GPS signal from bank robbery bait pack led police to stop a bus with the defendant on it, and it was reasonable under the Fourth Amendment. United States v. Kelly, 2009 U.S. Dist. LEXIS 34191 (D. Minn. April 14, 2009).*

Six week old information in a marijuana grow case was not stale. United States v. Springer, 2009 U.S. Dist. LEXIS 34121 (N.D. W.Va. April 20, 2009).*

Court concludes that defendant’s witnesses that defendant did not sufficiently understand English to consent to a search were not believable because of their admitted prior lies and criminal records. United States v. De La Torre, 2009 U.S. Dist. LEXIS 33437 (N.D. Okla. April 20, 2009),*

Administrative health warrant to determine whether plaintiff’s home was habitable was properly issued and with probable cause. Eisenberg v. Wall, 607 F. Supp. 2d 248 (D. Mass. 2009).*

Apparent hand-to-hand drug transactions in a high crime area was sufficient to his detention. That led to information which justified his arrest for reentering after removal. United States v. Lopez-Garcia, 565 F.3d 1306 (11th Cir. 2009).*

Ending a bureaucratic turf war, the federal government is about to announce that border patrol officers will be able to make drug arrests. See WaPo.com: U.S. to Let Immigration Agents Make Drug Arrests.

Incorporation of affidavit by reference is all that is constitutionally required, not incorporation, particularly where the government is seeking to protect the informant’s identity for a while. Here, the officers seeking the warrant were the ones executing it, so they were aware of the limitations on the warrant. Groh leaves this distinction unresolved. State v. Browne, 291 Conn. 720 (May 26, 2009), rev’g State v. Browne, 104 Conn. App. 314, 933 A.2d 735 (2007) (posted here):

In view of the current state of the law on this subject, we believe the correct approach does not require incorporation and accompaniment in every situation. For instance, in a case such as this one, when the warrant application and affidavit are placed under seal to protect the identity and safety of a confidential informant, it is, in our view, well within constitutional limits to determine the particularity of the warrant in light of the supporting documentation as long as it is incorporated explicitly by reference.

A further, related distinction between Groh and this case is the actual knowledge of the parties involved. The federal agents in Groh, as the affiants, were well aware of the contents of the warrant application and the particular items sought, and stated that they orally described the objects of the search to the respondents. The respondents, however, averred that they were given oral notice only that the agents were searching for “an explosive device in a box.” (Internal quotation marks omitted.) Groh v. Ramirez, supra, 540 U.S. 555. Thus, in Groh, there was a real question as to whether the targets of the search ever were made aware of the legitimate objects of the agents’ search. The court was troubled by this issue because the warrant, and the agents’ recitation of its contents, apparently failed to “[assure] the individual whose property [was] searched … of the lawful authority of the executing officer, [the officer’s] need to search, and the limits of his power to search.” (Internal quotation marks omitted.) Id., 561. …

In the present case, by contrast, it is clear that both the officers and the defendant were well aware of the items sought under the warrant. …

In a child porn case, nexus was shown by the fact child pornography is kept for a long time, and it would be kept in the defendant’s house. Particularity was satisfied by the address and color of the house. State v. Burda, 2009 Tenn. Crim. App. LEXIS 391 (May 4, 2009).*

The officer came to a house based on a domestic violence call and attempted to talk to one of the occupants outside, but the neighbors came to kibitz and the officer could not talk with the caller. Frustrated, he asked if they could go inside, and there he could smell marijuana and see some in the living room. Appellant was called, and, on a cell phone speakerphone, he consented to an entry of all but the bedroom. Based on the initial consent entry, the officer had PC for a search warrant. State v. Whitehead, 2009 Tenn. Crim. App. LEXIS 385 (May 22, 2009).*

Defendant was not in custody by NCIS when she gave a statement admitting to killing her daughter. United States v. Manning, 312 Fed. Appx. 34 (9th Cir. 2009)* (unpublished):

Considering these factors, a reasonable person in Manning’s situation would have felt free to terminate the interview and leave. The language used to summon Manning was not indicative of someone in custody. Manning voluntarily accompanied the agents to NCIS offices after a professional and non-threatening summons and her refusal of the invitation by the officers to let her drive separately. While Manning may have been confronted with evidence of her guilt, this is not the case where the agents repeatedly called her a liar, confronted her with misleading evidence, and pressed her for the truth.

