Some subjective basis in a community caretaking search does not invalidate it if it has a real basis. State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, 759 N.W.2d 598 (2009). This is a really interesting and educational opinion. Take a refresher course:

[*P30] When evaluating whether a community caretaker function is bona fide, we examine the totality of the circumstances as they existed at the time of the police conduct. Cady, 413 U.S. at 440; Kelsey C.R., 2001 WI 54, 243 Wis. 2d 422, P37, 626 N.W.2d 777. In so doing, we conclude that the “totally divorced” language from Cady does not mean that if the police officer has any subjective law enforcement concerns, he cannot be engaging in a valid community caretaker function. Rather, we conclude that in a community caretaker context, when under the totality of the circumstances an objectively reasonable basis for the community caretaker function is shown, that determination is not negated by the officer’s subjective law enforcement concerns.

[*P31] In some respects, our analysis is similar to the analysis described in Whren. It is similar because in both a determination of probable cause to arrest, such as Whren, and in a community caretaker context, as we have in the case before us, when an objectively reasonable basis for probable cause or the community caretaker function exists, an officer’s subjective motivations do not negate either the probable cause determination or the determination that the community caretaker function was bona fide. However, our analysis of the community caretaker function is also distinct from an analysis of whether there exists probable cause to arrest. In a probable cause analysis, the subjective intent of the officer plays no role in the totality of the circumstances that a court considers in determining whether there is probable cause to arrest. Whren, 517 U.S. at 813. In our community caretaker analysis, it constitutes a factor that may be considered in the totality of the circumstances.

[*P32] In regard to our community caretaker analysis, the nature of a police officer’s work is multifaceted. An officer is charged with enforcing the law, but he or she also serves as a necessary community caretaker when the officer discovers a member of the public who is in need of assistance. As an officer goes about his or her duties, an officer cannot always ascertain which hat the officer will wear–his law enforcement hat or her community caretaker hat. For example, an officer may come upon what appears to be a stalled vehicle and decide to investigate to determine if assistance is needed; however, the investigation may show that a crime is being committed within the vehicle. Therefore, from the point of view of the officer, he or she must be prepared for either eventuality as the vehicle is approached. Accordingly, the officer may have law enforcement concerns, even when the officer has an objectively reasonable basis for performing a community caretaker function.

[*P33] To conclude otherwise would ignore the multifaceted nature of police work and force police officers to let down their guard and unnecessarily expose themselves to dangerous conditions. See, e.g., Maryland v. Wilson, 519 U.S. 408, 412-13, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997) (“Regrettably, traffic stops may be dangerous encounters. In 1994 alone, there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops.”); Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977) (“[W]e have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. ‘According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.'”) (quoting Adams v. Williams, 407 U.S. 143, 148 n.3, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972)); State v. Ellenbecker, 159 Wis. 2d 91, 97, 464 N.W.2d 427 (Ct. App. 1990) (“[E]ven seemingly innocent activity, such as refueling a disabled car, could later turn out to be theft of a car that was left on the shoulder of the highway.”); Charles Remsberg, The Tactical Edge: Surviving High-Risk Patrol 271-72 (Calibre Press 1988) (noting that officers approaching vehicles typically know nothing about the threat level passengers may pose, because they know nothing about the passengers themselves, and the officers thus expose themselves to considerable danger).

[*P34] Furthermore, to interpret the “totally divorced” language in Cady to mean that an officer could not engage in a community caretaker function if he or she had any law enforcement concerns would, for practical purposes, preclude police officers from engaging in any community caretaker functions at all. This result is neither sensible nor desirable.

Update: What I was doing yesterday.

RapidScan search at a mental health prison that is a virtual strip search raised sufficient questions that they could not be resolved here on summary judgment, and a hearing would be held on whether the use here was reasonable under Bell v. Wolfish. From the FAQs on the maufacturer’s website:

Q: How are persons scanned?

A: A person faces the Secure 1000 and a front scan is generated. The person turns around and a rear scan is generated. Within seconds, a computer-aided image of the subject appears on the monitor revealing any objects concealed under or within the subjects clothing.

Q: What is the operating principle of the Secure 1000?

A: A narrow, low energy X-ray beam is scanned over the body surface. The reflection or backscatter of the beam is detected, digitized and computer stored. The data is then enhanced, using state-of-the-art imaging techniques to create a display of the person and any concealed objects.

