Trial court erred in suppressing a search under Grubbs and the good faith exception. While the warrant did not list the triggering condition, it was not executed until the triggering condition occurred. “[I]t is evident that delivery of the marijuana was the triggering condition.” State v. Chen, 1 So. 3d 1257 (Fla. App. 2DCA 2009).

In a brief unpublished opinion, the Eighth Circuit finds no clear error in the trial court’s holding a stop was valid, and, in any event, consent purged the taint. [I hope the parties get this, because I don’t.] United States v. Nunez, 310 Fed. Appx. 53 (8th Cir. 2009).*

A single instance of crossing the fog line justifies a stop under Kansas law, and the record supports the conclusion that defendant consented to a search after the stop, despite his asserted language difficulties. United States v. Pulido-Vasquez, 311 Fed. Appx. 140 (10th Cir. 2009) (unpublished).*

Defendant’s claim he was too intoxicated on Xanax to effectively consent was rejected. [He was also sentenced to 960 months as an armed career offender.] United States v. Kellogg, 306 Fed. Appx. 916 (11th Cir. 2009) (unpublished).*

Possession of a large quantity of PMB was PC to believe defendant was making PCP. “Specifically, the officers could reasonably infer that Cruikshank, who had no apparent legitimate use for large quantities of PMB, who had received PMB from a company linked to PCP laboratory operators, and who sold some of it to Byrd on the street for cash, knowingly possessed the PMB with reason to believe it would be used to make PCP.” United States v. Cruikshank, 2009 U.S. App. LEXIS 2580 (9th Cir. February 6, 2009).*

Defendant was seized when he was confronted by SWAT officers on a street sweep who asked him for ID and told him they were checking wants and warrants. State v. Bozeman, 6 So. 3d 899 (La. App. 1st Cir. 2009):

Based on the foregoing, we find the defendant was seized pursuant to an investigatory stop. The officers involved in the stop were not on routine patrol; rather, they were part of the Sheriff’s Office SWAT team conducting “street sweeps” and, based on narcotics complaints, specifically targeting the high-drug area where the defendant was spotted. The defendant was approached by five officers. Four of the officers spread out around the defendant, while another officer positioned himself on the other side of the vehicle behind the defendant. Lieutenant Brown testified at the motion to suppress hearing that, after the defendant first refused to produce his identification, “[w]e advised him that we needed identification to check and make sure he wasn’t wanted or a wanted person or anything like that.” We find that under these circumstances a reasonable person would not have felt free to disregard the encounter and walk away.

UPS Inspectors had probable cause to search defendant’s backpack for stolen mail when they finally caught up to her while watching her after she was suspected of stealing mail out of mailboxes. United States v. Walker, 2009 U.S. Dist. LEXIS 11415 (D. Ariz. January 30, 2009).*

Probation officers had reason to conduct a probation search of defendant’s apartment based on dirty UAs and another PO having seen drug paraphernalia in defendant’s house. State v. Moore, 112 Conn. App. 569, 963 A.2d 1019 (2009).*

Reasonable suspicion was lacking for defendant’s stop. He was seen in a high crime area. The next day he saw the police and fled. That’s it. Thames v. State, 2 So. 3d 1098 (Fla. App. 3DCA 2009).*

I have a computer software problem, and my computer won’t boot. I’m on the road until Sunday and would have to borrow a computer until then. This is being done from an iPhone, which is good advertising for them but not the way to do much legal research.

Check back.

Update: I have my hands on my backup computer which was brought to me. It isn’t as fast, but I’ll do my best. There are a few cases on the other computer that I’ll try to get next week.

A search warrant for any evidence of crime was unconstitutionally overbroad and not limited by the affidavit. Severance was not possible. Cassady v. Goering, 2009 U.S. App. LEXIS 11736 (10th Cir. May 28, 2009):

The warrant here is ungrammatical and difficult to read in many respects. It authorized the search of the entire farm, including Mr. Cassady’s house, and the seizure of “[a]ny & all narcotics,” “[a]ny and all illegal contraband” and various specific items mostly related to a narcotics operation. See attached Ex. A. In addition, however, and most damaging to Mr. Goering’s argument, the warrant expressly permitted the search and seizure of “all other evidence of criminal activity” as well as personal property that was stolen, embezzled, or otherwise illegal; or was designed, intended, or had been used to commit a criminal offense; or would be material evidence in a criminal prosecution in Colorado or any other state; or the seizure of which was expressly required, authorized, or permitted by any Colorado statute. Id. Hence, the warrant did not confine the scope of the search to any particular crime. The officers only had probable cause to search for evidence related to marijuana cultivation, yet the warrant authorized the seizure of all possible evidence of any crime in any jurisdiction. Consequently, “[t]he warrant[] allowed precisely the kind of rummaging through a person’s belongings, in search of evidence of even previously unsuspected crimes or of no crime at all, that the fourth amendment proscribes.” Voss, 774 F.2d at 405.

