Disabled students were unconstitutionally searched when they came to school everyday, but the special situation leads to qualified immunity. Hough v. Shakopee Pub. Schools, 608 F. Supp. 2d 1087 (D. Minn. 2009):

As discussed above, the undisputed facts establish that MRVSEC violated plaintiffs’ Fourth Amendment right to be free of unreasonable searches. But the Court does not believe that the law with respect to school searches was so unequivocal that the searches were objectively unreasonable in light of clearly established legal principles.

Under Doe, suspicionless searches like those challenged in this case are plainly unconstitutional in the ordinary school setting. But MRVSEC programs are not ordinary school settings; they serve only special-education students, and those students receive services that are not provided — or are provided to only a small minority of students — in ordinary schools. In C.N.H. v. Florida, discussed above, suspicionless searches like those challenged in this case were upheld in the context of an “alternative school” for students who would otherwise have been confined. 927 So. 2d at 2. While the Court finds C.N.H. distinguishable, C.N.H. does provide some support for plaintiffs’ position that the challenged MRVSEC searches were constitutional. Under the circumstances of this case, it was not objectively unreasonable — although it was incorrect — for defendants to conclude that sufficient special circumstances existed to justify MRVSEC’s search policy under the Fourth Amendment.

[This case relies on one of ours: Doe v. Little Rock School District, 380 F.3d 349 (8th Cir. 2004).]

Defendant’s Miranda violation does not mandate suppression of the evidence found in a search warrant based on the statement under Patane. There was probable cause for issuance of the search warrant. United States v. Villa-Gonzalez, 2009 U.S. Dist. LEXIS 26129 (D. Neb. January 6, 2009)*:

Using statements to obtain a search warrant does not compel the defendant to testify against himself at trial; therefore, under Patane, the Miranda violation does not require the suppression of evidence found pursuant to the warrant. See, e.g., United States v. Knill, 2007 U.S. Dist. LEXIS 47327, 2007 WL 1892560 at *5 n.17, Case No. 07-0029, (M.D. Pa. June 29, 2007); United States v. Phillips, 468 F.3d 1264, 1265 (10th Cir. 2006), cert. denied, 549 U.S. 1312, 127 S. Ct. 1893, 167 L. Ed. 2d 377 (2007); United States v. Lara-Garcia, 478 F.3d 1231 (10th Cir.), cert. denied, 550 U.S. 948, 127 S. Ct. 2281, 167 L. Ed. 2d 1114 (2007).

The officers had reasonable suspicion to believe that the defendants were engaged in drug smuggling into the Virgin Islands. The court agrees that each act individually did not rise to the level of reasonable suspicion, but collectively (as under Arvizu) they did. United States v. Mathurin, 561 F.3d 170 (3d Cir. 2009).*

Informant’s tip that defendant was involved in heroin dealing was corroborated by stop with cause that showed lots of cash in the car. When defendant was out of the car, there was heroin in plain view on the floor. United States v. Walker, 319 Fed. Appx. 307 (4th Cir. 2009) (unpublished).*

Officer acted reasonably in discharging his gun in the direction of the plaintiff and bystanders where plaintiff was fleeing police on three flat tires and refused to stop. Marion v. City of Corydon, 559 F.3d 700 (7th Cir. 2009).*

Defendant was the subject of a knock-and-talk, and he let officers in the house and then signed a consent to search. Officers found money and marijuana which defendant attributed to somebody else. The district court’s finding of consent was supported by the credibility determinations of the district court. United States v. Gonzalez-Ramirez, 317 Fed. Appx. 790 (10th Cir. 2009) (unpublished).*

A PV warrant was issued for defendant, and he was believed to be in a particular apartment, and he was found there. He was either without standing to challenge the entry because he had insufficient connection to the property or, under Payton, the arrest warrant was enough. United States v. Pabon, 603 F. Supp. 2d 406 (N.D. N.Y. March 24, 2009):

Defendant relies on Steagald v. United States, 451 U.S. 204 (1981) for the argument that the police did not have the authority to enter Apartment F-6 in order to arrest the Defendant. Deft’s Post-Hearing Memo. at 6. The Court in Steagald held that the Fourth Amendment protects a third party not named in an arrest warrant from intrusion into his home without a search warrant, but it declined to extend this protection to the person named in the arrest warrant who was apprehended in the third party’s home. 451 U. S. 204, 219 (leaving open the question “whether the subject of an arrest warrant can object to the absence of a search warrant when he is apprehended in another person’s home.”). In addition, the Supreme Court had explicitly distinguished between the effect of the arrest warrant on the person being arrested-noting that the arrest warrant made his seizure reasonable-versus its effect on the person whose home was entered-noting that the arrest warrant did not permit the search of the home. 451 U. S. 204, 213 (“while the warrant in this case may have protected [arrestee] from an unreasonable seizure, it did absolutely nothing to protect petitioner’s privacy interest in being free from an unreasonable invasion and search of his home.”).

Accordingly, other circuits have extended this reasoning to find that where a defendant was arrested pursuant to a valid arrest warrant while in the home of a third party without a search warrant for the third party’s home, the defendant’s Fourth Amendment rights were not violated. United States v. Agnew, 407 F.3d 193, 196-97 (3d Cir. 2005); United States v. Kaylor, 877 F.2d 658, 663 n. 5 (8th Cir. 1989); United States v. Underwood, 717 F.2d 482, 483-86 (9th Cir. 1983) (en banc ); United States v. Buckner, 717 F.2d 297, 299-300 (6th Cir. 1983). But see United States v. Weems, 322 F.3d 18, 23 n. 3 (1st Cir. 2003). Relying on Steagald, the Third Circuit explained that the lack of a search warrant violated the Fourth Amendment rights of the third party, “[b]ut this right is personal to the home owner and cannot be asserted vicariously by the person named in the arrest warrant.” Agnew, 407 F.3d at 196-97. The Second Circuit referred to this analysis favorably in United States v. Snype, 441 F.3d 119, 132 (2nd Cir. 2006), explaining that the other circuits extended Steagald’s logic ….

