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]

Visiting a known drug house at 3:20 am for two minutes was reasonable suspicion for stopping the defendant leaving. State v. Doughty, 148 Wn. App. 585 (February 5, 2009).*

Wyoming declines to adopt a greater standard for a trash search than Greenwood. Barekman v. State, 2009 WY 13, 200 P.3d 802 (2009):

While he certainly had an expectation of privacy in his trash when it was inside his property, out of public view, we are not persuaded that expectation was reasonable once he placed it out on the curb for pickup. A majority of state courts have reached this conclusion under their own constitutions.

Although probationers have more limited expectations of privacy than do free citizens, law enforcement’s ability to search probationers is not unlimited. Given probationers’ expectations of privacy, community corrections officers or other law enforcement officers must have a rational, articulable suspicion of a probation violation or other criminal activity before subjecting the probationer’s person or property to a search. The condition of probation in this case, requiring that a probationer submit to random, suspicionless searches, violates the probationer’s constitutional rights under the Fourth Amendment and § 15 of the Kansas Bill of Rights. State v. Bennett, 288 Kan. 86, 200 P.3d 455 (2009).*

Defendant loaned a cellphone to be used on a drug run trip in a car with a hidden compartment had an expectation of privacy in the cellphone to challenge its seizure, but he did not have an expectation of privacy in the call directory in the phone. The phone was searched twelve hours later. United States v. Fierros-Alavarez, 547 F. Supp. 2d 1206 (D. Kan. 2008):

The government argues the holding in Smith and the later applications of Smith logically extend to the issue presented by the facts of this case so as to preclude an expectation of privacy in the recent call directory as well as the phonebook directory. The defendant’s only rejoinder is that a phone book directory may disclose more information than that revealed in a pen register. The defendant, however, has not shown that the phone book directory in his cellular telephone discloses more than the “addressing information”–the telephone number and the subscriber’s name–on the same numbers appearing in the recent calls directory. See United States v. Forrester, 512 F.3d at 509; United States v. Perrine, 518 F.3d at 1204. On the record as it stands, the court must conclude that the defendant has not carried his burden of proving a reasonable expectation of privacy in the addressing information retrieved from the recent calls directory and in the names and numbers taken from the phonebook directory. Thus, the court denies the defendant’s motion for lack of standing. For the sake of argument, the court will assume the defendant has proved standing and address the automobile exception to a search warrant.

Consent to retrieve a film canister during an arrest implies consent to open it. King v. State, 6 So. 3d 30 (Ala. Crim. App. 2008).*

Finding of two knives did not end the need to conduct a patdown. State v. Applewhite, 2008 WI App 138, 314 Wis. 2d 179, 758 N.W.2d 181 (2008).*

Taking of defendant’s DNA on prior conviction that resulted in a cold hit for a murder charge was a reasonable search. State v. Bartylla, 755 N.W.2d 8 (Minn. 2008).*

State officer had the legal authority to stop a driver on a highway through tribal lands to determine whether he could ticket the motorist if he was not a member of the tribe. State v. Harrison, 2008 NMCA 107, 144 N.M. 651, 190 P.3d 1146 (Ct. App. 2008), certiorari granted, No. 31,224, August 6, 2008.*

Burglary in progress call permitted the police to go to the back door after there was no answer at the front door. Also, a general motion to suppress and failure to articulate before the trial court the other specific issue on appeal is a waiver of the issue. Rothstein v. State, 267 S.W.3d 366 (Tex. App.—Houston (1st Dist.) 2008).*

Record supported the trial court’s finding that defendant had a reasonable expectation of privacy in a trailer that he was occasionally staying in and was at the time of the search. The windows were darkened and the door was slightly ajar, but that does not mean there was no reasonable expectation of privacy. State v. Fox, 2008 WI App 136, 314 Wis. 2d 84, 758 N.W.2d 790 (2008).*

In the absence of statutory authority, a condition of probation which authorizes nonconsensual, suspicionless searches is unconstitutional. State v. Bennett, 39 Kan. App. 2d 890, 185 P.3d 320 (2008), certiorari granted State v. Bennett, 2008 Kan. LEXIS 517 (Kan., Sept. 22, 2008).

