Officers were in defendant’s house with an arrest warrant, and he permitted them to go to a bedroom to get a shirt to go to jail in, and drug paraphernalia were in plain view. State v. Hanson, 2009 Ohio 1243, 2009 Ohio App. LEXIS 1047 (8th Dist. March 19, 2009) [This is remarkably like Chrisman.].

“The Defendant did not include the DVD of the traffic stop in the record. ‘In the absence of an adequate record on appeal, this court must presume that the trial court’s rulings were supported by sufficient evidence.'” The record supports that a patdown was proper, and baggies of marijuana were found on his person. State v. Brotherton, 2009 Tenn. Crim. App. LEXIS 199 (March 18, 2009).*

The PC for the search warrant was based on a citizen informant and a confidential informant, and there was clearly a substantial basis for issuance of the search warrant. There was also nexus to defendant’s property. United States v. Jefferson, 2009 U.S. Dist. LEXIS 22324 (E.D. Wis. March 17, 2009)*:

Although the affidavit does not indicate the quantity of crack cocaine observed by the CW, and the amount of controlled substances observed is relevant to the question of whether controlled substances are likely to still be present at the target location, when viewed alongside all other factors set forth in the affidavit, and in light of the Seventh Circuit’s recent decision in United States v. Garcia, 528 F.3d 481, 486 (7th Cir. 2008), the court concludes that the absence of the quantity of the controlled substances observed does not lead to a conclusion that there was an absence of probable cause to search the residence.

The defendant was stopped for having too loud a car sound system, and that led to a finding he had an outstanding warrant and an inventory search. The only issue challenged by the defendant is the factual basis for the stop, and the court credits the officers. United States v. Simpson, 2009 U.S. Dist. LEXIS 22405 (N.D. Ohio January 22, 2009).*

Defendant was properly detained during a knock and announce in his house because of a person hiding in the house. State v. Allen, 2009 Ohio 1280, 2009 Ohio App. LEXIS 1095 (2d Dist. March 20, 2009):

Given the nature of the dispatch, the delay in responding to his “knock and announce,” Tamlyn’s untruthfulness about Allen’s presence [in the house], and the fact that Allen appeared to be hiding in the bedroom after the officers entered, Detective Mullins reasonably suspected that Allen was engaged in criminal activity when he detained Allen in the bedroom.

Court ordered search of defendant’s house on federal supervision without probable cause violated Fourth Amendment. No statute permits it, and a Rule 41 search warrant was not sought. Therefore, the search was governed by the Fourth Amendment. The good faith exception did not apply because there was no probable cause determination to rely on. United States v. Kone, 591 F. Supp. 2d 593 (S.D. N.Y. 2008):

The Circuit courts, surprisingly, are somewhat divided on whether the Fourth Amendment warrant requirement presumptively applies to probationer or parolee searches where no governing law or parole condition authorizes the warrantless search. The Second Circuit, however, has spoken on the issue, albeit in a case involving a probationer rather than a person on supervised release. In United States v. Rea — a decision that predated Griffin and Samson, but which has not been overruled — the Second Circuit held that the Fourth Amendment’s warrant requirement presumptively applies to the search of a probationer’s home, where no state law or condition of probation authorizes a warrantless search of the probationer. In Rea, the probationer was subject “to conditions of probation which generally tend[ed] to diminish his otherwise valid expectations of privacy from intrusion by Governmental authorities,” including, as here, the condition that the “probation officer c[ould] enter the probationer’s home without a warrant in order to make supervisory visits.” The Court held that, notwithstanding the probationer’s reduced expectations of privacy, the presumptive warrant requirement applied in these circumstances:

[N]o statutory provision exempts a probation officer from the requirement that he obtain a warrant before searching the home of a probationer. There also has been no showing that upholding the warrant requirements for searches of probationers’ homes will seriously impede the accomplishment of the dual law enforcement and rehabilitative goals of probation. Therefore, we hold that a probation officer is required to obtain a warrant prior to conducting a search of a probationer’s home unless the search falls within a judicially recognized exception to the warrant requirement.

. . .

