A police detective was allowed to testify at trial that he received a tip from a confidential informant that a black male wearing a blue baseball cap and a black hooded sweatshirt was selling heroin at a particular intersection. That tip led to defendant’s arrest. The testimony was inadmissible hearsay because it contained too much specific information about defendant and his criminal activity to be justified by the proffered non-hearsay purpose of establishing why the detective was at the intersection. The court found that the specificity of the informant’s extrajudicial statement created a danger that the jury would misuse the information as substantive evidence of the defendant’s guilt and the State proved that point by referencing the informant’s tip for the truth of the matter asserted in closing argument. It was not harmless. Parker v. State, 970 A.2d 320 (Md. May 4, 2009).

Consent can be inferred from conduct. Here, defendant effectively consented with conditions. He never said no. United States v. Riekenberg, 2009 U.S. Dist. LEXIS 53351 (D. Neb. June 24, 2009):

When Sergeant Morrow asked if the officers could enter the defendant’s apartment, the defendant stated the key was in his right pants pocket. He then asked what the officers were looking for, and when told they wanted to confirm no one else was present in the apartment, the defendant stated he wanted to accompany the officers into the apartment. The defendant never said the officers could not enter the apartment; rather he placed a condition–his presence–on that entry. Viewed in the totality, a reasonable officer would have believed the defendant was agreeing to allow the officers to enter his apartment provided the defendant was with them, and any limitation on that consent applied to the scope of the search conducted once the officers entered, not whether they could enter.

The stop of defendant’s tractor-trailer for a safety inspection was valid, even without reasonable suspicion, which there was for a continued detention. United States v. Paez, 2009 U.S. Dist. LEXIS 53556 (D. Kan. June 18, 2009):

Irrespective of reasonable suspicion, Trooper Wolting stopped the vehicle in order to conduct a CVSA inspection. In Kansas, it is permissible for law enforcement officers to stop commercial vehicles without suspicion that any traffic offense has been committed. The Court adopts Judge Crow’s reasoning in Rios-Pinela that the warrantless inspection of commercial vehicles under the Kansas regulatory scheme is reasonable under the Fourth Amendment. On this basis, the initial stop was justified at its inception.

Having lost the motion to suppress, the government sought to reopen after Herring, which the court does not find controlling. The prior decision is adhered to. Moreover, the good faith exception does not apply because of the invalidity of the warrant and the officers’ failure to pay attention to it. United States v. Ryan, 2009 U.S. Dist. LEXIS 53644 (D. Vt. May 26, 2009):

Second, given the privacy interests in a person’s home and the extensive nature of the search here (the application for the search warrant described the scope of the search of Ryan’s home to include computers, related equipment, and records related to such equipment; books and magazines; originals, copies and negatives of photographs; motion pictures, videos, films and other recordings; envelopes, letters and other correspondence; books, ledgers or other records; credit card information; and records reflecting ownership of the premises, such as utility and telephone bills, mail or other correspondence) (see Attach. C, Application & Aff. for Search Warrant) (Doc. 1) the agents’ failure to even read the warrant constituted gross negligence.

This is a critical distinction from Herring. The law enforcement officers in Herring relied upon apparently reliable information that existed. In this case, the agents relied upon a facially invalid warrant that failed to particularly describe the items to be seized. Exclusion is appropriate where a “warrant was so lacking in the indicia of probable cause that an objectively reasonable officer should not have relied on it.” United States v. Lindsey, 596 F. Supp. 2d 55, 62 (D. D.C. 2009)(finding, post-Herring, that the good faith exception in Leon did not apply where “an objectively reasonable officer could not have relied on the warrant in this case” and suppressing evidence found in search of home where search warrant was based on stale evidence); see also United States v. Lester, No. 1:09cr00002, 2009 WL 902354, at *6-7 (W.D. Va. Apr. 1, 2009) (distinguishing Herring and finding that officers could not reasonably rely on search warrant because it was not based on probable cause).

The government cites Massachusetts v. Sheppard, 468 U.S. 981 (1984) to support its contention that the errors in the warrant here are the result of mere negligence and therefore do not warrant exclusion. See Gov’t Supp. Mem. (Doc. 97). Sheppard is easily distinguishable. …

By contrast, in this case the Magistrate Judge did not affirmatively assure Agent West that the search warrant was valid, and the agents did not take “every step that could reasonably be expected of them.” Agent West did not inform the Magistrate Judge that the face of the warrant failed to particularly describe the items to be seized. “The mere fact that the Magistrate issued a warrant does not necessarily establish that he agreed that the scope of the search should be as broad as the affiant’s request.” Groh, 540 U.S. at 561, n.4 (pointing out the difference between Groh and Sheppard because the officer in Groh “did not alert the Magistrate to the defect in the warrant.”). More importantly, the agents admitted that they did not read the warrant before executing it. At a minimum, this is one step that any officer would reasonably be expected to take before searching a person’s home. In short, Sheppard offers little support for the government’s position.

The government also asserts that suppression will not serve the exclusionary rule’s important purpose to deter future conduct because “the conduct here that gave rise to the error involved the judiciary and not the police.” Gov’t Mot. 7 (Doc. 80). Even assuming that the lack of particularity in the warrant was the Court’s error, the warrant was clearly invalid on its face and the agents “‘would have known that the search was illegal’ in light of ‘all of the circumstances.'” Herring, 129 S.Ct. at 703 (quoting Leon, 468 U.S. at 922 n.23); see also Groh, 540 U.S. at 561 n.4 (“Nor would it have been reasonable for [the officer] to rely on a warrant that was so patently defective, even if the Magistrate was aware of the deficiency.”). The agents here should have read the warrant, especially since they used the warrant to seize an assortment of items and documents.