Terry supported search of defendant’s purse for weapons when officer returned it to her after a stop. Speten v. State, 2008 WY 63, 185 P.3d 25 (2008):

[*P24] Under Terry analysis, the question is this: at the time he searched the appellant’s purse, did Deputy Seeman have a reasonable suspicion that the appellant was engaged in criminal activity, and if so, did the officer safety concern that engendered Terry justify the deputy’s search of the appellant’s purse minutes after the encounter began, and just as it was about to end? Asked more plainly, did Deputy Seeman have the right to pick up the appellant’s purse and search it before handing it to her so she could leave? We conclude that, while this was not the typical fact pattern that leads to a Terry “stop and frisk,” Deputy Seeman did, at the time of the search, have reasonable suspicion that the appellant was engaged in criminal activity, and Deputy Seeman did, at the time of the search, have reasonable apprehension as to officer safety. An officer safety concern does not necessarily exist at only one precise moment in time during an investigative detention, and we believe the rationale of Terry would allow a limited search for weapons at any time during that detention that the officer safety concern becomes apparent.

Public safety stop as a secondary reason must be based on articulable reasonable suspicion of illegal activity. The stop here was not, so the search was suppressed. State v. McCaddon, 39 Kan. App. 2d
839, 185 P.3d 309 (2008).*

Defendant’s flight after stop from a vehicle not registered to him justified his pursuit and it was not a violation of the Fourth Amendment. Cardelus v. State, 985 So. 2d 1144 (Fla. App. 5th DCA 2008):

A number of Florida decisions have ruled that flight alone does not provide a sufficient basis upon which to form a reasonable suspicion of criminal activity to justify an investigatory stop. See J.R.P. v. State, 942 So. 2d 452, 454 (Fla. 2d DCA 2006); J.D.H. v. State, 967 So. 2d 1128, 1132 (Fla. 2d DCA 2007); State v. Lennon, 963 So. 2d 765, 769 (Fla. 3d DCA 2007). While there was no evidence that the events in the instant case occurred in a high crime area, as in Wardlow, there were other factors beyond mere flight to justify pursuit and investigation. In particular, Livingston abandoned a vehicle he clearly did not own on a public street.

Officer’s stepping into defendant’s hotel room was an entry, and defendant’s implied consent was invalid. Post hoc rationalization for this search was not valid, either. People v. Prescott, 205 P.3d 416 (Colo. App. 2008), released for publication May 1, 2009, cert. den. 2009 Colo. LEXIS 328 (Colo. Apr. 13, 2009):

We reject the Attorney General’s argument that by asking Deputy Wilson for help getting his money back, Prescott implied an “invitation for the officers to enter,” Clark, 844 S.W.2d at 599, because Deputy Wilson entered without permission before beginning the dialogue with Prescott. The Attorney General has cited no authority, nor are we aware of any in Colorado, adopting such an after-the-fact justification to a warrantless entry based on consent. Cf. People v. Herrera, 935 P.2d at 958 (“The admissibility of evidence seized pursuant to an allegedly consensual search must stand or fall on the basis of the consent given before the search.”).

Other jurisdictions have rejected after-the-fact justification for warrantless searches. See, e.g., People v. Pereira, 58 Cal. Rptr. 3d 847, 854 (Cal. App. 2007); State v. Williams, 403 A.2d 31, 35 (N.J. Super. Ct. App. Div. 1979); State v. Ribe, 876 P.2d 403, 414-15 (Utah App. 1994).

Moreover, “[i]t is one thing to infer consent from actions responding to a police request. It is quite another to sanction the police walking in to a person’s home without stopping at the door to ask permission.” United States v. Shaibu, 920 F.2d 1423, 1427 (9th Cir. 1990). Further, “consent to enter and search a home will not be lightly inferred ….” Clark, 844 S.W.2d at 599. Hence, we agree with State v. Othoudt, 482 N.W.2d 218, 223 (Minn. 1992), that “[w]hen an uninvited police officer enters a home without a warrant and begins asking questions, answering those questions does not indicate an individual consented to the entry.”

Defendant’s blanket assertions, without backup from the witness, that the woman in control of the premises where he allegedly stayed retrieved his gun under coercion by the police was insufficient to show that consent was not valid or he had standing in the first place. United States v. Brewster, 2009 U.S. Dist. LEXIS 25849 (D. Idaho March 27, 2009).* (This seems a little harsh. Is the court saying an affidavit from her would have gotten him a hearing? The court adds that he can cross-examine her at trial, but that would not permit suppression, would it?)