There are important limitations and exceptions to the Leon doctrine. Most important, for the Leon good faith exception to apply, “the officer’s reliance on the magistrate’s probable-cause determination … must be objectively reasonable.” In applying this principle, the Leon Court noted that, “depending on the circumstances of the particular case, a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.”

Touching the defendant’s elbow to direct and turn the defendant was a seizure because his movement was controlled and impeded. United States v. Bellamy, 592 F. Supp. 2d 308 (E.D. N.Y. 2009):

Certainly, Bellamy’s movement was impeded when Officer Ianno took him “by the elbow,” turned him around so that his back was facing the officers, and led him up the ramp to the entrance of the Buckingham building. (Tr. 23-26.) Thus, Officer Ianno exerted “physical force” over, and maintained physical contact with, Bellamy. Moreover, both officers restrained Bellamy’s liberty by directing him, rather than merely requesting that he move, up the ramp. Bostick, 501 U.S. at 434; Mendenhall, 446 U.S. at 554; see also United States v. Lee, 916 F.2d 814, 819 (2d Cir. 1990) (enumerating factors relevant to seizure inquiry, including “physical touching of the person by the officer”). In short, a reasonable person in Bellamy’s shoes would not have concluded at that point that he was free to leave. Bostick, 501 U.S. at 434. The court thus concludes that Bellamy was “seized,” as that term relates to the Fourth Amendment, when Officer Ianno took Bellamy by the elbow and turned him around and walked him up the ramp. See California v. Hodari P., 499 U.S. 621, 626, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991) (“[t]he word ‘seizure’ readily bears the meaning of a laying on of hands or application of physical force to restrain movement”).

Seat belt civil infraction justified a stop, even though it was pre-planned. United States v. Holmes, 2009 U.S. Dist. LEXIS 3698 (E.D. Mich. January 16, 2009):

It does not matter that the traffic stop was pre-planned. If probable cause exists, an officer may stop a vehicle for a civil infraction even when his true motivation for the stop is to search for contraband. Hill, 195 F.3d at 264 (citing Whren, 517 U.S. at 812-13). The officer’s knowledge or suspicions about the traffic violator at the time of the stop is irrelevant. Ferguson, 8 F.3d at 391. Simply put, “traffic stops based on probable cause, even if other motivations existed, are not illegal.” Id. at 392.

Stipulation about evidence relieved the state from having to prove anything about its source, and defendant thus waived any constitutional challenge to its seizure. State v. Huy, 960 A.2d 550 (R.I. 2008).

School searches are administrative searches. The student and parents were warned at orientation of searches occurring on entry to the school, and that reduced the students’ expectation of privacy. In re P.P., 2009 Tex. App. LEXIS 892 (Tex. App. — San Antonio February 11, 2009):

As was the case in In re O.E., the record in this case established that prior to entering the alternative school, all students and parents are required to complete an orientation session which includes an overview of the school rules and policies, and the students are required to sign a contract which includes an agreement to be searched each day before entering the school. P.P. clearly had notice of the routine search requirement, which reduced his expectation of privacy. See Shoemaker v. State, 971 S.W.2d 178, 182 (Tex. App.–Beaumont 1998, no pet.) (noting that a student had no reasonable expectation of privacy in a locker when the student handbook warned lockers could be searched any time there was reasonable cause to do so).

Halfway house resident is still in custody of the Bureau of Prisons and has no expectation of privacy in the halfway house. He agreed to searches when he entered the halfway house. United States v. Dixon, 2008 U.S. Dist. LEXIS 34044 (D. Kan. April 24, 2008).

The court finds that defendant consented to entry of her motel room and then to the luggage within it, and the government satisfied its burden of proof. United States v. Lambert, 2008 U.S. Dist. LEXIS 33963 (D. Utah April 24, 2008).*

Defendant’s arrest would have left his car, so it was local policy to impound cars that would be left on the street. That alone justified its inventory, so whether the car was searchable under automobile exception did not need to be determined. People v. Grenier, 200 P.3d 1062 (Colo. App. 2008).*

Defendant’s stop was validly based on the belief that his exhaust system was too loud and that the driver had a suspended license. Commonwealth v. Bailey, 2008 PA Super 81, 2008 Pa. Super. LEXIS 637 (April 25, 2008).*