Reasonableness standard of T.L.O. applies to seizures of the person by school officials. T.A. v. McSwain Union Elem. Sch. Dist., 2009 U.S. Dist. LEXIS 51306 (E.D. Cal. June 18, 2009):

The California Supreme Court’s reliance on the “arbitrary, capricious, or undertaken for purposes of harassment” standard does not apply in the Ninth Circuit to the Second Claim for Relief. In Shuman ex. rel. Shertzer v. Penn Manor School Dist., 422 F.3d 141, 148 (3rd Cir.2005), the Third Circuit rejected the application of the California Supreme Court standard to a Fourth Amendment challenge to a student’s seizure (being told to remain in a conference room under supervision for several hours), noting that the Fifth, Seventh and Ninth Circuits have applied a reasonableness standard to a seizure. The Third Circuit held:

We join these courts of appeals in finding seizures in the public school context to be governed by the reasonableness standard, giving special consideration to the goals and responsibilities of our public schools.

In Doe ex. rel. Doe v. Hawaii Dept. of Education, 334 F.3d 906, 908-909 (9th Cir.2003), cited by the Third Circuit, the Ninth Circuit held that a student’s “Fourth Amendment right to be free from an unreasonable seizure ‘extends to seizures by or at the direction of school officials'” and that “[i]n applying the Fourth Amendment in the school context, the reasonableness of the seizure must be considered in light of the educational objectives Keals was trying to achieve,” citing New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985)(considering the reasonableness of a search in a school). Doe was decided after the California Supreme Court decision and makes no mention of it. The standard in the Ninth Circuit interpreting federal law must be followed. See Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.2003)(neither a district court nor a three-judge panel may overrule a prior decision of the Court unless it has been “undercut by higher authority to such an extent that it has been effectively overruled”); see also Barapind v. Enomoto, 400 F.3d 744, 750-751 (9th Cir.2005) (a district court is bound to follow the holdings of the Ninth Circuit unless clearly in conflict with supervening authority.)

The motion to dismiss the Second Claim for Relief for unlawful seizure under the Fourth Amendment is DENIED.

Officers had RS defendant was armed based on information from a credible source, a fellow officer, who had allegedly seen it. United States v. Deneve, 2009 U.S. Dist. LEXIS 52892 (E.D. Wis. June 23, 2009)* [so why did not the court apply the “fellow officer rule” and not strain to get there?]

In a case involving a “rolling beachfront easement” after Hurricane Rita in Texas and whether beach erosion and state action afterward resulted in, inter alia, a Fourth Amendment seizure, the Fifth Circuit certifies the issue to the Texas state courts. The court finds the seizure issue ripe and present, but impossible to resolve under state law. Also, Fourth Amendment seizure and Fifth Amendment takings claims can be different things. Severance v. Patterson, 566 F.3d 490 (5th Cir. 2009):

The Officials preliminarily contend that any Fourth Amendment claim here is fully subsumed by Severance’s takings claim and is therefore not separately cognizable. We reject this contention. The Fourth Amendment applies to civil as well as criminal seizures, Freeman v. City of Dallas, 242 F.3d 642, 647 n.5 (5th Cir. 2001) (en banc), and the Supreme Court holds that an interference with individual property rights may be found to breach more than one provision of the Constitution. United States v. James Daniel Good Real Property, 510 U.S. 43, 49-50, 114 S. Ct. 492, 499 (1993). The Court has not specifically ruled that separate claims for constitutionally unreasonable seizure and taking of property may coexist, but the Fourth Circuit has so held. Presley v. City of Charlottesville, 464 F.3d 480, 487 (4th Cir. 2006). Further, this court has ruled more than once that substantive due process, procedural due process, equal protection and takings claims may be implicated simultaneously in various types of governmental actions that interfere with individual property rights. Simi Inv. Co. v. Harris County, 236 F.3d 240, 248-49 (5th Cir. 2000); John Corp. v. City of Houston, 214 F.3d 573, 584-85 (5th Cir. 2000). This court cautioned that substantive due process is not the “appropriate avenue of relief” for most landowner complaints, and that, with rare exceptions, takings clause “jurisprudence cannot be circumvented by artful pleading of substantive due process claims.” Simi Inv. Co. v. Harris County, 256 F.3d 323 (5th Cir. 2001) (per curiam), denying reh’g to 236 F.3d 240 (5th Cir. 2000). The reason for such expressed caution must be that a specific constitutional protection ought generally to control over claims made under the rubric of substantive due process. The Fourth and Fifth Amendments, however, both provide specific constitutional commands. That they may have evolved through caselaw to overlap in providing remedies for some deprivations of property interests does not authorize this court to fail to apply one or the other provision. Indeed, as Presley noted, the elements of a violation of the two amendments differ, with the touchstone of a takings claim being lack of just compensation and that of a seizure claim being its unreasonableness. 464 F.3d at 485. Further, § 1983 authorizes different damage measures for the claims.

The case produced this post on howappealing.com on April 24th:

Dissenting Fifth Circuit judge accuses Pacific Legal Foundation of tilting at windmills in a “thinly veiled Libertarian crusade” aimed at overturning state laws that arguably infringe on private property rights: From the start of his dissenting opinion issued yesterday (at page 22 of the PDF file), it appears that Circuit Judge Jacques L. Wiener, Jr. takes a dim view of the litigation strategy that the Pacific Legal Foundation is employing in challenging a Texas law known as the Open Beaches Act.