Defendant who did a drug deal as a passenger in a vehicle had no standing to challenge the search of the truck. Marshall v. State, 198 P.3d 567 (Alas. App. 2008).*

Crossing the white line is RS for a stop in Ohio. State v. Clark, 2009 Ohio 529, 2009 Ohio App. LEXIS 441 (2d Dist. February 6, 2009).*

Defense counsel’s decision not to reopen suppression hearing was strategic under Strickland after consulting with a private investigator about the case. Brown v. United States, 2009 U.S. Dist. LEXIS 49308 (D. Me. June 8, 2009)*:

I am confident that had counsel notified the court and/or moved to reopen the suppression hearing based on the information gleaned from the private investigator he would have been firmly rebuffed; quibbling with the court about the credibility of a witness at the suppression hearing with less than one month to go until trial would not have been a successful tactic. “Counsel is not required to waste the court’s time with futile or frivolous motions.” United States v. Wright, 573 F.2d 681, 684 (1st Cir. 1978); see also United State v. Hart, 933 F.2d 80, 83 (1st Cir. 1991) (“[S]everal First Circuit cases have upheld counsel’s right to ignore frivolous claims pressed by clients.”).

Defendant was free to leave when he consented, and the court credits the officer’s testimony that consent was voluntary. United States v. Strong, 2009 U.S. Dist. LEXIS 49283 (E.D. Mich. June 11, 2009).*

Defendant’s IAC claim defendant failed to move to dismiss for an illegal arrest under Payton “falls flat on its face” because defendant’s arrest was in a social club. The gun was found in a valid search incident under Chimel. Lee v. United States, 2009 U.S. Dist. LEXIS 49253 (W.D. Mich. June 11, 2009).*

Inconsistencies in officers’ testimony on plain view showed government failed in its burden of proof on defendant’s warrantless search. “[W]hile [the court] finds that the initial stop of Defendant’s vehicle was lawful, it does not find that the Government has demonstrated that the firearm was in plain view at the time it was seized, and will accordingly grant Defendant’s motion to suppress the firearm.” United States v. Williams, 2009 U.S. Dist. LEXIS 48066 (D. N.J. June 3, 2009):

Put simply, the Court finds Defendant’s testimony that the firearm was kept out of sight under the driver’s seat to be more credible than the officers’ contention that the gun was in plain view on the console.

Several considerations inform this determination. First, the testimony of Officer Galiazzi and Officer Diaz on the matter of where they observed the firearm in plain view was irreconcilably inconsistent. …

The location of the handgun was not the only point of irreconcilable inconsistency between Officer Galiazzi’s and Officer Diaz’s testimony as to the events surrounding this arrest. While Officer Galiazzi testified that Mr. Smith was released at the scene upon the officers’ verification that no outstanding arrest warrants existed for Mr. Smith’s arrest, Officer Diaz testified that Mr. Smith was driven to the police station by one of the arresting officers. Each officer personally recalled having driven alone with Defendant from the scene of the arrest to the police station, and each even testified to statements Defendant allegedly made to him while being transported. Both versions cannot be true, as only one officer could possibly have driven Williams and personally heard his statements that night. At least one officer has therefore testified to Williams having a conversation with the officer that could not have happened. These are not trivial discrepancies, but are, instead, fundamental facts concerning the events of February 24, 2008. The officers’ inconsistent testimony on these matters, together with their conflicting testimony as to the more fundamental question of the location of the firearm, erodes the Court’s confidence in the accuracy of the officers’ recollection of these events, and undermines the persuasiveness of the officers’ testimony.

[I’ve never had officers do that in a suppression hearing. It seemed always “close enough for government work.”]

Defendant stipulated (and there was) probable cause to believe that the defendant’s car was involved in a crime and it was properly seized without a warrant. The search thereafter with a SW issued on that PC was valid. State v. Sells, 112 Conn. App. 775, 964 A.2d 97 (2009).*

The officer received a shots fired call without detail, and he responded and stopped the defendant based on the defendant’s body language. The stop was without reasonable suspicion. People v. Linley, 328 Ill. Dec. 131, 903 N.E.2d 791 (Ill. App. 2009).*

Calling a pharmacist to find out what a pill was that was observed during an inventory was not a seizure. Opening the pill bottle was reasonable under the inventory policy as well under state law and the Fourth Amendment. The further step of finding out what it was was not unreasonable. George v. State, 2009 Ind. App. LEXIS 280 (February 24, 2009):

Analytically, we disagree with the Bastin court’s description of subjecting the pill to laboratory analysis as a seizure. Within the meaning of the Fourth Amendment, a “seizure” occurs when a state actor meaningfully interferes with an individual’s possessory interest in property, and a “search” occurs when an expectation of privacy that society is prepared to recognize as reasonable is infringed. United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). Subjecting a lawfully seized item to testing is properly described, then, not by invoking the language of “seizure” (the item has already been seized, and it is therefore difficult to see how the individual’s possessory interest could be further diminished), but by analyzing whether the testing constitutes a search; that is, whether the state actor has infringed on an objectively reasonable expectation of privacy.