No argument was provided that public entity e-mails addressed to others that were intercepted gave plaintiff any expectation of privacy. Ferrone v. Onorato, 298 Fed. Appx. 190 (3d Cir. 2008).*

Defendant arrested for robbery was properly subjected to a search incident. Johnson v. State, 999 So. 2d 360 (Miss. 2008).*

Staying past the hotel checkout period (but not past the grace period) did not give the defendant any expectation of privacy in the room. United States v. Reid, 300 Fed. Appx. 50 (2d Cir. 2008).*

Consent to search the person includes back pants pocket. United States v. Dinwiddie, 2008 U.S. Dist. LEXIS 92726 (E.D. Mo. January 29, 2008).*

Pretrial suppression denial was only a preliminary ruling, but the state dismissed the case. That holding was not binding in a subsequent § 1983 action. Best v. City of Portland, 2009 U.S. App. LEXIS 2289 (7th Cir. February 3, 2009):

In this case the officers argue, and the district court held, that the legality of the searches was necessarily and finally adjudicated in Best’s criminal prosecution and cannot be relitigated. But this argument ignores the preliminary nature of the ruling on Best’s pretrial suppression motion. Under Indiana law, “rulings on pretrial motions are not necessarily final.” Joyner v. State, 678 N.E.2d 386, 393 (Ind. 1997). “‘[A] ruling on a pretrial motion to suppress is not intended to serve as the final expression concerning admissibility.'” Id. (quoting Gajdos v. State, 462 N.E.2d 1017, 1022 (Ind. 1984)). The court was free to reconsider its earlier ruling on the pretrial suppression motion at any time before the evidence was offered at trial. Id. In fact, Best asked the court to do just that before the prosecutor dismissed the case.

Officers had qualified immunity from suit over plaintiff’s detention and placement into a hospital because the ascertainable facts showed that plaintiff was a verifiable suicide threat. Cloaninger v. McDevitt, 555 F.3d 324 (4th Cir. 2009)*:

Lo knew that Cloaninger had made prior suicide threats, that police had responded to those threats, and that firearms had been found in the home. Treadway called the VA hospital, where a nurse who knew Cloaninger confirmed that he had made prior suicide threats. Treadway had no reason to doubt the objectivity of the nurse or the veracity of her information. Both the VA nurse and the Burke County magistrate agreed that an emergency commitment was an appropriate action. On these undisputed facts, we hold that the defendants had probable cause to seize Cloaninger and detain him for the purposes of a psychological evaluation. But this does not end our inquiry into the reasonableness of their conduct.

Officer did not have reasonable suspicion defendant was a drug courier on the totality of innocuous facts.

We first observe that the Officers did not have reasonable suspicion to hold Bell beyond the time reasonably required to fulfill the purposes of the initial stop for the speeding violation. The government argues that the Officers had reasonable suspicion that Bell was engaged in other criminal activity justifying a longer stop based on seven factors: (1) Bell repeated the same story and sounded rehearsed; (2) Bell moved too quickly for the rental agreement; (3) Bell was holding a cell phone; (4) Bell did not make eye contact with Trooper Roberts; (5) Bell was overly respectful and cooperative; (6) Bell did not have written permission to operate the rental car; and (7) Sergeant Helton observed Bell’s exaggerated body movements while in the vehicle.

However, the dog sniff was not unreasonable because the stop was not extended for it. United States v. Bell, 555 F.3d 535 (6th Cir. 2009):

Viewing the facts in the light most favorable to the government, we cannot say that Trooper Roberts’s failure to complete the stop before the dog alerted was unreasonable. Trooper Roberts began a computer check of Bell’s license immediately upon his first return to the patrol car. Waiting for the results of the license check was clearly within the purpose of the initial stop, and only while waiting for the results of that check did the Officers discuss whether to call Trooper Farabaugh to walk the dog around the car. Because the Officers already were waiting for the results of the background check, any time that the Officers spent in pursuing other matters while the background check was processing, even if those matters were unrelated to the original purpose of the stop, did not extend the length of the stop. Once Trooper Roberts received the results of the license and warrant checks, on his second return to the patrol car, he decided to issue a warning and then almost immediately walked back to Bell’s car and began writing the warning and discussing it with Bell. It was during this discussion that the dog alerted. At no time did the actions of the Officers improperly extend the length of the stop.