But the PLF appears to have the last laugh at this juncture, as the majority — in an opinion by Chief Judge Edith H. Jones — has reinstated one key aspect of the PLF-sponsored lawsuit in order to certify a question to the Supreme Court of Texas.

And this post on Volokh Conspiracy the same day: “Fifth Circuit Decision Illustrates Second-Class Status of Constitutional Property Rights.”

Officers reacted reasonably to their belief that there were explosives in a storage unit. While they talked to the storage company operator and he opened it, they could look inside without entering and they saw boxes marked “explosives.” A dog was called to sniff for explosives, and drugs were found. A warrant was obtained. Under the circumstances, once they had reason to believe their were explosives inside, the owner could do what he wanted. “Indeed, the owner testified that ‘I have the right to go into that unit if there’s any–you know, if there’s any emergency or anything of that nature or if there’s any reason to believe that there’s something, I guess, there that shouldn’t be there.’ In our view, the exigencies of the circumstances in fact would seem to require it.” United States v. Gregory, 311 Fed. Appx. 848 (6th Cir. 2009)* (unpublished).

Violation of the city noise ordinance justified defendant’s stop, and that led to the defendant’s arrest. The inventory search of defendant’s zippered bag was not unreasonable. United States v. Jemison, 310 Fed. Appx. 866 (6th Cir. 2009)* (unpublished).

A search warrant is not general just because it does not describe with complete specificity what the officers might find because they are not expected to know all that they might find or where they will have to look. United States v. Rodriguez-Jimenez, 2009 U.S. Dist. LEXIS 37044 (E.D. Pa. April 30, 2009):

Rather than authorizing unbridled “general exploratory rummaging in [Mr. Rodriguez-Jimenez’s] belongings,” … the warrants here did not vest the agents with unrestricted discretion to search for and seize whatever they wished. Instead, the attachments to the search warrants describe in detail the places to be searched and the types of documents and other items to be seized. To be sure, the law enforcement agents cannot (and are not expected to) know with precision the exact records or kinds of apparatus or instruments of crime that may be found — or the exact nook, cranny, drawer or shelf where the sought after evidence will be. Therefore, the Court is not obliged to be hyper-technical or overly demanding in its review of the degree of specificity of descriptions of the goods to be seized or the locations to be searched, as long as the descriptions are commensurate with the circumstances. United States v. Ventresca, 380 U. S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); …. Here, the descriptions in the search warrants for the Rodriguez-Jimenez house and mini-market were sufficiently focused to meet the requisite standards for upholding their validity.

A drive-off from a gas station without paying justified a stop by a National Park Service officer. United States v. Cheek, 586 F. Supp. 2d 1099 (D. Ariz. October 7, 2008, filed April 24, 2009).*

Under Knights, a probation search of defendant’s home need only be justified by reasonable suspicion. United States v. Carter, 566 F.3d 970 (11th Cir. 2009):

Unlike the defendants in Yuknavich and Knights, Carter was on probation for both a violent felony and a drug-related felony. As the Knights Court noted, the government’s interest in monitoring a probationer stems from a probationer’s propensity to commit more crimes, as well as a probationer’s motivation to hide the evidence of his crimes. In this case, where the probationer has a history of drug and violence-related felonies, the government’s interest in monitoring the probationer is particularly high. See, e.g., U.S.S.G. § 4B1.1(a) (providing enhanced penalties for criminals with history of drug felonies or crime of violence felonies).

Officers invited into defendant’s house could follow defendant to get his shirt and shoes and conduct a protective sweep of that area. United States v. Wright, 2009 U.S. App. LEXIS 8727 (11th Cir. April 24, 2009) (unpublished):

Wright voluntarily consented to allow officers to enter his house in order for him to retrieve his shirt and shoes thus providing the officers with a legal right to be in the kitchen. The purpose of the protective sweep of Wright’s kitchen was to secure it and investigate the officers’ reasonable suspicion of danger. They knew that Wright had previously kept weapons in his home and that Tolbert was in the house. The sweep did not last longer than necessary to dispel the reasonable suspicion of danger and obtain Wright’s clothing.

Officers had reasonable suspicion based on corroborated informant’s information that he had a gun. [Court discusses all the information they have and how it all fit together.] United States v. Hicks, 2009 U.S. Dist. LEXIS 34860 (E.D. Wis. April 24, 2009).*

Defendant was asked about guns in bedroom, and she must have understood that she was consenting to look for weapons. Looking in a drawer was not unreasonable. United States v. Reynolds, 2009 U.S. Dist. LEXIS 35136 (D. Me. April 21, 2009).*

Defendant had been effectively seized for Miranda purposes when he made incriminating statements about marijuana in his car, so his statements are suppressed. There was PC for his stop for speeding. United States v. $43,584.00 in United States Currency, 2009 U.S. Dist. LEXIS 28720 (D. Neb. April 3, 2009).*

On the question of coerced third party consent by a threat to get a search warrant, the government is allowed an opportunity to show what the probable cause was at the time the consent was given. United States v. Newman, 2009 U.S. Dist. LEXIS 28702 (W.D. Wis. April 3, 2009).*

The particularity of the search warrant was sufficient, and the officer’s familiarity with the property “obviated likelihood that another premises may have been mistakenly searched.” United States v. May, 2009 U.S. Dist. LEXIS 28588 (W.D. N.C. April 3, 2009)*:

When these documents are properly considered together, the resulting description of the property to be searched is particular enough “to enable the executing officer to locate and identify the premises with reasonable effort.” United States v. Durk, 149 F.3d 464, 465 (6th Cir. 1998) (quoting United States v. Gahagan, 865 F.2d 1490, 1496 (6th Cir. 1989)); see also United States v. Owens, 848 F.2d 462, 463 (4th Cir. 1988). Further, the officer’s familiarity with the premises to be searched obviated the likelihood that another premises may have been mistakenly searched. See Durk, 149 F.3d at 465. Because the warrant satisfied the particularity requirements of the Fourth Amendment, and was otherwise valid, this court need not reach the question of whether the good faith exception would apply to this case.

