In Fisher v. City of San Jose, 558 F.3d 1069 (9th Cir. 2009) (en banc), the Ninth Circuit held that a twelve hour armed standoff that started with an exigency continued with one, and the police were not required to assess the situation minute-by-minute to determine that they needed an arrest warrant:

According to Fisher, the only reasonable conclusion supported by the evidence is that the exigency that existed before 6:30 a.m. dissipated after that time, thus rendering his continued seizure and the completion of his arrest unreasonable under the Fourth Amendment. Implicit in Fisher’s argument is the following premise: in an armed standoff, once a suspect is seized by virtue of being surrounded and ordered to surrender, the passage of time may operate to liberate that suspect, re-kindle the arrest warrant requirement, and require police to assess with each passing minute whether the circumstances remain exigent.

We reject this premise. Not only does it buckle under the weight of Supreme Court caselaw and that of our own circuit, but it further complicates the already complex and dangerous process of safely resolving armed standoffs, without providing any meaningful Fourth Amendment protection. We conclude that once exigent circumstances and probable cause justified Fisher’s seizure, police were not required to obtain an arrest warrant despite the fact that they did not take Fisher into full physical custody until hours later.

. . .

Requiring police in this type of siege environment to obtain an arrest warrant for Fisher, a person who is already under arrest but not yet in full physical custody, serves no practical purpose. Given that police had ample probable cause to arrest Fisher for felonies committed in their presence, any warrant obtained by the police would have merely authorized them to do exactly what they were already doing, and indeed, exactly what they were already authorized to do: surround Fisher’s home and attempt to neutralize the threat that he posed by arresting him. We do not see what a neutral and detached magistrate would have added in helping to peacefully effect Fisher’s arrest. Fisher is unable to clearly define what the Fourth Amendment allegedly required (or should require) the police to ask of the magistrate judge in the instant case. There is no support for the position that, after Fisher had been lawfully seized in his apartment, the Fourth Amendment required the police to retroactively justify the arrest to a magistrate judge by asking for an arrest warrant that had in effect already been executed. In fact, asking the magistrate judge to determine whether probable cause justified the initial seizure when police first surrounded Fisher’s residence or justifies his continued seizure amounts to the retroactive warrant practice that we have condemned. See United States v. Allard, 634 F.2d 1182, 1187 (9th Cir. 1980) (observing that “post hoc justifications [for searches and seizures] are alien to the Fourth Amendment warrant and reasonableness requirements”).

In addition, Fisher’s dissipation theory would have serious consequences beyond simply forcing police to engage in the empty gesture of obtaining a warrant in the midst of a dangerous and volatile standoff. It would introduce yet another element of uncertainty into the already complex and dangerous calculus confronting law enforcement in armed standoff situations. At minimum, the officers on the scene would be unable to devote their full attention to the actual threat and to ensuring public safety. Police would be forced to ponder with each warrantless arrest that existed at the start of the standoff had sufficiently dissipated such that they must immediately divert one or more officers from the task of resolving the standoff to the time-consuming project of obtaining a warrant. As we have recognized, “[o]btaining a telephonic warrant is not a simple procedure; among other things, a duplicate original warrant must be prepared in writing and read to the magistrate verbatim. The only step that is saved is the trip to the magistrate’s office.” United States v. Good, 780 F.2d 773, 775 (9th Cir. 1986) (internal quotation marks and brackets omitted).

One dissent argues:

The majority’s contention that requiring a warrant in the circumstances presented by this case would be pointless and inefficient suggests that today’s opinion has less to do with the conduct of Fisher — whose drunken interaction with a security guard led to a twelve-hour, hostage-free standoff; a single misdemeanor conviction; and an award of nominal damages and additional police training — and more to do with the majority’s lack of respect for the warrant requirement. This court is not free to abandon that requirement, and it is regrettable that the majority renders it a nullity in the category of cases before us. It does so without any precedent in law, and its sole legal rationale consists of an erroneous extension of a single Supreme Court case — a case designed to allow emergency efforts by firefighters to eliminate unsafe fire conditions — to circumstances in which it has absolutely no applicability. Even more regrettable is the majority’s failure to respect the historic Fourth Amendment principles that give meaning to the warrant requirement. Accordingly, I dissent.

