“Dog breeding is a pervasively regulated activity and has been the subject of federal and state regulation since at least 1976 and 1982 respectively.” It also satisfies the Burger analysis. Prof’l Dog Breeders Advisory Council v. Wolff, 2009 U.S. Dist. LEXIS 83054 (M.D. Pa. September 11, 2009):

Dog breeding is a pervasively regulated activity and has been the subject of federal and state regulation since at least 1976 and 1982 respectively. See 7 U.S.C. § 2131, et. seq.; see 9 C.F.R. § 1.1 et. seq. (federal regulations); 3 P.S. § 459-101 et. seq; see 7 Pa. Code § 21.1 et. seq. (state regulations). In Pennsylvania, dog breeders have been on notice since 1982 that their businesses are subject to random inspections. Furthermore, by Plaintiffs’ own contention, the industry is heavily regulated, hence the reason for this suit. Plaintiffs cannot successfully argue that the kennel industry is not pervasively regulated while at the same time maintaining that the kennel industry is too pervasively regulated. Regulations concerning the kennel industry in the areas of licenses, enforcement, fees, penalties operations, and various other provisions have been around for years. Furthermore, the kennel industry has been subject to random inspections and searches since at least 1982. As such, the kennel industry is a pervasively regulated activity.

Motion to reconsider under Gant denied because the defendant concedes his stop and patdown were valid, and removing a spoon from his pocket was valid, and drug residue on the spoon gave justification for a search of his car under the automobile exception too. United States v. Herman, 2009 U.S. Dist. LEXIS 83243 (E.D. Wash. September 11, 2009).*

The County failed to show that a strip search was required for an arrest for violating a restraining order to stay away from another person. There was also nothing in her mental health history which would justify it. Barnett v. County of Contra Costa, 2009 U.S. Dist. LEXIS 83130 (N.D. Cal. September 11, 2009).* As to the latter:

Similarly, Defendants have failed to persuade the Court that Chan’s mental history necessarily gave rise to reasonable suspicion to perform a strip search. Although Chan admitted that she tried to harm herself six years prior to her arrest and was a patient in a mental hospital on two occasions, three and six years prior to her arrest, she also stated that she was taking no prescription medication at the time of her arrest, did not use street drugs, had no current problems with depression, and had no current thoughts of harming herself. Chan’s health questionnaire also indicates that she was not observed to be sweaty, shaking, agitated, disoriented, or confused. In addition, Chan was held for several hours prior to the strip search being performed — a fact that, when viewed in the light most favorable to Chan, suggests that Defendants did not consider her a threat to herself or others. The Court cannot, on these facts, find it undisputed that Defendants had reasonable suspicion to strip search Chan based on her mental health history.

“Electronic data” in a search warrant permitted seizure of computers, although a second search warrant was required to get into them. United States v. Horn, 2009 U.S. Dist. LEXIS 82490 (E.D. Mich. September 10, 2009).*

The video of defendant’s driving showed reason for his stop, and the marijuana in the back seat was in plain view. United States v. Brooks, 2009 U.S. Dist. LEXIS 82449 (M.D. Ala. August 13, 2009).*

Officers’ testimony contradicted their reports, and the court lost confidence in their credibility as witnesses on the cause for the stop and the search after it, so the motion to suppress was granted. United States v. Coppin, 2009 U.S. Dist. LEXIS 82910 (N.D. Tex. September 11, 2009):

The court concludes that there are multiple inconsistencies between the officers’ stories, the arrest reports, and Cottingham’s testimony. These inconsistencies relate directly to the most important issues regarding the traffic stop: the reasonableness of the stop and credibility. The testimony was stated in such a way to justify or enhance the reason for the initial traffic stop. Regardless of the reasons for the multiple inconsistencies — that is, whether they are the result of poor report writing, lapse of memory because of passage of time, or misrepresentations — credibility is substantially undermined. The court has serious doubts that the officers had a reasonable suspicion that the occupants of the Town Car were involved in criminal activity at the time of the stop. These inconsistencies undermine the officers’ credibility to a degree that the court concludes that the government has not met its burden in showing that there was a reasonable basis for the traffic stop at its inception. As the stop was not justified, the court need not reach the parties’ arguments about whether Defendant had a privacy right in the car or whether he has standing to challenge the search. Accordingly, the court concludes that the evidence found during that traffic stop must be suppressed. The court grants Coppin’s Motion to Suppress Evidence and hereby suppresses the evidence obtained by the Dallas Police Department during the traffic stop on June 29, 2008.