Search incident was proper, and a box cutter was found. The officer was not required to stop the search incident just on finding the box cutter and other hard objects. Commonwealth v. Dessources, 74 Mass. App. Ct. 232 (May 8, 2009).*

Officer’s conclusion that defendant was the man wanted in a robbery call was unreasonable. The man wanted was described as white and the defendant was a light skinned Hispanic. There were no facts otherwise that linked the defendant to a possible robbery or that he was armed. The stop and frisk was not justified, and the trial court’s suppression order was properly granted. Commonwealth v. Martinez, 74 Mass. App. Ct. 240 (May 11, 2009).*

Telling the defendant to get out of his van was a seizure because he could not have believed he could refuse. It was reasonable, however, because the officer believed the defendant was under the influence. Defendant consented to search of van. State v. Murray, 2009 Ohio 2130, 2009 Ohio App. LEXIS 1828 (8th Dist. May 7, 2009).*

Inventory search of defendant’s vehicle was proper, and his urging application of a statute that might require a 24 hour wait was rejected. Commonwealth v. Burton, 2009 PA Super 87, 973 A.2d 428 (2009).*

Plaintiff was an air base employee who resisted a job transfer by claiming a back injury that prevented him from driving 30 minutes to work. A private investigator was hired to watch plaintiff, and they videotaped him outdoors riding a tractor and working in the yard. He had no reasonable expectation of privacy from what he did outdoors, even from a 20x zoom. Ryan v. Kelmar & Assocs., 2009 U.S. App. LEXIS 2821 (5th Cir. February 12, 2009) (unpublished).

Blood sample already drawn by an authorized person could be seized by court order. People v. Elysee, 2009 NY Slip Op 1155, 2009 N.Y. LEXIS 15 (February 17, 2009).*

Examining all the information in the affidavit for search warrant, there was a fair probability that the information sought would be found. State v. Craft, 2009 Ohio 675, 181 Ohio App. 3d 150, 908 N.E.2d 476 (12th Dist. 2009)*:

[*P14] In examining the affidavit, as we did in Harry, we found that when we viewed all of the information together — which was gleaned from the informants and an anonymous complainant, as well as the corroborating information from the stakeout and other investigation conducted by the deputies — was “sufficient to show there was fair probability that marijuana would be found at 225 Cereal Avenue.” Id. at P21-22.

Officers had probable cause for defendant’s stop based on officers’ listening to telephone calls between him and the CI. United States v. Santiago-Pagan, 2009 U.S. Dist. LEXIS 54202 (M.D. Pa. June 26, 2009).*

“[E]ducated deductions and inferences, taken along with the suspicious financial transactions and the strange living and employment conditions observed by the agents, lead the Court to find that the affidavits sufficiently link Zhu’s residence and business to the possible harboring and employment of undocumented aliens.” Thus, the ICE agent showed PC. United States v. Da Zhu, 2008 U.S. Dist. LEXIS 109086 (S.D. Ga. April 30, 2008).*

The fact that defendant’s car rental agreement had expired was cause to extend the stop to inquire of the rental company whether continued driving was permitted. Commonwealth v. Watts, 74 Mass. App. Ct. 514, 908 N.E.2d 788 (2009).*

Officers were looking for a vehicle involved in a robbery and had a description. An hour later, they saw a vehicle matching the description and stopped it. Individually, the factors were innocent, but, collectively, they gave cause for a stop. State v. Porter, 2009 Ohio 3112, 2009 Ohio App. LEXIS 2655 (4th Dist. May 26, 2009).*

The bus company’s employee opened the package shipped from Denver to Albuquerque, and reopening it was not unreasonable under Jacobsen. Indeed, this case is a lot like Jacobsen. State v. Rivera, 2008 NMCA 49, 207 P.3d 1171 (2009), on remand from State v. Rivera, 2008 NMSC 56, 144 N.M. 836, 192 P.3d 1213 (2008):

P14 In the present case, Agent Perry’s actions were based upon his belief that the package had already been opened by the Denver station employee. As discussed above, the Denver station employee notified the Bus Company’s Los Angeles office, which then contacted Agent Perry with information on a package with suspicious contents. The package was rewrapped and sent to Albuquerque per Agent Perry’s instructions, and, once in Albuquerque, it was opened under Agent Perry’s supervision. The facts are remarkably similar to those in Jacobsen, and, in following the reasoning established therein, we similarly hold that Agent Perry’s search and seizure of the package was not unreasonable because a privacy expectation in the privately opened package no longer existed. See id. at 111-12. Just as in Jacobsen, Defendant’s “privacy interest in the contents of the package had been largely compromised.” Id. at 121. Thus, when Agent Perry opened the package and observed the same bundles previously described to him, his actions were within the scope of the privacy violation already perpetrated by the Denver station employee. Even if Agent Perry cut open one of the bundles in Albuquerque, as Defendant alleges, he did not unreasonably expand upon the original breach of Defendant’s expectation of privacy. The knowledge Agent Perry gained from the Bus Company employee about the package, his experience with drugs and packaging of drugs, and his observations of the package and the bundles within would have supported his actions. Agent Perry’s investigation did not unreasonably expand the private search and was therefore not a violation of the Fourth Amendment.

“Because the objective circumstances confronted by defendant on the night in question suggested that plaintiffs’ home was being vandalized and that a missing teenage girl was in the house and in need of assistance, the search was reasonable under the Fourth Amendment exigent circumstances doctrine. We thus reverse the judgment of the district court and grant the defendant qualified immunity in this case.” Hunsberger v. Wood, 2009 U.S. App. LEXIS 13925 (4th Cir. June 29, 2009).*

Defendant was a shooting victim who had not been identified, and a search of his clothing at the hospital to try to identify him was reasonable. Drugs were found in his pocket. Defendant was a suspect in no crime when this happened. A need existed to see if defendant carried some indication of a medical history and to identify him in order to notify relatives or friends. Commonwealth v. Johnson, 2009 PA Super 41, 2009 Pa. Super. LEXIS 50 (March 11, 2009),*

Police were justified in entering defendant’s curtilage under exigent circumstances that he would leave the premises with drugs. United States v. Torres, 318 Fed. Appx. 547 (9th Cir. 2009) (unpublished):

We also find that exigent circumstances were present to justify the warrantless presence of officers inside the curtilage of Appellant’s home. The evidence obtained from the motel room that Appellant was engaged in drug trafficking, combined with the sudden activity in the residence and the observation of a Jeep leaving Appellant’s garage collectively supported the detectives’ belief that Appellant was preparing to transport methamphetamine and that immediate action was warranted to prevent him from doing so. Det. Seanor ordered the traffic stop of the Jeep shortly before the officers entered the curtilage. In addition, Appellant had previously demonstrated a level of sophistication about surveillance, taking steps to avoid detection by washing out all of the plastic bags in the motel room. Lastly, we note that the officers, while in the curtilage of Appellant’s home, were 20 feet from the backdoor — their presence only there in the event that Appellant sought to escape from the backdoor.

