times

Right and Left Join to Take On U.S. Over Criminal Justice on the joining of forces against overcriminalization.

Copying as a seizure

On Privacy Digest is Copying as a Search and Seizure discussing a 2001 case where copying data was not an interference with possessory rights so it was not a seizure. Copying papers would be a “search,” wouldn’t it? A search is looking.

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Fourth Amendment News

Editorial yesterday in the New York Times: GPS and Privacy Rights about the pending D.C. Cir. case noted below. An interesting piece.

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Fourth Amendment news

Website: Homeland Security News

Homeland security news, not a government website, has a website. The Hawai’i TSA search case posted here is discussed there.

Recording priest-penitent confession in prison

A case is coming to trial involving a prison recording a priest-penitent confession in a prison as violating the First and Fourth Amendments. See Adoro te Devote, linking to What Does The Prayer Really Say?. It happened in 1996.

Does bringing KSM to S.D.N.Y. create Fourth Amendment rights?

Not likely. See Orin Kerr on Volokh Conspiracy.

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D.V.I.: Nexus to defendant’s car and house shown in grow operation warrant

It was reasonable for the USMJ to conclude that there was a nexus between defendant’s grow operation and his car and his house. He had to get to the grow operation somehow. United States v. Danielson, 2009 U.S. Dist. LEXIS 107257 (D. V.I. November 17, 2009).*

Defendant driving someone else’s truck with permission had standing, and the videotape helped support it. United States v. Sanchez, 2009 U.S. Dist. LEXIS 106954 (D. Kan. November 16, 2009).*

Defense counsel was not ineffective for not challenging the search warrant on state law grounds in a federal case since it was irrelevant under the Fourth Amendment. Norman v. United States, 2009 U.S. Dist. LEXIS 106898 (M.D. Ala. October 21, 2009).*

There was probable cause for defendant’s arrest, and the search of his backpack was justified as a search incident. He was also seen ditching something as he ran while holding the backpack. United States v. Watkins, 2009 U.S. Dist. LEXIS 106855 (D. Mass. November 17, 2009).*

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SCOTUSBlog–Petition to watch on exclusionary rule

SCOTUSBlog petitions to watch 11-24-09 conference

A potential exclusionary rule case, dressed in RS’s clothing:

Docket: 09-102
Title: Virginia v. Rudolph
Issue: Did the Supreme Court of Virginia properly find, on the facts of this case, that an investigative stop was unjustified under the Fourth Amendment?

Opinion below (Virginia Supreme Court)
Petition for certiorari
Brief in opposition
Petitioner’s reply
Amicus Brief of the Virginia Assoc. of Commonwealth’s Attorneys, et al.

From the state court opinion, after finding no reasonable suspicion:

When applied to evidence recovered pursuant to an investigatory stop, the exclusionary rule is best equipped to deter stops made not because of legitimate suspicion, but because the stop was motivated by some pernicious reason (such as racial profiling, personal animus, or the like), or by arbitrariness evidencing a genuine abuse of police power. Such a wrongful basis for the stop warrants the application of the exclusionary rule’s severe penalty.

But not all investigatory stops arise from such base motivations. Indeed, the Supreme Court has explicitly recognized that conduct observed by police may be “ambiguous and susceptible of an innocent explanation” and yet still justify an investigatory stop, allowing the officers to “detain the individuals to resolve the ambiguity.” …

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Fourth Amendment news

D.C.Cir. has a GPS surveillance case pending, argued today

See D.C. Circuit Examines Warrantless GPS Surveillance on Blog of the Legal Times discussing the oral argument.

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Fourth Amendment news

A split in rationale in OFAC warrants cases

In When a Warrant Isn’t Warranted on IPT News, there is a discussion in the split in the caselaw on OFAC seizure of assets.

The exclusionary rule under the PATRIOT Act

Writing on the exclusionary rule under the PATRIOT Act and an explanation for lay persons is libertarian blogger Jesse Mathewson on Examiner.com: The Exclusionary Rule: What every American should know about it!

TSA screeners as cops

In the NYTimes yesterday A Constitutional Case in a Box of Cash by Joe Sharkey. A man carrying cash and interrogated by TSA screeners about it in St. Louis. He used his iPhone to record the interrogation in an interrogation room.

Unfortunately for the interrogators, Mr. Bierfeldt was carrying an audio recorder. “As I was being led into the room, I thought, ‘This is going to be a bigger deal than I thought,’ so I took out my iPhone in plain sight, played a little with it, pushed record and put it back in my pocket,” Mr. Bierfeldt said.

The transcript of Mr. Bierfeldt’s recording shows that the officers, evidently unaware that Mr. Bierfeldt was recording the session, threatened Mr. Bierfeldt with federal arrest for declining to account for the cash. Mr. Bierfeldt kept asking politely whether he was legally required to answer. This intransigence irritated the officers.

See the post TSA changes its search policy.

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Fourth Amendment news

Suing ICE

Putting Heat On ICE; Immigrants use civil lawsuits to protest raids by federal agents, by Christian Nolan in CT Law Tribune:

In May 2006, the federal Immigration and Customs Enforcement agency launched “Operation Return To Sender.” The goal: track down, arrest and deport undocumented immigrants, particularly felons, gang members and other dangerous types.