Three vehicles showed up together on a lonely border road, and the officer stopped them. On the totality, there was reasonable suspicion for the stop and detention for smuggling at the border under Arvizu. The fact the stop was planned does not make it unreasonable. United States v. Seibel, 2009 U.S. Dist. LEXIS 82854 (D. Ariz. September 10, 2009):

Johnson’s supposed intent when he first began to approach Seibel’s vehicle does not provide a basis to conclude that Johnson manufactured the specific, articulable facts that, at the moment of seizure, support a finding of reasonable suspicion. Similarly, while the Court considers that Johnson may have been less than thorough in investigating all three vehicles, it does not change the conclusion that, at the moment of seizure, there was reasonable suspicion for Johnson to stop Seibel’s vehicle.

Today’s NYTimes has a story about police drawing blood on their own in DUI cases: Officers’ New Tool Against D.W.I.: Syringe.

The plaintiff was arrested in Las Vegas and was a suspect in a sex offense. He had been convicted in Montana in 1980 and was released from supervision in 2001, and no DNA was on file for him. A DDA decided that police needed his DNA, so she directed a police officer to get it by force if necessary, which they did. The forcible taking of DNA from the plaintiff violated his clearly established Fourth Amendment rights. Friedman v. Boucher, 568 F.3d 1119 (9th Cir. 2009) (submitted October 19, 2007), amended September 8, 2009:

We turn first to the question of whether the warrantless, suspicionless, forcible taking of Friedman’s DNA violated his constitutional rights. There is no question that the buccal swab constituted a search under the Fourth Amendment. The Supreme Court has held that invasions of the body are searches and, thus, are entitled to the protections of the Fourth Amendment. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616-17 (1989) (breathalyzer and urine sample); Cupp v. Murphy, 412 U.S. 291, 295 (1973) (finger nail scrapings); Schmerber v. California, 384 U.S. 757, 767-71 (1966) (blood). We have held, similarly, that the Fourth Amendment protects against “all searches that invade the interior of the body–whether by a needle that punctures the skin or a visual intrusion into a body cavity.” Fuller v. M.G. Jewelry, 950 F.2d 1437, 1449 (9th Cir. 1991); see also Padgett v. Donald, 401 F.3d 1273, 1277 (11th Cir. 2005) (swabbing the inside of mouth for saliva is a search); Schlicher v. Peters, 103 F.3d 940, 942-43 (10th Cir. 1996) (collection of saliva is a search). As we put it in United States v. Kriesel: “The compulsory extraction of blood for DNA profiling unquestionably implicates the right to personal security embodied in the Fourth Amendment, and thus constitutes a ‘search’ within the meaning of the Constitution.” 508 F.3d 941, 946 (9th Cir. 2007) (quoting Kincade, 379 F.3d at 821).

There is also no dispute that the search was conducted without a warrant. “A warrantless search is unconstitutional unless the government demonstrates that it ‘fall[s] within certain established and well-defined exceptions to the warrant clause.'” United States v. Brown, 563 F.3d 410, 414-15 (9th Cir. 2009) (quoting United States v. Murphy, 516 F.3d 1117, 1120 (9th Cir. 2008) (quoting United States v. Delgadillo-Velasquez, 856 F.2d 1292, 1298 (9th Cir. 1988))).

Thus, unless the government can establish that the warrantless, suspicionless, forcible taking of a buccal swab satisfies one of the exceptions to the warrant requirement, we must hold the search to be unconstitutional.

All the defendants’ arguments were rejected, including the special needs exception and the Montana DNA statute could be extraterritorially enforced in Nevada.