Defendant’s furtive movements justified a frisk. The officer was not obligated to get defendant out of his car because he suspected a weapon. That does not undercut the officer’s credibility. (Reversing an unpublished decision of the court of appeals.) State v. Sumner, 2008 WI 94, 312 Wis. 2d 292, 752 N.W.2d 783 (2008):

[*P33] The State’s brief points out that there is no golden rule regarding whether to order a suspect to stay in his vehicle or to step out during a traffic stop. 13 We agree. “[T]he millions of traffic stops that occur every year are not fungible,” hence the decision to order a suspect out of a car is not so universal that it is always necessary or even reasonable. Pennsylvania v. Mimms, 434 U.S. 106, 121 (1977) (Stevens, J., dissenting). We therefore disagree with the court of appeals’ conclusion that “[a]n objectively reasonable officer would not leave an occupant of the vehicle who was believed to be armed and dangerous unattended for fifteen minutes.” Sumner, No. 2006AP102-CR, unpublished slip op., P28 (emphasis added). Clearly, the myriad circumstances an officer might face in a traffic stop would suggest ordering passengers out of their vehicle in some cases but not in others. We do not believe the facts of this case indicate that Johnson was objectively unreasonable in not ordering Sumner out of the vehicle immediately upon approaching it the first time. Two deputies were present at the scene, and Sumner was under constant surveillance.

Stop in high crime area was for bad driving which was potentially indicative of being under the influence. It turned out that the driver wasn’t, but the officer wanted to run wants and warrants. Consent was promptly asked for, and it was valid. The officer was suspicious because defendant had passed by a drug house again at early hours beyond the driving mistakes. United States v. Long, 532 F.3d 791 (8th Cir. 2008).*

Defendant lived with his grandfather as a housemate. The police could not reasonably believe the grandfather had apparent authority to consent to an entry into his grandson’s separate bedroom with a shut door. The evidence of apparent authority was ambiguous at best. Hubert v. State, 2009 Tex. App. LEXIS 249 (Tex. App. – Corpus Christi January 15, 2009).*

Stop for turn signal even though no traffic was interfered with was still a violation, and that supported the stop. State v. Bartone, 2009 Ohio 153, 2009 Ohio App. LEXIS 128 (2d Dist. January 16, 2009).*

Officers who walked up to a parked van had reasonable suspicion the occupants were involved in dogfighting by the condition of the dogs. A gun clip was in plain view through the open door of the vehicle. The stop was not coercive because the stop was not with lights and they were free to go. State v. Lewis, 2009 Ohio 158, 900 N.E.2d 1084 (2d Dist. 2009).*

Defendant’s arrest was irrelevant to the officer’s request to search, which came from a CI’s tip. So, the exclusionary rule would not be applied. United States v. Meece, 2009 U.S. Dist. LEXIS 3024 (W.D. Wis. January 13, 2009).*

Warrantless arrest just inside the doorway was a violation of the Fourth Amendment. Summary judgment for defense on qualified immunity reversed. Shepard v. Davis, 300 Fed. Appx. 832 (11th Cir. 2008) (unpublished):

Construing the factual allegations in the light most favorable to Shepard, the record shows that Shepard opened the door in response to the officers’ knock and announcement, asked, “May I help you?”, to which Officer Davis replied, “We are here to arrest you[;] [y]ou are Dwayne Shepard correct?” After confirming his identity, Shepard asked the officers for a warrant. According to Shepard’s amended complaint, the officers then entered through the front door, grabbed Shepard by the arm, and pushed him about six feet into the living room. Nothing in Shepard’s amended complaint places him in the threshold or inside the doorway. Rather, Shepard alleges the officers came through the door and pushed him six feet back into the living room and onto his sofa. The officers arrested Shepard on the sofa. Shepard’s response to the motion to dismiss adds that he “remained standing inside of his home” at all material times. However, even ignoring that response, the amended complaint itself does not place Shepard in the threshold or inside the doorway.