Officers received an anonymous report of drug dealing on a city street, and they responded. They got inside to talk to defendant about it and ran warrants on him. The stop and entry were all without reasonable suspicion and suppressed. People v. Martinez, 200 P.3d 1053 (Colo. 2009).*

Plaintiff who was detained under an order to serve 135 day sentence was lawfully detained, and fingerprinting and processing did not violate the Fourth Amendment. Wormley v. United States, 601 F. Supp. 2d 27 (D. D.C. 2009).*

The All Writs Act, 28 U.S.C. § 1651, permits the government to seek fingerprints from the defendant, and probable cause is not required, although it is present. United States v. Davis, 2009 U.S. Dist. LEXIS 13965 (N.D. Ind. February 20, 2009).*

Defendant’s crossing the fog line while being followed justified the stop. The dog sniff was reasonable within the time of a normal stop. United States v. Carrasco-Ruiz, 2008 U.S. Dist. LEXIS 107394 (D. S.D. August 8, 2008).*

Defendant failed to show that he had a reasonable expectation of privacy in a common hallway of an apartment building. Officers were there to arrest him, and they knocked on the apartment door without announcing their presence, which was reasonable under the circumstances because of the risk of use of a gun. The officers’ plain view when the door was opened was reasonable. United States v. Bedell, 311 Fed. Appx. 461 (2d Cir. 2009) (unpublished).*

Search incident of a car for driving on a suspended license, the stop for failing to dim lights, was valid. State v. Davison, 41 Kan. App. 2d 140, 202 P.3d 44 (2009).*

Defendant was approached on the street by a uniformed officer because the officer did not recognize the defendant and because of robberies in the neighborhood. He told the defendant to get his hands out of his pockets and a gun was dropped. The stop was invalid for lack of RS. People v. Jackson, 906 N.E.2d 56 (Ill. App. March 30, 2009).*

Defendant’s stop was without reasonable suspicion. All the factors listed by the state were found by the trial court to be as consistent with innocent conduct as potential criminal conduct. State’s argument that defendant was subjected to a parole stop was waived for not presenting that argument to the trial court. People v. Vasquez, 2009 Ill. App. LEXIS 171 (February 11, 2009).*

Reasonable suspicion defendant was involved in a gang shooting justified a Long protective frisk of the car defendant was riding in. [Standing issue did not need to be resolved.] People v. Johnson, 2009 Ill. App. LEXIS 157 (January 8, 2009):

Thus, the narrow question before this court is whether a police officer, who has reasonable suspicion to believe that an individual was involved in a shooting that has just occurred, may conduct a limited protective search of the passenger compartment of a vehicle that the officer has just seen the individual get out of. We find that under those circumstances, consistent with Terry and Illinois law, a limited protective search of the passenger compartment of the vehicle for weapons is proper. See Long, 463 U.S. at 1049, ….

Audio of a controlled buy is protected by the informant privilege. Also, the court seems skeptical that it would satisfy the requirement of information for the “defense” because the controlled buy was only used to get the search warrant and the product of the search is what he is being prosecuted for. Finally, it seems speculative that it would provide anything because he has yet to file a motion to suppress [despite the chick-egg rationale?]. United States v. Parks, 2009 U.S. Dist. LEXIS 48308 (E.D. Tenn. June 9, 2009):