Defendant’s failure to show anything specific that was false in the face of this probable cause showing was not a Franks violation. United States v. Parks, 2009 U.S. Dist. LEXIS 17707 (M.D. N.C. March 4, 2009).*

Defendant leaving his duffle bag in a tribal comfort station accessible to others showed a lack of a reasonable expectation of privacy or abandonment. United States v. Voice, 2009 U.S. Dist. LEXIS 17529 (D. S.D. March 6, 2009).*

Defendant was cooperative and made no furtive gestures, so his pat down was not justified under Terry. State v. Chihak, 2009 Iowa App. LEXIS 128 (March 11, 2009).*

There was sufficient indicia of proper issuance of an unsigned search warrant to make the search warrant valid. The Fourth Amendment does not require a warrant be signed if it was reviewed and otherwise properly issued by the issuing magistrate. This is an issue of first impression in the Third Circuit. United States v. Jackson, 617 F. Supp. 2d 316 (M.D. Pa. 2008):

Provided that a search warrant is applied for in person, the text of neither the Fourth Amendment nor Federal Rule of Criminal Procedure 41 requires the issuing authority to sign the warrant. See U.S. CONST. amend. IV; FED. R. CRIM. P. 41(e)(3)(D) (limiting the requirement that an issuing authority must “immediately sign the original warrant” to telephonic warrants); see also United States v. K. Pierce, 493 F. Supp. 2d 611, 640 (W.D.N.Y. 2006). Instead, the Fourth Amendment dictates that a warrant shall not “issue” unless it is supported by probable cause. U.S. CONST. amend. IV. Generally, an issuing authority’s finding of probable cause is conveyed via his or her signature on a warrant. However, signing a search warrant is just one of a number of methods that an issuing authority may use to signal that the warrant complies with the Fourth Amendment’s probable cause requirement. Accord Perrin v. City of Elberton, No. 03-106, 2005 WL 1563530, at *8 (M.D. Ga. July 1, 2005) (“[W]hile an unsigned warrant may not be per se insufficient under the Fourth Amendment, it must be clear to the arresting officers that the substantive requirements of the Fourth Amendment were met — that a neutral and detached magistrate made a finding of probable cause.”); United States v. Evans, 469 F. Supp. 2d 893, 897 (D. Mont. 2007) (“Issuance serves to demonstrate that a neutral and detached magistrate has reviewed the warrant application and affidavit and made an independent and objective determination that probable cause exists to justify the search.”). In the absence of a signature, “a court may consider other evidence that the judge found probable cause and approved the warrant.” Perrin, 2005 WL 1563530, at *8; see also United States v. Hondras, 296 F.3d 601, 602 (7th Cir. 2002) (stating that issuance is “not synonymous with signing”); Evans, 469 F. Supp. 2d at 897 (stating that issuance requires that a warrant “contain some indication that the search is officially authorized”). To hold otherwise would elevate form over substance and allow inadvertent, procedural errors to vitiate substantively valid warrants. Accord United States v. Turner, 558 F.2d 46, 50 (2d Cir. 1977) (referring to the issuing authority’s responsibility to sign a search warrant as a “purely ministerial task” and holding that the Fourth Amendment is satisfied provided that he or she “performs the substantive tasks of determining probable cause and authorizing the issuance of the warrant”).

Accordingly, the question becomes what “other evidence” is sufficient to indicate that the issuing authority made a finding of probable cause. Other United States District Courts have suggested that the following can constitute indicia of issuance: (1) an indication on the warrant of the date before which the search must be conducted, (2) the presence of a case number indicating that the warrant has been filed, (3) the presence of the issuing authority’s initials or other imprimaturs of judicial authority on the warrant, and (4) an in-person acknowledgment by the issuing authority to the affiant that probable cause has been found. See, e.g., Evans, 469 F. Supp. 2d at 897 (holding that an unsigned warrant had not been validly issued where the first two indicia were absent); K. Pierce, 493 F. Supp. 2d at 640 (holding that an unsigned warrant had been validly issued where the affiant personally appeared before the magistrate judge who had placed his initials and the abbreviation “USMJ” for United States Magistrate Judge in three separate places on the face of the warrant); Perrin, 2005 WL 1563530, at *8 (holding that an unsigned warrant had not been validly issued where the warrant was applied for remotely and no other indicia of a probable cause finding were present).

The court finds that the warrant in the instant case contains sufficient indicia of issuance to satisfy Fourth Amendment requirements. First, the warrant, which is located in the lower third of a document entitled “Application for Search Warrant and Authorization,” contains a handwritten date and time before which the search must be conducted — specifically, before “2:00 P.M. March 7, 2007.” The issuing authority also placed a checkmark in a box signifying that the warrant “shall be served as soon as practicable and shall be served only between the hours of 6AM to 10PM.” Second, the upper right-hand corner of the application contains the handwritten warrant control number 00025-07-02, which indicates that the warrant had been filed. Third, the warrant contains various imprimaturs of judicial authority. Specifically, the application contains two seals that were affixed by the issuing authority and are labeled “Magisterial District Judge, Commonwealth of Pennsylvania, York County District 19-2-01.” One of these seals is specifically located in the warrant portion of the application. The issuing authority also placed a checkmark in the box indicating his title as “Magisterial District Judge” and inserted the handwritten date and time March 5, 2007 at 2:00 P.M. in a section labeled: “Issued under my hand this ___ day of _____, ___ at __.M.” Finally, Detective Craul applied for the search warrant in person and observed the issuing authority prepare and seal the warrant. Because the instant warrant contains each and every indicia of issuance that has been recognized by other district courts, the court finds that the warrant complies with the strictures of the Fourth Amendment. Defendants’ motion to suppress on this ground will be denied.