Accordingly, construing the facts in the light most favorable to Shepard, Officer Budnick did not have Shepard’s consent, either express or implied, to enter the home and arrest him in his living room, six feet within his home. Although one may voluntarily surrender to the police at the door, the facts alleged here show that Shepard neither surrendered to the police nor had an opportunity to do so. See McClish, 483 F.3d at 1241. Consequently, Officer Budnick violated Shepard’s constitutional rights under the Fourth and Fourteenth Amendments. We now examine whether those rights were clearly established on August 5, 2002, the date the arrest occurred.

Under Minnesota’s rule that a drug dog in a common hallway requires reasonable suspicion, an apartment manager’s report of “high” traffic to an apartment was sufficient, considering the admittedly low standard of reasonable suspicion. State v. Baumann, 759 N.W.2d 237 (Minn. App. 2009):

Here, a property manager thought that the level of short-term traffic coming to and leaving from Baumann’s apartment was odd and suspicious. Inferentially, the manager of an apartment complex would have some degree of duty to be concerned about the use of the property since illegal activities on the premises could be problematic for the property owner and perhaps jeopardize rentals. So, the manager reported the facts she observed to a narcotics investigator. Although neither the manager nor Detective Buetow determined how many people would constitute a “high amount” or a “high volume,” or what length of time amounted to “short term” or a “short amount of time,” these characterizations were expressions of activities and circumstances the manager actually observed. From those reported facts, Detective Buetow, a trained narcotics investigator, drew an inference that there might be illegal drug activity occurring in the Baumann apartment, and he arranged to confirm the inference through a dog-sniff search.

Acknowledging, as we must, the low threshold the courts have set for reasonable suspicion, we conclude that the information Detective Buetow relied upon as the basis for his suspicion was “something more” than an unarticulated hunch and that he was able to point to “something” that “objectively” supported his suspicion. See Davis, 732 N.W.2d at 182.

A particular housing project was known to be a high crime area, and that contributed to reasonable suspicion. It had even been found a high crime area in other cases. United States v. Moore, 2008 U.S. Dist. LEXIS 107047 (E.D. Tenn. October 10, 2008):

An area’s high crime rate can also contribute to reasonable suspicion. An individual’s presence in an area of frequent criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. Brown v. Texas, 443 U.S. 47, 52 (1979). “But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.” United States v. Wardlow, 528 U.S. 119, 124 (2000). Officers Roncska and Wallace have both testified to the frequency of violent crime and drug-related crime in the [project], and Officer Wallace testified regarding his particular experience with violent and drug related class in the area. In addition, numerous cases that originated in this District have recognized the high rate of crime in the [project]. See United States v. Muckle, 2008 WL 400444, at *2 (6th Cir. 2008) (noting officer’s testimony that [this project] is a high crime area); United States v. McCreary-Redd, 475 F.3d 718, 720 (6th Cir. 2007) (describing Knoxville Police Department surveillance of the housing project due to complaints of drug activity). The Court finds that the stop was made in a high crime area but reiterates that this factor must be coupled with additional evidence of the circumstances to support a finding of reasonable suspicion.

Possession of empty plastic baggies in the pocket is not reasonable suspicion that the defendant is a drug dealer. Other facts urged by the state are all consistent with legal activity, and, in totality, do not rise to the level of reasonable suspicion to detain for a dog alert. (n. 2: The court reserves for later the question of whether a dog alert is reliable.) State v. Neth, 165 Wn.2d 177, 196 P.3d 658 (2008):

But absent some other evidence of illicit activity, the mere possession of a few empty, unused plastic baggies in a coat pocket does not constitute probable cause to search an automobile, even when combined with nervousness, inconsistent statements, and a large sum of money in the car. Baggies are capable of use for lawful as well as unlawful purposes. Commonwealth v. Rivera, 27 Mass. App. Ct. 41, 43 n.3, 534 N.E.2d 24 (1989). Innocuous objects that are equally consistent with lawful and unlawful conduct do not constitute probable cause to search. Cf. State v. Hughes, 20 Or. App. 493, 502-03, 532 P.2d 818 (1975) (beakers, jars, scales, and rubber gloves are not probable cause justifying issuance of search warrant). More is required to rise to the level of probable cause that a crime is being committed.