A search that was valid before Gant should have the good faith exception applied. (See other posts on this issue listed here.) United States v. Owens, 2009 U.S. Dist. LEXIS 81378 (N.D. Fla. August 20, 2009):

Based upon the principles of the exclusionary rule, I find it proper to apply the good-faith exception to a search justified under the settled case law of the Eleventh Circuit, even though the law was later rendered unconstitutional by a Supreme Court decision. Just as there is no misconduct on the part of a law enforcement officer who reasonably relies on the mistake of a court employee in entering data, Evans, 514 U.S. at 15, 115 S. Ct. 1185, or the mistake of a legislature passing an unconstitutional statute, Krull, 480 U.S. at 349-50, 107 S. Ct. 1160, a police officer who performs an automobile search subsequent to arrest in reasonable reliance upon the settled case law of the United States Court of Appeals, even though the search is later invalidated by a Supreme Court decision, has not engaged in misconduct. United States v. McCane, 573 F.3d 1037, 2009 WL 2231658 at 7-8 (10th Cir. 2009). As repeated by the Supreme Court in its good-faith exception cases, the exclusionary rule should not be applied to objectively reasonable law enforcement activity.” Leon, 468 U.S. at 919, 104 S. Ct. 3405. Relying upon settled case law is objectively reasonable law enforcement behavior.

Federal Rules of Criminal Procedure, proposed amendment effective December 1, 2009:

Rule 41. Search and Seizure

* * *

(e) Issuing the Warrant.

(2) Contents of the Warrant.

(A) Warrant to Search for and Seize a Person or Property. Except for a tracking-device warrant, the warrant must identify the person or property to be searched, identify any person or property to be seized, and designate the magistrate judge to whom it must be returned. The warrant must command the officer to:

(i) execute the warrant within a specified time no longer than 14 days;

* * *

(B) Warrant Seeking Electronically Stored Information. A warrant under Rule 41(e)(2)(A) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.

(C) Warrant for a Tracking Device. A tracking device warrant must identify the person or property to be tracked, designate the magistrate judge to whom it must be returned, and specify a reasonable length of time that the device may be used. The time must not exceed 45 days from the date the warrant was issued. The court may, for good cause, grant one or more extensions for a reasonable period not to exceed 45 days each. The warrant must command the officer to:

* * *

(f) Executing and Returning the Warrant.

(1) Warrant to Search for and Seize a Person or Property.

* * *

(B) Inventory. An officer present during the execution of the warrant must prepare and verify an inventory of any property seized. The officer must do so in the presence of another officer and the person from whom, or from whose premises, the property was taken. If either one is not present, the officer must prepare and verify the inventory in the presence of at least one other credible person. In a case involving the seizure of electronic storage media or the seizure or copying of electronically stored information, the inventory may be limited to describing the physical storage media that were seized or copied. The officer may retain a copy of the electronically stored information that was seized or copied.

* * *

The Tenth Circuit today found a good faith exception to Arizona v. Gant. United States v. McCane, 573 F.3d 1037 (10th Cir. 2009). The settled law [albeit wrong?] pre-Gant is a sufficient basis for the good faith exception to apply:

Two inseparable principles have emerged from the Supreme Court cases and each builds upon the underlying purpose of the exclusionary rule: deterrence. First, the exclusionary rule seeks to deter objectively unreasonable police conduct, i.e., conduct which an officer knows or should know violates the Fourth Amendment. See, e.g., Herring, 129 S. Ct. at 701-04; Krull, 480 U.S. at 348-49.

Second, the purpose of the exclusionary rule is to deter misconduct by law enforcement officers, not other entities, and even if it was appropriate to consider the deterrent effect of the exclusionary rule on other institutions, there would be no significant deterrent effect in excluding evidence based upon the mistakes of those uninvolved in or attenuated from law enforcement. See, e.g., Evans, 514 U.S. at 14-15; Krull, 480 U.S. at 351-52; Leon, 468 U.S. at 916-17. Based upon these principles, we agree with the government that it would be proper for this court to apply the good-faith exception to a search justified under the settled case law of a United States Court of Appeals, but later rendered unconstitutional by a Supreme Court decision.

Just as there is no misconduct on the part of a law enforcement officer who reasonably relies upon the mistake of a court employee in entering data, Evans, 514 U.S. at 15, or the mistake of a legislature in passing a statute later determined to be unconstitutional, Krull, 480 U.S. at 349-50, a police officer who undertakes a search in reasonable reliance upon the settled case law of a United States Court of Appeals, even though the search is later deemed invalid by Supreme Court decision, has not engaged in misconduct. The refrain in Leon and the succession of Supreme Court good-faith cases is that the exclusionary rule should not be applied to “objectively reasonable law enforcement activity.” 486 U.S. at 919. Relying upon the settled case law of a United States Court of Appeals certainly qualifies as objectively reasonable law enforcement behavior.