A dog alert on a large commercial building was not PC in itself, but it would be a factor in PC on the totality of circumstances. Here, there was. A dog sniff on a commercial building is constitutionally different than a home. A knock on the door is not a seizure. Flight of occupants was exigent circumstances. United States v. Olivas, 2009 U.S. Dist. LEXIS 62270 (W.D. Tex. July 17, 2009):

Given the totality of the circumstances, the Court holds that the alert of a trained detector dog for a controlled substance on the premises, the presence of a suspected drug trafficker on the premises, the flight of that suspect from the premises after acknowledging and ignoring identified law enforcement, and the suspect’s subsequent false statements about his actions together demonstrate that the Agents had probable cause to enter the premises, seize the individuals and perform a security sweep of the premises. See Newman, 472 F.3d at 237 (district court did not commit plain error when it found probable cause based on law enforcement’s knowledge of known drug dealer on premises, presence of security system, man fleeing premises, and suspicious movements behind a curtain). The question remains, however, whether the Agents had the exigent circumstances necessary to enter the premises without a warrant.

. . .

fn7. The Court notes that the Supreme Court’s decision of Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001), may undercut some of the reasoning that supports the proposition that a dog sniff is not a search under certain circumstances. See Kyllo, 533 U.S. at 37 (use of thermal imaging to measure heat emanating from home a search under the Fourth Amendment); id. at 47-48 (Stevens, J., dissenting) (noting that the rule adopted by the majority potentially places it at odds with the holding in Place and that such a rule would “embrace mechanical substitutes for dogs trained to react when they sniff narcotics”); United States v. Richard, 2001 WL 1033421, *6 n.4 (W.D. La. Aug. 29, 2001) (comparing the impermissible use of heat sensor imagery used in Kyllo with dog sniffs). However, because Kyllo involved the search of a home and not a commercial property, and because both Place and Jacobsen remain good law, the Court will not attempt to resolve any theoretical conflicts raised between these cases.

. . .

After Agent Viera knocked on the gate the first time and announced themselves, Mendez appeared but ignored the Agents. Mendez then jumped a fence and fled the premises. At that point, it was reasonable for the Agents to assume that those in the premises were alerted to the Agents’ presence and that they were in the process of destroying any controlled substances. Seeking a warrant at this time would likely have led to unreasonable delay and the destruction of evidence. See Newman, 472 F.3d at 239 (noting a “fence jumper’s responsibility in giving rise to the exigency”); Rodea, 102 F.3d at 1407 (finding exigent circumstances when one of the occupants fled when the Agents first arrived); Rico, 51 F.3d at 501 n.10 (finding exigent circumstances when suspect fled the premises, noting, “if you are standing around in the front yard arresting people in the driveway, you need to make sure that there is not assistance to him by people in other parts of the premises … [o]r we hasten to add, that suspects inside are destroying evidence.”).

[posted 7/26]

Year old information of a child pornography download was insufficient to give PC to believe that the child porn was in the house because officers knew defendant had been out of the country for most of that year. The government’s exigent circumstances argument is classic police-created exigency by their showing up to attempt to search. The fact that computer information is easily destroyed is not enough. Inevitable discovery does not apply because no prior information was included in the affidavit for search warrant to show that it was truly inevitable. Finally, the good faith exception cannot apply because the officers could not believe their actions were lawful. United States v. Downey, 2009 U.S. Dist. LEXIS 62412 (S.D. Ind. July 21, 2009)*:

On the facts shown here, the government’s exigent circumstances argument presents a classic case of an exigency created by the officers themselves. For Fourth Amendment purposes, that is no exigency at all because it would allow such easy evasion of the warrant requirement. See United States v. Rosselli, 506 F.2d 627, 630 (7th Cir. 1974) (Stevens, J.) (affirming suppression of evidence seized after police knocked on door and heard scuffling; although exigency was not “contrived by the agents,” it was foreseeable, and recognizing this as exigent circumstance “might lend itself to too easy a by-pass of the constitutional requirement that probable cause should generally be assessed by a neutral and detached magistrate before the citizen’s privacy is invaded”).

It is important to remember that the detectives had developed very little new information before the warrantless entry of the home. They already had reason to believe that Downey was staying at the house. From outside the threshold, Claassen could not see Downey using a computer or even that he had a computer. The only new information the detectives obtained at the door was that Downey did not want them to enter the home. If an individual’s aversion to a warrantless entry of his home provided police officers with legal authority to enter the home, the Fourth Amendment’s warrant requirement would become hollow. This is not a case where officers developed critical new information before entering the home (for instance, seeing drugs through an open window) and had reason to believe that the evidence would be destroyed if they did not secure the house immediately. The officers’ warrantless entry into the house violated the Fourth Amendment. Unless an exception to the exclusionary rule applies, evidence obtained by virtue of the illegal entry must be suppressed. United States v. McGraw, ___ F.3d ___, ___, 2009 U.S. App. LEXIS 14393, *9, 2009 WL 1885464, at *3 (7th Cir. July 2, 2009).

. . .

To ensure that the inevitable discovery doctrine does not nullify the warrant requirement by permitting officers to conduct a warrantless search based on only probable cause, the Seventh Circuit requires the government to show that “a warrant would certainly, and not merely probably, have been issued had it been applied for.” United States v. Tejada, 524 F.3d 809, 813 (7th Cir. 2008) (finding discovery would have been inevitable where police were lawfully in apartment and plain view showed presence of cocaine; search warrant “certainly” would have issued for search of bags and other containers). In this case, the evidence shows that the detectives obtained the new warrant by relying on information they obtained by entering the house illegally. Gov’t Ex. 1 at 10-11. It is not at all certain that the officers could have obtained a search warrant without evidence that they obtained after they entered the home, so the inevitable discovery doctrine does not apply.

[posted 7/26]

Defendants were in a car that was identical to one the police were looking for. They ran the license number, realized it was somebody else’s, and saw that the owner of that car was wanted for firearms violations and was missing. The stop was based on reasonable suspicion. United States v. Wallace, 2009 U.S. App. LEXIS 7832 (9th Cir. April 14, 2009) (unpublished).*

Defendant’s co-occupant was arrested with him and they were separated. She was asked for consent, and it was obtained. The police had no duty to ask him first under Randolph. United States v. Brown, 563 F.3d 410 (9th Cir. 2009). (This is about the 50th opinion to say this. Too many read too much into Randolph.)