Informant’s untruthfulness does not get you a hearing under Franks. United States v. Tunnell, 2009 U.S. Dist. LEXIS 25537 (D. Del. March 25, 2009).*

In a local jail strip search class action case, the defendants argue that Bell v. Wolfish no longer applies under Hudson v. Palmer, but the court disagrees, based on holdings of various Circuits. Hocevar v. GEO Group, 2009 U.S. Dist. LEXIS 25990 (E.D. Pa. March 24, 2009)*:

Although it is difficult to precisely characterize the collective holdings of these cases, especially considering the fact-sensitive nature of reasonableness analysis, suffice it to say that all nine circuits found suspicionless strip searches of recently arrested persons unreasonable and therefore unconstitutional. Swain v. Spinney, 117 F.3d 1, 7 (1st Cir. 1997); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989); Weber v. Dell, 804 F.2d 796, 802 (2d Cir. 1986); Jones v. Edwards, 770 F.2d at 741-42; Stewart, 767 F.2d at 156-57; Giles v. Ackerman, 746 F.2d at 617; Hill v. Bogans, 735 F.2d at 394-95; Mary Beth G., 723 F.2d at 1273; Logan v. Shealv, 660 F.2d at 1013. 11 These courts held that, to be reasonable, custodial strip searches of detained arrestees must be predicated on reasonable suspicion. The “[r]easonable suspicion may be based on such factors as the nature of the offense, the arrestee’s appearance and conduct, and the prior arrest record.” Giles v. Ackerman, 746 F.2d at 617.

Defendant had a subjective expectation of privacy in a gun hidden in a washing machine on the second floor landing 7 feet from where he was found, but it was not an expectation that was reasonable. United States v. Rheault, 561 F.3d 55 (1st Cir. 2009):

Unlike the entryways in Fluker and Drummond — which were immediately outside the respective apartment doors — the third-floor landing is not, in our view, an area in which Rheault, a second-floor tenant, could reasonably expect privacy. 10 Also weighing against Rheault is the landlord’s testimony that the front-stairway landings were not to be used as storage areas. Thus, the reasonable expectations of anyone attempting to store items there would not be privacy or security, but that the items would be removed by someone — either the landlord, or, as with Archambault’s reclaimed desk, a scavenger. This puts the defendant on even more tenuous footing than the defendant in Hawkins, who endeavored — unsuccessfully — to suppress items that were in a designated storage area. While the third-floor landing may have been more “private” than a traditional lobby-like common area, it was less “private” than the entryways in Fluker and Drummond, given that the landlord expressly prohibited its use for storage and that a potentially revolving cast of third-floor tenants and their guests had relatively unfettered access to the very area in which Rheault claims an expectation of privacy. We conclude that such an expectation is objectively unreasonable, and we therefore affirm the district court’s denial of Rheault’s motion to suppress.

Two USMJ’s recommendations to not suppress reversed by the USDJ:

The mudroom entered by the police was illegally entered, and it was a part of defendant’s home. United States v. Wilson, 2009 U.S. Dist. LEXIS 26130 (N.D. Iowa March 30, 2009).*

Defendant’s traffic stop was not objectively reasonable because it was based on pulling up to an unfamiliar intersection, looking where to go, and then signaling, which the court finds not a traffic offense. United States v. Adler, 2009 U.S. Dist. LEXIS 26194 (D. Neb. March 30, 2009).*

In a rare win for logic, SCOTUS holds today in Arizona v. Gant, 2009 U.S. LEXIS 3120, 2009 WL 1045962 (5-4, not the usual suspects) that a search incident for driving on a suspended license is improper because there is no evidence to be secreted for that offense. Chimel, after 28 years, is finally returned to its roots. As I have argued repeatedly on this blog, and many times since Belton was decided, Belton is now limited to its facts and situation–search incident is no longer a license to search a car on the officer’s whim, and there has to be possible evidence to be obtained. The Court wisely notes that Belton has been rejected by nine states on state constitutional grounds (Vermont, New Jersey, New Mexico, Nevada, Pennsylvania, New York, Oregon, and Wyoming) and statute (Massachusetts). Slip op. at 14 n. 8. The Court also notes the “checkered history” of search incident. Id. at 17.

Significantly, the Court also underscores that there is a privacy interest in vehicles after all:

For several reasons, we reject the State’s argument. First, the State seriously undervalues the privacy interests at stake. Although we have recognized that a motorist’s privacy interest in his vehicle is less substantial than in his home, see New York v. Class, 475 U. S. 106, 112– 113 (1986), the former interest is nevertheless important and deserving of constitutional protection, see Knowles, 525 U. S., at 117. It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.

From the syllabus:

Respondent Gant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket. The Arizona trial court denied his motion to suppress the evidence, and he was convicted of drug offenses. Reversing, the State Supreme Court distinguished New York v. Belton, 453 U. S. 454—which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of a recent occupant’s lawful arrest—on the ground that it concerned the scope of a search incident to arrest but did not answer the question whether officers may conduct such a search once the scene has been secured. Because Chimel v. California, 395 U. S. 752, requires that a search incident to arrest be justified by either the interest in officer safety or the interest in preserving evidence and the circumstances of Gant’s arrest implicated neither of those interests, the State Supreme Court found the search unreasonable.

Held: Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest. Pp. 5–18.