Zboralski v. Monahan, 616 F. Supp. 2d 792 (N.D. Ill. 2008):

While the foregoing gives us some basis upon which to rule regarding reasonableness, we do not believe that it is enough, given the fact that this issue has never before been addressed. Several important questions remain that cannot be answered on this record. For instance, we have very little evidence of how the Rapiscan actually works and the quality of images it produces. Examples and experts in the field would be helpful to better understand body scan technology. We would also appreciate testimony on how reasonable persons would feel being subjected to such a scan. Is it psychologically similar to, or even less intrusive than a pat-down because the person cannot view his or her own image and no touching is involved? Or is the thought that another person might be viewing a detailed naked image enough to make a person feel as violated as they would during a manual strip search? Finally, we are unsure whether the level of detail affects whether or not the search is closer to a pat-down or a strip search. Will every body scan search need to comport with the same standard of reasonableness regardless of the level of detail in the image? Or will factual determinations need to be made in each case depending on how the machine was calibrated at the time of the search? How was the machine calibrated in this case? We do not have that evidence. Because we do not believe the record is sufficiently developed to allow us to rule on this issue of first impression, we request that a hearing be held and the parties confer so that we may discuss the logistics of such a hearing.

Defendant who fails to respond to a “show of authority” by the drawing of guns is not “seized.” United States v. Waterman, 2009 U.S. App. LEXIS 10179 (3d Cir. May 12, 2009) (unpublished):

Here, there was no application of physical force. The police drew their guns in a “show of authority.” While this act definitely constituted a display of force, we conclude that it fell short of the force or physical contact required under Hodari D.fn5

5. Couden, 446 F.3d at 493-94 (no “seizure” when defendant flees after police draw their weapons); Valentine, 232 F.3d at 358-59 (citing Johnson, 212 F.3d at 1315 for the proposition that no “seizure” occurs when police, drawing their weapons, order a defendant to raise his hands, but he refuses); Fontenot v. Cormier, 56 F.3d 669, 674 (5th Cir. 1995) (no “seizure” when police, rushing the defendant’s car with their guns drawn, order him out of the vehicle, but he flees); Edwards v. Giles, 51 F.3d 155, 156 (8th Cir. 1995) (no “seizure” when police point gun at defendant, but he refuses to submit to officer’s authority).

Similarly, there was no “submission” by Waterman. While the others on the porch raised their hands in compliance with the officers’ directive, Waterman failed to do so. Instead, he moved his hands toward his waistband, and ultimately retreated into the house.

Defendant consented to a search of a computer in his house, which officers then discovered had been stolen from NASA. The defendant had no expectation of privacy in a stolen computer. United States v. Smith, 2009 U.S. Dist. LEXIS 39665 (W.D. Wash. April 27, 2009).*

Officers obtained third party consent but waited for a search warrant to search defendant’s bedroom. [So what is the real suppression issue?] United States v. Rodgers, 2009 U.S. Dist. LEXIS 39680 (W.D. Mich. April 15, 2009).*

A receivership order was all that was required to seize assets and papers of defendants’ ponzi scheme, and it was not subject to the particularity requirement. “[T]he receiver was authorized to seize all the named categories of assets and records of the identified defendants. Because the receiver was taking possession of everything in those categories that had been the property of the defendants for whom the receivership was authorized, further particularity would have served no purpose. After the seizure, the receiver had possession of the property only because he had been authorized by court order.” United States v. Setser, 568 F.3d 482 (5th Cir. 2009).

Officer was alone and stopped an habitual traffic violator, saw the passenger constantly moving around, knew he had a knife, so he got him out for a patdown, and felt what he knew were drugs. “I knew right away that it was, the feel and the crinkling of the baggie, that it was narcotics.” The search incident of the vehicle was valid under Gant, and defendant was arrested with PC. United States v. Robinson, 2009 U.S. Dist. LEXIS 60467 (N.D. Ind. July 13, 2009):

Before Pulver searched the vehicle, the suspicious circumstances in this case included the following: the Defendant’s knife with white residue; the Defendant moving and shifting in his seat while Pulver was arresting the driver; and the unknown hard object in the Defendant’s buttocks. While no individual circumstance just listed amounts to probable cause, when combined together, they justify arresting the Defendant for possession of illegal narcotics.

The Defendant’s knife, which Pulver removed from his pocket and which was covered in white-powder, contributed to probable cause to arrest the Defendant. A knife covered in white powder is likely a tool for dividing illegal drugs. See United States v. Brimley, 148 F.3d 819, 821 (7th Cir. 1998) (referring to knives and other objects as drug paraphernalia). The officer did not have to field test the substance and confirm it was cocaine in order to have probable cause, as the Defendant argued. …

There is no right to a Miranda warning during a traffic stop. United States v. Coleman, 2009 U.S. Dist. LEXIS 60963 (E.D. Wis. June 25, 2009).*

Defendant’s jaywalking stop provided no reasonable suspicion he was armed, so his patdown is suppressed. United States v. West, 615 F. Supp. 2d 957 (S.D. Iowa 2009).

