An Officer was working an interstate bus, and his and the other officers’ actions on the bus did not amount to a seizure, even though there were two “spotters” near the front door. United States v. Richards, 2009 U.S. Dist. LEXIS 37528 (D. Minn. April 17, 2009):

Defendant argued that because an officer was standing in the aisle, there were three other officers between him and the front of the bus, and because he had refused to permit a search of his luggage, he was effectively seized. Def. Mem., pp. 6-7. This reasoning has no merit. There is no testimony that any officer was stationed in the aisle during the interdiction in this case; rather, the testimony was that the officers moved in and out of the aisle as they questioned people, and deliberately did not stand in the aisle. See United States v. Angulo-Guerrero, 328 F.3d 449, 451 (8th Cir. 2003) (bus passengers not seized during interdiction where officer was moving down the aisle to make sure all passengers were questioned, and not to prevent them from leaving). Additionally, the fact that the two “spotters” were stationed in front of the bus did not render defendant seized. In Drayton, where a routine drug interdiction took place on a Greyhound bus under similar circumstances, officers dressed in plain clothes and carrying concealed weapons and visible badges boarded the bus; similar to this case, two officers went to the rear of the bus and one remained stationed in front to observe. 536 U.S. at 197. The Supreme Court found that the bus passengers were not effectively seized when the officers boarded the bus and began asking questions because the officers gave passengers no reason to believe they were required to answer the officers’ questions, and because “there was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice.” Id. at 204.

(This is a situation rife with coercion. I just don’t get it.)

The state failed to show that exigency required the entry of defendant’s property to protect against destruction of seized property. Sounds of hiding evidence is not enough. Burton v. State, 2009 OK CR 10, 204 P.3d 772 (Okla. Crim. App. 2009):

[*P11] In this case, there was no evidence presented at the suppression hearing or trial suggesting that unless the police entered the residence when they did, Burton would either escape or destroy evidence. To the contrary, the record shows that officers were not particularly concerned that evidence might be destroyed. Specifically, the officer in charge at the scene testified at the suppression hearing that the sounds reported coming from inside the house caused him to believe that evidence was only being hidden or concealed.

Defendants pulled off of I-70 to avoid a ruse checkpoint. They pulled into a truck stop and stopped the car and started to get out of the car before it stopped moving. The officer yelled at them three times to stop before they did. They were excessively nervous and RS developed from that based on their unusual travel plans. After the dog alert, it took over 20 minutes before a search ensued, but it was reasonable because the investigation was progressing. State v. Woods, 2009 Mo. App. LEXIS 317 (March 10, 2009).*

A CI with 100 prior uses by the police made a controlled buy off the defendant out of his business. The police had PC to enter and conduct a search incident, which they did, but the buy money was not found on him. That permitted them to open the cash register, and the buy money was located there. State v. Goss, 2009 Ohio 1074, 2009 Ohio App. LEXIS 855 (8th Dist. March 12, 2009).*

Cook County jail strip searches a domestic relations lawyer jailed over night for summary contempt. The Chicago Sun-Times reports on the contempt, which appears to have been issued without warning for something said in court, which is interesting but not important to us, except that the lawyer was stripped searched when booked in; twice according to MyFoxChicago.com.

Cellphone could be removed during a Terry patdown as a potential weapon. (Apparently the number of cellphones (6 on 3 people) was important to the government’s case. There was no indication the cellphones were searched on RS.) United States v. Lopez, 2009 U.S. Dist. LEXIS 36276 (M.D. Pa. April 28, 2009):

Officer Kochanny removed a phone clipped to Martin’s belt during this search, and Officer Fasan discovered at least two bulky items in Rogelio’s pockets that he removed and identified as cellular phones. (Id. at 22, 42, 102.) The officers removed a total of five or six phones from the three suspects. (Id. at 22.) The officers confiscated the phones because, in their experience, arrestees sometimes carry blunt objects similar in size and shape to cellular phones that can be used as weapons. (Id. at 102.) Phones can also be used to conceal knives, shanks, or other implements with which a suspect could injure an officer. (Id. at 21-22, 102.) Removal of the phones again heightened the officers’ suspicion because drug dealers frequently carry several phones to conceal the calls required to arrange drug transactions. (Id. at 22.)