In a Kern County, California strip search case, the court finds that group strip searches were unreasonable under the Fourth Amendment. Inmates ordered released as a result of court appearances should not be strip searched when they return to the jail for processing out. Lopez v. Youngblood, 609 F. Supp. 2d 1125 (E.D. Cal. 2009).

Officer could answer cellphone when defendant had been arrested and the telephone lawfully seized. State v. Carroll, 2008 WI App 161, 314 Wis. 2d 690, 762 N.W.2d 404 (2008):

B. The detective properly answered the incoming cell phone call.

P27 The State argues that Belsha was constitutionally permitted to answer Carroll’s ringing cell phone. In his brief, Carroll did not address the State’s argument, except to reason that because he was not under arrest, Belsha did not have lawful [*15] possession of the cell phone and, therefore, could not answer it. There are no reported decisions in Wisconsin that resolve this question. At oral argument, the State provided additional authority for its assertion that an officer can answer a ringing phone under certain circumstances, citing United States v. De La Paz, 43 F. Supp. 2d 370 (S.D.N.Y. 1999).

P28 In De La Paz, the court denied the defendant’s motion to suppress evidence obtained after an FBI agent answered the defendant’s ringing cell phone at FBI headquarters, without a warrant, while agents were processing the defendant’s arrest. Id. at 371, 375-76. The court recognized that it was impracticable for the agents to get a warrant to answer the cell phone. Id. at 375-76. The court also observed that the defendant had been arrested for drug trafficking. Id. at 376. The court explained its holding:

Having arrested [the defendant] for narcotics conspiracy, the agents had probable cause to believe that calls to his cellular telephone–a common tool of the drug trade–would provide evidence of his criminal activity … and it was not unreasonable for the agents to “seize” that evidence without a warrant before it disappeared. Id. (citation omitted).

P29 We conclude that the rationale of De La Paz applies equally here. The detective was legally in possession of the cell phone when it rang because, as we have explained, it had been seized pursuant to a search incident to arrest. At the time it rang, the detective had probable cause to believe that Carroll may be involved in drug use because the detective had observed a photo of Carroll in plain view, smoking what appeared to be a marijuana blunt. Based on the detective’s training and experience, the detective was aware (as he stated in his affidavit for the search warrant), that “[d]rug traffickers frequently take, or cause to be taken, photographs of themselves, their associates in the drug trade, property acquired from the distribution of drugs and such photographs are often … [used to] personalize cellular telephones with such information.” It would have been impossible to obtain a warrant prior to answering the call. Under these circumstances, we conclude that it was not unreasonable for the detective to “‘seize’ that evidence [of the incoming call] without a warrant before it disappeared.” See id.

DUI roadblock was constitutional. Suspension of the roadblock three times because of heavy traffic backing up was based on traffic flow and not tied to any one vehicle or driver. Commonwealth v. Worthy, 598 Pa. 470, 957 A.2d 720 (2008):

The officers on the scene must continually observe and evaluate the net effect of all the interacting influences on traffic volume and flow through the checkpoint. The officers on the scene are the only ones who can integrate the effect of all the conditions on the ground and make an informed and educated decision as to when traffic conditions require temporary suspension of a checkpoint to ensure that safety is paramount and delay is reasonable.

When a gun was recovered from defendant in a shooting investigation, it was a reasonable conclusion that ammunition for the gun would be found in the defendant’s house, so that showed nexus for a search warrant for the house. The shooting was recent. Defendant was arguing against what would become a bright line rule. State v. Casarez, 2008 WI App 166, 314 Wis. 2d 661, 762 N.W.2d 385 (2008):

P18 There are several factors that distinguish this case from Sloan. First, Casarez’s connection to the residence to be searched did not come from a return address on a package as in Sloan; rather, it came from Casarez himself (and his wife). Second, unlike Sloan, who reported he was leaving the state for Florida the next day, making it “unlikely that contraband would be found at the residence,” id., P32, there is no suggestion here that Casarez was going anywhere (except to jail). Third, the search warrant in Sloan sought evidence of items to show who was in control of the premises, relating to the crime of maintaining a drug house, but the affidavit in support did not present evidence to show the premises was. Id., P35. Whereas in the instant case, the search warrant was considerably narrower: “The objects of the search … may constitute evidence of crimes, to wit: 1st degree reckless endangering safety while armed and felon in possession of a firearm.” Fourth, unlike the failure in the Sloan affidavit to justify a search for evidence of a drug house, the affidavit here shows substantial probable cause tending to show that Casarez was involved in those particular crimes named, hours before his arrest. Finally, Sloan is distinguishable from the instant case because it addressed the good faith exception. We do not reach the good faith doctrine in the instant case because we have concluded that the affidavit in support of the search warrant supports a finding of probable cause. In the instant case, unlike in Sloan, the affidavit contained a reasonable inference to connect the items sought with the residence searched. Based on all of these factors, we conclude that Sloan does not control.