The affidavit, which was incorporated by reference, does not save the warrant. See attached Ex. B. The only grounds it provides are Queen’s statement that he saw marijuana plants on the farm, and Mr. Cassady’s 1992 arrest for a marijuana-related offense. It makes no mention of the affiant’s training or expertise in narcotics investigations, and it is no more particular than the warrant, containing virtually identical language describing the items to be seized.

We cannot accept Mr. Goering’s argument that the officers understood the language permitting seizure as limited to evidence of marijuana-related activities only. We have previously invalidated warrants substantially more particularized than the one at issue here.

. . .

Mr. Goering contends “[t]here is no constitutional violation merely because of words in a warrant where there is no resulting unconstitutional search.” Aplt. Br. at 21. Even assuming the general rummaging that apparently occurred here could conceivably be characterized as a “constitutional” search, it is well-settled that “mere words” in a warrant in and of themselves can violate the Fourth Amendment. In Groh v. Ramirez, 540 U.S. 551 (2004), the Supreme Court rejected the argument that a lawfully conducted search could be reasonable under the Fourth Amendment despite an invalid warrant:

We have clearly stated that the presumptive rule against warrantless searches applies with equal force to searches whose only defect is a lack of particularity in the warrant. … The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.

Id. at 559-60 (internal quotation marks and citations omitted). Thus, Mr. Goering’s attempt to separate the authorization of the search from the execution of the search is a red herring – a violation of the warrant requirement is itself a violation of the Fourth Amendment.

. . .

Neither Mr. Goering nor the dissent point us to even one case where the severability doctrine has been applied to a warrant containing such a broad and invasive provision authorizing a search for and seizure of any and all evidence of criminal activity which is wholly unrelated to the crime for which there was probable cause. As we have stressed, severance is not appropriate in every case.

This was the officer’s first search warrant application.

In raising a state constitutional challenge to a search and seizure, defendant has to “‘provide a precise, analytically sound approach when advancing’ such a claim.” Feeney v. State, 2009 WY 67, 2009 Wyo. LEXIS 63 (May 21, 2009):

[*P11] The appellant raises his claim under both the Fourth Amendment to the United States Constitution and Article 1 § 4 of the Wyoming Constitution. We have said that when a litigant endeavors to interpret the Wyoming Constitution independent of the Federal Constitution, the litigant “must provide a precise, analytically sound approach when advancing” such a claim. Vasquez v. State, 990 P.2d 476, 484 (Wyo. 1999) (citing Dworkin v. L.F.P., Inc., 839 P.2d 903, 909 (Wyo. 1992)). Six factors must be analyzed when a separate state constitutional claim has been raised: 1) the textual language; 2) the differences in the text; 3) constitutional history; 4) preexisting state law; 5) structural differences; and 6) matters of particular state or local concern. Saldana v. State, 846 P.2d 604, 621-24 (Wyo. 1993) (Golden, J., concurring).

[*P12] The appellant’s attempt to present an independent state constitutional claim falls short. Although he mentions the above-cited factors, he fails to analyze any of them, or even generally describe how Article 1 § 4 might provide him greater protection than the Fourth Amendment. We will therefore confine our analysis to the Fourth Amendment.

Here, defendant “falls short” in his argument. Reasonable suspicion was provided by defendant’s excessive nervousness and the clear differences between the car rental agreement and his travel plans which made no sense.