The government argues the audio recording of the controlled buy is neither relevant nor material to the preparation of the defendant’s defense and therefore is not discoverable. “[I]n the context of Rule 16, ‘the defendant’s defense’ means the defendant’s response to the Government’s case in chief.” United States v. Armstrong, 517 U.S. 456, 462 (1996) (addressing when the government under Rule 16 must produce tangible objects within the custody or control of the government.) Parks is not being prosecuted for the controlled buy, thus an audio recording of the controlled buy is not “material” to the preparation of his defense. It could in no way rebut the government’s case-in-chief for the charges against him — that he was a felon in possession of a handgun and that he possessed an illegal substance for distribution — even if it might in some way be relevant to an argument that he was stopped and evidence was found in violation of the Fourth Amendment. See Armstrong, 517 U.S. at 462 (“While it might be argued that as a general matter, the concept of a “defense” includes any claim that is a “sword,” challenging the prosecution’s conduct of the case, the term may encompass only the narrower class of “shield” claims, which refute the Government’s arguments that the defendant committed the crime charged.”) See also United States v. Happ, 2008 WL 5101214 *3 (S.D. Ohio Nov. 25, 2008) (“To satisfy the materiality standard, the information sought must be relevant to an argument the defendant would make to refute the government’s case-in-chief); United States v. Jordan, 2007 WL 1849985 (E.D. Tenn. June 25, 2007) (Guyton, J.) (“In keeping with Armstrong, the Court defines the ‘defendant’s defense’ to mean that which is ‘material to the defendant’s direct response to the government’s case-in-chief.'”) Since the recording of the controlled buy cannot rebut the government’s case-in-chief in the instant prosecution, the defendant is not entitled to the recording of the controlled buy under Rule 16(a)(1)(E)(i).

Defense counsel was not ineffective for not raising the alleged forgery of the search warrant in the suppression hearing. Davis v. United States, 2009 U.S. Dist. LEXIS 48467 (W.D. N.C. June 10, 2009).*

The record supports the USMJ’s findings that the defendant consented to the entry of his house and the seizure of his computer for a forensic examination later. United States v. Strayer, 2009 U.S. Dist. LEXIS 48279 (D. Neb. June 9, 2009).*

Knowledge that defendant had a gun in the car justified a protective search of the car for more, which turned up more. United States v. Carico, 311 Fed. Appx. 572 (4th Cir. 2008) (unpublished).*

Defendants’ slow lane change was not a violation of Tennessee law, so the traffic stop that led to alleged consent was without probable cause. United States v. Gross, 550 F.3d 578, 2008 FED App. 0454P (6th Cir. 2008).*

IRS summons appeal was wholly frivolous, based on name being in capital letters and his “special appearance” exempting him from participating in the case. Ford v. Pryor, 2008 U.S. App. LEXIS 25760 (10th Cir. December 19, 2008).*

Defendant gets a hearing on his claim that National Insurance Crime Bureau unlawfully participated in execution of a search warrant allegedly in violation of 18 U.S.C. § 3105. United States v. Griggs, 2009 U.S. Dist. LEXIS 47819 (D. Colo. May 22, 2009). § 3105 provides:

A search warrant may in all cases be served by any of the officers mentioned in its direction or by an officer authorized by law to serve such warrant, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.

The court held:

The motion alleges that the federal agents executing the warrant permitted individuals associated with the National Insurance Crime Bureau (“NICB”) — a private, insurance industry-created entity with no actual law enforcement powers — to assist in the execution of the warrant, to seize computers and other property belonging to DRI, and to conduct essentially custodial interviews of witnesses in the course of executing the warrant. The Defendants argue that 18 U.S.C. § 3105 provides that only designated law enforcement officers may execute a warrant, except where a law enforcement officer requests the aid of another to assist and only where the officer is “present and acting in its execution.” The Defendants contend that they and others at DRI were led to believe that the NICB representatives were, in fact, law enforcement officers and that the NICB representatives “prevented them from leaving the facility and threatened them when challenged about that proposition.”

The Government denies that the NICB representatives meaningfully participated in the execution of the warrant. According to the Government, the NICB representatives “did not search for or take custody of evidentiary items during the warrant’s execution,” they “did interview some of the people present on the premises while the warrant was being executed,” and that they “helped load previously seized items onto a truck at the conclusion of the search,” all of which was done at the request and with the consent of the law enforcement officials executing the warrant. With regard to the interviews, the Government contends that the taking of witness statements is not a component of executing a search warrant — an action intended to effect the seizure of property and persons — and thus, to the extent that permitting the NICB representatives to do so was improper, that impropriety does not affect the reasonableness of the search of DRI’s offices and the seizure of evidence. Moreover, the Government contends that to the effect the NICB interviews may have violated Fourth and Fifth Amendment rights of the individuals interviewed, the Defendants are not entitled to vicariously assert those rights on behalf of the interviewees.

It is apparent that there is a significant factual dispute between the parties as to the nature and extent of the NICB representatives’ involvement in the execution of the warrant. Presentation of evidence is necessary to determine the nature and extent of the representatives’ involvement.