Not dimming lights for oncoming traffic is a reasonable basis for a stop, here leading to a DUI. State v. Winemiller, 2008 Tenn. Crim. App. LEXIS 918 (November 20, 2008).*

The police had probable cause to arrest based on the victim’s phone being taken by her attacker, a call made from that phone to defendant’s house, defendant fit the description of her attacker, and the car the attacker left in was parked outside of defendant’s house. Baker v. State, 295 Ga. App. 162, 671 S.E.2d 206 (2008).*

Seizure of a car based on an impoundment ordinance for a minor safety infraction that did not even permit a physical arrest of the driver (taillight out; noise) was unconstitutional because there was no crime. Impoundment was followed by an inventory producing a gun. People v. Iverson, 22 Misc. 3d 470, 870 N.Y.S.2d 698 (Rochester NY City Ct. 2008):

Nor was impoundment of defendant’s vehicle necessary to enhance public safety or to permit the unimpeded flow of traffic. After being ticketing for the two traffic infractions, defendant was not taken into physical custody. He possessed and showed the police officer his valid driver’s license and proof of registration. Defendant’s car was neither disabled nor impeding vehicular or pedestrian traffic. Defendant was physically capable of driving the car away. See United States v. Duguay, 93 F.3d at 353.

In sum, when the police officer stopped defendant for two traffic infractions, he had no basis to believe that either defendant or the vehicle was involved in criminal activity, and he had no constitutionally legitimate community caretaking reason to impound defendant’s car. The impoundment of defendant’s car was therefore unconstitutional. See United States v. Caseres, 533 F.3d at 1074-75 (absent a constitutionally legitimate community caretaking purpose, impoundment of defendant’s car violated the Fourth Amendment); United States v. Duguay, 93 F.3d at 353; People v. Miles, 3 Misc 3d at 571.

. . .

As in Knowles, the unconstitutional impoundment and concomitant search of defendant’s car in this case cannot be rendered constitutional by the existence of statutory authority. Accordingly, to the extent that Rochester City Code §75-12 provided the sole authority for the police to impound defendant’s car, it is unconstitutional as applied to defendant. See People v. Williams, 145 Cal. App. 4th 756, 762-63 (2 Dist. 2006)(state law authorizing a vehicle’s impoundment whenever the driver is taken into custody cannot validate an impoundment that does not serve a constitutionally valid community caretaking function); People v. McFarland (Sup. Ct., Monroe County, Aug. 26, 2003, Fisher, J)(police search of defendant’s car, authorized by Rochester City Code §75-12, was unconstitutional where defendant was not taken into physical custody after being stopped for a violation of Rochester’s excessive vehicle sound ordinance).

Nervousness plus appearing under the influence of drugs is reasonable suspicion. Robinson v. State, 295 Ga. App. 136, 670 S.E.2d 520 (2008).*

Extending detention because the passenger’s ID did not come back and she had all the signs of being strung out on meth. Matthews v. State, 294 Ga. App. 836, 670 S.E.2d 520 (2008).*

The Indiana Civil Rights Act, 25 U.S.C. § 1302(2), makes Indian casino hotel security guards governed by the exclusionary rule (surveying cases from other jurisdictions) because casino operations are a part of self-government. State v. Madsen, 2009 SD 5, 760 N.W.2d 370 (2009).

Defendant’s home was not improperly seized by securing it until a warrant could be obtained where there was probable cause. United States v. Weeks, 2009 U.S. Dist. LEXIS 5841 (D. Del. January 26, 2009).*

Officer saw defendant, whom he did not recognize, in a high crime area with no trespassing signs, and defendant saw him and walked away from him; reasonable suspicion for stop. United States v. Lashley, 2009 U.S. Dist. LEXIS 5571 (W.D. Ky. January 26, 2009)* (comes dangerously close to giving carte blanche to the “discretion of the officer in the field”; walking away from another in a high crime area seems like a normal response, not a factor in reasonable suspicion).