(a) Warrantless searches “are per se unreasonable,” “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357. The exception for a search incident to a lawful arrest applies only to “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.” Chimel, 395 U. S., at 763. This Court applied that exception to the automobile context in Belton, the holding of which rested in large part on the assumption that articles inside a vehicle’s passenger compartment are “generally … within ‘the area into which an arrestee might reach.’” 453 U. S., at 460. Pp. 5–8.

(b) This Court rejects a broad reading of Belton that would permit a vehicle search incident to a recent occupant’s arrest even if there were no possibility the arrestee could gain access to the vehicle at the time of the search. The safety and evidentiary justifications underlying Chimel’s exception authorize a vehicle search only when there is a reasonable possibility of such access. Although it does not follow from Chimel, circumstances unique to the automobile context also justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Thornton v. United States, 541 U. S. 615, 632 (Scalia, J., concurring in judgment). Neither Chimel’s reaching-distance rule nor Thornton’s allowance for evidentiary searches authorized the search in this case. In contrast to Belton, which involved a single officer confronted with four unsecured arrestees, five officers handcuffed and secured Gant and the two other suspects in separate patrol cars before the search began. Gant clearly could not have accessed his car at the time of the search. An evidentiary basis for the search was also lacking. Belton and Thornton were both arrested for drug offenses, but Gant was arrested for driving with a suspended license—an offense for which police could not reasonably expect to find evidence in Gant’s car. Cf. Knowles v. Iowa, 525 U. S. 113, 118. The search in this case was therefore unreasonable. Pp. 8–11.

(c) This Court is unpersuaded by the State’s argument that its expansive reading of Belton correctly balances law enforcement interests with an arrestee’s limited privacy interest in his vehicle. The State seriously undervalues the privacy interests at stake, and it exaggerates both the clarity provided by a broad reading of Belton and its importance to law enforcement interests. A narrow reading of Belton and Thornton, together with this Court’s other Fourth Amendment decisions, e.g., Michigan v. Long, 463 U. S. 103, and United States v. Ross, 456 U. S. 798, permit an officer to search a vehicle when safety or evidentiary concerns demand. Pp. 11–14.

(d) Stare decisis does not require adherence to a broad reading of Belton. The experience of the 28 years since Belton has shown that the generalization underpinning the broad reading of that decision is unfounded, and blind adherence to its faulty assumption would authorize myriad unconstitutional searches. Pp. 15–18.

Opinion by Stevens, joined by Scalia, Souter, Thomas, and Ginsburg. Breyer, Roberts, Kennedy, and Alito dissented.

SCOTUSWiki here.

Taking a key from defendant and inserting it in a lock to determine whether it worked, without entering, was reasonable. Whether it is a search did not have to be decided. United States v. Daniels, 2009 U.S. App. LEXIS 8501 (4th Cir. April 21, 2009) (unpublished):

Among the items seized from Daniels on the night of March 3, 2005, was a key which the officers had reason to believe could access Apartment 106 of 1305 Kelston Place. (J.A. 749.) While Daniels originally consented to the detectives’ use of the key to access the residence, he ultimately revoked his consent. (J.A. 173, 749.) Later the officers inserted the key into the door lock of Apartment 106, which was accessible to the public. The officers turned the key to confirm that it operated the lock but did not enter the apartment. (J.A. 136.) Daniels argues that the detectives’ conduct in inserting the key into the lock constituted an unreasonable warrantless search in violation of his Fourth Amendment rights.

Our sister circuits are not in accord on whether a defendant has a reasonable expectation of privacy in an external door lock accessible from a public space. The First and Sixth Circuits have ruled that there is no reasonable expectation of privacy in such a lock and that the insertion and turning of a key therein does not constitute a search. See United States v. Salgado, 250 F.3d 438, 456-57 (6th Cir. 2001); United States v. Lyons, 898 F.2d 210, 213 (1st Cir. 1990). The Seventh Circuit, on the other hand, has concluded that there is a reasonable expectation of privacy in a keyhole because a keyhole contains information that is not readily accessible to strangers. United States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991).

We need not rule on the precise issue of whether the officers’ insertion and turning of a key into the door lock of Apartment 106 contravened the Fourth Amendment, because even if we assume that it was a search, it was not unreasonable. The officers’ action was a means of identifying the apartment as one to which the defendant had access. The officers employed a legitimate crime investigative procedure that far outweighed whatever minimal intrusion that Daniels may have experienced. In this respect, the act is similar to the use of a narcotic detection dog to “sniff” personal luggage–a non-intrusive procedure that has been deemed constitutional. United States v. Place, 462 U.S. 696, 706-07, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983). Indeed, we are aware of no precedent that has determined such conduct to be unreasonable, for as the Seventh Circuit observed in Concepcion, “the privacy interest [in a keyhole] is so small that the officers do not need probable cause to inspect it.” Id. at 1173. We therefore affirm the district court’s finding that Daniels’ Fourth Amendment rights were not infringed by the officers’ use of a key in the door lock of Apartment 106.