Defendant consented during a knock-and-talk, and the court finds that defendant understood English and was not coerced. United States v. Miranda-Villalobos, 2009 U.S. Dist. LEXIS 31814 (N.D. Okla. April 15, 2009).*

While the Seventh Circuit has not interpreted whether a parole search under Samson can be conducted by a law enforcement officer, since the Illinois courts have granted broad power to law enforcement officers for parole searches, it appears they would. United States v. Woodland, 607 F. Supp. 2d 904 (C.D. Ill. 2009).*

An officer came to defendant’s door, and when the door was answered, the officer could smell marijuana, and he stuck his foot over the threshold to keep the door from shutting. He announced who he was, and a man made furtive movements on the couch. That justified the officer entering to prevent something bad from happening. State v. McGee, 2009 Tenn. Crim. App. LEXIS 252 (April 15, 2009).*

Officers had reasonable suspicion to stop and detain the defendant for robbery where he was specifically identified as a suspect and he matched the description of the robber. State v. Pittman, 2009 Tenn. Crim. App. LEXIS 255 (April 7, 2009).*

The New York Court of Appeals today decided People v. Weaver, 12 N.Y.3d 433 (May 12, 2009), holding that the NY Constitution prohibits the use of GPS transmitters on vehicles without a warrant, following other state courts analyzing the issue under their constitutions. This is a stunningly prescient opinion:

At first blush, it would appear that Knotts does not bode well for Mr. Weaver, for in his case, as in Knotts, the surveillance technology was utilized for the purpose of tracking the progress of a vehicle over what may be safely supposed to have been predominantly public roads and, as in Knotts, these movements were at least in theory exposed to “anyone who wanted to look” (id. at 281). This, however, is where the similarity ends.

Knotts involved the use of what we must now, more than a quarter of a century later, recognize to have been a very primitive tracking device. The device was, moreover, used in a focused binary police investigation for the discreet purpose of ascertaining the destination of a particular container of chloroform. And, in this application, during the single trip from the place where the chloroform was purchased to the Knotts cabin, the beeper was fairly described by the Court as having functioned merely as an enhancing adjunct to the surveilling officers’ senses; the officers actively followed the vehicle and used the beeper as a means of maintaining and regaining actual visual contact with it. The technology was, in this context, not unconvincingly analogized by the Court to a searchlight, a marine glass, or a field glass (id. at 283, citing United States v Lee, 274 US 559, 563 [1927]).

Here, we are not presented with the use of a mere beeper to facilitate visual surveillance during a single trip. GPS is a vastly different and exponentially more sophisticated and powerful technology that is easily and cheaply deployed and has virtually unlimited and remarkably precise tracking capability. With the addition of new GPS satellites, the technology is rapidly improving so that any person or object, such as a car, may be tracked with uncanny accuracy to virtually any interior or exterior location, at any time and regardless of atmospheric conditions. Constant, relentless tracking of anything is now not merely possible but entirely practicable, indeed much more practicable than the surveillance conducted in Knotts. GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period. The potential for a similar capture of information or “seeing” by law enforcement would require, at a minimum, millions of additional police officers and cameras on every street lamp.

That such a surrogate technological deployment is not — particularly when placed at the unsupervised discretion of agents of the state “engaged in the often competitive enterprise of ferreting out crime” (Johnson v United States, 333 US 10, 14 [1948]) — compatible with any reasonable notion of personal privacy or ordered liberty would appear to us obvious. One need only consider what the police may learn, practically effortlessly, from planting a single device. The whole of a person’s progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit’s batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations — political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits. When multiple GPS devices are utilized, even more precisely resolved inferences about our activities are possible. And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons — to mention just a few of the highly feasible empirical configurations.

. . .

Technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated. Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual’s whereabouts requires a warrant supported by probable cause.

The opinion even quotes Brandeis’ 1928 Olmstead dissent on the right to be let alone:

The protection guaranteed by the Amendments [the Fourth and Fifth] is much broader in scope [than the protection of property]. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.

Independent source doctrine permitted search of defendant’s house. Nearly all factors showed consent. Even though search of basement was unlawful, the independent source doctrine permitted search of the rest of the house. United States v. Price, 558 F.3d 270 (3d Cir. 2009).*

Defendant did not show that the search at issue was without his consent, so his lawyer was not ineffective. Nelson v. United States, 2009 U.S. Dist. LEXIS 16196 (E.D. Cal. February 11, 2009).*

Driving the wrong way on a one way street and stopping for no apparent reason [perhaps because the defendant discovered he was going the wrong way] was reasonable suspicion for a stop. State v. Vlachos, 2009 Ohio 915, 2009 Ohio App. LEXIS 754 (3d Dist. March 2, 2009).*