. . .

Reasonable suspicion supported the pat-down search in which Officers Fasan and Kochanny removed defendants’ cellular phones. As officers approached the suspects, Rogelio, Martin, and Zuniga hurried toward the opposite vehicles from those in which they had arrived. Officers noticed that the suspects had exchanged vehicle keys rather than contraband. As a result of their law enforcement training and experience, and in light of the proximity of the parking lot to the interstate, the officers reasonably believed that the suspects had conducted a car-switch transaction instead of a hand-to-hand sale. The officers knew that car-switch transactions could involve large amounts of drugs and that parties to such transactions are frequently armed. Hence, it was reasonable for them to believe that the suspects may have been armed and dangerous “because weapons and violence are frequently associated with drug transactions.” See United States v. Childs, 131 F. App’x 347, 348 n.2 (3d Cir. 2005) (quoting United States v. Robinson, 119 F.3d 663, 337 (8th Cir. 1997)). The officers were therefore entitled to conduct a pat-down search for their safety.

During the search, Officer Fasan obtained multiple cellular phones from Rogelio’s pockets, and Officer Kochanny removed a phone from Martin’s belt. Both officers’ actions were reasonable and appropriate under the circumstances. Officer Fasan removed Rogelio’s phones after feeling them from the exterior of Rogelio’s clothing. He appropriately recognized that a bulky object such as a cellular phone was a potential weapon, and he was permitted to remove the item for safety purposes. Edwards, 53 F.3d at 619 (stating that officer may remove blunt objects–such as a stack of credit cards–that could reasonably feel like a weapon). Officer Kochanny also acted reasonably by confiscating Martin’s phone because suspects may use such objects to conceal knifes, shanks, and other weapons that could threaten officer safety. Accordingly, the court concludes that the officers did not exceed the scope of a Terry pat-down by removing defendants’ cellular phones.

Court credits officers’ testimony that defendant consented to the search and understood English well enough. United States v. Santamaria, 2009 U.S. Dist. LEXIS 35823 (E.D. Mich. April 29, 2009).*

911 call about a home invasion at plaintiffs’ address justified the police coming and entering without a warrant. Alford v. Pousak, 2009 U.S. Dist. LEXIS 35829 (E.D. Mich. April 29, 2009).*

Executing a bench warrant for arrest did not authorize a nighttime entry since a separate showing of need is required for a nighttime entry. Perez v. Borough of Berwick, 2009 U.S. Dist. LEXIS 35778 (M.D. Pa. April 28, 2009).*

Search warrant could authorize a search for all persons on the premises. United States v. Hicks, 2009 U.S. Dist. LEXIS 36145 (E.D. Va. April 27, 2009).*

Court credits officer’s testimony that he could see marijuana seeds with his flashlight through the tinted windows of defendant’s car, and that was a valid plain view. United States v. Drake, 2009 U.S. Dist. LEXIS 35854 (E.D. Mo. April 16, 2009).*

Defendant’s running to his car after seeing officers and then back to the apartment gave officers reason to believe that destruction of the drugs was going to occur. United States v. Bao Chau Ly, 2009 U.S. Dist. LEXIS 16864 (C.D. Cal. March 5, 2009):

Here, exigent circumstances existed because the officers believed that defendant was going to destroy the drugs they suspected were in his residence. At the same time the Pasadena Police stopped Tang, officers observed defendant run out of his residence, go to his car and either place or retrieve something, and run back into the house. They believed, based on defendant’s movements, his earlier drug delivery, Tang’s communication via cellular telephone, and their experience, that Tang had called defendant and told him that law enforcement suspected that they were engaged in narcotics trafficking. There was no other apparent explanation for defendant’s run to his vehicle.