Videotape of defendant’s traffic stop would not be suppressed just because he had not been Mirandized at the time of the FST. He was stopped for a traffic infraction and reasonable suspicion permitted the FST. State v. Summers, 2008 Tenn. Crim. App. LEXIS 807 (October 13, 2008).*

Defendant had a privacy interest in a zippered bag he was carrying. When the police seized the bag at the time of his arrest, it could not be searched incident to his arrest at police headquarters when he was taken in. United States v. Scott, 2009 U.S. Dist. LEXIS 52431 (S.D. N.Y. June 8, 2009):

However, the search-incident-to-arrest exception does not justify the search of the backpack at the USPIS headquarters after it had been taken from Scott and reduced to the inspectors’ exclusive control. “Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” United States v. Chadwick, 433 U.S. 1, 15 (1977), overruled on other grounds by California v. Acevedo, 500 U.S. 565 (1991).

The subjective motive for a stop is irrelevant, and the frequency of stops adds nothing to that. United States v. Aranda-Diaz, 2009 U.S. Dist. LEXIS 52749 (D. N.M. May 31, 2009)*:

Under the standard from United States v. Botero-Ospina, the frequency with which Linson makes traffic stops or issues citations is not relevant to the validity of the stop. Moreover, Linson’s ulterior motive to investigate other illegal activity is not alone sufficient to invalidate a traffic stop based on an observed traffic violation. Rather, under the circumstances, Linson was justified in pulling Aranda-Diaz over after observing the red-light violation.

Defendant lacked “standing” to suppress a court ordered search in a civil counterfeit goods case where the place where the goods were found were apartments he claimed were not his. He had no privacy interest in the places where the evidence was found. Quiksilver, Inc. v. Tito’s Perfumes, 2009 U.S. Dist. LEXIS 46014 (D. P.R. May 29, 2009) (The court applies the Fourth Amendment without discussion because the court authorized the search and seizure considering “plaintiff’s agents and the U.S. Marshal” conducted the search.)

Under the Fifth Circuit rule that the good faith exception can be considered instead of probable cause (United States v. Payne, 341 F.3d 393, 399 (5th Cir. 2003); United States v. Pena-Rodriguez, 110 F.3d 1120, 1129-30 (5th Cir. 1997)), the court finds that the good faith exception applies to a search with a particularity issue where the warrant covered 436 and 438 but only 438 should have been searched. United States v. Rangel, 2009 U.S. Dist. LEXIS 46130 (N.D. Tex. June 2, 2009). The court thus merged the particularity question into GFE:

Therefore, viewed together with the expressly incorporated affidavit, the search warrant was sufficiently particular to permit the executing officers reasonably to have presumed it to be valid. Accordingly, the government has established that the executing officers’ reliance on the warrant was objectively reasonable and in good faith, and that Rangel’s motion must be denied based on the good-faith exception.

When the government says it will not offer evidence in response to a motion to suppress, the motion is moot. United States v. Davidson, 2009 U.S. Dist. LEXIS 46285 (E.D. Tenn. June 2, 2009) (government also argued no standing).*

Questioning in a jail is not analogous to Muehler‘s questioning about immigration status, so there was no Fourth Amendment detention from that. United States v. Owuor, 2009 U.S. Dist. LEXIS 46011 (M.D. Ala. May 20, 2009).*

Defendant’s consent after a traffic stop was valid. The officer wrote a citation and told the defendant “You’re good to go,” and then asked if he could ask more questions, and the defendant said “Yes, you may.” United States v. $231,930.00 in United States Currency, 2009 U.S. Dist. LEXIS 46262 (D. Neb. February 27, 2009).*

There is no federal or constitutional right to be presented with a search warrant at the time the search begins. Here, the officers who obtained the warrant called ahead to the searching officers to say they had it. There was also probable cause and nexus to the premises. State v. Quinones, 2009 Ohio 2718, 2009 Ohio App. LEXIS 2264 (8th Dist. June 11, 2009).

Handcuffing with reasonable suspicion here did not amount to an arrest [after finding that there was probable cause and stating afterward there was probable cause]. The smell of marijuana coming from the car during a valid stop was probable cause for a search [citing Gant, which is wrong because this is not a search incident; the PC is in the car. New cases often excite appellate judges]. State v. Hopper, 2009 Ohio 2711, 2009 Ohio App. LEXIS 2263 (8th Dist. June 11, 2009).*

Defense counsel was not ineffective for not challenging a search of a house that defendant had no connection to other than mere presence at the time of the raid because he was not an overnight guest. “His mere presence is not sufficient to give him the capacity to challenge the constitutionality of the search of the Bye Street house. Thus, Mr. Oliver has failed to carry his burden to show that a valid basis existed to suppress evidence of the crack cocaine and the ‘ripped-off baggies’ police found in the vanity beside him” WHERE HE WAS SLEEPING. State v. Oliver, 2009 Ohio 2680, 2009 Ohio App. LEXIS 2254 (9th Dist. June 10, 2009).*

The officer here responded to a call about a fight and argument in a car, and he came upon the car and saw a sheet covering something in the backseat. He could pull up the sheet, which was a search, but it was reasonable, and it revealed defendant with a gun in plain view. State v. Wilson, 2009 Ohio 2744, 2009 Ohio App. LEXIS 2318 (2d Dist. June 5, 2009):

[*P16] When Officer Allen opened the rear passenger door of the vehicle and pulled the sheet back to see who was underneath it, he engaged in a search of that vehicle. At that time the following facts and circumstances were known. Officer Allen was performing his duty to investigate the police dispatch that involved a man and a woman inside a vehicle in front of that apartment complex who were arguing or fighting. The female passenger in the vehicle stated that her boyfriend was in the back of the vehicle. Officer Allen observed something that resembled a human body on the rear floor of the vehicle underneath a sheet or blanket.