The Supreme Court’s line of good-faith cases clearly indicates that the reach of the exclusionary rule does not extend beyond police conduct to punish the mistakes of others, be they judicial officers or employees, or even legislators. Evans, 514 U.S. at 14 (“[T]he exclusionary rule was historically designed as a means of deterring police misconduct, not mistakes by court employees.”); Krull, 480 U.S. at 350 (“We noted in Leon as an initial matter that the exclusionary rule was aimed at deterring police misconduct. Thus, legislators, like judicial officers, are not the focus of the rule.” (citation omitted)); Leon, 468 U.S. at 916 (“[T]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.”). In the case of judicial officers, the Supreme Court has stated that “there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion.” Leon, 468 U.S. at 916. Thus there is no basis for believing that excluding evidence resulting from an error of the court will “have a significant deterrent effect on the issuing judge[s].” Id. Courts are neutral arbiters charged with interpreting the law, and have “no stake in the outcome of particular criminal prosecutions.” Id. at 917. Consequently, excluding evidence based on judicial error would serve no deterrent purpose. The Supreme Court has consistently relied upon the deterrent purpose of the exclusionary rule in deciding the scope of the good-faith exception. The Court has declined to apply the exclusionary rule when no deterrent effect would result from its application. Consistent with this practice, this court declines to apply the exclusionary rule when law enforcement officers act in objectively reasonable reliance upon the settled case law of a United States Court of Appeals. The good-faith exception to the exclusionary rule applies in this case. The district court therefore properly denied the motion to suppress.

So, in the Tenth Circuit, and those that chose to follow it, the fact that Gant was faithful to Chimel is ignored and any search that occurred prior to Gant is still valid if Belton was complied with, no matter that Belton was always stretched beyond its facts.

What about Malley v. Briggs, 475 U.S. 335, 346 n.9 (1986) [not cited by the Tenth Circuit]?

If the magistrate issues the warrant in such a case, his action is not just a reasonable mistake, but an unacceptable error indicating gross incompetence or neglect of duty. The officer then cannot excuse his own default by pointing to the greater incompetence of the magistrate.

The incompetence of the Court of Appeals excuses the long running constitutional violation?

Accidental accessing of pictures on a cellphone when attempting to turn it off before storage during defendant’s booking revealed child porn pictures. This was not an unreasonable search because it was accidental and resulted in a plain view. Search incident, as argued by the government, would not apply because the phone was not a part of any crime. United States v. Yockey, 2009 U.S. Dist. LEXIS 67259 (N.D. Iowa August 3, 2009), USMJ R&R affirmed, United States v. Yockey, 2009 U.S. Dist. LEXIS 77373 (N.D. Iowa August 28, 2009):

There is no dispute that Collison took Yockey’s cell phone from him as part of standard booking procedures at the Woodbury County Jail. There also is no dispute that while performing these procedures, Collison did something that caused a pornographic image of a child to be displayed on the phone’s screen, and he did so without a warrant to search the phone. The question is whether, under the circumstances of this case, this was an unlawful search.

A search warrant is required to search the contents of a cell phone unless an exception to the warrant requirement exists. United States v. Flores, 122 F. Supp. 2d 491, 494-95 (S.D.N.Y. 2000) (search of cell phone’s contents not part of proper inventory search); see United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008) (possession of cell phone gives rise to reasonable expectation of privacy regarding its contents, citing United States v. Finley, 477 F.3d 250, 258-59 (5th Cir. 2007)); United States v. Quintana, 594 F. Supp. 2d 1291, 1299 (M.D. Fla. 2009) (an owner of a cell phone has a reasonable expectation of privacy in the electronic data stored on the phone, citing Quon v. Arch Wireless Operating Co., 529 F.3d 892, 905 (9th Cir. 2008)). The Government bears the burden of establishing the exception. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S. Ct. 2022, 2032, 29 L. Ed. 2d 564 (1971); Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).