Observation of hand-to-hand drug deal was probable cause for defendant’s stop and arrest. State v. Pearson, 2009 Tenn. Crim. App. LEXIS 275 (April 6, 2009).*

A tag light is not required in Tennessee, so a stop for not having the license plate illuminated is without justification. State v. Hunt, 2009 Tenn. Crim. App. LEXIS 300 (April 17, 2009).*

Foster care homes are not pervasively regulated businesses in Nebraska. Instead, they are subject to the special needs exception. Omni Behavioral Health v. Neb. Foster Care Review Bd., 277 Neb. 641, 764 N.W.2d 398 (2009).

“Whether a police officer has probable cause to make a traffic stop does not depend on whether the driver was actually guilty of the violation which the officer believed to have occurred.” White v. State, 2009 Ark. LEXIS 135 (April 23, 2009).*

First stop was on a bus, and a second stop occurred. The second stop is not per se an unreasonable seizure. United States v. Richards, 2009 U.S. Dist. LEXIS 35549 (D. Minn. April 23, 2009):

The mere fact that a law enforcement officer initiates a second encounter with a defendant after the initial encounter had been terminated, does not in itself render the second encounter a seizure. See United States v. Mendieta-Garza, 254 F. App’x 307, 314 (5th Cir. 2007) (holding, in a bus interdiction case, that the fact that a law enforcement officer initiated a second encounter after a first encounter had been terminated did not in itself necessitate a finding that the second encounter constituted a seizure); United States v. Ricardo, 472 F.3d 277, 283-84 (5th Cir. 2006) (holding that a second encounter with an officer did not result in a seizure when the first encounter, a traffic stop, had ended and the officer had returned all of the defendant’s documents); see also United States v. Esparaza-Mendoza, 386 F.3d 953, 958-59 (10th Cir. 2004) (holding that an officer’s making of a second request for identification does not, by itself, implicate the Fourth Amendment). Rather, determining if a seizure has occurred requires considering whether, in view of all of the circumstances surrounding the encounter, a reasonable person would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 554 (1980).

On a motion for return of property under Rule 41(g), the search warrant in this case was sufficiently particular. As to the deprivation of records, the government assured at the TRO hearing that copies of all records would be supplied to conduct the business. So the motion is denied. In re Search of Tobaccoville USA, Inc., 2009 U.S. Dist. LEXIS 35336 (D. S.C. April 10, 2009).*

During the traffic stop, the officer told that he was not issuing a ticket and the defendant could go, but the officer waited a few seconds and then asked if he could ask some questions, and that led to the defendant signing a consent form in Spanish. The defendant consented. United States v. Mendez-Cejas, 2009 U.S. Dist. LEXIS 34824 (D. Nev. January 15, 2009).*

To the same effect as United States v. Pedraza-Bucio, 2009 U.S. Dist. LEXIS 35367 (D. Utah April 23, 2009), where the stop was 15-20 minutes and a dog inspected the car during the process which did not extend it. The defendant was also found to have sufficient familiarity with English to understand to consent.

In a regulatory search case where 50 officers showed up for the search, the Fourth Circuit holds that the record showed that there was a sufficient showing of a regulatory purpose in the search to support it as a regulatory and not criminal search. The court also held that a search of the office was permitted under the statute even though alcohol was not sold from there because that was an unnecessarily narrow reading of the statute. As to unreasonable execution of the administrative warrant, the plaintiff stated a claim for relief, but the court offered guidance [perhaps unnecessarily] to the district court. Ruttenberg v. Jones, 283 Fed. Appx. 121 (4th Cir. 2008) (unpublished):

Based on the facts alleged in the complaint, we do not believe the administrative search of RNR was “employed solely as an instrument of criminal law enforcement.” Johnson, 994 F.2d at 743. Rather, the record indicates that the search served primarily, if not entirely, a regulatory purpose.

To begin, as Appellants acknowledge in their complaint, local police officers observed ABC violations at RNR prior to the administrative inspection in June 2004. This was clearly permissible under Virginia’s ABC laws, which allow “law-enforcement officers … free access to any retail licensed establishment for the purpose of observation.” See 3 Va. Admin. Code § 5-50-70(C). The officers subsequently contacted ABC Special Agent John Loftis, the ABC official with authority over the territory that included RNR, about conducting an administrative inspection. Special Agent Loftis, as well as five or six additional ABC officials, then joined local law enforcement officers in the search of RNR.