Comment: This is another example of hard cases make bad law. A standoff is sui generis, and making the Fourth Amendment fit once the exigency starts and then allegedly dissipates is difficult at best. Both sides have their points, but, once the suspect has started the standoff, he should be in no position to argue that an arrest warrant was really needed as the standoff become less exigent. A sliding scale just will not work in this type of case, because requiring an arrest warrant adds nothing to protect the rights of the accused in this situation.

Law.com’s story is here. The panel decision from November 21, 2007 is posted here.

Defendant’s failing a probation UA justified a probation search of his premises. United States v. Crews, 2009 U.S. Dist. LEXIS 13360 (W.D. Pa. February 20, 2009).

Seventh Circuit jail strip search law is well settled, and the fact the Eleventh Circuit questioned in 2008 one of the Seventh Circuit’s leading case does not mean that the Seventh Circuit will change its position. Young v. County of Cook, 598 F. Supp. 2d 854 (N.D. Ill. 2009).*

Defendant’s girlfriend having the security code to get into defendant’s storage building showed that she had apparent authority to consent to a search. United States v. Burcham, 2009 U.S. Dist. LEXIS 13619 (W.D. Tenn. February 19, 2009).*

Officers investigating a shooting call and seeing a vehicle leave which matched the description given had authority to enter to check on others. United States v. Thomas, 2009 U.S. Dist. LEXIS 13395 (D. V.I. February 18, 2009)*:

The Court notes that there exists an expectation of privacy as to the area surrounding a residence or home. Chun Yen Chiu, 857 F. Supp. at 359; see Payton v. New York, 445 U.S. 573, 589-90, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984); United States v. Velasquez, 626 F.2d. 314, 316-317 (3d Cir. 1980). However, police officers were justified in conducting a protective sweep around the outside of the residence at 6-6 Catherine’s Rest during which they saw the marijuana plants and firearm in plain view. The Supreme Court established that officers may conduct a protective sweep when “the searching officer ‘possessed a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing’ that the area swept harbored an individual posing a danger to the officer or others.” Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990); see United States v. Morgan, 2000 U.S. Dist. LEXIS 15905 at *21 (E.D. Pa. Oct. 20, 2000).

Considering the facts that one individual had been shot and another had come running from behind the house, it was reasonable for officers to believe that another person may be located around the residence and may either pose an additional threat or be in need of assistance. Because the officers’ protective sweep of the area outside of the residence was a reasonable means of ensuring that no potentially dangerous and unknown individuals were in the vicinity, the Court finds it permissible under the Fourth Amendment. Morgan, 2000 U.S. Dist. LEXIS 15905 at 22; see Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).

Search incident of a cell phone for driving on a suspended license was unwarranted and suppressed, even though it was intended to find information relating to the smell of marijuana in the car. United States v. Quintana, 594 F. Supp. 2d 1291 (M.D. Fla. 2008).

Here, rather than seeking to preserve evidence that Defendant was driving with a suspended license, Garcia was rummaging for information related to the odor of marijuana emanating from the vehicle. Where a defendant is arrested for drug-related activity, police may be justified in searching the contents of a cell phone for evidence related to the crime of arrest, even if the presence of such evidence is improbable. In this case, however, Defendant was arrested for driving with a suspended license. The search of the contents of Defendant’s cell phone had nothing to do with officer safety or the preservation of evidence related to the crime of arrest. This type of search is not justified by the twin rationales of Chimel and pushes the search-incident-to-arrest doctrine beyond its limits. See Thornton, 541 U.S. at 624 (O’Connor, J., concurring in part); see also Evans v. Stephens, 407 F.3d 1272, 1297 (11th Cir. 2005) (finding strip search for drugs incident to arrest for driving under the influence unlawful where officer “did [not] have any reason to believe that the strip search would reveal relevant evidence”); State v. Smith, No. 07-CA-47, 2008 WL 2861693, at *8 (Ohio 2d DCA July 25, 2008) (affirming trial court’s decision in drug case to admit cell phone’s call records but suppress incriminating photos found in the phone because there was no reasonable suspicion that the photo album would contain such evidence).