School search of student was not justified by reasonable suspicion, just bare suspicion not individualized. D.M. v. State, 902 N.E.2d 276 (Ind. App. 2009):

When considering these circumstances, it is apparent that Cetto could not articulate a reasonable ground for suspecting that D.M. possessed contraband. Although the State maintains that the search was warranted in light of D.M.’s inconsistent explanations for his late arrival to class, D.M.’s comments to the other student, and the fact that other students had recently been found in possession of weapons and drugs at the school, we cannot agree that these circumstances provided ample justification for the search at its inception. See D.I.R., 683 N.E.2d at 253 (holding that the improvisational nature of a search is precisely what renders it constitutionally infirm and a school official’s search of a student must meet the reasonableness standard).

Because of the proliferation of weapons and drugs in the schools, we emphasize that our nation’s courts have increasingly been called upon to consider the circumstances under which school officials may constitutionally search the students in their charge. We are mindful of the tremendous toll that school violence takes in our communities on a daily basis, including the tragic Columbine High School shootings in 1999 and the more recent Virginia Tech incident. Indeed, the Columbine tragedy was only one of nearly thirty-five other shootings perpetrated by students at elementary, middle, and high schools in America over the past ten years. See Infoplease.com, A Time Line of Recent Worldwide School Shootings, http://www.infoplease.com/ipa/A0777958.html (last visited February 13, 2009).

Although this court is reluctant to interfere with a school’s disciplinary policies, the standard enunciated in T.L.O. commands that students’ legitimate privacy rights must, nonetheless, be balanced against the need of school officials to deal effectively with the threat of drugs and violence. Because Cetto’s search did not comport with the T.L.O. requirements, we are compelled to conclude that the search of D.M.’s jacket was unreasonable and the evidence seized from the jacket was improperly admitted into evidence. Accordingly, we reverse and remand with instructions for the trial court to vacate D.M.’s delinquency adjudication.

State failed to show nexus between defendant’s drug dealing activities and his house. He was once seen leaving the house three days earlier to get in his car to go to a drop, and that was it. Commonwealth v. Pina, 453 Mass. 438, 902 N.E.2d 917 (2009):

It is generally true that the connection between the items to be seized and the place to be searched does not have to be based on direct observation. Safioleas had considerable experience in the methods and practices of drug delivery services and in his affidavit provided an informative context in which to evaluate the manner in which the defendant conducted the drug sale observed by police. The information, nevertheless, that a defendant’s actions may be consistent with a commonly known type of drug delivery service does not, without more, create a sufficient probability that this particular defendant kept a supply of drugs at his home. The only particularized information contained in the affidavit connecting the defendant’s observed drug activity with the apartment in which he lived was a single observation of the defendant driving from the apartment to a location where he sold an unspecified quantity of cocaine to the informant. The lapse of time between that observation and the application for the search warrant (three days) raises further concerns. Probable cause to search a particular location for contraband requires a timely, as well as a substantial, nexus to the illegal activity. Consequently, we conclude that the warrant to search the defendant’s apartment was not supported by probable cause.

Defendant violated a state bail condition not to have alcohol when he was arrested 100′ from his house with beer in hand. That permitted the state officers to conduct a search of his house with him in tow for other evidence of a bail violation. United States v. Gates, 2008 U.S. Dist. LEXIS 107947 (D. Me. December 19, 2008).*

Defendant’s wife consented to a search of their house and taking of computer on which she saw him viewing child pornography. United States v. Roosa, 2009 CCA LEXIS 86 (A.F. Ct. Crim. App. March 17, 2009).*

An interstate bus was stopped on the highway for a safety inspection, and it was apparent that all the passengers were Spanish speakers. While the safety inspection was going on, other officers entered the bus to ask questions and seek consent searches of bags, making it clear that people could avoid the searches by just refusing. The encounters on the bus were constitutional. Solano-Rodriguez v. State, 295 Ga. App. 896, 673 S.E.2d 351 (2009):

Rather, the proper inquiry is “whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Id. at 436. The U.S. Supreme Court further clarified that the inquiry entails considering “all the circumstances surrounding the encounter,” and that the same standard applies “to encounters that take place on a city street[,] in an airport lobby,” or on a bus. Id. at 439-440; see Drayton, supra, 536 U.S. at 203-206 (applying Bostick framework and holding that defendants were not “seized” during drug interdiction effort on bus, even though officers never advised passengers that they had right to refuse to cooperate).