With respect to the search itself, there is no evidence or allegation that law enforcement officers or ABC officials searched for anything other than ABC violations when conducting the administrative inspection. In fact, Appellants admit that the ABC officers found an ABC violation during their search — the failure of RNR to mark two bottles of beer as samples — and confiscated two bottles of vodka as contraband from Ruttenberg’s office. Moreover, as Appellants state in their complaint, the Virginia ABC Board brought several administrative charges against RNR after the raid. These charges eventually led to the ABC revoking RNR’s beer license.

Thus, it is undisputed that ABC officials participated in the search, an ABC violation was discovered during the search, administrative charges were brought as a result of the search, and those charges eventually led to the revocation of RNR’s beer license. Moreover, there is no allegation that the search was for anything other than ABC violations. Consequently, any claim that the inspection was performed “solely to gather evidence of criminal activity,” Johnson, 994 F.2d at 742, surely “stops short of the line between possibility and plausibility,” Twombly, 127 S. Ct. at 1966.

. . .

In their complaint, Appellants allege that over fifty law enforcement officers, including six or seven ABC agents, participated in a search of RNR that lasted more than an hour. According to Appellants, many of the officers were heavily armed SWAT team members dressed in full tactical gear. Appellants also claim that RNR patrons and employees were ordered “against the wall to be searched by heavily armed officers,” (J.A. at 85), causing them to be “detained and terrorized,” (J.A. at 76). Finally, Appellants allege — in their briefs, but not their complaint — that these patrons and employees were held at gunpoint for over an hour.

Based on these allegations, we conclude that Appellants have pleaded sufficient facts to survive a motion to dismiss. At this stage of the proceedings, we simply do not know enough about the circumstances surrounding the search and its execution to determine whether the inspection was reasonably conducted and, if not, whether qualified immunity is appropriate. Accordingly, we reverse the grant of qualified immunity in favor of Detective L, Detective W, Chief Evans, and Kifer on Appellants’ Fourth Amendment claim and remand the case for further proceedings.

The court offered the following guidance for the remand on the coming reasonableness inquiry which is also important:

While we of course leave the conduct of such proceedings to the district court, the boundaries of the inquiry upon remand are worth mention.

As noted above, the inquiry here is one of reasonableness. Thus, the guiding standard “is whether, under the circumstances confronting the officers and disregarding their intent or motivation, their conduct was objectively reasonable.” Crosby, 187 F.3d at 1351 (citing Graham v. Connor, 490 U.S. 386, 397, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)). Because context matters when making such a determination, per se rules are seldom appropriate.

For example, the number of officers present for the search, while undoubtedly relevant, is not by itself dispositive. Depending on the circumstances, it may be eminently reasonable for fifty (or more) police officers to participate in the search of a liquor establishment. See McNair v. Coffey, 279 F.3d 463, 466 (7th Cir. 2002) (remarking that “nothing in the fourth amendment specifies how many officers may respond to a call”). The number may be gross overkill or it may be necessary to ensure the safety of inspectors and patrons alike. Whatever the case, the number of officers is but one consideration among many, and it certainly does not on its face render the search unreasonable.

Ordering patrons and employees against a wall during the search is likewise not per se unreasonable, as Appellants appear to suggest. The Supreme Court has repeatedly made clear that officers, when executing a search, “may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search.” Los Angeles County, Cal. v. Rettele, 550 U.S. ___, 127 S. Ct. 1989, 1992, 167 L. Ed. 2d 974 (2007) (citing Muehler v. Mena, 544 U.S. 93, 98-100, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005)). It is for this reason that the Supreme Court has underscored that officers may “detain the occupants of the premises while a proper search is conducted.” Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981). Such detentions, the Court has noted, are appropriate “because the character of the additional intrusion caused by detention is slight and because the justifications for detention are substantial.” Muehler, 544 U.S. at 98 (citing Summers, 452 U.S. at 701-05).

Rather than resort to per se rules, courts must consider all of the relevant circumstances surrounding the search. Thus, in addition to the facts discussed above, the district court should take into account, among other things, the following factors: the nature of the place searched, the number of people the officers expected to encounter, Crosby, 187 F.3d at 1343 n.4, the likelihood that the officers “would be met with resistance or defiance,” Bruce, 498 F.3d at 1245, and whether the search was unduly prolonged. The court should also consider the specific conduct of the officers involved, particularly whether they engaged in any unreasonably threatening behavior, such as an abuse of weapons or the causing of physical harm.

At the same time, however, it must be remembered that it is not a court’s “role to tell local governments how to conduct an administrative search.” Crosby, 187 F.3d at 1348. So long as the officers behaved reasonably, the discretion about how to best perform the inspection is theirs and theirs alone. The very term “reasonableness” implies reasonable latitude and room for judgment. And when officers “act in a reasonable manner to protect themselves from harm … the Fourth Amendment is not violated.” See Rettele, 127 S. Ct. at 1993-94.