Accordingly, the information obtained pursuant to Garcia’s search of the cell phone photo album should be suppressed. Because this information–a photo of a “grow house”–directly led to and tainted the preliminary search of the Lutz residence, any information discovered during that search should also be suppressed.

Officers working a high crime area with a drug dog. They saw defendant and smelled burnt marijuana. They asked for consent and were refused, so they searched anyway. The trial court sustained the search because defendant was on a bond condition that permitted searches, even though the officers were unaware of it. Remanded for consideration of the officer’s lack of knowledge of the bond condition. Cantrell v. State, 295 Ga. App. 634, 673 S.E.2d 32 (2009).*

Defendant was stopped for a traffic offense and nearly immediately consented. The evidence supported the trial court’s finding of consent, and the court distinguished defendant’s authority (State v. Morelock, 851 S.W.2d 838, 840 (Tenn.1992)) where that defendant consented after five requests for consent. State v. Davis, 2009 Tenn. Crim. App. LEXIS 60 (January 23, 2009).*

One officer on the premises executing a search warrant went to use the bathroom, and he lifted the toilet seat finding a tampon box floating with three watches with sales tags on them which were stolen property. This was a valid plain view. United States v. Watson, 2009 U.S. Dist. LEXIS 5179 (E.D. Pa. January 23, 2009).*

Prescription fraud by doctor case: The warrant sufficiently complied with Rule 41 that the defendant could not claim that he was prejudiced. The probable cause was writing prescriptions for heavy painkillers for CI’s who were not effectively treated. The warrant was not overbroad. United States v. Stack, 2009 U.S. Dist. LEXIS 5193 (D. Utah January 22, 2009):

The First Warrant was not a general warrant because it contained the following limitations: Paragraph Three of the First Warrant; the patient list and drug list provided to the searching agents; and the nature of the crime alleged (distribution of a controlled substance). Moreover, the broad scope of the records to be searched was not problematic because the fourteen-page affidavit established probable cause to search the records listed in those five paragraphs. See, e.g., United States v. Hargus, 128 F.3d 1358, 1363 (10th Cir. 1997) (“Even a warrant that describes the items to be seized in broad or generic terms may be valid when the description is as specific as the circumstances and the nature of the activity under investigation permit.”) (quoting David v. Gracey, 111 F.3d 1472, 1478 (10th Cir. 1997)); Voss v. Bergsgaard, 774 F.2d 402, 408 (10th Cir. 1985) (“The breadth of a warrant must be justified by the breadth of the probable cause.”) (Logan, J., concurring); United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir. 1986) (“The number of files that could be scrutinized … is not determinative. The search and seizure of large quantities of material is justified if the material is within the scope of probable cause underlying the warrant.”). In addition, the amount of documents seized was relatively small compared to the amount of documents in the office. (See Tr. at 19.) See also Voss, 774 F.2d at 405 (execution of search good evidence of whether warrant was overbroad).

A Miranda warning is not required before a blood draw for DNA testing. Robinson v. State, 2 So. 3d 708 (Miss. App. 2008).*

Initial encounter was consensual where officer walked up to defendant standing outside his car. The officer parked near but did not block the defendant. It escalated into reasonable suspicion of DUI. State v. McGinnis, 40 Kan. App. 2d 620, 194 P.3d 46 (2008).*

No standing in a motel room rented solely for manufacture of drugs which the defendant did not rent or keep any other personal belongings in. United States v. Robertson, 297 Fed. Appx. 722 (10th Cir. 2008)* (unpublished):

As noted by the district court, the suite was not registered to any of the occupants, and no personal items indicating an overnight stay were present. All the evidence indicated that the suite was used only to manufacture and distribute illegal drugs. Accordingly, the district court properly concluded that Robertson lacked a reasonable expectation of privacy in the motel suite and that he could not challenge the search of the suite.