Defendant’s traffic stop for drifting in his lane was unjustified because it was admittedly highly windy that day, and there was no showing of danger to another driver. After defendant’s DL was given back and he was told he could go, he was reengaged in conversation and the officer detected nervousness to one question and ordered defendant out of the car. The stop and detention were unreasonable, and the motion to suppress is granted. United States v. Maldonado, 614 F. Supp. 2d 1179 (D. Kan. 2009).*

The government failed to show that a guest of another in a motel room had enough apparent authority to consent to a search of the room. He had a sufficient connection to the room to show a REP in the room, but that does not translate into apparent authority. Under Tenth Circuit authority, it was apparent that the officers had to inquire further as to apparent authority. United States v. Krehbiel, 2009 U.S. Dist. LEXIS 32235 (D. Utah April 16, 2009).*

Where the state supreme court had upheld the stop of the driver in this case (State v. Anderson, 281 Kan. 896, 136 P.3d 406 (2006)), the stop of the passenger was justified, too. Under Arizona v. Johnson, 172 L. Ed. 2d 694, 129 S. Ct. 781 (2009), the patdown of the passenger was justified by reasonable suspicion. State v. Golston, 41 Kan. App. 2d 444, 203 P.3d 10 (2009).*

Officers’ entry into curtilage at night to investigate a property crime was not justified by exigent circumstances. Commonwealth v. Lee, 2009 PA Super 43, 972 A.2d 1 (2009):

[*P8] In this case, a balancing of the Roland factors demonstrates a lack of exigency for a warrantless search of Lee’s property. The gravity of the offense was low, as the police were investigating a report of property damage at the time of the intrusion. The officers had no reason to believe that any occupants of the house were armed or posed any danger to anyone, as the crime involved was not a violent one. There is no evidence in the record to indicate that the occupants of the house were even aware of the presence of the police outside, and thus there was no reason for the officers to think that destruction of evidence was imminent or that a suspect might escape if not apprehended quickly before a warrant could be obtained. Finally, the officers searched Lee’s property at night and the entry was peaceable.

[*P9] The Commonwealth does not dispute that Lee had a reasonable expectation of privacy in the area behind his residence where the pickup truck was parked. Appellee’s Brief at 5. Accordingly, lacking any exigent circumstances, the police officers should have obtained a search warrant before continuing their investigation onto the curtilage of Lee’s property. By failing to do so, they violated Lee’s constitutional rights to be free from unreasonable searches and seizures.

A minor’s detention was justified because he was seen sitting next to open beer cans with beer in them when officers saw minors drinking on a porch. J.D. v. State, 902 N.E.2d 293 (Ind. App. 2009).*

Using defendant’s refusal of consent against her was prejudicial and reversible error. The court expressly did not decide the issue as a constitutional violation, but decided it as an evidentiary error. State v. Thomas, 766 N.W.2d 263 (Iowa App. 2009):

On the other hand, when such evidence is probative for some purpose other than to simply penalize the defendant for exercising a constitutional right, then notions of fair play and the need to preserve the truth-testing functions of the adversarial process may outweigh the prejudice. For instance, evidence of refusal to consent to a warrantless search has been admitted as “fair response” to rebut a defendant’s theory. See Leavitt v. Arave, 383 F.3d 809, 828 (9th Cir. 2004) (noting that comments regarding one’s exercise of Fourth Amendment rights are generally improper unless such comments fairly rebut a claim by defendant–in this case, evidence showing that defendant was the only suspect who refused to voluntarily give a blood sample was properly admitted to rebut defendant’s claim that he cooperated with the investigation); United States v. Dozal, 173 F.3d 787, 794 (10th Cir. 1999) (finding no Fourth Amendment violation where comments regarding defendant’s refusal to permit search were admitted for proper purposes and were not meant simply to penalize defendant for exercising a constitutional right–in this case, the evidence helped establish that defendant had dominion and control over the premises); United States v. McNatt, 931 F.2d 251, 258 (4th Cir. 1991) (finding no Fourth Amendment violation where comments regarding defendant’s refusal to permit search were in fair response to defendant’s argument that drugs were planted by police in his vehicle).

. . .

C. Relevance of Refusal of Consent. We have already set forth in some detail the testimony of and argument surrounding the admission of Thomas’s refusal to consent to a search. Thomas’s refusal to consent to a search of her home was a recurring theme in the State’s case. The prosecutor’s justification for the refusal to consent evidence was “it would be evidence of the defendant’s recognition that she had illegal substances in her residence and so therefore wasn’t going to grant consent because if officers went in and did a search, they would find the drugs.” This is precisely the improper inference the rules of evidence seek to avoid.

Contrary to the prosecutor’s argument, a defendant’s refusal to consent to a warrantless search is too ambiguous to be relevant–it could mean several things, particularly when it is made post-arrest and post-Miranda. As one court has concluded:

Because the right to refuse entry when the officer does not have a warrant is equally available to the innocent and the guilty, just as is the right to remain silent, the refusal is as “ambiguous” as the silence was held to be in United States v. Hale …. Yet use by the prosecutor of the refusal of entry, like use of the silence by the prosecutor, can have but one objective to induce the jury to infer guilt. In the case of the silence, the prosecutor can argue that if the defendant had nothing to hide, he would not keep silent. In the case of the refusal of entry, the prosecutor can argue that, if the defendant were not trying to hide something … she would have let the officer in. In either case, whether the argument is made or not, the desired inference may be well drawn by the jury. This is why the evidence is inadmissible in the case of silence. It is also why the evidence is inadmissible in the case of refusal to let the officer search.

Inadmissible evidence, which can readily be misinterpreted by the jury, should not be admitted just to put the relevant facts in their true setting …. [T]he facts in issue are so ambiguous as to be irrelevant. Moreover, they are so readily subject to misinterpretation by a jury as to render a curative or protective instruction of dubious value.

United States v. Prescott, 581 F.2d 1343, 1352 (9th Cir. 1978) (internal citations omitted) (emphasis added). As Thomas’s counsel argued,

if someone comes and knocks on my door and says they want to walk through my house, I have the absolute right to say no it is not–it is not indicative of anything other than I know what my rights are.