Defendant’s reliance on state law to show that search warrant was invalid was [way] off the mark because federal law governs the warrant in federal court. United States v. Bolden, 316 Fed. Appx. 915 (11th Cir. 2009) (unpublished).*

A prison escapee hiding in a motel room has no constitutionally recognizable reasonable expectation of privacy. His status as a prisoner with virtually no Fourth Amendment rights continues into his escape status. United States v. Ward, 561 F.3d 414 (5th Cir. 2009):

That Ward would have had no right to privacy in his prison cell does not a fortiori mean that he has no right to privacy in his motel room. The interests at play for determining whether the Fourth Amendment applies to an escapee in society may differ from those applicable in the prison cell context. In other words, although the privacy right is personal, defining the specific content and incidents of the right often requires reference to a place–hence the Hudson opinion’s repetition of the clause “in his prison cell.” The Court’s holding, specific to the cell, does not by its own force reach a motel room.

Exchanging the prison environment for a motel room and the prisoner for a prison escapee, we find that the balance of interests weighs against finding a constitutionally protected reasonable expectation of privacy. We acknowledge that the consideration of internal security recognized in Hudson loses much its force when applied to justify circumscribing an escapee’s privacy right. This justification is place specific. As explained in Hudson, “[a] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional and internal order.” It is the challenge of the unique prison environment–exemplified by the prison administrator’s constant fight to keep dangerous contraband out of the hands of a population that has demonstrated a proclivity for violence–that partially justifies that the privacy right in the cell be among the rights ceded by a convicted felon.

However, while institutional security loses some of its justifying force once a prisoner breaches the prison wall, we believe it remains indirectly at play. Recognizing a privacy right in the motel room of an escapee who legally belongs in a cell would “offer judicial encouragement to the act of escape.” Rewarding successful escapees by restoring previously ceded rights would embolden the escape plots that prison administrators already must work vigilantly to deter. Indirectly, then, society’s interest in the security of its penal institutions remains relevant to determining whether an escapee has a reasonable expectation of privacy.

Officers knocked at defendant’s door, with probable cause, and they heard running inside. That was an exigency that justified the officers’ entry. United States v. Reed, 2009 U.S. App. LEXIS 5175 (11th Cir. March 6, 2009) (unpublished).*

District court’s crediting the testimony it did was supported by the evidence, and it could not be argued on appeal that the district court credited the wrong testimony. United States v. Maddox, 316 Fed. Appx. 908 (11th Cir. 2009) (unpublished).*

Locked safe in a vehicle should not have been opened and inventoried under Massachusetts law. Commonwealth v. Difalco, 73 Mass. App. Ct. 401, 897 N.E.2d 1287 (2008):

Reading the two policies together, we conclude, contrary to the judge’s interpretation, that there is no explicit authority for the police to unlock a closed container and inventory the contents, and that the officer in this case could do no more than inventory a locked container as a single unit. “We have made it clear that, if police open a closed container during an inventory search in the absence of a specific written procedure requiring them to do so, then any evidence they discover [*8] in the container must be suppressed.” Commonwealth v. Garcia, 409 Mass. 675, 684-685, 569 N.E.2d 385 (1991). See Commonwealth v. Muckle, 61 Mass. App. Ct. 678, 684, 814 N.E.2d 7 (2004) (police may open closed, but unlocked containers where written inventory search so provides) 6 For these reasons we conclude the defendant’s motion to suppress should be allowed, and that it is unnecessary to examine in detail the reasons given by the judge in the second step of his decision (see note 3, supra).

An adult in charge of children in the house had the authority to permit the police to at least enter the premises. Her contradictory testimony about the police entry and what she understood was rejected. United States v. Geartz, 2009 U.S. Dist. LEXIS 59663 (D. Kan. July 13, 2009):

She either had been or was going to be the sole responsible adult in a house with children for a significant period of time because she suggested that the regular occupants of the house had gone to Kansas City. This suggests that she had broad access, at the very least, to the children’s room and the common areas of the residence. When she left the house, she took the children with her, indicating that she had wide responsibilities and trust as a caretaker. Finally, Ms. Ridley appears to be the mother-in-law of defendant Geartz, and this relationship suggests that she had broader control over the residence than, for instance, a babysitter who was unrelated to defendant Geartz.