Officer’s qualifications to determine the smell of raw marijuana was not shown, so the search fails. State v. Holley, 899 N.E.2d 31 (Ind. App. December 23, 2008).

Where the officers did not enter the house, it could not be characterized as a knock and talk. The entry here was to a commercial part of the property. The “no trespassing” sign did not create an expectation that officers would not approach the property. Jones v. State, 407 Md. 33, 962 A.2d 393 (2008), affg Jones v. State, 178 Md. App. 454, 943 A.2d 1 (2008), posted here.

911 caller gave specific first hand information about a named and identified man with a gun who was threatening two women. The officer arrived and saw a man fitting the description who turned and walked away when he saw the officer. When the man was seen again, he was talking to two women, and this was sufficient corroboration[!]. Coupled with flight under Wardlow, there was reasonable suspicion. United States v. Robinson, 304 Fed. Appx. 746 (10th Cir. 2008) (unpublished).*

Officers did not violate Franks where they did not know of the CI’s firearms arrest until after the search warrant was applied for. And, it did not make a difference. United States v. McCoy, 303 Fed. Appx. 45 (2d Cir. 2008)* (unpublished).

Near reasonable suspicion existed when officer approached the defendant to ask him questions before he fled, and that was enough. United States v. Davenport, 303 Fed. Appx. 42 (2d Cir. 2008)* (unpublished).

Bivens and FTCA action was barred by Heck because it attacked the underlying conviction. Trupei v. United States, 304 Fed. Appx. 776 (11th Cir. 2008)* (unpublished).

While a gym bag may have been subject to a Terry patdown for a weapon based on the defendant’s conduct, it was incumbent on the state to produce it and show why a search of the bag was necessary instead. McDowell v. State, 407 Md. 327, 965 A.2d 877 (2009), rev’g McDowell v. State, 179 Md. App. 666, 947 A.2d 582 (2008):

Having concluded that Trooper Gussoni was justified in examining the gym bag to determine whether it contained a weapon, we now must determine whether the method he used to make that determination was, under the circumstances, a permissible one — whether he was authorized to open the bag, or demand that McDowell do so, so that he could view its contents, without articulating why a pat-down of the bag would not have sufficed to achieve his purpose.

So far as we can tell, this issue has arisen before in only two reported cases, both in the Federal system. In United States v. Vaughan, 718 F.2d 332 (9th Cir. 1983), the police stopped a car containing three men. The car was stopped because there were arrest warrants outstanding for two of the men. When the car was stopped, the third man, Vaughan, exited the vehicle carrying a soft vinyl briefcase and started to walk away. The police had no idea who Vaughan was and had no reason to suspect that he was or had been engaged in any criminal activity. Nonetheless, they brought him back, took the briefcase, and handcuffed him, all of which the court found permissible under Michigan v. Summers, 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed.2d 340 (1981). An officer then opened the briefcase and found in it some documents that were later referenced in an affidavit to support a search warrant for a hard cover briefcase and a suitcase also found in the car. The issue was the validity of the warrant, which hinged on the validity of the search of Vaughan’s vinyl briefcase. Although the court agreed that the police had the right to detain Vaughan and frisk him for weapons, it held that they had no right to open the vinyl brief case: “The briefcase was soft and thin. Any weapons could have been felt through the cover. Thus, the officers had no reason to open it to protect their safety.” Id. at 335.