We conclude the evidence of Thomas’s refusal to consent was irrelevant and unfairly prejudicial, and the district court erred in admitting it.

Arkansas Motor Carrier Act provides permissible warrant substitute. United States v. Ruiz, 569 F.3d 355 (8th Cir. 2009):

Our sister circuits that have considered the issue have all held warrantless inspections of commercial trucks advance a substantial governmental interest and are necessary, see United States v. Delgado, 545 F.3d 1195, 1202 (9th Cir. 2008), United States v. Maldonado, 356 F.3d 130, 135-36 (1st Cir. 2004), United States v. Fort, 248 F.3d 475, 481 (5th Cir. 2001), United States v. Vasquez-Castillo, 258 F.3d 1207, 1211 (10th Cir. 2001), United States v. Dominguez-Prieto, 923 F.2d 464, 468-69 (6th Cir. 1991), and we have implicitly so held, see United States v. Mendoza-Gonzalez, 363 F.3d 788, 793-94 (8th Cir. 2004), United States v. Knight, 306 F.3d 534, 535 (8th Cir. 2002). We are thus persuaded that warrantless inspections of commercial trucks advance a substantial governmental interest and are necessary.

We next find the Arkansas Motor Carrier Act provides a permissible warrant substitute. Its reach is limited to certain commercial vehicles. Ark. Stat. Ann. §§ 23-13-203, -204, and -206; see also Dominguez v. State, 290 Ark. 428, 720 S.W.2d 703, 705-06 (Ark. 1986). It provides notice to commercial truck drivers of the possibility of a roadside inspection by a designated enforcement officer. Ark. Stat. Ann. § 23-13-217. And it limits the scope of the enforcement officers’ inspections to an examination solely for regulatory compliance. Id. at (c)(1) & (c)(1)(B) (enforcement officer may “[i]nspect the contents of the vehicle for the purpose of comparing the contents with bills of lading, waybills, invoices, or other evidence of ownership or of transportation for compensation”). Finally, although the Arkansas Motor Carrier Act does not designate specific times when the enforcement officers may conduct inspections, as the Sixth Circuit held, “[s]uch a limitation would, of course, render the entire inspection scheme unworkable and meaningless. Trucks operate twenty-four hours a day and the officers must, necessarily, have the authority to conduct these administrative inspections at any time.” Dominguez-Prieto, 923 F.2d at 470; see also Delgado, 545 F.3d at 1203 n.6 (quoting the same).

While it is possible to have standing in business premises as a worker, defendant’s connection to the computers at work gives him no standing. United States v. Tranquillo, 2009 U.S. Dist. LEXIS 51370 (S.D. N.Y. March 4, 2009):

Even had he put the foregoing facts in admissible form [as a factual proffer], however, they nonetheless would be insufficient to establish that Mr. Tranquillo’s personal rights were violated by the search of the two A & D Carting computers. Although Mr. Tranquillo alleges that he was “an occasional occupant” of the A & D Carting offices and had key access to the business premises, see Def.’s Suppl. Mem. at 2, these facts are relevant only if the two seized computers were kept in A & D Carting’s offices and if Mr. Tranquillo regularly occupied or worked in the particular room in which the computers were kept. The record evidence, however, contains no indication whatsoever as to where the seized computers were kept. See Chuang, 897 F.2d at 649 (asking whether the defendant demonstrated a “a sufficient nexus between the area searched and his own work space”) (internal quotation marks and citation omitted) (emphasis supplied). More important, the record evidence does not reveal whether Mr. Tranquillo regularly occupied or worked in the particular room in which the computers were kept. See Dinero Express, Inc., 2000 U.S. Dist. LEXIS 2439, 2000 WL 254012, at *5-6 (finding that the defendant lacked standing where, among other things, he only “occasionally” visited the premises searched); Hamdan, 891 F. Supp. at 94-95 (“[T]he less private a work area–and the less control a defendant has over that work area–the less likely standing is to be found.”).

A stop by a wildlife officer in a wildlife area still requires reasonable suspicion defendant was doing something under statute. Here, there was nothing. Amison v. State, 5 So. 3d 798 (Fla. App. 2DCA 2009).

The evidence supported the conclusion that the third party in this case had the authority to consent. $567.00 in United States Currency v. State, 282 S.W.3d 244 (Tex. App. — Beaumont 2009).*

Fourth Amendment governed arrests by casino security in New Jersey. Friedman v. Borgata Hotel, 2009 U.S. Dist. LEXIS 29084 (D. N.J. April 1, 2009).

Trash search corroborated CIs and observations of smell of marijuana on defendant’s property. Search warrant was issued with PC. United States v. Wake, 318 Fed. Appx. 658 (10th Cir. 2009)* (unpublished).

Defendant’s motion to suppress is granted. Officers made a felony stop of defendant’s car when he was leaving a known drug house, and all they had were furtive movements and purported traffic violations occurring within three houses down the street, which the court rejects. United States v. Williams, 2009 U.S. Dist. LEXIS 29185 (N.D. Ohio April 8, 2009).*

Search of bookbag during consent to search a car was reasonable and within the consent. Vaughan v. Commonwealth, 53 Va. App. 435, 672 S.E.2d 909 (2009).*

Officers had reasonable suspicion to pat-down defendant because the officers reasonably suspected that he was armed and dangerous since rumors of drug-trafficking by defendant and the driver were specific enough to be reliable, the information that defendant had brandished a gun 17 days earlier was not stale, and the manner in which defendant exited the car without facing the officer reasonably aroused suspicion. United States v. Lazos, 314 Fed. Appx. 127 (10th Cir. 2009) (unpublished).*

Third party consent after defendant’s allegedly invalid arrest was valid. United States v. Sanders, 315 Fed. Appx. 819 (11th Cir. 2009) (unpublished).*

Probable cause existed for issuance of a search warrant for defendant’s law offices in an honest services fraud case. Seizure of all electronic equipment for a later search was justified and not overbroad. The taint team found a file that was outside the scope of the warrant and segregated it, but that does not warrant suppression. United States v. Sutton, 2009 U.S. Dist. LEXIS 14542 (M.D. Ga. February 25, 2009):

Here, the Court finds that the warrant’s authorization for agents to seize “any and all” electronic equipment does not render it insufficiently particular. The Affidavit established probable cause to believe that documentation of Sutton’s representation of various Blitch family members and entities constituted evidence of a crime. The warrant thus authorized the agents to seize such documentation “in whatever format.” (Grady Warrant Aff. p. 36.) The warrant goes on to list various formats of electronic data as being subject to seizure. It is well-established that “[a] lawful search of a fixed premises generally extends to the entire area in which the object of the search may be found.” United States v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). The documentation sought by the warrant in this case could have been found in an electronic format in any one of the various devices that was listed as subject to seizure. Thus, it was not unreasonable for the warrant to authorize agents to seize the listed electronic devices during its search for evidence. Due to the nature of electronic devices, there is no way to know what data is contained in them without actually examining the devices’ contents.