Since then, ICE agents have conducted scores of raids on homes and workplaces. Advocacy groups and lawyers say some agents have been overly zealous, and the advocates have regularly gone to court to try to void arrests and block deportations. But in what seems to be a small, but significant trend, some have also gone on the offensive, filing civil lawsuits against ICE and its agents.

The most recent example is in Connecticut, where a Yale School of Law legal clinic has filed suit on behalf of 10 undocumented immigrants whose homes were raided in June 2007. Immigration attorneys differ on whether the claim has much chance of success. But most agree that litigation is an interesting strategy that could buy time in America for the clients and give ICE officials reason to reconsider tactics.

See this prior post on Cardozo Law School symposium on immigration searches.

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AR: Search warrant for home in theft case lacked nexus; good faith exception inapplicable

Defendant was arrested for theft and conspiracy, and the affidavit for the search warrant did not allege any nexus between defendant’s home and the crime. A home may not be searched on arrest “as a matter of course.” Just because the object of the theft had not been recovered does not automatically justify a search. The GFE did not apply. Campbell v. State, 2009 Ark. 540 (November 5, 2009):

The Affidavit in the present case does not even assert that the items to be seized would be in the home, the vehicles, or on appellant’s person. It is clear from the Affidavit For Search and Seizure Warrant that the law enforcement affiant is asserting that when a person is arrested, his or her home, vehicles, and person may be searched as a matter of course. This is directly contrary to law. See Ark. R. Crim. P. 13.1(b).

The State asserts that even if there was a problem with the Affidavit, the good-faith exception saves the warrant. However, “[w]here the officers’ affidavit is so lacking in indicia of probable cause as to render official belief as to its existence unreasonable,” the good-faith exception does not apply. Kelly v. State, 371 Ark. 599, 606, 269 S.W.3d 326, 331 (2007) (quoting United States v. Leon, 468 U.S. 897, 923 (1984)). The Affidavit fails to assert there is probable cause, let alone set out particular facts tending to show that the items to be seized are in the places to be searched. Instead, the Affidavit errantly relies on the arrest for crimes as the basis to search the home, the vehicles, and the person. The circuit court erred in failing to grant Campbell’s motion to suppress evidence seized in the execution of the search warrant.

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IA: Protective weapons search of car console justified by furtive movement; scope of search was reasonable

A protective weapons search of defendant’s console area was justified by his movements before he was stopped. The search was limited in scope and was reasonable. More than furtiveness was not required here. State v. Petrie, 2009 Iowa App. LEXIS 1393 (October 7, 2009):

We believe the search of the console area in Petrie’s vehicle in this case was justified by the deputy’s observance of Petrie reaching down to the center console area. It was limited to that area. The deputy was rightfully concerned that Petrie had been reaching for a weapon. If additional suspicious circumstances are necessary, we note that Petrie did not immediately stop when the deputy activated his lights, Petrie acted as though he was going to purchase gas while smoking a cigarette, and he attempted to vacate his car as the deputy approached. These circumstances lend credence to a conclusion that Petrie was nervous when stopped. Nervousness is one factor to consider in determining whether an officer has reasonable suspicion that weapons are present. See State v. Bergmann, 633 N.W.2d 328, 333 (Iowa 2001).

Plaintiff claimed that he did not discover until 2007 that a search warrant was executed on his property in 1995. He failed to show the statute of limitations was tolled in an action for money damages. Leonard v. Woltman, 2009 Iowa App. LEXIS 1516 (November 12, 2009).*

Taillight stop led to officer smelling alcohol and defendant admitting he had been drinking. The stop was reasonable. State v. Shaw, 2009 Iowa App. LEXIS 1432 (October 21, 2009).*

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Fourth Amendment news

“Getting FISA right”

For those interested in the intricacies of FISA and tracing of e-mails, is this piece: The “techie” side of “Getting It Right”. If one is interested in how e-mails can be traced in criminal investigations, it helps to understanding.

On the perp walk

A story on staged perp walks is Charged, and a part of the familiar stage play from the Philadelphia Inquirer. Some case law holds that a staged perp walk is an unreasonable seizure.

Federalist Society debate on the Bill of Rights

FedSoc LiveBlog: Constitutional Interpretation & the Bill of Rights featuring Burt Neuborne and Randy Barnett

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Article: New Technologies and the Fourth Amendment

Engle, Eric Allen, New Technologies and the Fourth Amendment (November 3, 2009). Available at SSRN: http://ssrn.com/abstract=1499176. Abstract:

Examines fourth amendment in the context of new technologies which allow remote uninvasive searches. 7 pages, 45 notes.

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Fourth Amendment news

TSA Changes its search policy

Occasionally, TSA personnel decide that they have a criminal investigative mission as well as an airport safety mission, but the courts thus far have not agreed. That hasn’t stopped them, and the ACLU sued them, but dropped it yesterday after TSA changed its rules.