[*P17] The totality of these facts and circumstances, and the inferences reasonably drawn from them, are sufficient in our opinion to give rise to a reasonable suspicion or belief that criminal activity was afoot, or that the person under the blanket might be in distress and in need of immediate assistance or aid. That is sufficient to permit a prudent officer in those circumstances to investigate those matters without a warrant pursuant to Terry or the exigent/emergency circumstances exception. State v. Taylor (2001), 144 Ohio App.3d 255, 759 N.E.2d 1281; State v. Sharpe, 174 Ohio App.3d 498, 2008 Ohio 267, 882 N.E.2d 960.

Defendant lawfully stopped for a traffic offense could be ordered from the car. Here, the defendant consented to a patdown. [Like he really knew that he could not consent?] State v. Lett, 2009 Ohio 2796, 2009 Ohio App. LEXIS 2377 (11th Dist. June 12, 2009).*

Officer could follow defendant in hot pursuit into house to arrest him for menacing. State / City of Toledo v. Colbert, 2009 Ohio 2766, 2009 Ohio App. LEXIS 2343 (6th Dist. June 12, 2009).*

Officer approached a house during a warrant sweep and saw defendant leaning against a car, and he frisked him. The frisk was without legal justification as was the alleged plain feel, as was the search of the car. Even if the search of the person was valid, the car search was not. It was lawfully parked in his driveway, so an inventory was not reasonable. There was also no showing he was a recent occupant of the car. State v. Clay, 2009 Ohio 2725, 2009 Ohio App. LEXIS 2225 (8th Dist. June 11, 2009).

Defense trial strategy was to deny ownership of a bag defendant claimed he found, which was consistent with defendant’s denials. Therefore, it was logical to not file a motion to suppress and rely on lack of ownership, so no IAC. State v. Davis, 2009 Ohio 2881, 2009 Ohio App. LEXIS 2418 (8th Dist. June 18, 2009).*

A 24 minute detention on RS was reasonable before a dog sniff. State v. Graham, 2009 Ohio 2814, 2009 Ohio App. LEXIS 2394 (12th Dist. June 15, 2009).*

Defense counsel could not be ineffective for not raising a meritless search and seizure issue. Sias v. United States, 2009 U.S. Dist. LEXIS 51521 (S.D. Tex. June 18, 2009).*

The court credits the officers’ testimony that the defendant consented to a search of his house. United States v. Jones, 2009 U.S. Dist. LEXIS 51543 (E.D. Pa. June 12, 2009)*; United States v. Hynson, 2009 U.S. Dist. LEXIS 51574 (E.D. Pa. June 11, 2009).*

Safford Unified School District #1 v. Redding, 08-479, argued April 21 (ScotusWiki) this year’s school strip search, is due out this week (10 cases remain), June 30 at the latest. Mondays, of course, at the usual decision days, except when they are jammed up at the end of the Term.

This case caused Justice Ginsburg to comment that the Court needs another woman.

Update, 10:10 ET: Not today.

Defendant did not abandon a shopping bag he left in a motel room that was not his. An officer asked about another person, and he went into the motel room to get her, leaving the bag behind. The officer illegally entered the room and searched the bag. State v. Jones, 2009 Ohio 61, 2009 Ohio App. LEXIS 46 (2d Dist. January 9, 2009).*

Plain feel did not justify seizure of lump from defendant’s pocket that officer could not identify as contraband. State v. Lawson, 2009 Ohio 62, 180 Ohio App. 3d 516, 906 N.E.2d 443 (2d Dist. 2009).*

Police had information that defendant was involved with the property targeted by a search warrant to detain him when he was seen nearby. State v. Jacobs, 2009 Ohio 68, 2009 Ohio App. LEXIS 78 (4th Dist. January 6, 2009).*

Defendant’s clothing could be searched when he was in custody under Edwards. State v. Muquit, 381 S.C. 114, 671 S.E.2d 643 (2009).*

Defendant’s leaving belongings by side of the road was a waiver of his reasonable expectation of privacy. The fact the defendant may have thought he would get back to them did create a reasonable expectation of privacy. Commonwealth v. Nattoo, 452 Mass. 826, 898 N.E.2d 827 (2009), aff’g [and essentially adopting] Commonwealth v. Nattoo, 70 Mass. App. Ct. 625, 876 N.E.2d 431 (2007), posted here:

The judge rejected the Commonwealth’s argument that the police conducted a proper inventory search. The search was not permissible as an inventory search because, she concluded, the bags searched were not in the possession of, or carried by, the defendant at the time of his arrest. In addition, Officer Crevier failed to follow the department’s inventory policy by preparing a written inventory report at the time he searched the bags or at the time he arrived at the police station with the bags. The judge concluded that the search was a pretext for a general investigatory search, and allowed the defendant’s motion to suppress the handgun.

The Appeals Court reversed, concluding that there was no search in the constitutional sense because “the defendant could not reasonably have expected that bags he left by the side of a street would remain insulated from examination by any member of the public, including the police.” Commonwealth v. Nattoo, 70 Mass. App. Ct. 625, 626, 633, 876 N.E.2d 431 (2007). Thus, as reasoned by the Appeals Court, the defendant was unable “to establish that his subjective expectation of privacy was [objectively] reasonable,” a component necessary to a protected expectation of privacy. Id. at 630. See Commonwealth v. Montanez, 410 Mass. 290, 301, 571 N.E.2d 1372 (1991).