Ignoring Bostick, Solano-Rodriguez relies heavily on Brendlin v. California, 551 U.S. 249 (127 SC 2400, 168 LE2d 132) (2007), in which the U.S. Supreme Court held that a passenger in a private car is seized during a traffic stop. In Brendlin, the U.S. Supreme Court expressly acknowledged that “the relationship between driver and passenger is not the same in a common carrier as it is in a private vehicle, and the expectations of police officers and passengers differ accordingly.” Id. at 2410 n.6. Brendlin did not purport to alter the framework in Bostick for determining whether a police officer’s encounter with a bus passenger is consensual.

Here, Solano-Rodriguez does not dispute that Garcia conducted his encounter with passengers after the bus was stopped for a bona fide, legally authorized safety inspection. The record shows that when he first boarded the bus, Garcia specifically advised passengers that they could leave the bus at any time and did not have to speak with him or comply with his requests. See Bostick, supra, 501 U.S. at 437 (fact that officers advised defendant that he could refuse to consent to search was among factors creating doubt that a seizure occurred); U.S. v. Watson, 80 Fed. Appx. 765, 767 (3d Cir. 2003) (district court did not err in finding that defendant’s encounter with police was voluntary where, inter alia, passengers were advised that cooperation was not required). After addressing passengers from the front of the bus, Garcia made a conscious decision to begin his inspection at the back of the bus so that he would not block the aisle if passengers wanted to exit. The record does not show that Pilcher or VanScoten did or said anything to discourage passengers from getting out of the bus.

During a valid traffic stop, defendants were directed to stand in a particular place and the officer validly searched the interior, finding nothing. He asked for consent to search the trunk. At the time he asked, the defendants would not feel free to leave. People v. Oliver, 387 Ill. App. 3d 1045, 327 Ill. Dec. 154, 901 N.E.2d 482 (2009):

At the time Hampton requested consent to search the trunk, the defendant and James were still standing at the front and rear of the vehicle, respectively, pursuant to Hampton’s earlier directive. Despite having found nothing illegal in the vehicle’s interior, Hampton requested consent from James and the defendant to search the trunk. It is reasonable for one in the position of the defendant and James to conclude that: (1) had the defendant and James ignored Hampton’s request and made efforts to leave the scene, Hampton would not have simply allowed them to leave; and (2) given the ongoing directive to stand at opposite ends of the vehicle, compliance with the request to search the trunk was compelled. See Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870; Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556, 239 Ill. Dec. 25. Under these circumstances, we find that a reasonable person in the defendant’s position would not feel free to leave at the time Hampton made his request. Thus, the defendant and James were subjected to a seizure. See Brownlee, 186 Ill. 2d 501, 713 N.E.2d 556, 239 Ill. Dec. 25.

Anonymous, uncorroborated tip was not enough for probation search. Gordon v. State, 1 So. 3d 1117 (Fla. App. 1st DCA 2009).*

Defendants were stopped for speeding and refused to consent to a search. The officer ordered the defendants out of the car while a dog was called for. Expanding the stop was unjustified, and it was reversed. The presence of an expandable police baton in the door cup holder did not justify a search of the vehicle. Bell v. State, 295 Ga. App. 607, 672 S.E.2d 675 (2009).*

A hypothetical possibility defendant might have had a gun in the house is not an exigent circumstance. United States v. Risner, 2008 U.S. Dist. LEXIS 102170 (N.D. Ind. December 17, 2008):