In addition, the warrant is not rendered insufficiently particular based on the lack of a search protocol for electronic data. The absence of a written search protocol for electronic data does not render a search per se unreasonable under the Fourth Amendment. Khanani, 502 F.3d at 1291; see also United States v. Cartier, 543 F.3d 442, 447 (8th Cir. 2008); United States v. Brooks, 427 F.3d 1246, 1251-52 (10th Cir. 2005). Rather, as with all searches, the touchstone is whether the search was reasonable under the totality of the circumstances. See Khanani, 502 F.3d at 1291 (analyzing circumstances surrounding computer search to determine whether it was reasonable); see also Cartier, 543 F.3d at 447 (holding that search of computer in absence of written protocol was reasonable under the Fourth Amendment where the defendant could not establish that he was prejudiced by a search of unrelated files or that unrelated files were actually searched). Sutton has not presented any facts that would lead this Court to conclude that the search of electronic data in this case was unreasonable under the totality of the circumstances. Thus, the Court finds that the absence of a written search protocol in this case does not render the warrant unconstitutional.

. . .

As to Sutton’s client files that were outside the scope of the warrant, Dasher, the privilege prosecutor, submitted to the Court all evidence outside the scope of the warrant that was seized by the agents. This evidence, in addition to not being voluminous, does not contain a single client file that does not belong to a member of the Blitch family or an entity owned by the Blitches. At the hearing, Sutton’s receptionist, Cason, did testify that it appeared agents opened “two or three” client files that did not belong to any of the Blitches, (Dec. 17 Hr’g Tr. 128); however, the agents’ conduct in opening these files does not amount to a flagrant disregard for the terms of the warrant.

Last, Sutton argues that the agents’ conduct constituted a flagrant disregard because Agent Cynthia Allard seized a printout of an email that Sutton sent to Withers, his defense attorney in this criminal case. Agent Allard’s conduct in seizing the email is disturbing, and the Court does not condone her conduct; however, the Court cannot say that this one instance of inappropriate conduct renders the entire search unreasonable.

Defendant had standing to contest the search of his fiance’s car that somebody else was driving that he help buy where he lived with her, he helped pay for the car, and he was a regular driver. The court found five cases in accord from other jurisdictions. Ford v. State, 184 Md. App. 535, 967 A.2d 210 (2009):

The facts in this case are analogous to–but not exactly the same as–those in Whitehead. Although not married to the owner, Ford had a long-time romantic relationship with the owner and, prior to his arrest, had used the car regularly for almost five years.

Ford presented strong circumstantial evidence that he possessed a key to the vehicle because, it will be recalled, he moved the vehicle from the rear of the house to the street in front of the house shortly after his fiance left the premises and prior to her return. Also, the inference that Ford had a key is supported by the fact that he used the vehicle “all the time.”

Ford’s money was used to purchase the vehicle and he lived in the house where the vehicle was kept. Given the totality of the circumstances, the most important of which was that Ford proved that he drove the vehicle regularly with the permission of the owner, appellant met his burden of proving that he had a reasonable expectation of privacy in the vehicle.

Domestic violence call and the inability to locate the alleged victim was exigency for an entry. Commonwealth v. Townsend, 453 Mass. 413, 902 N.E.2d 388 (2009):

We conclude that the Commonwealth satisfied its burden of establishing that the officers’ entry into the defendant’s apartment fell within the emergency exception to the warrant requirement. Searches and seizures inside a home without a warrant are presumptively unreasonable under the Fourth Amendment to the United States Constitution and under its cognate provision in art. 14 of the Massachusetts Declaration of Rights. Brigham City v. Stuart, 547 U.S. 398, 403 (2006). Because “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to certain exceptions.” Id. “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Commonwealth v. Knowles, 451 Mass. 91, 96 (2008), quoting Mincey v. Arizona, 437 U.S. 385, 392 (1978). “Accordingly, [the police] may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” Brigham City v. Stuart, supra. See Commonwealth v. Knowles, supra, quoting Commonwealth v. Bates, 28 Mass.App.Ct. 217, 219 (1990) (“The emergency exception, which is closely related to the community caretaking function, ‘applies when the purpose of the police [action] is[,] because of an emergency, to respond to an immediate need for assistance for the protection of life or property’ “).

. . .

At the time of the entry into the defendant’s apartment, the facts then known to the police warranted them in having a reasonable belief that the victim was inside the defendant’s apartment and in need of immediate assistance. As to the victim’s location, when the victim was last heard from (by Gralia), at 2 A.M., on March 3, she was inside the defendant’s Lincoln Street apartment. Further, her automobile had been parked outside the defendant’s apartment for several days and, based on the weather conditions and the lack of snow underneath the victim’s automobile, had not been moved. Friends and family of the victim had made repeated attempts to contact and locate the victim, all of which were unsuccessful.

CI being defendant’s stepfather and telling officer face-to-face about defendant being in a shooting and officer asking questions of the CI made it reliable. State v. Portis, 2009 Ohio 32, 2009 Ohio App. LEXIS 25 (8th Dist. January 8, 2009):

[*P24] Under the totality of the circumstances, we find that Roberts’ information was reliable. Roberts told police, face-to-face, that appellant had been shooting, left in a tan car, and had lived at the address on 91st Street. Roberts answered all of the officer’s questions right at the scene. Finally, Roberts was motivated to inform the officers after they asked who had been shooting. In fact, the fact that the suspect was Roberts’ stepfather makes the information even more reliable. It is unlikely that Roberts would purposely misinform the police that a family member had committed a crime.