Defendant’s search incident was valid without an independent showing of need for it, and court permitted him to preserve an argument that it might be invalid if Arizona v. Gant (argued October 7th) comes out favorably to him. The SI was for DUI. Also, defendant’s motor home could be temporarily seized to protect against loss of evidence under McArthur on reasonable suspicion. United States v. Grote, 2009 U.S. Dist. LEXIS 30919 (E.D. Wash. March 26, 2009)*:

The officers did not need probable cause to temporarily “seize” the motor home, but only reasonable suspicion that Defendant was engaged in criminal activity and that evidence of the same could be found in the motor home. The temporary “seizure” of Defendant’s motor home is treated like a Terry stop of a person for which the standard is “a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L. Ed. 2d 1 (1989)(citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L. Ed. 2d 889 (1968)). “The quantum of proof needed for reasonable suspicion is less than a preponderance of evidence, and less than probable cause.” United States v. Tiong, 224 F.3d 1136, 1140 (9th Cir. 2000). “Reasonable suspicion … can arise from information different in quality and content and even less reliable than that required for the establishment of probable cause.” United States v. Mattarolo, 209 F.3d 1153, 1157 (9th Cir. 2000). What is required are “specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that the particular person … is engaged in criminal activity.” United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1989).

Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L. Ed. 2d 838 (2001), to which the Defendant cites, did not hold that officers must have probable cause to temporarily “seize” a residence. …

. . .

“Exigent circumstances” justified a temporary “seizure” of the motor home. While a firearm may not easily be destroyed, it certainly can be further secreted and concealed, particularly when it is located in a motor home which itself can be moved. In other words, Defendant could have driven off in the motor home and then removed firearms from the motor home and secreted them somewhere else, or he could simply have removed the firearms from the motor home where parked and secreted them elsewhere.

Concealment of evidence was not the only concern. The officers were concerned for their own safety because the evening before, they had found loaded weapons and explosives in the Defendant’s possession. …

The N.S.A. was found to have “overcollected” wiretapped domestic calls. See NYTimes.com Officials Say U.S. Wiretaps Exceeded Law.

“Overcollected.” Newspeak for “we massively violated everybody’s constitutional rights.”

“The claim that the inspection of the computers and CD-ROMs was untimely is contradicted by the August 2, 2004 Order Amending Search Warrant, which permitted the government to retain the ‘computers and computerrelated equipment’ without temporal limitation.” [But, how did that happen?] United States v. Anson, 304 Fed. Appx. 1 (2d Cir. 2008)* (unpublished), cert. den. 2009 U.S. LEXIS 2397 (U.S. Mar. 30, 2009).

Officer had reasonable suspicion for stopping defendant’s vehicle, and the use of a drug dog during the stop was not reasonable. United States v. Langlois, 2008 U.S. Dist. LEXIS 88611 (N.D. N.Y. November 3, 2008).*

Defendant was taken from his car and handcuffed, but the officer told him that when the officer checked out the situation, he would be permitted to go. This was governed by Terry and was not a full arrest. United States v. Ledford, 2008 U.S. Dist. LEXIS 88550 (S.D. Ind. October 30, 2008).*

Entry for protective sweep was justified by fear that there were armed fugitives inside, and getting a warrant was no option. State v. Guggenmos, 225 Ore. App. 641, 202 P.3d 892 (2009):

However, securing the premises and obtaining a warrant was not a reasonable option in this situation, because the third officer, Morrison, remained inside the house with Tidwell. Mogle explained that he “went back upstairs to clear the upstairs because my other officer was up there by himself.” Thus, Mogle had to reenter the house and check the upstairs rooms–without delay–in order to prevent what he reasonably (but, in the event, wrongly) perceived as an immediate threat to Morrison from named persons whom he knew to be wanted individuals involved with drugs. An officer safety sweep is justified not only by immediate danger to the officer, but to others as well. Bates, 304 Ore at 524. Perhaps Mogle could have reentered, explained the situation to Morrison, accompanied Morrison and Tidwell outside, and then attempted to obtain a warrant. His decision to sweep the house himself, however, was the sort of judgment that we are reluctant “to uncharitably second-guess.” Id. We therefore conclude that Mogle’s reentry and cursory search were justified as an officer safety precaution. He was therefore lawfully present in (or at the threshold of) defendant’s room when he saw the disputed evidence in plain view. The police did not exploit information obtained during an unlawful search in order to obtain defendant’s consent to conduct the follow-up search, and, in any event, that search did not lead to any additional evidence. The court did not err in denying defendant’s motion to suppress.