[Posted 5/26/09]

Another new Champion article this month, online in four weeks: Susan J. Walsh and Ivan J. Dominguez, Privacy and Technology: Law Enforcement’s Secret Uses of GPS Devices, Champion 26 (May 2009)

Private search of defendant’s detached garage at officer’s request was an illegal search, and the defendant’s motion was granted to that extent. The private searcher was caring for defendant’s dogs when he was out of town. United States v. Hooks, 2009 U.S. Dist. LEXIS 44943 (E.D. Ark. May 29, 2009).*

The traffic stop was not unduly prolonged: “the detention itself was initially prolonged as a result of the driver not possessing a driver’s license or other identification, a language barrier necessitating Trooper Esqueda’s presence, and the need to clarify ownership of the vehicle and resolve any discrepancies between the registration papers and the proof of insurance.” United States v. Felix, 2009 U.S. Dist. LEXIS 44970 (N.D. Tex. May 22, 2009).*

Summary judgment for the city in a forfeiture case was reversed based on the search being suppressed in the underlying criminal case. City of Walla Walla v. $401,333.44, 2009 Wash. App. LEXIS 1267 (May 28, 2009).*

Police seized the “black box” from a demolished car in impound that was immobile without a warrant and then got a warrant showing independent probable cause. The prior warrantless seizure did not void the warrant because of the independent source of the information supplied to get the warrant. People v. Slade, 2005 N.Y. Misc. LEXIS 3217, 233 N.Y.L.J. 11 (Nassau Co. January 18, 2005).

State showed probable cause but failed to show that exigent circumstances existed. Defendant’s consent after unlawful warrantless entry was also void. Stone v. State, 279 S.W.3d 688 (Tex. App. — Amarillo December 21, 2006):

However, even with probable cause present, the State must also show that exigent circumstances existed such that the procurement of a search warrant was impractical. The State contends that the exigent circumstances arose when officers confronted the white female outside of the apartment. According to officer testimony, the encounter was within view of the apartment and, if seen, could have led to the destruction of evidence and possible violence and armed resistance from the occupants. However, the apartment occupants must have been aware of the officers’ presence before it can be said that knowledge of the officers’ presence somehow influenced the occupants’ actions. See Grimaldo v. State, No. 07-04-0246, 2006 WL 563027, at *4 (Tex.App.-Amarillo March 8, 2006, no pet. h.). Inferences, opinions, and conclusions stimulating police action must be reasonably objective and supported by fact as opposed to speculation and surmise. Id. Although the lead officer believed that evidence could be destroyed, and that officers were potentially in danger, the record does not contain facts rendering the lead officer’s beliefs objectively reasonable. See id. Thus, we conclude the State did not establish the existence of exigent circumstances necessary for a warrantless search. Therefore, we conclude that, although probable cause existed, the absence of exigent circumstances make the warrantless entry into appellant’s home unlawful.

Defendant was handcuffed during his stop for officer safety, and the officer saw a Brinks uniform in the car which led him to believe that the defendant was involved in a robbery where a Brinks uniform was worn. While handcuffing occurred, the defendant was under arrest until Mirandized. State v. Snyder, 2006 Ohio 6911, 2006 Ohio App. LEXIS 6817 (9th Dist. December 27, 2006).*

Defendant’s consent to taking of a blood sample was not voluntary, if it was consent at all. She made it clear that she was afraid of needles and her demeanor when a needle was used on her was corroborative of that. She kept offering blood, but not by a needle, so the police essentially took it while trying to assure her that it would be all right. Her failure to withdraw her arm was not a manifestation of consent since she was essentially surrounded by police officers. She was convicted of automobile homicide after cocaine was found in her blood. State v. Tripp, 2008 UT App 388, 197 P.3d 99, 616 Utah Adv. Rep. 12 (2008).*

Citizen informant called police about a possible drunk driver, and gave a detailed description of the vehicle and the number of occupants. When the officer found the vehicle and pulled up next to it, the occupants did not look at him. Then, the vehicle operated well below the speed limit. That was all reasonable suspicion. Cantrell v. State, 280 S.W.3d 408 (Tex. App. — Amarillo 2008).*

Police responded to a disturbance call at defendant’s residence. A window beside the door was broken and the officers heard yelling from inside the residence. Defendant appeared at the window, visibly impaired and agitated, and said that he and his girlfriend were arguing, but the officers were unable to see the girlfriend. Officers told him to come back to the window, but he refused. This was exigent circumstances to enter. United States v. Tennis, 309 Fed. Appx. 312 (11th Cir. 2009) (unpublished).*

Pretext challenge failed, and there was a factual basis for the stop. The consent was valid. United States v. Suarez, 2009 U.S. App. LEXIS 2007 (4th Cir. January 30, 2009) (unpublished).*