No exigent circumstances justified the officers’ entry into the residence. The government notes that Mr. Risner was known to have a firearm and could have begun firing at those outside the residence; Mr. Risner was known to drive while intoxicated in the past, was known to be intoxicated, and so might have taken to the road. It’s true that nothing absolutely prevented these possibilities, but they were no more than hypothetical possibilities, not an apparent urgency that justified making what would have been an unreasonable search for Mr. Risner under other circumstances. There was no risk of destruction of evidence; there was no need (as distinguished from an outside chance) to protect life or prevent serious injury. Compare United States v. Dukes, 2008 WL 56017 (N.D. Ind. 2008). Ms. Dean didn’t tell Deputy Dulin that she needed to get back into the house because she had no place else to go. Compare United States v. Henderson, 536 F.3d 776, 785 (7th Cir. 2008).

Defendant’s failure to object to the Magistrate’s R&R was a waiver except for plain error review, and, on Anders review, there was no plain error. On the record, the search was plainly by consent. United States v. Macias, 306 Fed. Appx. 409 (10th Cir. 2008).*

Argument that a drug dog in a highway patrol car is the equivalent of a roving drug checkpoint was not preserved for appeal, but the argument would lose anyway. United States v. Bravo, 306 Fed. Appx. 436 (10th Cir. 2009) (unpublished):

Moreover, this case is easily distinguishable from Edmond and therefore the argument is without merit. Edmond involved a programmatic purpose to uncover evidence of ordinary criminal wrongdoing (drug trafficking), Edmond, 531 U.S. at 40-43, “without individualized suspicion,” id. at 45-46. Here, in contrast, the programmatic purpose of drug interdiction which the agent testified to, Tr. 29-32, is carried out only when there is individualized suspicion that a traffic violation has occurred. Because the stop was objectively justified, we do not look beyond that justification to the officer’s unit assignment. See United States v. Patterson, 472 F.3d 767, 775 (10th Cir. 2006) (finding a stop to be justified even though the officer’s unit assignment was to detect drug couriers).

The seizure and search of defendant’s home computer was with his wife’s consent and within the scope of her consent. United States v. Thomas, 302 Fed. Appx. 558 (9th Cir. 2008)* (unpublished).

Officer who stopped defendant had independent probable cause from the DEA, so the stop was justified. United States v. Sellers, 2009 U.S. Dist. LEXIS 1137 (N.D. Ind. January 8, 2009).*

Police were called to a disturbance call, and defendant’s wife and son were on the street saying that defendant kicked them out and threatened them with a gun. After he came out with a gun and knife and was tackled and arrested, his wife validly consented to an entry of the house to continue the investigation. State v. Adams, 2009 Ohio 53, 2009 Ohio App. LEXIS 38 (5th Dist. January 5, 2009).*

Note: The Ninth Circuit link has recently changed and it has been updated. Its website is more user friendly now.

Officers had reasonable suspicion that defendant probationer was staying in the place the police entered. They had probable cause to believe he had a gun and reasonable suspicion he was where he was staying. United States v. Graham, 553 F.3d 6 (1st Cir. 2009).*

Police had reasonable suspicion of defendant’s car based on it being in a high crime area with furtive movements with the hands and wearing gang colors. United States v. Dejear, 2009 U.S. App. LEXIS 358 (10th Cir. January 9, 2009).*

Defendants were seen acting suspiciously on the parking lot of a VA Medical Center, and the VA police were called. Officers saw them move to another parking lot. One of the defendants was seen hiding something under his shirt. Defendants were stopped and questioned, and they lied about what they were doing there. They were handcuffed and put into separate police cars. One validly consented to a search of the car. United States v. Craig, 306 Fed. Appx. 256 (6th Cir. 2009) (unpublished).*

Defendant’s guilty plea and prior losing of a motion to return property in a criminal case was res judicata to a later action for return of seized property. State v. Dudas, 2008 Ohio 6983, 2008 Ohio App. LEXIS 5808 (11th Dist. December 31, 2008).