The court finds that Collison had the right to turn the cell phone off as part of the jail’s standard booking procedures. This was an entirely reasonable and standard administrative practice. Yockey had been arrested for driving with a suspended driver’s license and taken to the jail. The jail was justified in removing his personal property from him before he was placed in the jail population. The jail also was justified in conducting an inventory of the property to document what was taken from him. However, the purpose behind these actions was not advanced by “general rummaging” through the cell phone’s memory. See Florida v. Wells, 495 U.S. at 4, 110 S. Ct. at 1635; United States v. Park, 2007 U.S. Dist. LEXIS 40596, 2007 WL 1521573, at *11 (N.D. Cal., May 23, 2007) (no legitimate governmental interests served by searching contents of a cell phone as part of booking process); United States v. Wall, 2008 U.S. Dist. LEXIS 103058, 2008 WL 5381412, at *4 (S.D. Fla., Dec.22, 2008) (same). There simply was no need to search the cell phone’s memory to accomplish the purposes of the inventory search. Under the circumstances in this case, such a search was not a proper part of the inventorying process.

. . .

The court acknowledges that Collision’s explanation seems, on the surface, to be implausible. However, after hearing all the evidence, which included a demonstration of the operations of the cell phone by the defense expert; considering the alternative explanations; and observing Collison’s demeanor while testifying, the court finds him to be credible. Accordingly, the court finds that Collison’s testimony concerning Yockey’s booking, and the image Collison viewed on the cell phone during the booking process, should not be suppressed.

Defendant’s movements of his body and hands strongly suggested that he had a gun in his waistband, and that justified a patdown. United States v. Green, 2009 U.S. Dist. LEXIS 6860 (M.D. Pa. January 30, 2009).*

The court does not have to decide whether there was a knock-and-announce violation, because it does not matter since the exclusionary rule would not apply. Reasonableness of the search, however, was still to be determined. United States v. Gladney, 2009 U.S. Dist. LEXIS 7032 (C.D. Cal. January 23, 2009):

It was reasonable for the officers to breach the door with their guns drawn, given that Defendant failed to answer the door. There is no testimony in the record that the agents ransacked the apartment, or left it inhabitable. Defendant was left outside until the protective sweep was complete, and then he was permitted to reenter his apartment. Moreover, Defendant has not identified specific conduct that supports his contention that the execution of the search warrant was unreasonable.

State’s failure to challenge standing in the trial court did not involve any assertions of fact or law that the court or defendant relied on, so Steagald does not apply to the state arguing no standing on appeal. State v. Brooks, 760 N.W.2d 197 (Iowa Sup. 2009).

Third-hand hearsay was sufficient for a stop where the initial report was particular and not anonymous. State v. Bishop, 203 P.3d 1203 (Ida. 2009).*

Officer had reasonable suspicion of drug use, in part from the defendant’s appearance and demeanor. State v. Grantham, 146 Idaho 804, 198 P.3d 128 (App. 2008)*:

They appeared disheveled and unkempt, had pock-marked skin, were gaunt or underweight, and had missing or rotted-out teeth, characteristics which cumulatively are evidence of extended methamphetamine use. … Wilkes was excessively nervous while speaking with Deputy Strangio, and unable to stop moving, which is also indicative of being under the influence of methamphetamine. Furthermore, Wilkes’ demeanor changed visibly when asked whether there was methamphetamine in the car as compared to other drugs. While each of these reasons alone could appear innocent, all of Deputy Strangio’s observations considered together, and including his training and experience, give rise to reasonable suspicion sufficient to expand the scope of the traffic stop.

Defendant was stopped for speeding, and a warrant for her arrest was found. That supported a search incident of the car. People v. Marquez, 195 P.3d 697 (Colo. 2008).*

A probationer’s car is subject to search even it if is a borrowed car. State v. Adams, 146 Idaho 162, 191 P.3d 240 (App. 2008):

If Adams’ probation officer were required to obtain a warrant to conduct a search of any vehicle other than Adams’ registered vehicle, Adams would be able to evade close supervision by only driving someone else’s car when engaged in elicit activity or registering a car in someone else’s name for that purpose. Allowing Adams and other probationers to play this shell game with probation officers would defeat the state’s substantial interest in closely monitoring probationers. See Cruz, 144 Idaho at 910, 174 P.3d at 880. We hold that Adams was entitled to no greater Fourth Amendment protections in his girlfriend’s vehicle than he would have received in his own car. Because a search supported by a reasonable suspicion of possible probation violations would have been upheld had it occurred in Adams’ own vehicle, Adams cannot obtain suppression of the items seized in his girlfriend’s vehicle. See id. at 910, 174 P.3d at 880. In sum, Adams’ Fourth Amendment rights were not violated because the government’s substantial interest in supervising probationers outweighs Adams’ significantly diminished expectation of privacy in his girlfriend’s vehicle.