The police had no consent or exigent circumstances for the entry into defendant’s property. They knew nothing of guns until after they were inside. United States v. Tatman, 615 F. Supp. 2d 664 (S.D. Ohio 2008):

As in those cases, the victim in this case, Taresa Tatman, was not in any imminent danger. She was standing safely outside the house in the presence of two law enforcement officers. Moreover, at the time Deputy Clark entered the house, he did not know that there were any weapons inside the house. Nor was there any reason to believe that anyone other than Defendant was inside the house. Ms. Tatman had told Deputy Clark that she had dropped the kids off at a friend’s house before the alleged physical confrontation. Therefore, as in Ohlsen, there is no evidence to suggest that delaying the entry in order to obtain a warrant would present any risk to Ms. Tatman, the officers, or anyone else. In short, even though the officers were at the house to investigate a complaint of domestic violence, there were no exigent circumstances to justify a warrantless entry.

“The invocation of Fourth Amendment rights cannot be used to show guilt,” but it can be harmless error. People v. Garcia, 171 Cal. App. 4th 1649, 90 Cal. Rptr. 3d 440 (3d Dist. 2009).

It was reasonable to delay the execution of a search warrant for defendant’s premises for safety concerns by waiting until he drove away. He was watched and stopped away from the house, and there was probable cause as to his vehicle, too. Merriel v. State, 7 So. 3d 587 (Fla. App. 1DCA 2009).*

Defendant was stopped for a lane change violation, and the officer could smell both raw and burnt marijuana when the car was stopped. That justified a further detention for a drug dog. Jackson v. State, 295 Ga. App. 427, 671 S.E.2d 902 (2009).*

During a traffic stop, the officer smelled the overpowering smell of cologne. The officer checked the window tint which was too dark. Another officer arrived, and the defendant seemed overly nervous. RS had developed to extend the stop. St. Fleur v. State, 296 Ga. App. 849, 676 S.E.2d 243 (2009).*

The CI did not provide all details, but sufficient details, right down to where in the car the drugs were hidden, and that was sufficient. State v. Holmes, 10 So. 3d 274 (La. App. 5th Cir. 2009):

It is also true that the confidential informant’s tip did not provide every pertinent detail, as was the case in White. For example, the informant omitted mention of where the defendant resided, where in the vehicle the cocaine would be located, and what quantity of cocaine would be found. As the United States Supreme Court noted, a failure to provide every detail is not a fatal error, but it is significant.

The CI gave detailed information about defendant’s marijuana use. All the investigator could corroborate was that his roommate had a dirty UA. The issuing magistrate did not abuse her discretion in issuing the search warrant. Moreover, the good faith exception applied because the affidavit was not so lacking in probable cause that it should not have been issued. United States v. Cowgill, 2008 CCA LEXIS 494 (A. F. Ct. Crim. App. December 10, 2008) (2-1, but apparently unpublished):

The military judge also did not find the affidavit so facially deficient in that it was a “bare bones” affidavit. We concur. By definition, “bare bones” affidavits are documents so lacking in information that a reasonable magistrate cannot find probable cause. The standard is that it must not only be unreasonable for the magistrate to issue the warrant, but that it is entirely unreasonable. Leon, 468 U.S. at 923. The affidavit could have contained additional information, especially about the reliability of the source, and it should not have contained the mistaken erroneous information. However, the affidavit did provide that the source had detected the smell of marijuana on several occasions throughout the previous year, the number of times the appellant had been using marijuana at his residence in December 2006, and the manner in which the appellant was using the marijuana, which established a substantial basis for the magistrate to determine the existence of probable cause. Accordingly, the military judge did not abuse her discretion in denying the appellant’s motion to suppress.

(Note: All the military appellate courts are separately listed on the right margin, too.)

Defendant’s traffic stop was based on a taillight violation. It lasted 10 minutes and it was reasonable. Probable cause discovered before consent was revoked was still valid. United States v. Garcia, 317 Fed. Appx. 632 (9th Cir. 2008).*

Alleged strip search of arrestee in public survives summary judgment because it cannot be reasonable. Moore v. Hearle, 2009 U.S. Dist. LEXIS 50064 (S.D. N.Y. June 11, 2009):

Nonetheless, there is a question of material fact as to whether the manner and location of the strip search was reasonable, the remaining two prongs of the Bell test. Taking the facts in the light most favorable to Moore, the non-moving party, this Court cannot find for the Defendant as a matter of law because reasonable jurors could find that the officers acted unreasonably by conducting the search in an overly intrusive manner and in an improper location when they requested Moore to pull down his pants, spread his buttocks, and jump in a public area where observers and pedestrians could see his exposed lower body. While pulling back someone’s pants to inspect the inside of their pants in public has been found reasonable, People v. Jones, 3 Misc. 3d 481, 485-86, 776 N.Y.S.2d 750 (N.Y. Sup. Ct., Bronx County 2004), a partial strip search in a public place where passersby can see a person’s naked body is not reasonable absent serious safety concerns. See Jean-Laurent v. Hennessy, No. 05-CV-1155, 2008 U.S. Dist. LEXIS 59478, 2008 WL 3049875, at *13 (E.D.N.Y. Aug. 1, 2008); People v. Mitchell, 2 A.D.3d 145, 148, 768 N.Y.S.2d 204 (N.Y. App. Div. 2003). Given that there was no apparent safety concern arising from Moore’s arrest, the issue of whether Moore was actually exposed to the public during the search incident to his arrest is a material question of fact, precluding summary judgment for the Defendant.

Court buys trained drug officer’s testimony that he could smell bud marijuana that a drug dog could not, considering all the factors, and that gave probable cause. United States v. Carrizal, 2009 U.S. Dist. LEXIS 49730 (W.D. Tex. January 20, 2009).*

Collateral estoppel applied against the city to a civil forfeiture where the evidence was suppressed in the criminal case because of an illegal search. City of Walla Walla v. $401,333.44, 150 Wn. App. 360, 208 P.3d 574 (2009).

Court credits officer’s testimony that defendant consented to a search, including opening bundles of money. No motion to suppress was filed, but the exclusionary rule applies in forfeiture cases. United States v. $321,590.00 in United States Currency, 2009 U.S. Dist. LEXIS 49896 (D. Neb. June 15, 2009).*