Defendant’s version of events that included highly improbable things led to the District Court not believing the defense version of the stop. United States v. Yancy, 2009 U.S. Dist. LEXIS 13021 (E.D. Ark. February 13, 2009).*

Defendant’s cell phones were seized under a search warrant, and the delay in searching them was reasonable. “‘Suppression of evidence … has always been our last resort, not our first impulse.’ Hudson v. Michigan, 547 U.S. 586, 591 (2006).” United States v. Thompson, 2009 U.S. Dist. LEXIS 13153 (S.D. Fla. February 6, 2009).*

Court finds that officers could not have seen into the apartment from the hallway as they alleged, so their claim in the search warrant affidavit was false and it issued without probable cause. United States v. Norwood, 2008 U.S. Dist. LEXIS 107318 (E.D. Mich. December 19, 2008).*

Surveillance in a marijuana trafficking case provided probable cause and exigent circumstances to justify entry into a motel room to seize the marijuana. Surveillance had to close in, and the co-conspirators would realize they were made. United States v. Granados, 587 F. Supp. 2d 1112 (D. S.D. September 19, 2008).*

Officer was required by DMV to retain defendant’s license, but not detain him, and that did not convert the stop into a detention of the defendant. United States v. Gamez, 311 Fed. Appx. 671 (4th Cir. 2009)* (unpublished):

Moreover, although the addition of the final factor, the retention of Gamez’s driver’s license, briefly gives us pause, we are not persuaded that it prevented this lawful Terry stop from becoming a voluntary encounter. In cases in which courts have found retention of travel documents particularly compelling, the documents in question were not only necessary for the defendant to continue on his way, but also were the defendant’s rightful property. Their retention therefore presented the defendant with the untenable choice of ending the encounter with no legal means of actually leaving the scene, or consenting to further interaction with law enforcement in order to retrieve the documents. See, e.g., Florida v. Royer, 460 U.S. 491, 501-04, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (retention of the defendant’s airline ticket and driver’s license); United States v. Brugal, 209 F.3d 353, 358 (4th Cir. 2000) (en banc) (retention of defendant’s rental car agreement); United States v. Walker, 933 F.2d 812, 816-17 (10th Cir. 1991) (retention of defendant’s lawful driver’s license and registration).

In sharp contrast to these cases, the DMV order indisputably required Officer Crump to retain Gamez’s license. Thus, Gamez could not legally have driven away even had he wanted to do so. Moreover, Officer Crump explicitly informed Gamez that he was free to go.

The government sought a DNA sample by buccal swab from several defendants to seek to connect them to physical evidence found at the scene of a kidnapping and assault with a box cutter. Only one opposed. The District Court held that taking a DNA sample was a search, and it had to be reasonable under Schmerber. Here, the government showed probable cause and need, and, balanced against the invasion of personal dignity involved, the court found the search reasonable. United States v. Lassiter, 607 F. Supp. 2d 162 (D. D.C. 2009):

Once probable cause has been established, Schmerber and Winston require balancing “the extent to which the procedure may threaten the safety or health of the individual,” and “the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity,” against “the community’s interest in fairly and accurately determining guilt or innocence.” Winston v. Lee, 470 U.S. at 761-62 (citing Schmerber v. California, 384 U.S. at 770-71). The Court will consider the factors in turn.

As to the first factor, the government seeks to obtain the defendant’s DNA by taking a buccal cell swab from the defendant. This procedure involves rubbing a cotton swab along the inside of the defendant’s cheek. For good reason, defendant Hebron does not argue that this procedure poses any threat to his health or safety. Indeed, this procedure is considerably less invasive and poses less of a threat to the health and safety of the defendant than taking blood — the type of search that was permitted in Schmerber. See Johnson v. Quander, 440 F.3d at 496-97. The Court finds that this factor weighs in favor of the government and its request for the DNA sample.

As to the second factor, defendant argues that DNA contains “a plethora of very personal and sensitive information,” and thus the test should be considered “highly intrusive.” Opp. at 4. While there may be potential for misuse of stored DNA information, the purpose of taking Mr. Hebron’s DNA in this case is only to compare his identity with DNA recovered at the crime scene for purposes of the trial in this criminal case. As Judge Walton has noted, when DNA is sought for a limited purpose, a court may wait to consider challenges to other potential use or misuse of an individual’s DNA until those uses have actually occurred. See Johnson v. Quander, 370 F. Supp. 2d 79, 88 n. 6 (D.D.C. 2005) aff’d 370 U.S. App. D.C. 167, 440 F.3d 489. The government has not sought to use the DNA for any purpose other than for identification of defendant Hebron as one of the perpetrators of the offenses with which he is charged. Hypothetical privacy intrusions will not render the use of DNA for these purposes unreasonable. See id. This factor therefore also weighs in the government’s favor.