State officer’s stop outside his jurisdiction was apparently valid under Missouri law, and, even if it was not, it was valid under Moore. The consent was obtained here shortly after the stop so there is no issue about prolonging the stop. United States v. Benitez, 2008 U.S. App. LEXIS 14906 (8th Cir. July 15, 2008).*

Defendant disclaimed interest in the premises searched, which included its trash, in which he would have no expectation of privacy anyway. United States v. Jones, 2008 U.S. Dist. LEXIS 66744 (E.D. Mo. May 21, 2008).*

Defendant’s search incident of his person was valid even though it occurred before formal arrest because of defendant’s strange actions and informant’s statement that was corroborated by the police. State v. Chapman, 146 Idaho 346, 194 P.3d 550 (App. 2008).*

There were no exigent circumstances for entry into the house during a domestic disturbance call where the only possible justification was that the female was being held against her will, but that was disproved by the fact the defendant was outside talking to the officers. Defendant’s wife had apparent authority to consent to an entry, and she did. State v. Reynolds, 146 Idaho 466, 197 P.3d 327 (App. 2008).

Being in a high crime area at 4 a.m. was suspicious, and officers were responding to a nonspecific 911 call about people with a blue Cadillac. While defendant could have ignored the officers’ inquiries for information, the movement of his hands could have been a movement for a gun, and that justified the stop on the totality of the circumstances. United States v. Johnson, 2008 U.S. Dist. LEXIS 53177 (E.D. Tenn. July 10, 2008).*

Officer’s erroneous statement that defendant had been in prison which he had received from another officer that proved to be false was not a bad faith statement from the affiant under Franks. There were two other possible false statements which were not material. Even so, ignoring the challenged information, there still was probable cause without it. United States v. Bartlett, 2008 U.S. Dist. LEXIS 53294 (D. Utah July 11, 2008).*

Exclusionary rule serves no purpose where the defendant assaults an officer during an illegal search. State v. Lusby, 146 Idaho 506, 198 P.3d 735 (App. 2008):

The rationale of these decisions is that, although officers may have conducted an unconstitutional search or seizure, a subsequent attack on the officer is a new crime unrelated to any prior illegality. Because there has been no exploitation of the officer’s unconstitutional conduct, the purpose of the exclusionary rule–to deter police misconduct–would not be advanced by suppressing evidence of the attack on the officer. As observed by the North Carolina Supreme Court in State v. Miller, 282 N.C. 633, 194 S.E.2d 353, 358 (N.C. 1973), “Application of the exclusionary rule in such fashion would in effect give the victims of illegal searches [or seizures] a license to assault and murder the officers involved–a result manifestly unacceptable.” In sum, the exclusionary rule does not give the aggrieved individual carte blanche to commit criminal acts against a police officer with impunity merely because the officer erred by conducting an unlawful search or seizure.

Guns found in a search warrant for drugs may be seized because they are in plain view. United States v. Montgomery, 527 F.3d 682 (8th Cir. 2008).

Officers were on the property with an order to evict persons under a guardianship order. While there they encountered a locked door and obtained consent to enter from somebody without apparent authority. The entry was invalid because there was no reason to believe the person had authority. State v. Fancher, 145 Idaho 832, 186 P.3d 688 (App. 2008).*

The search warrant was for firearms, and the police found a shotgun and a safe. The search warrant permitted the officers to enter the safe to look for firearms because the safe was large enough to hold guns. The police were not obligated to stop the search when one gun was found. United States v. Edwards, 2009 U.S. App. LEXIS 19332 (11th Cir. August 27, 2009) (unpublished).*

The target of a search warrant was unable to get the search warrant application unsealed because the investigation was ongoing and the government claimed it still needed secrecy in the investigation. In re A Single Family Residence Located at Lot 77 of the Waiolani Mauka Subdivision, 2009 U.S. Dist. LEXIS 76254 (D. Haw. June 19, 2009), adopted In re Various Searches & Seizures, 2009 U.S. Dist. LEXIS 76329 (D. Haw. August 25, 2009)*; In re Oliver, 2009 U.S. Dist. LEXIS 76330 (D. Haw. June 19, 2009)*; In re Funds Contained in First Hawaiian Bank Account No. 41345438 Held in the Name of Petro T. Hoy C/O Petro T. Hoy, 2009 U.S. Dist. LEXIS 76186 (D. Haw. June 19, 2009).*