“The strange movements in the car [during the traffic stop], combined with Defendant’s nervousness, were sufficient to give the Officers a reasonable suspicion that the vehicle’s occupants were attempting to hide something, particularly a weapon of some sort. United States v. Parker, 2009 U.S. Dist. LEXIS 7258 (E.D. Mo. February 2, 2009).*

The government showed that the dog in this case was “well-trained” as required by Caballes. United States v. Nelson, 309 Fed. Appx. 373 (11th Cir. 2009) (unpublished):

A dog sniff must be sufficiently reliable in order to establish probable cause, and this reliability is generally present if the dog is “well-trained.” Illinois v. Caballes, 125 S. Ct. 834, 838 (2005); United States v. Sentovich, 677 F.2d 834, 838 n.8 (11th Cir. 1982). Evidence of a dog’s training is sufficient proof of reliability. Sentovich, 677 F.2d at 838 n.8. In Sentovich, we rejected the appellant’s argument that “a mere statement that the dog had been trained in drug detection was not enough without an accompanying statement that the dog had proved reliable in the past and that an experienced handler was with the dog,” and approved the reasoning of the First and Tenth Circuits that evidence of a dog’s training is sufficient. Id.

In this case, the evidence regarding the dog’s training went beyond a “mere statement” and included certification from a training school, an officer’s testimony about subsequent training and his records of the dog’s performance, and the testimony of the officer that he was familiar with the dog’s reactions because of their prior training together. See Sentovich, 677 F.2d at 838 n.8. The district court found the officer’s testimony and records about his training credible, and this Court gives great deference to the district court’s credibility determinations. Clay, 376 F.3d at 1302. Based on the evidence presented during the hearing, the district court did not err when it denied Nelson’s motion to suppress on the ground the dog was reliable and its response provided the officers with probable cause to search the car.

Traffic offense justified stop, and smell of marijuana provided probable cause. United States v. Davis, 308 Fed. Appx. 851 (5th Cir. 2009) (unpublished).*

Affidavit for thermal imaging warrant showed probable cause. United States v. Kattaria, 553 F.3d 1171 (8th Cir. 2009) (per curiam) (en banc).*

Officers had exigent circumstances on the unusual facts of this case that a stolen pressurized tank was found next to defendant’s house, and a gun was seen through a window. Then the gun was moved. Officers could reasonably fear the weapon. The facts were “unusual” and “extraordinary.” State v. Smith, 165 Wn.2d 511, 199 P.3d 386 (2009) (dissent here):

¶18 Under the extraordinary facts of this case, the responding officers identified a legitimate threat to officer and public safety sufficient to constitute an exigent circumstance. Upon arriving at the property, they found a stolen tanker truck parked next to the house, pressure filled with 1,000 gallons of an extremely dangerous chemical. Presumably, someone hiding in the house had stolen the tanker, in a criminal act serious enough to warrant FBI involvement. The officers saw a firearm through the window of the house. By the time Smith and Breuer had emerged from the house, the firearm had disappeared, and Smith and Breuer did not have it.

¶19 The trial court made a finding of fact that Detective Gonzales was concerned that a person with the missing gun inside the house would shoot the pressurized tank of anhydrous ammonia, causing a grave health risk for all those in the vicinity. He was also concerned that a person hiding in the house would shoot directly at the officers.

¶20 There was no pretext here. The officers’ actions were consistent with their stated purpose of preventing the risks to themselves and the public. They looked only in spaces where a person could hide, and they confiscated only the missing gun.

¶21 Under the unusual facts presented here, most notably the combination of large quantities of a toxic chemical and the missing firearm, the officers’ search falls under the “officer and public safety” prong of the “exigent circumstances” exception to the warrant requirement. The trial court was correct in refusing to suppress the evidence gained in connection with the search.

Defendant was stopped for a windshield obstruction, and the officer a few minutes later said that he was going to issue a warning ticket. Additional questions, however, were revealing additional suspicions, and that justified more questions. United States v. Perez, 2008 U.S. Dist. LEXIS 106819 (D. Neb. December 2, 2008).*

Trial court’s finding of voluntariness was supported by the videotape of the stop, which was purely conversational and not intimidating. United States v. Gonzalez, 308 Fed. Appx. 794 (5th Cir. 2009) (unpublished).*

A murder-suicide note police independently were aware of that was seen being read by defendant’s wife was in plain view when they were on the premises by consent. Its seizure could not be successfully challenged by the defendant, so defense counsel could not have been ineffective for not challenging its seizure. Lynch v. State, 2 So. 3d 47 (Fla. 2008).*

When the State failed to establish that the vehicle operated by the defendant was unattended, illegally parked, or obstructing traffic, and the officers failed to consult the operator or attempt to contact the registered owner regarding disposition, the impoundment of the vehicle was not based on reasonable grounds under the totality of the circumstances. State v. Branstetter, 40 Kan. App. 2d 1167, 199 P.3d 1272 (2009).