Defendant passenger in a vehicle failed to show standing to be able to challenge a search of the vehicle where there was confusing proof as to who even owned the car to have given permission to drive it. Even so, the stop was justified by a window tint violation. Questions to the occupants during the ticket writing process were not impermissible. United States v. Gevorkyan, 2009 U.S. Dist. LEXIS 5688 (D. Utah January 27, 2009).*

Checking defendant’s license was proper when she was seen asleep at the wheel. When they awoke her, she seemed confused, and her movements were strange. Her license was suspended, and that justified a search incident which produced drug paraphernalia. Goines v. United States, 964 A.2d 141 (D.C. App. 2009).*

Probable cause existed to stop and search defendant’s vehicle because police consensual wire surveillance indicated that defendant would be delivering 2 kilograms of cocaine that day. The state showed a necessity for the state overhear order. People v. Stroud, 2008 Ill. App. LEXIS 1183 (November 19, 2008).*

Defendant consented to a search of his person. He was confronted by the victim of a robbery who saw him wearing the victim’s watch. State v. Banks, 999 So. 2d 808 (La. App. 2d Cir. 2008).*

Clothing not named in the search warrant could be seized as plain view under the search warrant because it was apparent it had evidentiary value. State v. Allen, 274 S.W.3d 514 (Mo. App. 2008).*

School board policy of drug testing school teachers could not be justified under the special needs exception, and teachers do not have a reduced expectation of privacy. American Federation of Teachers—West Virginia AFL-CIO v. Kanawha County Bd. of Educ., 592 F. Supp. 2d 883 (S.D. W.Va. January 8, 2009) (on court’s website):

The Kanawha County School Board adopted a revised drug testing policy mandating the random testing of teachers and other categories of public school employees. The teachers’ unions have joined forces in this lawsuit seeking to enjoin the implementation of that policy on constitutional and privacy grounds. The questions before the court are whether the random drug testing policy adopted by the Board as a state actor violates the Fourth Amendment to the United States Constitution, Article III, § 6 of the West Virginia Constitution, and the right to privacy as it is recognized in this state. The evidence does not demonstrate either that these employees have a reduced expectation of privacy by virtue of their employment in a public school or that there is a special governmental need to guard against a concrete risk of great harm. I therefore find that because the safety justification offered by the Board does not outweigh the privacy interests of the school employees, the Board may not abandon the Fourth Amendment’s protection against suspicionless searches. Consequently, the plaintiffs are likely to succeed on the merits of their claims and I preliminarily enjoin the enforcement of the random drug testing policy.

. . .

To determine whether a special need exists that justifies a suspicionless search, a court must ask whether there is a safety concern that is substantial enough to override the individual’s privacy interest and to suppress the Fourth Amendment’s requirement of individualized suspicion. See Chandler, 520 U.S. at 318, 323; Von Raab, 489 U.S. at 668-671, 674; Skinner, 489 U.S. at 608-34. The requisite weight of the safety interest is apparent from an examination of the Supreme Court precedents on point: Skinner v. Railway Labor Executives’ Association, National Treasury Employees Union v. Von Raab, Chandler v. Miller, Vernonia School District 47J v. Acton, and Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls.

. . .

Suspicionless drug testing in all of those cases was justified by varying types of special needs, but the requirement that there be a safety concern of sufficient magnitude to outweigh the particular privacy interests involved is a common thread that ties them together and which guides my determination in this case. The Supreme Court has found thus far sufficiently important special needs to outweigh an individual’s privacy interests when faced with major safety concerns such as the great harm to people and property that could result from a railroad accident, the threat to national security posed by the failed interdiction of illegal drugs smuggled across our borders, and the risk to safety created by the potential use of deadly force by a drug-addled Customs employee equipped with a firearm. The Supreme Court has also found that a lesser safety concern can qualify as a special need, but only when the persons to be tested possess a greatly diminished privacy interest. See Earls, 536 U.S. at 830-32, 836-37; Vernonia, 515 U.S. at 654-56, 661-62. Viewed as a whole, these precedents plainly reveal that the special needs exception to a suspicion-based search was intended to be a very narrow one and to apply only when the government is faced with a safety concern of sufficiently great magnitude to outweigh the privacy interests of the group to be searched.

. . .