The checkpoint in this case was properly set up and valid. Defendant pulled into a driveway of a vacant house and turned off his lights, and the officer could consider that suspicious enough to approach the defendant to talk to him. United States v. Hall, 2009 U.S. Dist. LEXIS 59699 (M.D. Ala. July 14, 2009).*

Indiana officers executed an Alabama arrest warrant that was clearly issued on a mere conclusion that there was probable cause, rather than a finding of probable cause. The good faith exception would not be applied because it was a clear police error, even in another state by another department. Shotts v. State, 907 N.E.2d 134 (Ind. App. 2009):

Alternatively, the State argues that if the warrant is constitutionally invalid, then the “good faith exception” applies to save the evidence seized during Shotts’s arrest. It is true that the exclusionary rule does not automatically apply each time a search and seizure technically violates the Fourth Amendment. As the U.S. Supreme Court explained, “Particularly when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system.” United States v. Leon, 468 U.S. 897, 907-08, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). Our good faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal in light of all of the circumstances. Id. at 922 n.23. If the answer is no, then the evidence, though seized illegally, is admissible. Suppression is appropriate if: (1) the magistrate or judge who issued the warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth; (2) the issuing magistrate wholly abandoned his neutral judicial role; (3) the affidavit supporting the warrant was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or (4) a warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. Id. at 923.

The State claims that because the Indiana officers executed the arrest warrant without actually seeing it, they cannot be charged with knowledge of any defects and thus must have acted in good faith. Our inquiry is not limited merely to the law enforcement officers who execute the warrant, however. Clearly, the Indiana officers in this case were acting in good faith, but what about the Alabama officer who obtained the warrant in the first place? There is no question that he knew or should have known that his testimony was insufficient to support a probable cause determination. Objectively speaking, the affidavit was so lacking in indicia of probable cause as to render official belief in the warrant’s validity entirely unreasonable. To allow law enforcement to insulate the State from the operation of the exclusionary rule by simply creating one degree of separation between the officer acting in bad faith and the officer executing the warrant would serve no deterrent effect whatsoever. Thus, based upon this officer’s actions, the good faith exception does not apply in this case.

Even as the U.S. Supreme Court continues to limit the application of the exclusionary rule, focusing upon “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence[,]” it still appears that the facts of this case would trigger operation of the federal rule. See Herring v. U.S., 555 U.S. ___, 129 S.Ct. 695, 702, 172 L. Ed. 2d 496 (2009). Just as the U.S. Supreme Court focused on the record management system in Herring, in this case the bad faith occurred prior to the information being submitted to NCIC and the executing officers.

Stop was based on an air freshener hanging from the mirror supposedly obstructing driver’s view. The air freshener was smaller than the officer testified, and there was no testimony that it actually obstructed the driver’s view. Therefore, the stop was based on a mistake of law, and the motion to suppress was properly granted. People v. Mott, 389 Ill. App. 3d 539, 329 Ill. Dec. 314, 906 N.E.2d 159 (2009).*

Claimant’s claim he was detained and did not consent in an airport is rejected. “Further, the facts of this case are markedly different from those presented in Stephens, where the bus passengers had few options to end the encounter with the officers. Particularly, McVey’s argument that leaving the airport and abandoning his checked-baggage was his only option to terminate the encounter with the Agents ignores the possibility that he could have withheld consent to speak with the officers, moved to another location outside, or returned inside to the baggage carousels.” United States v. Approximately $52,000 in United States Currency, 2009 U.S. Dist. LEXIS 35429 (N.D. Cal. April 10, 2009).*

Officer had reasonable suspicion that defendant’s DL was suspended for life, so that justified the stop. Bannister v. State, 904 N.E.2d 1254 (Ind. 2009).*

Compound question to defendant (“I just asked him if there was anything illegal in the vehicle and if I could search it”) did not make it impossible to not consent. All he had to say was “no.” United States v. Barnum, 2009 U.S. App. LEXIS 8994 (8th Cir. April 28, 2009)*:

Second, even if we were to accept Barnum’s characterization of Officer Hatler’s request to search Barnum’s rental vehicle, we still would not find that the question guaranteed Barnum’s consent. Barnum’s “loaded” question theory is premised on a single piece of Officer Hatler’s testimony concerning his request to search Barnum’s rental vehicle: “I just asked him if there was anything illegal in the vehicle and if I could search it.” According to Barnum, the question’s compound phrasing placed him between Scylla and Charybdis, requiring him either to give consent or appear to be concealing contraband. However, Barnum’s premise does not support the conclusion that the question’s compound phrasing compelled Barnum to respond “yes. ” A simple answer of “no ” to Officer Hatler’s allegedly “loaded” question would have denied consent to the search and presumably terminated the encounter. Cf. Florida v. Bostick, 501 U.S. 429, 437 (1991) (“[A] refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.”).