Telling a person to come home or be arrested for felony fleeing implicated the Fourth Amendment because the person would not feel capable of freely not complying. Silvan W. v. Briggs, 309 Fed. Appx. 216 (10th Cir. 2009) (unpublished).*

The knock-and-announce statute, 18 U.S.C. § 3109, was not violated by officers entering with their guns drawn after defendant failed to answer the door. United States v. Gladney, 2008 U.S. Dist. LEXIS 106699 (C.D. Cal. January 23, 2009)* (2008 on opinion, but it refers to a January 9, 2009 hearing).

Defendant’s consent to look for identification that produced a gun was voluntary. (The court painstakingly looked through the facts and law to determine the issue.) United States v. Fix, 2009 U.S. Dist. LEXIS 6101 (D. Kan. January 28, 2009).*

Officers had probable cause and exigent circumstances from a call about a burglary in progress, and, when they arrived, they saw the door kicked in. (This is not even a close issue.) United States v. Getachew, 2009 U.S. Dist. LEXIS 6191 (N.D. Tex. January 29, 2009):

The circumstances presented to Officers Kirkland and Brumfield and Corporal Penwarden justified their warrantless entry into Getachew’s townhouse. First, there was probable cause to believe that an illegal act was taking place. Based on Christopher’s account, relayed through a neighbor at his request, a police dispatcher informed the officers that a burglary was in progress at the residence, and that several men in masks had broken in. The crime sounded to the responding officers more like a robbery in progress than a burglary. Officers Kirkland and Brumfield arrived three minutes after being dispatched, and Corporal Penwarden arrived approximately two minutes thereafter. As Officers Kirkland and Brumfield approached the townhouse, they observed that the front door had been kicked in and they saw two men near the door, one of whom had his hands bound in front of him with plastic handcuffs and looked scared. Similarly, as Corporal Penwarden approached the townhouse, he observed that the door had been damaged. Under these circumstances, the officers had probable cause to believe that the townhouse was the scene of a burglary or robbery.

Under the “reasonable continuation” doctrine, a single search warrant could provide authorization for the executing officers to make more than one entry into the premises identified in the warrant if they were unable to locate an item of evidence specified in the warrant during their initial entry. In order for a re-entry into premises to be considered a reasonable continuation of the search authorized by the warrant, two conditions had to be satisfied: first, the subsequent entry had to be a continuation of the original search, rather than a new and separate search; and second, the decision to conduct a second entry to continue the search had to be reasonable under the totality of the circumstances. Both conditions were satisfied. State v. Finesmith, 406 N.J. Super. 510, 968 A.2d 715 (2009):

Our courts have not previously had occasion to consider whether a single search warrant may provide authorization for the executing officers to make more than one entry into the premises identified in the warrant if they are unable to locate an item of evidence specified in the warrant during their initial entry. However, the federal courts have adopted what is commonly referred to as the “reasonable continuation doctrine” under which police may in some circumstances temporarily suspend a search authorized by a warrant and re-enter the premises at a later time to continue the search. See, e.g., United States v. Keszthelyi, 308 F.3d 557, 568-69 (6th Cir. 2002); United States v. Squillacote, 221 F.3d 542, 557-58 (4th Cir. 2000), cert. denied, 532 U.S. 971, 121 S. Ct. 1601, 149 L. Ed. 2d 468 (2001); United States v. Gerber, 994 F.2d 1556, 1558-61 (11th Cir. 1993); United States v. Kaplan, 895 F.2d 618, 623 (9th Cir. 1990); State v. Carter, 854 F.2d 1102, 1107 (8th Cir. 1988); United States v. Bowling, 351 F.2d 236, 241 (6th Cir. 1965); United States v. Joseph, 278 F.2d 504, 505 (3rd Cir. 1960).

In order for a re-entry into premises to be considered a reasonable continuation of the search authorized by the warrant, two conditions must be satisfied: first, “the subsequent entry must … be a continuation of the original search, rather than a new and separate search,” and second, “the decision to conduct a second entry to continue the search must be reasonable under the totality of the circumstances.” Keszthelyi, supra, 308 F.3d at 569.