While there was no break between “you’re free to go” and questions about consent, all the other factors weighed in favor of the defendant being objectively free to go. State v. Bretches, 225 Ore. App. 602, 202 P.3d 883 (2009).*

Man armed with a crossbow in a car videotaping prison buses outside prison wall near a tower was reasonably suspected of planning a prison break, and that justified his detention. United States v. Rochelle, 2009 U.S. Dist. LEXIS 10875 (M.D. N.C. February 12, 2009):

Upon seeing Rochelle with the video-camera, walkie-talkie, and crossbow, Allen was concerned for the safety of the guards in the towers as well as those facilitating the prison transfer. He was also concerned that, given these items and the proximity to the prison transfer location, Rochelle could be facilitating a possible prison break or assault on persons in DOC custody. Allen was particularly worried because a crossbow was a weapon that would not produce any report when fired.

Defendant’s prior giving of DNA on incarceration linked him to a rape, and the use of that evidence did not violate the Fourth Amendment. State v. Gaines, 2009 Ohio 622, 2009 Ohio App. LEXIS 540 (8th Dist. February 12, 2009).*

Hot pursuit into defendant’s home on suspicion of merely being intoxicated violated Payton and Welsh and was not supported by Santana. State v. Lala, 1 So. 3d 606 (La. App. 4th Cir. 2008):

Turning to the circumstances at hand, we find that Officer Sullivan’s pursuit of the defendant into her home was unreasonable. While we are not prepared to say that [Santana]’s rationale cannot be extended beyond the context of probable cause to arrest, given the special protections of the home, the State must present a strong interest in conducting a warrantless entry into the home. Here, the defendant’s actions would certainly have appeared perplexing to an observer, and were sufficient to warrant further investigation by Officer Sullivan and his partner; however, once the defendant retreated into the home, any concern for public safety was alleviated, and any concern for Lala’s personal safety could have been addressed by other measures short of forcible entry into the home. Given the limited severity of Lala’s suspected offense, the State’s interest would have been well served by first knocking on the defendant’s door. Accordingly, we reverse the denial of defendant’s motion to suppress the evidence.

Search of defendant’s car was justified by the automobile exception because there was probable cause to believe it contained contraband. Therefore, the court did not have to reach search incident or inventory as an alternative. State v. Wilson, 111 Conn. App. 614, 960 A.2d 1056 (December 16, 2008).*

Handcuffing the defendant on mere speculation to check for warrants was an unreasonable seizure. Defendant was otherwise cooperative and did not try to flee, and there was no suspicion there was a weapon on him. State v. Palmer, 1 So. 3d 689 (La. App. 3d Cir. 2008).*

Mistake in SW that stated it was issued July 21 was actually December 21st because the investigation did not even start until December 19th. This was just a typographical error. [Makes one wonder if the issuing judge ever read the warrant or affidavit, doesn’t it?] State v. E. J. F., 999 So. 2d 224 (La. App. 3d Cir. 2008).*

A peeling inspection sticker is not reason for a stop. Moore v. Commonwealth, 276 Va. 747, 668 S.E.2d 150 (2008).*

Request to see a driver’s license of a person driving a car invokes no constitutional protections under the Fourth Amendment or the state constitution. Defendant consented to the officer looking in the glove compartment for proof of insurance, and that led to a plain view. Shaw v. State, 2009 WY 18, 201 P.3d 1108 (2009).*

“Minnesota’s criminal test-refusal statute does not violate the constitutional prohibition against unreasonable searches because exigent circumstances created by rapidly dissipating evidence of blood-alcohol concentration justify the warrantless search.” The underlying offense does not need to a felony. State v. Netland, 762 N.W.2d 202 (Minn. 2009):

In Shriner, we held that the “rapid, natural dissipation of alcohol in the blood creates single-factor exigent circumstances that will justify the police taking a warrantless, nonconsensual blood draw from a defendant, provided that the police have probable cause to believe the defendant committed criminal vehicular homicide or operation.” Shriner, 751 N.W.2d at 549-50. This conclusion rested squarely on our prior jurisprudence upholding warrantless searches if evidence would be destroyed during the time required to obtain a warrant. Id. at 548. We further recognized that in the case of dissipating alcohol, even the delay required to obtain a telephonic warrant creates an unreasonable burden for law enforcement to evaluate how much time must pass before the evidence disappears. Id. at 549.