Looking under the hood was within the scope of consent. There, reasonable suspicion or even probable cause had developed. Pincherli v. State, 295 Ga. App. 408, 671 S.E.2d 891 (2008).*

Officer’s failure to disclose that defendant had a piece of paper in his mouth when he took a PBT was not material to the finding of probable cause, and the trial court’s finding of a Franks violation was clearly erroneous. People v. Mullen, 282 Mich. App. 14, 762 N.W.2d 170 (2008).*

Approaching a parked car to talk to the driver is not a seizure. State v. Hurtuk, 2009 Ohio 1004, 2009 Ohio App. LEXIS 821 (11th Dist. March 6, 2009).*

Juvenile who saw an unmarked car and dropped a bag of marijuana as he turned and walked away was not seized when he dropped it. In re J.S., 2009 La. App. LEXIS 381 (4th Cir. February 18, 2009).*

In contrast, when the defendant was encountered by police and told to show his hands, he dropped a gun, and that was a seizure without cause. Commonwealth v. Pierre, 453 Mass. 1010 (March 12, 2009).*

Defense counsel was not ineffective because defendant’s search was justified as a probation search after officers learned he was involved in a meth ring. State v. Adkins, 2009 MT 71, 349 Mont. 444, 204 P.3d 1 (2009).*

Inevitable discovery supported the seizure and search of defendant’s laptop stored in a garage with defendant’s and other people’s stuff. It was contended by the mother of an abuse victim that defendant had pictures of the sexual abuse on the computer. The police seized it from the combined storage area and got a federal search warrant based on the mother’s description of what she had seen. Even if the seizure was invalid, the court is convinced beyond doubt that the police would have shortly had possession of the computer by other, more lawful means. State v. Lacey, 2009 MT 62, 349 Mont. 371 (March 3, 2009).*

State’s seizure of evidence not used at trial could hardly be used to invalidate a conviction after the fact. State v. Dudas, 2009 Ohio 1003, 2009 Ohio App. LEXIS 824 (11th Dist. March 6, 2009).*

Defendant called his alleged victim while police and a social worker were there. She put it on speakerphone and they recorded it. He had no expectation of privacy in the call. Bankston v. State, 4 So. 3d 377 (Miss. App. 2008).*

Officer lacked probable cause for a blood draw after a fatal accident because there was no objective evidence that defendant was intoxicated. Alleged consent at the hospital was not voluntary because defendant was told a blood draw was going to occur. Case v. State, 2008 Tenn. Crim. App. LEXIS 720 (August 26, 2008):

The facts of the case lead us to conclude that consent was neither validly given, nor, in fact, given at all. Officer Griffith, under a mistaken belief that he had the right to require the Defendant to submit to a blood test, seized him and placed him in the patrol car against the Defendant’s parents’ wishes. He informed the Defendant that he was required to submit to a blood test, and the Defendant, understandably, did not attempt to refuse. When the two arrived at the hospital, Officer Griffith remained at his side throughout the procedure. Officer Griffith never asked the Defendant if he was willing to consent to a blood test; he merely informed him one was to take place.

The U.S. AOC wiretap report is online here. Wiretaps are not cheap: pdf page 11:

Table 5 provides a summary of expenses related to intercept orders in 2008. The expenditures noted reflect the cost of installing intercept devices and monitoring communications for the 1,703 authorizations for which reports included cost data. The average cost of intercept devices installed in 2008 was $47,624, down 2 percent from the average cost in 2007. For federal wiretaps for which expenses were reported in 2008, the average cost was $70,536, a 7 percent increase from the average cost in 2007. The average cost of a state wiretap declined 6 percent to $41,154 in 2008.

Convictions from wiretaps are a near certainty, but not all defendants.

Philadelphia Daily News: Narc supervisors repeatedly ignored procedures for issuing search warrants
:

RED FLAGS were everywhere. Something wasn’t right.

Search-warrant applications read like form letters. A confidential informant made drug buys across the city, sometimes just minutes apart, defying the laws of physics. And narcotics officers worked alone with their informants, violating a Police Department rule.

Yet police brass apparently failed to notice.

Again and again, supervisors in the Philadelphia Police Narcotics Field Unit signed off on cookie-cutter applications for search warrants, which are now the subject of an expanding FBI and police Internal Affairs Bureau investigation.