A Utah telephonic warrant was not recorded, and there was no record of its issuance. This violated the state requirement that warrant applications be preserved, which the court determines is a mandate to enable challenges to the warrant process. In Anderson v. Taylor (2006), the Utah Supreme Court mandated preservation of search warrant applications because one district was not. This situation violated Anderson. State v. Dominguez, 2009 UT App 73, 626 Utah Adv. Rep. 3, 206 P.3d 640 (2009):

[*P17] Because this is an issue of first impression, we are left to decide for the first time how strictly rule 40 should be enforced in Utah. Although we recognize that Defendant has not challenged the warrant on probable cause grounds or otherwise contested it, we take Anderson‘s mandate seriously. Indeed, without a recording, any attempt by Defendant to challenge probable cause may require him to forfeit his Fifth Amendment right to remain silent. We assume that the Utah Supreme Court wishes this rule to be followed strictly now that it has been implemented. Anderson offered clear public policy support for its mandate, and the result of the Fourth District Court’s procedure had no different effect than the result here. Similarly, the potential problems of mishandling or alteration identified in Anderson also exist in telephonic warrant requests. We interpret Anderson to mean that the Utah Supreme Court intended to take a strong position on the issue. Thus, rule 40 is unambiguous in setting forth the courts’ responsibility when issuing search warrants, including those sought telephonically. Accordingly, we reverse and instruct the trial court to grant Defendant’s motion to suppress.

Defendant took her purse as she got out of car, after being warned that taking the purse would require it be searched. She then reached into it, and that justified the officer searching the purse for weapons. State v. Morgan, 226 Ore. App. 515, 203 P.3d 927 (2009):

In State v. Bates, 304 Ore. 519, 524, 747 P.2d 991 (1987), the court noted that

“it is not our function to uncharitably second-guess an officer’s judgment. A police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. An officer must be allowed considerable latitude to take safety precautions in such situations.”

In light of defendant’s actions that were presented to Lance, we conclude that the general principle from Bates that it is not a court’s function to second-guess an officer’s judgment who has to make what could be a life-or-death decision in a matter of seconds is applicable to the circumstances of this case. We note that the car was in the de facto legal custody of the officer–he did not have to turn it over to defendant; rather, he could have lawfully continued with the impoundment process. Moreover, defendant had voluntarily given Lance permission to search the car. In order to search the car, it was necessary that defendant leave the car. The execution of the search of the car also meant that the officer would be required to turn his back on defendant, that she could be out of his line of sight, and that he would be preoccupied with the details of the search.

Lance told defendant that she could leave the purse in the car or take it with her, but if she took it with her, he would have to search it. There is no evidence that the purse would have been searched had defendant left it in the car.

[But query, if the car was going to be impounded, then wouldn’t the purse be searched as a matter of course? Or would it?]

Patdown produced certainty in the officer that he felt crack and marijuana, so plain feel was satisfied. The search of the car thereafter was justified as an inventory since defendant was in custody. State v. Davis, 2009 Ohio 345, 2009 Ohio App. LEXIS 276 (8th Dist. January 29, 2009).*

Officer responded to domestic disturbance call, and the defendant’s wife who was calmly standing in the door was complaining about his smoking marijuana in front of their son. The officer, without invitation, entered, and it was unlawful.
State v. Biddix, 2009 Ohio 384, 2009 Ohio App. LEXIS 325 (6th Dist. January 30, 2009):

[T]he officer testified only that he saw an open door and entered. There was no suggestion that appellant or anyone else invited him in. Moreover, there was no evidence of exigent circumstances which might justify the officer’s warrantless intrusion into appellant’s home. There was no report of physical violence. There was no suggestion that any person or property inside the apartment was in jeopardy.

District court erred in presuming defendant was seized under Terry. The first question should have been whether the continuation of the stop was consensual, so the case is vacated for reconsideration. United States v. Crandell, 554 F.3d 79 (3d Cir. 2009), rev’g United States v. Crandell, 509 F. Supp. 2d 435 (D. N.J. 2007).

