Defendant failed to show that he had standing in the apartment that was searched where he occasionally stayed where the baseball bat used in a murder was found. He occasionally was an overnight guest, but not at the time of this search. State v. Dooley, 2008 Ohio 1748, 2008 Ohio App. LEXIS 1512 (2d Dist. April 11, 2008):

[*P17] In the instant case, the evidence established that Dooley resided in the apartment directly above Todd’s apartment. Todd was the sole leaseholder on her apartment, and Dooley did not have a key to her residence. Todd was also the only person to pay the rent at her apartment. We note that the baseball bat believed to have been used in the murder of Todd did not belong to Dooley and was found in an umbrella stand placed in the living room of her apartment. Although some evidence was presented which established that Dooley occasionally spent the night at his mother’s apartment in her second bedroom if he and his girlfriend were fighting, no evidence was presented which established that he stayed at Todd’s apartment in the nights preceding her death. In fact, no evidence was presented which established when Dooley was last legitimately at Todd’s apartment as an overnight guest.

Police who arrested a probationer outside his trailer had sufficient cause for a protective sweep of the trailer because they had reason to believe that there was somebody else inside who could pose a danger to them. Reese v. Monroe County Sheriff’s Dep’t, 2008 U.S. Dist. LEXIS 29699 (N.D. Miss. March 27, 2008).*

The officer had reasonable suspicion for continuing the stop of defendant. State v. Barnard, 2008 N.C. LEXIS 338 (April 10, 2008).*

Defendant failed to show that the motion to suppress that he complained his lawyer did not file would have prevailed, so his lawyer was not ineffective. State v. Harris, 2008 Ohio 1753, 2008 Ohio App. LEXIS 1513 (2d Dist. April 11, 2008).*

Applying the Vermont Constitution, the defendant was detained without reasonable suspicion too long before a drug dog arrived, and the search was suppressed. State v. Cunningham, 2008 VT 43, 183 Vt. 401, 954 A.2d 1290 (2008).*

There was no probable cause for arrest of a backseat passenger in a car from which a drug deal had earlier been done. Officers here were directed to stop and arrrest everybody, but there were no facts to tie defendant to the crime. State v. Morales, 2008 NMCA 102, 144 N.M. 537, 189 P.3d 670 (Ct. App. 2008), certiorari denied, No. 31,152, June 26, 2008:

[*14] “[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.” Ybarra v. Illinois, 444 U.S. 85, 91 (1979). Rather, “some additional circumstances from which it is reasonable to infer participation in a criminal enterprise must be shown.” United States v. Burrell, 963 F.2d 976, 986 (7th Cir. 1992) (internal quotation marks and citation omitted). “One important consideration in assessing the significance of the association is whether the known criminal activity was contemporaneous with the association. Another is whether the nature of the criminal activity is such that it could not normally be carried on without the knowledge of all persons present.” United States v. Hillison, 733 F.2d 692, 697 (9th Cir. 1984) (citations omitted).

. . .

[*18] In Maryland v. Pringle, 540 U.S. 366, 371-72 (2003), the Supreme Court held that the police had probable cause to arrest the defendant based on the officer’s belief that the defendant had committed a crime based on his presence in a car in which cocaine was found hidden when all of the occupants denied knowing whose it was. We distinguish Pringle on grounds that, under the federal constitution, a warrantless arrest is supported by probable cause when a felony or a misdemeanor is committed in the presence of an officer. Id. at 369-70. Probable cause in Pringle existed because of the presence of cocaine in the car and the universal denials by its occupants, leading the officer to believe that a felony had been committed by at least one of them. Id. at 370. The Court in Pringle stated that it was an “entirely reasonable inference … that any or all three of the occupants had knowledge of, and exercised dominion and control over, the cocaine.” Id. at 372. No such connection exists here. The drug sale took place elsewhere, and Defendant’s mere presence in a vehicle which the driver left to make the drug sale is insufficient to establish probable cause as a matter of law. While it is tempting to implicate Defendant in Cisneros’ crime, the evidence concerning Defendant is just too thin to do so.