The Fifth Circuit held that a person on the premises when a search warrant is executed can be patted down, finding that Ybarra which involved a bar owner and customers, did not neatly apply to search of a house because of a closer, personal relationship, and the patdown of the defendant here was reasonable. United States v. Darensbourg, 236 Fed. Appx. 991 (5th Cir. 2007) (unpublished):

In granting the suppression motion, the district court relied on Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979), for the proposition that Darensbourg and Aycock’s presence in the home where a narcotics search was to take place, without more, did not provide individualized suspicion that Darensbourg was either involved in drug trafficking or armed and dangerous. Ybarra held unconstitutional the search of a bar patron, which occurred during the execution of a search warrant authorizing searching the tavern and a bartender for heroin possession. Id. at 88. The Court agreed that police officers had a valid warrant to search the premises, but that warrant “gave them no authority whatever to invade the constitutional protections possessed individually by the tavern’s customers”. Id. at 92.

The circumstances at hand are markedly different. We are mindful that “a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person”. Id. at 91 (emphasis added); see also United States v. Cole, 628 F.2d 897, 899 (5th Cir. 1980) (mere presence at a dwelling suspected of containing narcotics, by itself, is not enough to establish reasonable suspicion). In Ybarra the bar patrons had no relationship with the bar or the bartender therefore, searching the individuals present at that bar did not comport with Terry‘s requirement for reasonable, articulable suspicion.

In contrast, occupants of a house generally have a closer relationship, and it is not unreasonable to think their relationship might extend to involvement in illegal activities. (Although it was later determined that Darensbourg did not reside at the house, the Officers did not know that previous to the patdown.) Along that line, the Officers had been conducting surveillance of the house and had just arrested Fitzgerald, who, a short time before, had exited the house carrying a large quantity of drugs and a loaded handgun. Based on these factors, reasonable officers could believe that Darensbourg and Aycock could also have been involved in drug trafficking and were therefore possibly armed as well. E.g., United States v. Majors, 328 F.3d 791, 795 (5th Cir. 2003) (“[F]irearms are tools of the trade for those engaged in illegal drug activities.” (internal citations and quotation marks omitted)); see also United States v. Reid, 302 U.S. App. D.C. 374, 997 F.2d 1576, 1579 (D.C. Cir. 1993) (defendant’s proximity to drug apartment being searched and the officer’s concern for safety justified Terry frisk). The patdown was reasonable. (Accordingly, we need not consider the earlier described, alternative claims raised by the Government.)

Defendant was asked if he could be searched, not just patted down, and the search that he consented to was not exceeded. State v. Freeman, 12 So. 3d 714 (Ala. Crim. App. 2007).*

DNA sample taken in 2001 could be used to link the defendant to another more recent crime without violating the Fourth Amendment. Derrick v. Commonwealth, 50 Va. App. 89, 646 S.E.2d 453 (2007).*

Default judgment once denied and then granted against officer was set aside in the interest of doing justice and giving him a chance to pursue his defense. Larry v. Harris, 2007 WI App 132, 734 N.W.2d 169 (2007).*

Bahamian wiretap used in the U.S. was not a violation of the Fourth Amendment, and there would be no exclusion here. United States v. Emmanuel, 565 F.3d 1324 (11th Cir. 2009):

Next, Emmanuel argues that the second exception applies to this case because “the Bahamian officials did, in fact, act as agents of the United States in a joint venture to interdict this [sic] narcotics.” (Appellant’s Br. at 32). But this exception is based on a defendant’s Fourth Amendment rights. Emmanuel cannot show that he is entitled to the protections of the Fourth Amendment. In United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990), the Supreme Court held that the Fourth Amendment does not apply to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. Aliens do enjoy certain constitutional rights, but not the protection of the Fourth Amendment if they have “no previous significant voluntary connection with the United States ….” Id. at 271. Here, Emmanuel was a citizen and resident of the Bahamas with no significant voluntary attachment to the United States. And the wiretapped telephones were located in the Bahamas. Emmanuel’s participation in a drug trafficking conspiracy directed at importing drugs into the United States does not mean that he was part of the “national community” protected by the Fourth Amendment. Id. at 265. Indeed, he was entirely outside of that community. “Under these circumstances, the Fourth Amendment has no application.” Id. at 275. Because the Fourth Amendment does not apply to nonresident aliens whose property is searched in a foreign country, there is no need to decide whether the Bahamian officials acted as agents of the United States or whether the wiretap was a joint venture. The Fourth Amendment exclusionary rule simply is not available to Emmanuel with respect to the Bahamian wiretap evidence.