Finally, the Court must weigh the first two factors against the community’s interest in fairly and accurately determining guilt or innocence. Winston v. Lee, 470 U.S. at 762. Given the violent nature of the alleged acts in this case, the community’s interest in accurately determining guilt or innocence is particularly strong. Cf. United States v. Weston, 134 F. Supp. 2d 115, 132 (D.D.C. 2001). While the defendant argues that “the requested DNA sample is of little, if any, significance” to the ultimate resolution of this case, Opp. at 5, he cannot know this. If the DNA recovered from the crime scene does in fact match Mr. Hebron’s DNA, that evidence would be probative of the government’s assertion that Mr. Hebron was at the crime scene and participated in the assault of Mr. Lyles. Defendant also argues the government has failed to show a need for the sample because its evidence already includes the eyewitness testimony of the victim as well as the statements of various of the co-defendants. See id. Although the DNA evidence might be duplicative or corroborative of testimony given by the victim and others and their identification of Mr. Hebron as a participant in the charged crimes, DNA evidence is evidence of a different form and nature than eyewitness identification testimony and is not susceptible to the same type of reliability challenges. Under the circumstances presented, the Court concludes that the third factor also weighs in favor of the government.

Dog sniff by consent of the defendant’s car after he was encountered by the officer when he’d run out of gas was valid. The defendant was not stopped in a constitutional sense when the officer stopped to check on whether he needed aid. Questioning led to reasonable suspicion. Commonwealth v. Mateo-German, 453 Mass. 838 (May 21, 2009).

During a knock and talk for a runaway girl, defendant consented to an entry into his apartment but not its search. No reason was articulated, or could be, for officer safety to justify a protective sweep. There were no exigent circumstances shown. Valtierra v. State, 2009 Tex. App. LEXIS 3634 (Tex. App.–San Antonio May 27, 2009):

Here, the evidence presented the following facts. Officer Moncada learned that a thirteen-year-old female runaway was living in an apartment in Boerne, Texas. Recalling that he had seen a young female named Erica at that apartment, Officer Moncada, along with Officer Rutledge, decided to go to the apartment to perform a “knock and talk.” Both officers testified that they did not have any concerns necessitating the procurement of a warrant, and Officer Moncada further testified that he did not believe Erica was in danger based on his earlier visit at the apartment. Over an hour after receiving the information, the officers arrived to the apartment, where both officers received permission to enter the apartment. Accordingly, prior to their entry into the apartment, it is undisputed that exigent circumstances were not present.

Because the officers did not perceive the need for a warrant or the existence of exigent circumstances prior to their entry into the apartment, our inquiry in terms of exigent circumstances is confined to the time period between the officers’ entry into the apartment and Officer Moncada’s movement down the hallway. Thus, any additional facts raising a question of exigent circumstances must have been observed during the short time span of two minutes. Here, the additional facts include the following set of facts. Officer Moncada was told by Heriberto that Erica was in the shower. Officer Moncada testified that he did not hear the shower running. Heriberto called out for Erica twice and told Officer Moncada that she would come out in a minute. Abilino Ortiz walked out of the west bedroom and respectfully complied with Officer Moncada’s instruction to sit in the living room. Under an objective standard, these facts coupled with the fact that Officer Moncada never testified that Erica was in any danger do not support the trial court’s conclusion of law that the officers could proceed down the hallway under exigent circumstances. See Parker, 206 S.W.3d at 600. The lack of the sound of running water and Erica’s failure to respond from the bathroom within a short time span cannot, absent further evidence, support the conclusion that Erica was in danger under an objective standard. See Parker, 206 S.W.3d at 600. Accordingly, the State did not meet its burden in providing evidence that would lead an officer to reasonably conclude exigent circumstances were present.

Following other circuits, the Seventh Circuit holds that permitting the government to reopen a suppression hearing is discretionary. United States v. Ozuna, 561 F.3d 728 (7th Cir. 2009):

This court has generally given wide latitude to district courts to reopen suppression hearings for consideration of newly obtained evidence. See, e.g., United States v. Scott, 19 F.3d 1238, 1243 (7th Cir. 1994); United States v. Duran, 957 F.2d 499, 505-06 (7th Cir. 1992). Ozuna claims that this same latitude is not warranted where the evidence was available at the time of the previous hearing. In fact, he argues that the government should never be allowed to supplement a suppression hearing unless the evidence is newly acquired. He asserts that because the government could have subjected the document to handwriting analysis prior to the first hearing, it should not have been allowed to present this evidence at the second hearing. We find this argument unpersuasive.