On the record before me, I FIND that the proposed drug testing collection process is not an overly intrusive drug testing procedure. See Chandler, 520 U.S. at 326 (Rehnquist, J., dissenting); Von Raab, 489 U.S. at 672 n.2. The vast majority of the collections will not be monitored; only approximately ten out of every 5000 or 6000 collection attempts will be monitored. The Medical Review Officer is charged with keeping any medical information disclosed to him or her private from all third parties, including the employer. Testing is only performed for the presence of amphetamines, methadone, phencyclidine, cocaine, opiates, marijuana (THC), barbiturates, and benzodiazepines.

Secondly, I must consider whether any of these employees have a reduced privacy interest. Public employees may have a reduced expectation of privacy by virtue of their employment if that employment carries with it safety concerns for which the employees are heavily regulated. See Skinner, 489 U.S. 626-27; …

. . .

Finally, I FIND no evidence that the teachers or other school employees have a reduced privacy interest by virtue of their employment in the public school system that is comparable to the students in Vernonia and Earls. Teachers, administrative assistants, cabinetmakers, coaches, handymen, plumbers and the like are professional adults over whom the school as employer (and not as parent) does not maintain a comparable degree of control. See Schmidt, supra, 34 Colum. J. L. & Soc. Probs. at 267-68. The state simply cannot exercise a similar degree of control over adult employees as it does over students. See Earls, 536 U.S. at 831 (“Securing order in the school environment sometimes requires that students be subjected to greater controls than those appropriate for adults.”).

RICO prosecutions for Tenaha, TX officials? See Confiscatory Texas Town Officials Subject to RICO Prosecution? on The Elliot Schlissel New York Law Blog. See my post from March 11th CNN: Texas town accused of shaking down minorities.

A resident of a rural homestead who leaves his or her trash in an area not accessible to the public and within the curtilage of the residence does not lose the objective expectation of privacy in the trash solely as a result of contracting with a third party to haul it away. “Of course, Greenwood differs from Hoffman’s case in a significant respect. The trash in Greenwood was on the curb of a city street in Laguna Beach, California, not a quarter mile from a public roadway in rural Kansas.” State v. Hoffman, 40 Kan. App. 2d 894, 196 P.3d 939 (2008).

“[A] bluff or a misrepresentation as to the amount of evidence that law enforcement officers have against an individual will not render involuntary an otherwise voluntary consent.” State v. Tatum, 40 Kan. App. 2d 846, 196 P.3d 441 (2008).*

An administrative warrant that has a valid basis under Burger is proper even if a possible crime is expected to be found. Here, a pub with a liquor license was subjected to an unannounced entry. Narcs came with the fire inspector and when to the third floor residence, and the narc’s presence there was unreasonable and unconstitutionally violated the administrative warrant. Marijuana was seen on the third floor, outside of the area subject to inspection. State v. Johnson, 2009 ME 6, 962 A.2d 973 (2009) (pending 19 months after argument):

[*P45] This lack of record support for any authority to extend the inspection beyond the second floor is fatal to both of the theories advanced by the State on appeal that the search of the third floor stairwell was constitutionally justified. First, the State argues that, despite their lack of independent authority, the Fire Marshals’ presence was reasonable under the United States Supreme Court’s decision in Wilson v. Layne, 526 U.S. 603, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999). In Wilson, the Court held that the presence of news media during the execution of a valid search warrant in a home violated the residents’ Fourth Amendment rights. Id. at 614. The Court noted, however, that “the presence of third parties during the execution of a warrant may in some circumstances be constitutionally permissible,” id. at 613, such as when the third parties “aided in the execution of the warrant,” id. at 611.

[*P46] Had the liquor inspector been authorized to be on the third floor landing, and had he been accompanied by the Fire Marshal’s representatives for the purposes of assisting in that authorized search, then the presence of the Fire Marshal’s representatives may have been permissible under Wilson. However, as discussed above, there is nothing in the record to suggest that entry beyond the second floor was authorized, and the parties agree that the liquor inspector did not in fact accompany the Fire Marshal’s representatives up the third floor stairwell. Furthermore, the motion court found, and the record amply demonstrates, that the sole purpose of the Fire Marshal’s representatives in ascending the stairwell from the kitchen was to conduct an inspection for possible fire safety violations, and their presence and eventual entry into the area where marijuana leaves were found cannot be characterized as that of mere third parties assisting in the administrative inspection conducted by the liquor inspector.