Officers responding to a shoot-out call found AK-47 casings and bullet holes and a report that the shooter had fled to a specific place. That was exigency for an entry and protective sweep. Consent after the protective sweep was voluntary. United States v. Walton, 323 Fed. Appx. 837 (11th Cir. 2009) (unpublished).*

Officers in an unmarked car who parked next to defendant’s car and got out did not show weapons or even identify themselves as officers such that defendant would be subjected to a stop. No reasonable person could believe he was subjected to a stop. After they saw a gun in the car, that led to the stop. United States v. Graham, 323 Fed. Appx. 793 (11th Cir. 2009) (unpublished).*

Defendant was arrested for driving on an expired license of a vehicle after a stop for a worn and tattered paper tag. That permitted a complete search of the interior. The rule as to vehicles is different than dwellings. State v. Carter, 191 N.C. App. 152, 661 S.E.2d 895 (2008), review denied by State v. Carter, 668 S.E.2d 341 (N.C. 2008), vacated and remanded Carter v. North Carolina, 129 S. Ct. 2158, 173 L. Ed. 2d 1153 (2009):

Defendant relies on a series of cases that state an arresting officer may lawfully search only for property connected to the crime with which he is charged. However, none of the cases relate to the search of a defendant within an automobile, and as such are irrelevant. Defendant attempts to graft on to the above-stated rule not only a requirement that the search be only for evidence of the crime for which the defendant was arrested, but also a requirement that the illegal nature of that evidence be immediately apparent. In none of the many cases cited above (Brooks, et al.) in which our Courts have considered this type of search has either been made a requirement.

Comment: So–what about an arrest for speeding? Does that justify a search incident in N.C.?

Officer’s mistake of law as to the reasons for stopping defendant did not make it unconstitutional. Therefore, defense counsel was not ineffective for not challenging the stop. Moore v. State, 2008 Miss. LEXIS 326 (June 19, 2008).*

Defendant was charged with a sex crime which allegedly happened in the home and which used handcuffs and a rope. When relatives with the ability to consent were cleaning up the house and car, the rope and handcuffs were found. The police were called and sent in to retrieve the rope from a closet. There was no expansion of the private search, and the entry was by consent. State v. Barkmeyer, 949 A.2d 984 (R.I. 2008).*

The purpose of the stop of defendant should have been dispelled immediately, and continuing the stop violated the Fourth Amendment. United States v. Salinas, 2008 U.S. Dist. LEXIS 50940 (W.D. Tex. June 17, 2008).

A possible violation of interchange of judges between districts and the issuance of a search warrant was not cognizable under the Fourth Amendment. The law was clear before, and Moore only seals it. United States v. Franklin, 284 F.3d 266, 2008 FED App. 0393N (6th Cir. 2008) (unpublished).*

Driver’s license checkpoint produced defendant’s drunk driving arrest. The trial court’s findings that the checkpoint was lawfully set up merely parroted the officer’s testimony, and this was inadequate. Remanded for more findings. State v. Veazey, 191 N.C. App. 181, 662 S.E.2d 683 (2008):

As noted above, these findings alone cannot support a conclusion that the checkpoint was reasonable because the trial court did not make adequate findings on the first two Brown prongs. Further, the trial court’s written findings tend to weigh in favor of a conclusion that the checkpoint was an unreasonable detention. The trial court therefore was required to explain why it concluded that, on balance, the public interest in the checkpoint outweighed the intrusion on Defendant’s protected liberty interests. The trial court’s written order, however, contains no such explanation. Therefore, if the trial court determines on remand that the State’s primary purpose for the checkpoint was lawful, it must also issue new findings and conclusions regarding the reasonableness of the checkpoint.