The post office delivery guarantee does not create a constitutional possessory interest such that US Postal Inspectors could delay a package in Juneau, Alaska, for a dog sniff and a search warrant to open it before delivery. United States v. Jefferson, 566 F.3d 928 (9th Cir. 2009):

The reasoning of LaFrance [from 1st Cir.] is convincing. We hold that an addressee has no Fourth Amendment possessory interest in a package that has a guaranteed delivery time until such delivery time has passed. Before the guaranteed delivery time, law enforcement may detain such a package for inspection purposes without any Fourth Amendment curtailment. See United States v. Gill, 280 F.3d 923, 932-33 (9th Cir. 2002) (Gould, J., concurring) (“Investigators may inspect mail as they wish without any Fourth Amendment curtailment, so long as the inspection does not amount to a ‘search,’ and so long as it is conducted quickly enough so that it does not become a seizure by significantly delaying the date of delivery.”). Once the guaranteed delivery time passes, however, law enforcement must have a “reasonable and articulable suspicion” that the package contains contraband or evidence of illegal activity for further detainment. See Hoang, 486 F.3d at 1160.

In this case, the post office guaranteed that Jefferson would receive his package by 3:00 p.m. on April 7. Any expectation that Jefferson or the post office may have had that the package could arrive earlier is irrelevant. See LaFrance, 879 F.2d at 7. The postal inspector did not need any suspicion to detain Jefferson’s package overnight on April 6 because Jefferson did not yet have a possessory interest in the package. By the time “the constitutional chemistry was altered” at 3:00 p.m. on April 7, see id., law enforcement had already established probable cause to seize Jefferson’s package. See Hoang, 486 F.3d at 1160 n.1. Thus, law enforcement acted well within the bounds of the Fourth Amendment in detaining, seizing and then searching Jefferson’s package.

In sum, we hold that a package addressee does not have a Fourth Amendment possessory interest in a package that has a guaranteed delivery time until the guaranteed delivery time has passed. Jefferson had no Fourth Amendment possessory interest in the “timely” delivery of his package until 3:00 p.m. on April 7. We need not weigh the public interest in the package’s detainment against the protected private interest because probable cause was established before Jefferson gained a possessory interest in the package. See id. at 1159.

Defendant’s arrest warrant could be executed anytime, and the government had no duty to arrest him before he committed additional drug sales. United States v. Jones, 2009 U.S. Dist. LEXIS 44222 (S.D. Ohio May 26, 2009).*

It was immediately apparent to the officer that defendant’s gun and drugs were contraband. United States v. Guzman-Cornejo, 2009 U.S. Dist. LEXIS 44191 (N.D. Ill. May 26, 2009).*

“Straight forward” request to search after defendant was told he could go was voluntary consent. State v. Evans, 9 So. 3d 767 (Fla. App. 2DCA 2009).*

Extreme nervousness, lying about activities, and shaking hands was reasonable suspicion. Thayer v. State, 2009 Ind. App. LEXIS 841 (April 24, 2009).*

FL3 rejects FL4’s Rabb and holds dog sniff at front door is lawful because a law enforcement officer has the authority to approach the front door, and a dog sniff is not a search, so the two together are not unconstitutional. If the officer smelled marijuana at the door, that already has been held constitutional. State v. Jardines, 9 So. 3d 1 (Fla. App. 3 DCA 2008), review granted 2009 Fla. LEXIS 218 (Fla. Feb. 4, 2009):

Also supporting our conclusion is State v. Pereira, 967 So. 2d 312, 313 (Fla. 3d DCA 2007). In Pereira, officers went to the defendant’s home based on an anonymous tip that the defendant was growing marijuana. A detective walked toward the premises and, while standing in front of the premises, smelled marijuana. Officers returned the next day with a narcotics-search dog. Approaching the front door, the officer again smelled the marijuana, and the canine alerted.

While we chose not to address the legality of the dog sniff, we rested our decision on the officer’s right to be on the defendant’s front porch:

We disagree with the defendant’s contention that the officers’ detection of the odor of marijuana emanating from the defendant’s home while standing on the sidewalk and front porch of the defendant’s home is an invasion of the defendant’s privacy protected by the Fourth Amendment. Admittedly, there was no evidence that the front yard or porch was enclosed by a fence or any other structure and was, in fact, open to public access. We follow those cases which hold that HN14there is no reasonable expectation of privacy at the entrance to property which is open to the public, including the front porch. See State v. Morsman, 394 So. 2d 408 (Fla. 1981); State v. E.D.R., 959 So. 2d 1225 (Fla. 5th DCA 2007), and cases cited; Ramize v. State, 954 So. 2d 754 (Fla. 3d DCA 2007); Potts v. Johnson, 654 So. 2d 596 (Fla. 3d DCA 1995); see, e.g., United States v. Cota-Lopez, 104 Fed.Appx. 931 (5th Cir. 2004). Compare State v. Rabb, 920 So. 2d at 1191.