A traffic stop does not require a Miranda warning under Berkemer. State v. Chrzanowski, 2008 Ohio 6993, 180 Ohio App. 3d 324 (11th Dist. 2008).*

Officer’s forcing way in, breaking the latch, after responding to a 911 hang up call where the occupants refused to answer repeated knocks at the door and denied calling and lied about others being was all reasonable. Clark v. Pielert, 2009 U.S. Dist. LEXIS 126 (D. Minn. January 5, 2009),* relying on United States v. Najar, 451 F.3d 710, 712-20 (10th Cir. 2006), with similar facts.

While it is true that the officers observed a furtive movement five minutes before they did anything about it, as confirmed by the video of the stop, that did not moot the furtive movement in the reasonable suspicion calculus. The court also rejects the notion that flight is an expected response to a frisk. United States v. Hardy, 2009 U.S. Dist. LEXIS 51106 (N.D. Iowa June 17, 2009):

Although the squad car video indicates the officers seemed unconcerned in their dealings with the van, the court finds that a reasonably prudent person under these circumstances would be warranted in believing his safety or that of others was in danger. After all, the CRPD narcotics unit had informed the officers that one of the occupants was involved in a drug transaction. When an individual is suspected of drug involvement, it is reasonable for a police officer to believe that the individual may be armed and dangerous. United States v. Robinson, 119 F.3d 663, 667 (8th Cir. 1997); see also United States v. Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005) (“Because weapons and violence are frequently associated with drug transactions, it is reasonable for an officer to believe a person may be armed and dangerous when the person is suspected of being involved in a drug transaction.”).

Defendant had standing to challenge the search of a bedroom in which he stayed, particularly since the government intended to prove that he stayed there to connect him to what was found there. The SW authorized the search of the “entire residence and all curtilage known as 2302 N. Market Street” [emphasis in original], and, when compared to the statement of probable cause in the affidavit for the warrant, there was no specific reason to limit the search to places within the house because the PC extended to the entire residence. United States v. Watson, 2009 U.S. Dist. LEXIS 51156 (D. Del. June 18, 2009).*

Since USMJs have the “awesome power” to issue search warrants, they also have the lesser power to order return of the seized property under Rule 41(g). Here, the claimant fails because he has not shown that the government’s retaining the property was unreasonable. Even a procedural failure would not be enough because it likely would not result in suppression under Hudson. In re 3765 Kettle Court E., Delafield, Wisconsin, 2009 U.S. Dist. LEXIS 51239 (E.D. Wisc. May 29, 2009).

Defendant was stopped and parole searched twice in 24 hours by the same police officer. Defendant did not show that the search was harassing because the officer had reason to believe defendant was in possession when he was seen the second time. People v. Sardinas, 170 Cal. App. 4th 488, 87 Cal. Rptr. 3d 896 (2d Dist. 2009):

In this case, the trial court heard the testimony of Officer Samuels at the hearing on defendant’s motion to suppress and concluded that the December 21 search in the convenience store parking lot was conducted for a legitimate law enforcement purpose and not to harass. There is substantial evidence in the record to support that conclusion. The search in question was conducted directly across the street from an apartment complex known to Officer Samuels as a location where drug trafficking occurred. Officer Samuels also knew defendant was on parole for a drug possession conviction and had observed defendant associating with known drug addicts in the past. According to the trial court, there was no evidence that Officer Samuels harbored any animus toward defendant, and there was evidence that part of Officer Samuels’s job was to know the identities of parolees in the City and to patrol areas known for drug trafficking. Therefore, the evidence presented at the hearing on the motion to suppress supported a reasonable inference that Officer Samuels was acting with a legitimate law enforcement purpose when he searched defendant on December 21.

Defendant focuses on the traffic stop the night before the search in question, the ensuing searches of defendant’s person, van, and house, and the results of those searches that produced nothing illegal or suspicious. According to defendant, based on those searches, there was no legitimate reason to stop and search defendant less than 24 hours later as he walked through a convenience store parking lot. The gist of defendant’s argument is that the temporal proximity between the December 20 and 21 searches, when combined with Officer Samuels’s prior six or seven contacts with defendant, belies any legitimate purpose for the search on December 21 and compels the conclusion that the search was harassing. We disagree.

Dangling pine tree air freshener hanging from rear view mirror justified a traffic stop based on the officer’s testimony it blocked view out windshield. United States v. McKissic, 2009 U.S. Dist. LEXIS 4019 (W.D. Mich. January 21, 2009).*

Defendant’s live-in girlfriend consented to a search of her premises, so defense counsel was not ineffective for not challenging the search under Strickland. United States v. Moses, 2009 U.S. Dist. LEXIS 4083 (E.D. Wis. January 9, 2009).*

Defendant’s “generalized objection in the introductory sentences of his objection [to USMJ’s R&R] … is insufficient to prevent waiver.” “Regardless of waiver, Salahuddin would not prevail on his motion for suppression of physical evidence because the government met its burden of proving consent to the search. The court finds that Rose consented to a search of the apartment. Therefore, the physical evidence uncovered during the search may be properly admitted into evidence.” United States v. Salahuddin, 607 F. Supp. 2d 930 (E.D. Wis. 2009).*

Putting property in somebody else’s basement was a waiver of an expectation of privacy. Commonwealth v. Williams, 453 Mass. 203, 900 N.E.2d 871 (2009):