We find three decisions by the Eleventh Circuit to be instructive in determining whether, based on the totality of the circumstances, an administrative search was unreasonably excessive. In the first pair of cases — Swint and Bruce — the court found administrative inspections to be “unreasonably excessive in execution” and, therefore, in violation of the Fourth Amendment. Bruce, 498 F.3d at 1244.

Why the court did not cite Ybarra, which is clearly more in point, I don’t get.

Ruttenberg v. Jones, in the district court is posted here.

In a “tax protester” suit, an IRS summons and levies comply with the Fourth Amendment. Marranca v. United States IRS, 2009 U.S. Dist. LEXIS 27831 (W.D. N.Y. March 31, 2009)*:

Fourth Amendment protections apply in the IRS tax collection context only when the property sought by levy is unobtainable without an intrusion of privacy. See GM Leasing Corp., 429 U.S. at 351-52; Maisano v. Welcher, 940 F.2d 499, 502-03 (9th Cir. 1991) (“In applying the Fourth Amendment to IRS seizures of taxpayers’ property, the Supreme Court indicates that the key issue is whether the seizure involves an invasion of privacy.”) Since the Notice of Levy in this case was served on Petitioners employer, Petitioner had no reasonable expectation of privacy and the Fourth Amendment warrant requirement is therefore not implicated. See Cameron, 593 F.Supp. at 1554 (holding that no invasion of privacy occurred for Fourth Amendment purposes where wages were “levied when [they were] neither in plaintiff’s private possession nor subject to his private control”).

Applying the Dunn standard, the court concludes that officers were on the defendant’s curtilage when they smelled marijuana, and their entry onto the curtilage without a warrant was suppressed. United States v. Rodriguez, 2009 U.S. Dist. LEXIS 27615 (N.D. Fla. March 18, 2009)*:

This Court does not dispute the fact that when the officers smelled marijuana ten feet from the door, the officers had probable cause to obtain a warrant to search the premises. What this Court does conclude, however, is that in arriving at the location where they smelled the marijuana, the officers had unlawfully entered Defendant’s curtilage. Admittedly, the line at which the curtilage starts and is therefore differentiated from an open field is not a clear line. But at some point, between the locked gate that separates Defendant’s property from the public street and the Defendant’s front door, the officers passed into an area where Defendant had a privacy right that society is prepared to accept. That area is relatively close to the home. Accordingly, this first factor supports a finding that the point at which the officer was first alerted to the presence of contraband occurred within curtilage.

Plaintiff states a claim for failure to return money lawfully seized but without evidentiary value. Springer v. Horn, 2009 U.S. Dist. LEXIS 43072 n.2 (N.D. Okla. May 20, 2009):

The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches and seizures. Winters v. Board of County Commissioners, 4 F.3d 848, 853 (10th Cir. 1993), citing Soldal v. Cook County, Illinois, 506 U.S. 56, 61 (1992). A “seizure” of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” Winters, 4. F.3d at 853, citing Soldal, 506 U.S. at 61. The Tenth Circuit has held that a failure timely to return seized material which is without evidentiary value and which is not subject to forfeiture may state a constitutional or statutory claim. Davis v. Gracey, 111 F.3d 1472, 1477 (10th Cir. 1997).

Defendant got a Franks hearing, but he failed in his burden of proof “[i]n light of the strong presumption that search warrant affidavits are valid.” United States v. Hazelrigg, 2009 U.S. Dist. LEXIS 43022 (D. S.D. February 2, 2009).*

Where the police intentionally used an old warrant list, they could not rely on Herring to avoid application of the exclusionary rule. People v. Morgan, 388 Ill. App. 3d 252, 327 Ill. Dec. 316, 901 N.E.2d 1049 (2009):