As we have previously recognized, society has a strong interest in admitting all relevant evidence. United States v. Regilio, 669 F.2d 1169, 1177 (7th Cir. 1981). Thus, a defendant is entitled to suppression only in cases of constitutional violations, and the district court remains free throughout the trial to reconsider its previous orders suppressing evidence. Id. Because of society’s interest, we have never required the government to justify a request for reconsideration of a prior ruling. See id.; see also United States v. Bayless, 201 F.3d 116, 131 (2d Cir. 2000) (opining that the Seventh Circuit has rejected “a rule requiring the government … to proffer a justification for its failure to present the relevant evidence at the original suppression hearing”). We now likewise decline to impose a justification requirement to reopen a suppression hearing. Instead, we hold that this decision lies within the sound discretion of the district court.

We are not the only circuit to reach this conclusion. See In re Terrorist Bombings of the U.S. Embassies in E. Afr., 552 F.3d 177, 196 (2d Cir. 2008); see also United States v. Rabb, 752 F.2d 1320, 1323 (9th Cir. 1984) (citing Reglio with approval and holding that “[a] criminal defendant acquires no personal right of redress in suppressed evidence”), abrogated on other grounds by Bourjaily v. United States, 483 U.S. 171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987). For example, the Second Circuit has held that “on a motion to reopen a suppression hearing, there is no bright-line rule that necessarily and invariably requires the government to provide a reasonable justification for its failure to offer relevant evidence at an earlier suppression proceeding.” In re Terrorist Bombings, 552 F.3d at 196. Because of the policy favoring introduction of lawfully obtained evidence, the Second Circuit stated that “‘vague notions of unfairness … ought not [to] control.'” Id. (second alteration in original) (quoting Bayless, 201 F.3d at 132). Instead, the court noted that the government’s justification for the delay was merely one factor to consider, leaving the ultimate determination to the discretion of the district court. Id. at 196-97.

Defendant’s plea agreement gave him permission to appeal evidence obtained from the execution of the search warrants, but not the pro se motions that he filed challenging the search, so his appeal on those grounds is dismissed. United States v. Kingcade, 562 F.3d 794 (7th Cir. 2009).*

In a forfeiture case, the search is challenged by a motion to suppress, not a motion to dismiss. Here, there was RS and PC, but claimant lacked standing. United States v. $572,204 in United States Currency, 606 F. Supp. 2d 153 (D. Mass. 2009).

There is no reasonable expectation of privacy in one’s person when there is an outstanding warrant for him. While defendant’s stop was illegal, a search incident of his person on his arrest for the outstanding warrant found when his name was run was valid. State v. Harding, 2009 Ohio 59, 180 Ohio App. 3d 497, 2009 Ohio App. LEXIS 50 (2d Dist. January 9, 2009):

[*P19] Most recently, however, we reaffirmed our holding in Click in State v. Smith, Montgomery App. No. 22434, 2008 Ohio 5523, wherein we found that the defendant had no reasonable expectation of privacy because he had an outstanding warrant for his arrest. It did not matter that the police became aware of the warrant following, and as a result of, an otherwise unlawful detention. In Smith, we specifically overruled our prior holding in Jamison.

The police were called when a father discovered defendant would be coming by house to sell drugs. When strange car showed up, officer talked to defendant. He was not in custody when he was being questioned. Commonwealth v. Teeter, 2008 PA Super 272, 961 A.2d 890 (2008).*

Maine departs from the majority on DNA testing of convicts and adopts the totality of the circumstances standard rather than special needs exception. The case involved a cold case hit off DNA taken from a parolee after a prior conviction. State v. Hutchinson, 2009 ME 44, 969 A.2d 923 (2009):

[*P25] The extent of the physical intrusion on individual privacy authorized by the DNA Data Act is minor. Obtaining a DNA sample through a cheek swab is no more intrusive than taking a fingerprint. Moreover, the impairment of privacy rights by the State’s use of the analysis of the DNA sample is mitigated by safeguards, contained in the DNA Data Act, that minimize the risk that personally identifiable information can be inappropriately mined or released. In addition, the DNA Data Act protects against the State’s retention of the DNA profiles of persons who are ultimately determined to have been wrongfully convicted.