In applying these factors to this case, we conclude that the judge ruled correctly that the defendant lacked a reasonable expectation of privacy in the basement area in which she had deposited some possessions. The defendant clearly did not own the area, nor did she have a lease or other property interest. She lacked permission to stay there. Nor did she control access to the area: the tenants of the building used the basement for storage; members of the defendant’s family had access for maintenance or other purposes; and other people apparently could enter, as the police did, by going through an unlocked door. The judge was correct to conclude that any subjective expectation of privacy the defendant may have had was not objectively reasonable. See Commonwealth v. Welch, supra at 654 (no reasonable expectation of privacy where defendant shared room in common with other fire fighters and lacked ability to exclude others from room); Commonwealth v. Montanez, supra at 301-302 (even if defendant had subjective expectation of privacy in space above hallway ceiling, expectation not reasonable where hallway was common area open to public and defendant neither owned nor controlled space). See also Commonwealth v. Hawkins, 139 F.3d 29, 32 (1st Cir.), cert. denied, 525 U.S. 1029 (1998) (“It is now beyond cavil in this circuit that a tenant lacks a reasonable expectation of privacy in the common areas of an apartment building”). Once it is determined that the defendant had no reasonable expectation of privacy in the basement area, she cannot challenge the police action that occurred there.

Private searchers’ replacement of the evidence did not “resuscitate” a reasonable expectation of privacy. State v. Rowley, 2009 UT App 33, 623 Utah Adv. Rep. 27, 204 P.3d 198 (2009):

[*P10] In the instant case, just as in Jacobsen, Mithun, and State v. Miller, 2004 UT App 445, 104 P.3d 1272, the private party who performed the original search effectively “resealed” the container in which the evidence was found. We agree with the Mithun court that a private party’s replacement of the items back into a vehicle is no more significant than the items having been found in a mailed package and replaced therein. Rowley’s expectation of privacy in the contents of his truck was lost when his parents searched his truck and seized the evidence. Father’s replacement of the evidence back into the truck in no way resuscitated Rowley’s expectation of privacy, especially in light of the fact that Father had already informed the authorities of the evidence’s existence and where it was located. The Officer’s subsequent search of the truck was therefore not a violation of Rowley’s constitutional protections, unless it exceeded the scope of the prior search performed by Father and Mother.

The Eleventh Circuit held that a 21 day delay in getting a search warrant for a computer hard drive was unreasonable, and suppressed child pornography found on the hard drive. Entering the CPU was not a search, but it was a violation of a possessory interest. United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009):

While the disassembling of the CPU did not constitute a search of a container in which Mitchell had a reasonable expectation of privacy, it did constitute an interference with his possessory interest. So too would the seizure of the entire computer to ensure that the hard drive was not tampered with before a warrant was obtained. Yet Mitchell correctly concedes that such a seizure would not have violated the Warrant Clause. Texas v. Brown, 460 U.S. 730, 749-50, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983) (Stevens, J., concurring); United States v. Jacobsen, 466 U.S. 109, 121, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984); United States v. Martin, 157 F.3d 46, 53 (2d Cir. 1998); see also United States v. Hernandez-Cano, 808 F.2d 779, 782 (11th Cir. 1987). Under these circumstances, to borrow a phrase from the Supreme Court in an analogous case, which would have been “the ‘greater’ and which the ‘lesser’ intrusion is itself a debatable question.” Chambers v. Maroney, 399 U.S. 42, 51, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970).

But while the initial seizure of the hard drive was permissible, even “a seizure lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests protected by the Fourth Amendment’s prohibition on ‘unreasonable searches.'” Jacobsen, 466 U.S. at 124. Thus, “even a seizure based on probable cause is unconstitutional if the police act with unreasonable delay in securing a warrant.” Martin, 157 F.3d at 54; see also United States v. Respress, 9 F.3d 483, 488 (6th Cir. 1993) (“even with the existence of probable cause to effect a seizure, the duration of the seizure pending the issuance of a search warrant must still be reasonable.”). The reasonableness of the delay is determined “in light of all the facts and circumstances,” and “on a case-by-case basis.” Mayomi v. United States, 873 F.2d 1049, 1054 n.6 (7th Cir. 1989). “[T]he reasonableness determination will reflect a ‘careful balancing of governmental and private interests.” Soldal v. Cook County, 506 U.S. 56, 71, 113 S. Ct. 538, 121 L. Ed. 2d 450 (1992); see also United States v. Prevo, 435 F.3d 1343, 1345 (11th Cir. 2006).

Computers are relied upon heavily for personal and business use. Individuals may store personal letters, e-mails, financial information, passwords, family photos, and countless other items of a personal nature in electronic form on their computer hard drives. Thus, the detention of the hard drive for over three weeks before a warrant was sought constitutes a significant interference with Mitchell’s possessory interest. Nor was that interference eliminated by admissions Mitchell made that provided probable cause for the seizure. As the United States magistrate judge observed: “A defendant’s possessory interest in his computer is diminished but not altogether eliminated by such an admission for two reasons: (1) a home computer’s hard drive is likely to contain other, non-contraband information of exceptional value to its owner, and (2) until an agent examines the hard drive’s contents, he cannot be certain that it actually contains child pornography, for a defendant who admits that his computer contains such images could be lying, factually mistaken, or wrong as a matter of law (by assuming that some image on the computer is unlawful when in fact it is not).” United States v. Mitchell, CR407-126, 2007 U.S. Dist. LEXIS 74349, 2007 WL 2915889, at *7 (S.D. Ga. 2007).

While the possessory interest at stake here was substantial, there was no compelling justification for the delay. …