In this case, the State failed to meet its burden of proof that the good-faith exception should apply, and exclusion was the proper remedy. The first consideration in determining whether the exclusionary rule should apply–misconduct by the police–clearly applies here. See Herring II, U.S. at , 172 L. Ed. 2d at 507, 129 S. Ct. at 702 (“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system”). Although the trial court found the officers acted reasonably and without any negligence, that conclusion was against the manifest weight of the evidence. The officers testified that they typically obtained a warrant list printed the same day as their visit to the police department. In this instance, they knew they were relying on a warrant list that was up to three days old. They made no attempt to verify the continued existence of the warrant before approaching defendant’s residence. Doing so apparently would have indicated that the warrant was inactive. Deputy Brooke testified that less than five minutes passed between obtaining the warrant list and arriving at defendant’s house. The events at defendant’s house appeared to have occurred over a short period of time. Nonetheless, when Deputy Brooke called the communications center, LivCom, he immediately learned the warrant was no longer valid. The reliance on the old warrant list and the failure to check on the continued validity of the warrant constituted, at the very least, gross negligence, if not reckless or wilful misconduct. See, e.g., Herring II, U.S. at , 172 L. Ed. 2d at 507, 129 S. Ct. at 702 (noting that “the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence” but concluding that the failure to update the warrant system was not “so objectively culpable as to require exclusion”); Michigan v. Tucker, 417 U.S. 433, 447, 41 L. Ed. 2d 182, 194, 94 S. Ct. 2357, 2365 (1974) (“The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in wilful, or at the very least negligent, conduct which has deprived the defendant of some right”).

The second condition necessary to warrant application of the exclusionary rule–whether application of the rule would result in appreciable deterrence–also applies here. See Herring I, 492 F.3d at 1217 (listing the “three conditions that must occur to warrant application of the exclusionary rule”). Unlike court employees, as was the case in Evans, police officers are the very actors the exclusionary rule was meant to deter. See, e.g., People v. Boyer, 305 Ill. App. 3d 374, 379, 713 N.E.2d 655, 658, 239 Ill. Dec. 124 (1999) (applying the exclusionary rule where the prosecutor failed to get a stale warrant recalled, noting that excluding the evidence would deter similar constitutional violations). Moreover, the officers’ reliance on an up to three-day-old warrant list is conduct that can be deterred.

Third, the deterrent benefit of excluding the evidence outweighs the social costs. Specifically, the cost of excluding the evidence is outweighed by the strong deterrent effect of exclusion. See, e.g., Herring II, U.S. at , 172 L. Ed. 2d at 507, 129 S. Ct. at 703 (“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system”).

Officers responded to a shots fired call, and the defendant was standing with a group in a high crime area leaning against a car with tinted windows. They directed the people to show their hands, which defendant refused. He was handcuffed, frisked, and nothing was found. He was unhandcuffed, and the officer used his flashlight to look in the car, seeing a gun sticking out from under the seat. The use of the flashlight was lawful. District Court’s suppression order was valid. United States v. Tyson, 307 Fed. Appx. 664 (3d Cir. 2009) (unpublished).

A knock-and-talk resulted in an alleged consent search of defendant’s hotel room. The trial court applied the wrong standard of review on whether a “founded suspicion” was required. The case was remanded to the trial court for findings on the voluntariness of consent. People v. Madden, 58 A.D.3d 1023, 871 N.Y.S.2d 766 (3d Dept. 2009).*

Informant’s information was lacking corroboration, and the police here corroborated only neutral details. The affidavit was not so lacking in PC, however, that the good faith exception did not save it. State v. Nunez, 2008 Ohio 6806, 180 Ohio App. 3d 189 (6th Dist. December 19, 2008).*

Informant here satisfied Tennessee’s Aguilar/Spinelli. State v. Currie, 2008 Tenn. Crim. App. LEXIS 986 (December 18, 2008).*

Defendant’s new crime barred the exclusionary rule from applying in his case under Wong Sun. State v. Iduarte, 268 S.W.3d 544 (Tex. Crim. App. October 29, 2008), aff’g State v. Iduarte, 232 S.W.3d 133 (Tex. App.–Fort Worth 2007) (posted here):

The exclusionary rule was designed to protect individuals from the use at trial of evidence that was obtained in an unlawful manner. See Wong Sun, 371 U.S. at 486. It does not, however, provide limitless protection to one who chooses to react illegally to an unlawful act by a state agent. Id. If that were allowed, the genuine protection that the exclusionary rule provides would be undermined. Here, evidence of the charged offense did not exist before the officer’s challenged actions because the charged offense had not yet occurred; the evidence showed a subsequent independent criminal act that was not causally connected to any unlawful entry by a state agent. Therefore, the exclusionary rule does not apply to this case.

Searching under a mattress was within the “grab area” for search incident purposes. The officers had legitimate fear of the risk of weapons where the person was detained. It was not the defendant, but it led to evidence against the defendant. United States v. Bennett, 555 F.3d 962 (11th Cir. 2009).

An officer pulled up along side a heavily tinted car in a “‘very violent’ area,” and he saw the defendant with his arms raised, cell phone in one hand, money in another. He approached the car, and the arms went down. He asked to see the hands, and the defendant did not respond. He opened the door, and got the defendant out finding a gun in his waist band. This was sufficiently “unusual” conduct under Terry to permit the officer to go further. United States v. Rookard, 307 Fed. Appx. 501 (2d Cir. 2009) (unpublished).*