Netland argues that Shriner does not compel a result in this case because the police in Shriner had probable cause to believe that Shriner committed criminal vehicular operation. Id. at 546, 548. The officer in this case did not have probable cause to believe that Netland had committed a felony when he invoked the implied-consent statute. But exigency does not depend on the underlying crime; rather, the evanescent nature of the evidence creates the conditions that justify a warrantless search. It is the chemical reaction of alcohol in the person’s body that drives the conclusion on exigency, regardless of the criminal statute under which the person may be prosecuted.

Defendant who built a wooden locker to keep personal belongings in a workplace sleeping area who had it locked with the only key had a reasonable expectation of privacy in the locker, and a warrant was required to enter it. Coworker did not have apparent authority to consent. Tidwell v. State, 2009 Ga. LEXIS 88 (March 9, 2009).

Police officer who, at 1 a.m., came to defendant’s house and walked down 30′ driveway next to house to look over fence into backyard violated defendant’s rights in his curtilage. State v. Pierce, 226 Ore. App. 336, 203 P.3d 343 (2009) (6-4):

Again, the record here is devoid of any evidence that either of the officers responding to the noise complaint had a good faith belief–let alone reasonable grounds to believe–that the noise from the residential backyard indicated “an immediate need for their assistance for the protection of life.” Id. Indeed, the testimony of both Vollrath and the other officer confirms that they were investigating the crime of disorderly conduct–and not that they were attempting to render emergency aid. See generally State v. Salisbury, 223 Ore. App. 516, 524-25, 196 P.3d 1017 (2008) (officers heard yelling and screaming within the curtilage of an apartment consistent with a “domestic quarrel,” but that did not indicate that violence was occurring and did not justify entry under “emergency aid doctrine”).

In sum, regardless of the existence of probable cause, Vollrath’s warrantless invasion of the side and rear areas of the residential curtilage was not justified by any exigency. Further–and the state does not contend otherwise–Vollrath’s observations, and defendant’s statements and consent to search following those observations, were the unattenuated product of that predicate warrantless intrusion. See generally State v. Hall, 339 Ore. 7, 115 P.3d 908 (2005).

The dissent contends, however, that the trial court’s ruling should nevertheless be affirmed on an alternative ground, viz., that Vollrath’s warrantless invasion and consequent observations did not constitute a “search” for purposes of Article I, section 9. As noted, the state has expressly abandoned, and conceded, that matter on appeal. See __ Or App at ___ (slip op at 4). Of course, a respondent’s concession of law is not binding on us. But, here, it is revealing–and correct.

Dissent:

Article I, section 9, protects individual interests from unreasonable scrutiny. The Oregon Supreme Court interprets that interest by reference to social and legal norms of behavior. Governmental intrusions on curtilage to approach the front door of residential homes are permissible because social norms provide that private individuals may take reasonable steps to make contact with residents there. Similarly, when a resident manifests an expectation that private individuals may seek contact on portions of the residential curtilage away from the front door, and such contact would not offend social and legal norms of behavior, a private individual may do so without violating the law. Under the facts of this case, where defendant engaged in disorderly conduct–by making unreasonable noise that caused public inconvenience, annoyance or alarm at 1:00 a.m.–it would have been socially acceptable, and legal, for a member of the public to walk down the driveway to ask defendant to quiet down. Because a member of the public could walk down the driveway without engaging in criminal behavior, a police officer so intruding does not violate defendant’s Article I, section 9, rights. Consequently, the trial court did not err by denying defendant’s motion to suppress.