Officers could order a stopped motorist out of his car on a traffic stop. Here, the defendant got out of the car, and baggies of crack fell out of his pants leg. That was a valid plain view. United States v. Cochran, 309 Fed. Appx. 2 (7th Cir. 2009) (unpublished).*

When officer told defendant to get out of the car and he was searching defendant’s trunk, defendant’s handing over the keys to the officer was not consent to search the whole car. The limit of consent was the trunk. Defendant’s silence or failure to object during the search is not acquiescence to the search. (The alternative ground of a protective search of the interior was not supported by reasonable suspicion.) United States v. Neely, 564 F.3d 346 (4th Cir. 2009):

We begin by addressing the first two factors relied upon by the district court: Neely’s decision to hand his keys to Officer Tran and leave the driver’s door open after exiting the vehicle. While we acknowledge that non-verbal conduct can be sufficient to establish consent, see, e.g., United States v. Hylton, 349 F.3d 781, 786 (4th Cir. 2003), such conduct is still subject to Jimeno’s objective reasonableness standard. And, the Government’s “burden is heavier where consent is not explicit, since consent is not lightly to be inferred.” United States v. Impink, 728 F.2d 1228, 1232 (9th Cir. 1984) (internal quotation marks omitted). Here, Neely did not offer his keys in response to a law enforcement officer’s request to search his car, an action which might reasonably be viewed as non-verbal consent. Nor did Neely offer his keys while asking Officer Tran whether he would like to search his vehicle. Instead, Neely surrendered his keys only after Officer Tran instructed him to get out of the vehicle. Neely had already verbally placed a limit on his consent to have his vehicle searched; surrendering his keys to Officer Tran after being ordered to get out of his car was consistent with his prior limitation because Tran would need the keys to open Neely’s trunk. Likewise, Neely’s decision to leave the driver’s side door open is not indicative of non-verbal consent. Officer Tran directed Neely to the rear of his car immediately as he began exiting the vehicle; it is thus unsurprising that Neely did not refuse to follow Tran’s directions simply so that he could close the door behind him. Given the facts presented here, we find that neither of these actions are sufficient to overcome his prior verbal limitation.

. . .

Finally, the fact that Neely continued speaking with an officer during the search is essentially meaningless. The videotape of the incident clearly provides that Neely merely responded to the officer’s questioning; that decision has no bearing on the scope of his consent. Moreover, taking these factors together does not alter our conclusion. Neely’s decision to give Officer Tran his keys and leave his car door open were the product of cooperation with a law enforcement officer, not an intentional indication of consent. Similarly, Neely’s failure to object to a search carried out while he was being questioned by a second police officer is not the type of silence we found indicative of consent in Jones. Thus, Officer Tran’s search of the interior of Neely’s vehicle cannot be justified on the basis of consent.

Federal Judge Threatens DOJ Lawyers With Sanctions in Warrantless Wiretapping Case by Evan Hill of The Recorder on Law.com:

Government lawyers trying to fend off a much-watched warrantless wiretapping case in federal court now face sanctions and the possibility of a judgment that the United States committed illegal surveillance (pdf), following an order filed on Friday by Northern District of California Chief Judge Vaughn Walker (.pdf).

Walker, bringing to a head months of volleying between the government, the plaintiffs and himself, ordered Justice Department lawyers to explain why he should not essentially enter a default judgment against the government for violating the Foreign Intelligence Surveillance Act by spying on the Al-Haramain Islamic Foundation.

The government has refused to obey court orders by repeatedly stonewalling Walker’s attempt to move the case forward, Walker wrote.

If he rules as threatened, Al-Haramain would win without forcing the government to acknowledge surveillance.

. . .

The government unwittingly set the Al-Haramain litigation into motion years ago by accidentally disclosing to the charity a classified document that reportedly shows a summary of intercepted phone conversations.

The case is In Re: National Security Agency Telecommunications Records Litigation, N.D. Cal. MDL Docket No 06-1791 VRW.

Two new Champion articles, in the mail today, and online in a month:

Dorothy J. Glancy, Retrieving Black Box Evidence From Vehicles: Uses and Abuses of Vehicle Data Recorder Evidence in Criminal Trials, Champion 12 (May 2009)

Marcia Hofmann, Arguing for Suppression of “Hash” Evidence, Champion 20 (May 2009) [as in computer information, hash = garbage]

Defense counsel was not ineffective for not challenging the search of defendant’s car because the officer had probable cause to believe the car contained contraband. [The court notes Gant “calls into question the continued viability of New York v. Belton” but does not have to decide that.] Mark v. United States, 2009 U.S. Dist. LEXIS43579 (E.D. Tenn. May 20, 2009).*

[This is it for today]