In the Washington Times today is an article about it: Airport rules changed after Ron Paul aide detained:

An angry aide to Rep. Ron Paul, an iPhone and $4,700 in cash have forced the Transportation Security Administration to quietly issue two new rules telling its airport screeners they can only conduct searches related to airplane safety.

In response, the American Civil Liberties Union is dropping its lawsuit on behalf of Steve Bierfeldt, the man who was detained in March and who recorded the confrontation on his iPhone as TSA and local police officers spent half an hour demanding answers as to why he was carrying the money through Lambert-St. Louis International Airport.

The new rules, issued in September and October, tell officers “screening may not be conducted to detect evidence of crimes unrelated to transportation security” and that large amounts of cash don’t qualify as suspicious for purposes of safety.

“We had been hearing of so many reports of TSA screeners engaging in wide-ranging fishing expeditions for illegal activities,” said Ben Wizner, a staff lawyer for the ACLU, pointing to reports of officers scanning pill-bottle labels to see whether the passenger was the person who obtained the prescription as one example.

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E.D. Mo.: Prior refusal of consent is a factor in finding voluntariness

Officers had probable cause to search the trunk of defendant’s car for weapons when none were seen in the backseat. United States v. Ross, 2008 U.S. Dist. LEXIS 111620 (M.D. Fla. August 6, 2008).*

Defendant’s consent was valid. She was a nurse and highly educated, and she had previously refused to consent to a search, so she knew what she was doing. “Based on the totality of the circumstances, it is clear that Ms. Mabie’s consent was freely and voluntarily given, even if Detective Anderson did actually tell her that they would get a search warrant and ‘trash’ her house.” United States v. Mabie, 2009 U.S. Dist. LEXIS 104009 (E.D. Mo. October 15, 2009).*

Officers had reasonable suspicion to detain defendant when he was found in a room with 1,200 credit cards and equipment to make counterfeit credit cards. United States v. Medina, 2009 U.S. Dist. LEXIS 104158 (S.D. Fla. October 24, 2009).*

Consent to search wallet was a product of defendant’s illegal detention. United States v. Duarte, 2009 U.S. Dist. LEXIS 104155 (S.D. Fla. November 4, 2009)*:

Based on the foregoing, this Court finds that Defendant Medina was still detained when he consented to the search of his wallet. From the testimony above, it is clear that the officers were in the process of letting him go, but he was not yet released. This fact alone distinguishes this case from Delancy. In Delancy, the homeowner was not detained at the time consent was given. In fact, the Eleventh Circuit noted that there was no detention whatsoever in Delancy. Delancy, 502 F.3d at 1311.

Even if there had been a short break between the detention and the consent for search (which there was not), Delancy should still be distinguished. Delancy involved a search after an illegal protective sweep of a home. In finding that timing was not as important a factor, the court focused specifically on the facts of that case. Delancy, 502 F.3d at 1311 (“on these facts, however, timing is not the most important factor”). Here, the duration of Defendant’s detention was the factor that made it unreasonable and, therefore, illegal. Thus, based on the facts of the instant case, timing is certainly an important factor.

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OH: Vehicle frisks under Long; possibility of a carry permit did not nullify patdown with RS

Defendant’s probation search was not shown to be a pretext for a police search. State v. Loper, 2009 Ohio 5920, 2009 Ohio App. LEXIS 4976 (5th Dist. November 5, 2009).*

911 calls with three hangups, no response to calls back, and shouting in background about son shooting up heroin in the bathroom justified entry on exigent circumstances. State v. Davis, 2009 Ohio 5888, 2009 Ohio App. LEXIS 4953 (5th Dist. November 3, 2009).*

Defendant’s furtive movement when he was under surveillance for drug dealing justified a vehicle “frisk” under Long, and Gant was inapplicable. State v. Moore, 2009 Ohio 5927, 2009 Ohio App. LEXIS 4956 (12th Dist. November 9, 2009).*

Similarly, defendant’s having left an open air drug market with his evasiveness when spoken to justified a vehicle “frisk.” “Considering the aforementioned facts, viewed in conjunction with Officer Jordan’s testimony that weapons often accompany drugs, it was reasonable for Officer Jordan to be concerned for his safety. Such concerns substantiated the search of appellant’s vehicle under Michigan v. Long.” State v. Kelley, 2009 Ohio 5924, 2009 Ohio App. LEXIS 4992 (12th Dist. November 9, 2009).*

The trial court erred in making an inference on an inference to conclude that the officer had reasonable suspicion for defendants stop. State v. Fields, 2009 Ohio 5909, 2009 Ohio App. LEXIS 4973 (3d Dist. November 9, 2009).*

Defendant’s stop was with reasonable suspicion, and the officer smelled marijuana. State v. Wingfield, 2009 Ohio 5833, 2009 Ohio App. LEXIS 4906 (8th Dist. November 5, 2009).*

The possibility defendant might have a carry permit did not nullify the reasonable suspicion for a patdown. State v. Taylor, 2009 Ohio 5822, 2009 Ohio App. LEXIS 4907 (8th Dist. November 5, 2009).*

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