Defendant’s confederate was nabbed inside a bank for forgery. Officers saw defendant in the getaway car outside and went to arrest him. They could investigate a bulge on the floormat when the officer was told defendant had a gun. State v. Chang, 147 Wn. App. 490 (November 17, 2008).*

Defense counsel was not ineffective for not arguing all defendant’s post-conviction theories about how the search was invalid since none were capable of reversing. Consent after an unlawful entry was sufficiently attenuated to purge the taint under Brown v. Illinois. State v. Artic, 2009 WI App 12, 762 N.W.2d 436 (2008).*

In what the commentators (and list serv traffic) already see as a major test of school search law, the Supreme Court hears argument April 21st in Safford United School District #1 v. Redding, and news articles are appearing in advance. There is today’s Washington Post: Strip-Search Case Could Redefine Student Privacy. The NYTimes had an article March 23d already mentioned here.

The cert grant is posted here, Ninth Circuit’s en banc decision posted here. See also commentary posted on SCOTUSWiki and the American Constitution Society Blog (scroll down to “The Fourth Amendment and Strip Searches in the Public Schools” posted April 7th). In their post:

In short, the Ninth Circuit was correct to hold the search unconstitutional. However, the Ninth Circuit, like the Second and Seventh Circuits, wrongly interprets T.L.O. as establishing a sliding scale governing what level of suspicion is necessary to justify the search of a student. T.L.O. does not do this: it holds that reasonable suspicion is the proper standard. As the Solicitor General argued in an amicus brief, a sliding scale standard is too indeterminate. It could require probable cause for some searches and no cause of all for others, based on an ad hoc balancing test that would provide little advance guidance to officials. Ideally, the Supreme Court will reject the sliding scale, reaffirm the reasonable suspicion standard, and determine that under that standard, this search violated the Fourth Amendment.

I was going to post something on this on April 20th, but the flurry of stuff now can’t wait.

Quarles public safety exception is consonant with the Kentucky Constitution. Defendant was questioned about a discarded gun. Henry v. Commonwealth, 275 S.W.3d 194 (Ky. 2008), aff’g unpublished opinion of Court of Appeals.*

An anonymous tip of DUI does not support a stop unless the officer sees something that supports the conclusion the driver is under the influence. Here there was none. Harris v. Commonwealth, 276 Va. 689, 668 S.E.2d 141 (2008).*

Defendant had no expectation of privacy in his city owned computer that child porn was found on. United States v. Zimmerman, 303 Fed. Appx. 207 (5th Cir. 2008) (unpublished).*

State court judge did not have to have the CI in front of him to determine his credibility. Probable cause existed. United States v. Bowman, 2008 U.S. Dist. LEXIS 104777 (W.D. Wis. November 28, 2008).*

Free Exercise, Fourth and Fifth Amendment claims failed in DNA collection case. Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. December 30, 2008).*

The evidence supports the district court’s finding of consent to search defendant’s house. He was Mirandized and informed of his consular rights. He was in handcuffs in a police car and was asked for additional consent to open a locked cabinet. United States v. Espinoza-Flores, 303 Fed. Appx. 434 (9th Cir. 2008) (unpublished).*

Defendant’s claim of his inability to understand English well enough to consent was rejected on the testimony of the four officers who conversed with him in English. United States v. Galvan-Mena, 2008 U.S. Dist. LEXIS 104764 (S.D. Ill. December 29, 2008):

Specifically, they testified that in the course of Mena’s arrest and subsequent interview, the officers had conversations with Mena in English, all of his responses were in English, and all of his responses were appropriate and relevant to the questions being asked. The officers also testified that Mena never indicated that he could not understand English. This testimony indicates that Mena understood English well enough to understand Deputy Rich’s request and consent to a search.

Where the defendant would lose on the merits of his search claim, defense counsel is not ineffective. United States v. Moreno-Chavarria, 2008 U.S. Dist. LEXIS 104661 (E.D. Ark. December 19, 2008).*