Pereira, 967 So. 2d at 314 (footnote omitted); State v. E.D.R., 959 So. 2d 1225, 1226 (Fla. 5th DCA 2007) (concluding that defendant’s porch “was not a constitutionally protected area”); see also State v. Garcia, 374 So. 2d 601, 602-03 (Fla. 3d DCA 1979) (concluding “[w]hen the lawful performance of his duty requires that an officer enter upon private property to make a general inquiry, such an entry is justifiable,” and holding that officers smelling “the odor of marijuana smoke” at the front door of a residence was a factor supporting a finding of probable cause).

From these cases, it is clear that Officer Pedraja had a right to approach Jardines’ front door. The fact that he waited for the dog and approached with the dog does not change this result, even if the dog alerted before the officer detected the scent. The officer’s presence with the dog and their sniff of the odor of marijuana as well as the other facts identified in the probable cause affidavit was sufficient to establish probable cause for the warrant to issue. The trial court erred in concluding that the magistrate lacked probable cause to issue the warrant and erred in suppressing the evidence obtained as a result of the warrant.

Prior post of Rabb is here. FL1 distinguished Rabb a month ago here.

A letter from defendant in jail was misdelivered to a police officer’s house. When the letter was opened, the officer was acting in a personal capacity and not in an official capacity, so the Fourth Amendment does not apply. State v. Cole, 2008 WI App 178, 315 Wis. 2d 75, 762 N.W.2d 711 (2008).*

The warrant misdescribed the car to be searched because of a wrong license number. “Nowhere on the face of the warrant is Rogers’ car correctly identified.” The affidavit was attached, and it correctly identified the vehicle. Based on the affidavit, the officers concluded they had the right car and searched. The search was valid. State v. Rogers, 2008 WI App 176, 762 N.W.2d 795 (2008).

An eyeglass case on the ground below the driver’s door was subject to search incident under the circumstances. While a search incident is presumed unreasonable, the facts here showed an officer alone on the highway with two persons detained, and a potential weapon involved. The court sensitively analyzes the search incident rationale in detail on these facts. State v. Denk, 2008 WI 130, 315 Wis. 2d 5, 758 N.W.2d 775 (2008):

[*P61] We determine that the warrantless search here was incident to the arrest and was supported by both of the historical rationales at the heart of that exception, namely the safety of the arresting officer and the need to discover and preserve evidence. In this situation, Office Hahn was outnumbered at a late night arrest involving two men and knew that narcotics were present. The proximity of the eyeglass case to the car, to Denk, and to Pickering, as well as its unexplained location at Denk’s feet, raised questions about the danger Denk posed acting alone or in concert with Pickering. Thus, we conclude that based on the reasoning in State v. Pallone, the search of the eyeglass case was a permissible search incident to the arrest of the driver of the vehicle.

Defendant urged police to search his car to prove that he did not have a stolen high powered rifle in the trunk (which he did). That was sufficient for the court to find consent. United States v. Clinton, 2008 U.S. Dist. LEXIS 104927 (N.D. Ind. December 30, 2008).*

Defendants’ consent came after the basis for the stop had been completed but they were not permitted to leave. Trial court’s grant of motion to suppress affirmed. State v. Felton, 297 Ga. App. 35, 676 S.E.2d 434 (2009).*

Police entered by consent but consent to search was denied. They could photograph what they could see during that entry. Lord v. State, 297 Ga. App. 88, 676 S.E.2d 404 (2009).*

Search incident of the couch defendant was found lying on when he was arrested was permissible. Gray v. State, 296 Ga. App. 878, 676 S.E.2d 36 (2009).*

Officer had reasonable suspicion to continue to detain defendant because of the odor of alcohol. People v. Baldwin, 388 Ill. App. 3d 1028, 328 Ill. Dec. 683, 904 N.E.2d 1193 (2009)*:

Thus, police conduct occurring during an otherwise lawful seizure does not render the seizure unlawful unless it either unreasonably prolongs the duration of the detention or independently triggers the fourth amendment. Harris, 228 Ill. 2d 222, 886 N.E.2d 947. If the conduct violates either principle, the conduct must possess a separate fourth amendment justification to avoid rendering the seizure unlawful. See Muehler, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S. Ct. 1465; People v. Starnes, 374 Ill. App. 3d 329, 871 N.E.2d 815 (2007).

In this case, there is no question that Pilat’s questions with regard to the odor of alcohol, requests for consent to search, and calling for a drug dog did not independently trigger the fourth amendment. See Caballes, 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834; Muehler, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S. Ct. 1465. The question presented to us focuses on the duration principle: whether Pilat’s actions unreasonably prolonged the duration of the detention, thereby rendering the seizure unlawful.