“I think supervisors dropped the ball,” said David Rudovsky, a prominent civil-rights attorney who specializes in police misconduct cases.

From PoliceOne.com and the Philadelphia Inquirer: Philly police reliance on informants has risks.

Gant in the blogs:

New York Law Blog: After Gant, Is New York’s Car Search Rule Stricter, More Lenient or Juuuust Right?

Volokh Conspiracy: When Is It “Reasonable to Believe” That Evidence Relevant to An Offense is In A Car? Does that Require Probable Cause, Reasonable Suspicion, or Something Else?; Does Arizona v. Gant Extend Beyond Passenger Compartments?

Dallas Criminal Defense Lawyer Blog: SCOTUS case of the day- Arizona v. Gant

Defending People: Arizona v. Gant

Simple Justice: Car Searches: Supremes Take On Arizona v. Gant

And Here: SCOTUS: Search incident for driving on a suspended license violates Fourth Amendment: Arizona v. Gant; Belton limited like it should

While a probation search may be conducted on reasonable suspicion, probable cause is required to believe the defendant lives where the search is performed. United States v. Mayer, 530 F.3d 1099 (9th Cir. 2008), reprinted as amended 2009 U.S. App. LEXIS 8245 (9th Cir. March 16, 2009), on denial of rehearing en banc:

Before law enforcement officers may conduct a warrantless probation search, however, they must also have probable cause to believe that the probationer actually lives at the residence searched. See United States v. Howard, 447 F.3d 1257, 1262 (9th Cir. 2006); Motley v. Parks, 432 F.3d 1072, 1079-80 (9th Cir. 2005) (en banc). In Illinois v. Gates, 462 U.S. 213, 233-34, 243-46, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), the Supreme Court held that probable cause may be established based on a tip from an anonymous informant if there are sufficient indicia of reliability. Such indicia include the informant’s history of providing accurate information on previous occasions, a detailed description of the alleged wrongdoing that the informant witnessed first-hand, the provision of details not easily obtained or predicted, or the police’s ability to corroborate the information. Id.

Defendant’s workshop was outside the curtilage, applying the Dunn factors, and its use appeared to be nondomestic. United States v. Davis, 530 F.3d 1069 (9th Cir. 2008).

Defense of impossibility that the property sought by the police in the search warrant was not actually stolen under Minnesota law did not preclude the issuance of the warrant for attempt. Since there was probable cause, there was no need to consider the good faith exception. United States v. Abumayyaleh, 530 F.3d 641 (8th Cir. 2008).*

A thoughtful article about the Supreme Court’s “seizure” doctrine, so much a part of the all encompassing reasonable suspicion standard, by David K. Kessler is Free to Leave? An Empirical Look at the Fourth Amendment’s Seizure Standard, 99 J. Crim. L. & Criminology 51 (2009). From the summary:

Whether a person has been “seized” often determines if he or she receives Fourth Amendment protection. The U.S. Supreme Court has established a standard for identifying seizures: a person is seized when a reasonable person in his situation would not have felt “free to leave” or otherwise to terminate the encounter with law enforcement. In applying that standard, today’s courts conduct crucial seizure inquiries relying only upon their own beliefs about when a reasonable person would feel free to leave. But both the Court and scholars have noted that although empirical evidence about whether people actually feel free to leave would help guide the seizure inquiry, no such evidence presently exists. This Article presents the first empirical study of whether people would actually feel free to leave in two situations in which the Court has held that people would: on public sidewalks and on buses. Drawing on a survey of 406 randomly selected Boston residents, this Article concludes that people would not feel free to end their encounters with the police. Under the Court’s current standard, respondents would be seized within the meaning of the Fourth Amendment in both scenarios. The data also show that knowledge of one’s legal right to end the encounter with the police would not make people feel free to leave, and that women and people under twenty-five would feel less free to leave than would men and people over twenty-five. This initial empirical evidence suggests the need to rethink the current seizure standard.