[*P26] In sum, at the time the State conducted its suspicionless and warrantless search of Hutchinson in 2003, his privacy interests were at their nadir. There is little if anything to suggest that society would expect that Hutchinson should have been afforded privacy protections upon his conviction and incarceration against physically unobtrusive searches of his body for personally identifying characteristics such as his fingerprints and DNA. See Martin, 955 A.2d at 1157 (“The data retained in the [DNA] data base serve only to prove identity, like a fingerprint. The information in the data base, then, is not information defendants can reasonably expect to keep private as convicted felons.” (citation omitted))

. . .

[*P28] There is a strong correlation between offenders who are convicted of serious crimes and the cohort of persons who are most likely to commit new crimes. This is certainly true with respect to offenders who, like Hutchinson, are placed on probation and reportedly have a felony recidivism rate in excess of 40%. See Knights, 534 U.S. at 120 (noting a U.S. government report found “that 43% of 79,000 felons placed on probation in 17 States were rearrested for a felony within three years while still on probation”). Further, “it must be remembered that the very assumption of the institution of probation is that the probationer is more likely than the ordinary citizen to violate the law.” Id. (quotation marks omitted).

Mere trespasser to property who murdered the owners had no reasonable expectation of privacy in it to contest a search. Allen v. State, 893 N.E.2d 1092 (Ind. App. 2008):

Allen was a trespasser. He did not have the owners’ permission to be on the premises. Any control and possession of the Linwood residence exercised by Allen was obtained by illegal means, i.e., the alleged murder of the rightful owners. He has made no showing that he had a legitimate right to control and possess the Linwood residence. See Peterson, 674 N.E.2d at 534-35. Any expectation of privacy he had is not one that society is prepared to recognize as reasonable, and therefore he did not have an objective expectation of privacy in the premises. See Campos, 885 N.E.2d at 598.

Drug dog’s arrival within the time to conduct the normal DL check was a reasonable detention. State v. McDade, 2008 Ohio 4885, 2008 Ohio App. LEXIS 4094 (5th Dist. September 9, 2008).*

Law enforcement officers were present at defendant’s probation search for protective purposes and not as a pretext. State v. Jones, 2008 WI App 154, 314 Wis. 2d 408, 762 N.W.2d 106 (2008).*

Defendant locked his girlfriend out of their place and took her key, but her stuff was inside. She still had apparent authority to consent to search. United States v. McGee, 2009 U.S. App. LEXIS 8698 (2d Cir. April 24, 2009).

Smell of marijuana alone, without a showing that the officer is trained to recognize it, is not probable cause. State v. Birdsong, 2009 Ohio 1859, 2009 Ohio App. LEXIS 1576 (5th Dist. April 20, 2009).

Police had information that defendant probationer had a machine gun, and that justified a probation search. Townes v. State, 2009 Tex. App. LEXIS 2727 (Tex. App. — San Antonio April 22, 2009).*

In the L.A. skid row Terry stop case, the plaintiffs’ attorneys were awarded attorney’s fees. Fitzgerald v. City of Los Angeles, 2009 U.S. Dist. LEXIS 34803 (C.D. Cal. April 7, 2009).*

Defendant’s Fourth Amendment claim rejected on direct appeal could not be addressed in a § 2255. Newsome v. United States, 2008 U.S. Dist. LEXIS 108523 (S.D. Ga. August 22, 2008).*

The trial court erroneously applied the community caretaking function to the entry at issue, but defendant’s consent was a possible resolution, and the case was remanded for consideration of that issue. State v. Snyder, 227 Ore. App. 544, 206 P.3d 1083 (2009).

District court did not clearly err in finding defendant consented even though handcuffed at gunpoint. United States v. Perez-Ruiz, 2009 U.S. App. LEXIS 8810 (8th Cir. April 27, 2009) (unpublished):

While officers approached the truck with weapons drawn, removed Zamora’s child from the area, and handcuffed Perez-Ruiz and Zamora, these actions do not preclude a finding of voluntariness. United States v. Comstock, 531 F.3d 667, 677 (8th Cir. 2008) (finding that the use of handcuffs is not determinative of the voluntariness of consent); see United States v. Smith, 973 F.2d 1374, 1375 (8th Cir. 1992) (holding that a search was not coerced when officers entered the premises with their guns drawn); United States v. Lee, 886 F.2d 998, 1001 (8th Cir. 1989) (relying on a magistrate’s credibility determination that woman’s consent was not based on fear that her children would be taken from her). We conclude that the district court considered the totality of the circumstances and did not clearly err in determining that Zamora voluntarily consented to both searches.