Reopening a suppression hearing on the court’s own motion is within the court’s discretion, and defendant did not show prejudice from it. United States v. Stennis, 2009 U.S. Dist. LEXIS 53479 (E.D. Tenn. June 23, 2009).*

The court finds credible the officer’s statement that he smelled burnt marijuana when he stopped the defendant, and the government was not required to put physical evidence in at the hearing to support that. United States v. McCaster, 2009 U.S. Dist. LEXIS 53632 (N.D. Ohio June 24, 2009).*

Defendant was following too close and RS developed. “Here, Applegate’s reasonable suspicion of contraband in the Defendant’s vehicle was based upon: (1) the Defendant’s nervousness, (2) the overwhelming scent of air freshener in the car, (3) the fact the Defendant was an unauthorized driver of the rental car; (4) Defendant’s contradictory statements about rental and whether his girlfriend rented the vehicle; (5) the quick sequence trip, and (6) the impossibility of renting the car two days ago.” United States v. Fields, 2009 U.S. Dist. LEXIS 53643 (M.D. Tenn. June 24, 2009).*

A vehicle seized with PC can be relocated for a search. Here, it was taken to FBI headquarters for the search. United States v. Mujahid, 2009 U.S. Dist. LEXIS 53561 (D. Alaska May 12, 2009), R&R 2009 U.S. Dist. LEXIS 53563 (D. Alaska May 4, 2009).*

Officer had RS when a known prostitute waved down a passing vehicle and she got in it. United States v. Cross, 2009 U.S. Dist. LEXIS 53559 (D. Alaska May 1, 2009).*

Defendant in mail fraud case failed to show a reasonable expectation of privacy in the computers of the company he was allegedly affiliated with where he sought to distance himself from the offices. United States v. Tranquillo, 606 F. Supp. 2d 370 (S.D. N.Y. 2009)*:

Even had he put the foregoing facts in admissible form, 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 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 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.”).

Notably, Mr. Tranquillo, in his request for a Franks hearing, claims that he “was never an owner, manager, or supervisor of A&D Carting,” that he “merely” was “a driver for A&D Carting,” and that he “had no role in the billing of Mt. Vernon or any other account.” Def.’s Mem. at 9. Given such factual allegations, it is indeed implausible that Mr. Tranquillo had access to, or a privacy or proprietary interest in, A & D Carting’s computers. 4 See Chuang, 897 F.2d at 649 (holding that a defendant “has a reasonable expectation of privacy to challenge the search of business premises … [if] he has made a sufficient showing of a possessory or proprietary interest in the area searched”).

Defendant’s parole agreement provided for suspicionless searches, and that was valid under Samson. State v. Ochoa, 765 N.W.2d 607 (Iowa App. 2009).*

Defendant’s wife had apparent authority to consent even though defendant padlocked the door to the storage area a couple of days before she consented. People v. Shover, 2009 Colo. App. LEXIS 212 (February 19, 2009)*:

The Randolph majority pointed out that “[t]he constant element in assessing Fourth Amendment reasonableness in the consent cases, then, is the great significance given to widely shared social expectations, which are naturally enough influenced by the law of property, but not controlled by its rules.” 547 U.S. at 111. Thus, the padlock Shover installed a few days before the search is less important than the “commonly held understanding about the authority that co-inhabitants may exercise in ways that affect each other’s interests.” Id. The first officer’s reliance on the wife’s invitation to enter the residence reflected the societal “understand[ing] that any one [co-owner or co-tenant] may admit visitors, with the consequences that a guest obnoxious to one may nevertheless be admitted in his absence by another,” and the chance of a contrary arrangement “is too remote to expect visitors to investigate a particular household’s rules before accepting an invitation to come in.” Id. at 111-12. Hence, applying the exclusionary rule here would not further its purpose of deterring police misconduct. White, 64 P.3d at 872.

The shed was logically included in the definition of the place to be searched because it was only inches away or even attached to the mobile home described in the warrant. State v. Brewer, 148 Wn. App. 666, 205 P.3d 900 (2009)*:

¶35 The adjacent shed appeared to be part of Defendants’ mobile home residence both (1) when Detective Boardman procured and the superior court issued the search warrant and (2) at the time of the pretrial suppression hearing when the trial court considered the legality of the warrant and the search. The issue of whether the adjacent shed was actually attached to the mobile home, or technically separated by mere inches, did not arise until later at trial when the State introduced Exhibit 36, a photograph that showed a slight space between the mobile home’s outerwall and the adjacent shed. Thus, when the officers executed the search warrant, they understood the adjacent shed to be part of the mobile home described in the warrant, as did the mobile home’s owner.

A domestic violence call of an uncle and nephew did not provide evidence that an assault occurred within four hours, and the officer’s staying on the premises was not justified. State v. Williams, 148 Wn. App. 678 (February 10, 2009).*

Stop was not an unreasonable detention. But, even if it was, it was based on reasonable suspicion. United States v. Brown, 310 Fed. Appx. 776 (6th Cir. 2009).*