A helicopter did a flyover of appellant’s marijuana patch, sometimes as low as 100′, in violation of FAA rules. This violated the Vermont constitution’s hightened protection in property. State v. Bryant, 2008 VT 39, 183 Vt. 355, 950 A.2d 467 (2008):

[*P23] Since the rulings in Dow Chemical, Ciraolo and Riley, and despite the fact that all the Riley opinions engaged in a multi-factored analysis, some state courts have relied solely on the legality of a helicopter’s position in public airspace to determine whether the aerial surveillance at issue was a search. See, e.g., State v. Ainsworth, 310 Ore. 613, 801 P.2d 749, 750-52 (Or. 1990) (upholding surveillance from helicopter solely on basis of lawfulness of officer’s vantage point, where testimony as to altitude ranged from fifteen feet above the tree line to “pretty close to four or five hundred feet”). Because FAA regulations allow helicopters to fly at any altitude “if the operation is conducted without hazard to persons or property on the surface,” 14 C.F.R. § 91.119 (emphasis added), the inevitable result of this reasoning-in the absence of more restrictive state aviation laws-is that the dangerousness of police surveillance may become the yardstick by which constitutional privacy protection is measured. As a case on point, in Commonwealth v. Oglialoro, the Supreme Court of Pennsylvania reasoned that by using a transparent or translucent roof on a pole barn located within the curtilage of the defendant’s house, the defendant “knowingly exposed his [marijuana plants] to persons lawfully operating aircraft over his property who might decide to take a look.” 525 Pa. 250, 579 A.2d 1288, 1292 (Pa. 1990). The court thus rejected the suggestion that any expectation of privacy attached in such situations. Id. However, the court held that the police-surveillance flight, which involved a helicopter hovering fifty feet above the barn for fifteen seconds, had violated FAA regulations and thus the Fourth Amendment because it “represented a hazard to persons and property on the ground.” Id. at 1294.

. . .

[*P26] A remaining group of state courts rely on a multitude of factors of their own articulation. See, e.g., Commonwealth v. One 1985 Ford Thunderbird Auto., 416 Mass. 603, 624 N.E.2d 547, 550-51 (Mass. 1993) (upholding surveillance where helicopter was operating at altitudes of 700 feet and above after considering, (1) “whether the police had a lawful right to be where they were,” (2) “whether the public had access to, or might be expected to be in, the area from which the surveillance was undertaken,” (3) “the nature of the intrusion,” and (4) “the character of the area (or object) which was the subject of the surveillance”). And, in the view of at least one state court, the legality of the surveillance can depend, in part, on whether the aerial observation was “part of [an] investigative operation” or was instead “wholly fortuitous.” State v. Vogel, 428 N.W.2d 272, 274 (S.D. 1988) (upholding observation made from an airplane operating at an altitude of 500 feet because of the legality of the “flight path” as well as its fortuitousness); cf. Ainsworth, 801 P.2d at 753 (“While it is true that absence of a purposive intrusion into a protected area is some indication that no search has occurred, it does not follow that purposive police action, alone, transforms a permissible observation into an unconstitutional search.”). But see Thunderbird, 624 N.E.2d at 551 (“‘[I]f there is some justification for concentrating a surveillance on a particular place, as opposed to random investigation to discover criminal activity, that factor is weighed in the balance and contributes to justification for the surveillance.'” (quoting United States v. Allen, 633 F.2d 1282, 1290 (9th Cir. 1980)).

[*P27] It is our opinion that many of the factors relied on by our sister states and the Supreme Court in Riley are relevant to evaluating the legitimacy of privacy expectations under Article 11 in the context of the aerial surveillance at issue in this case. The legitimacy of an individual’s expectation of privacy is a broad question of “‘private, subjective expectations and public norms.'” Rheaume, 179 Vt. 39, 2005 VT 106, P 8, 889 A.2d 711 (quoting Blow, 157 Vt. at 517-18, 602 A.2d at 555). When we declined to adopt the federal open-fields doctrine in Kirchoff, 156 Vt. at 10, 587 A.2d at 994, we recognized that Vermonters normally expect their property to remain private when posted as such. We have also recognized that Vermonters normally have high expectations of privacy in and around their homes. See, e.g., Geraw, 173 Vt. at 352-53, 795 A.2d at 1221-22; Blow, 157 Vt. at 518-19, 602 A.2d 556; Brooks, 157 Vt. at 493-94, 601 A.2d 964-65. Therefore, we think it is also likely that Vermonters expect–at least at a private, rural residence on posted land–that they will be free from intrusions that interrupt their use of their property, expose their intimate activities, or create undue noise, wind, or dust. Cf. In re Cohen, 161 Vt. 432, 436, 640 A.2d 34, 37 (1994) (contemplating that an aircraft might fly “low enough to violate [an individual’s] reasonable expectation of privacy”).

Officer’s viewing of a loaded shotgun in a car on high school grounds was an exigent circumstance to enter the car and seize the gun. The search could not be justified as a search incident. State v. Rowell, 144 N.M. 371, 2008 NMSC 41, 188 P.3d 95 (2008):

[*19] In Gomez, this Court rejected a related but analytically different federal bright-line rule that condones warrantless probable cause searches of automobiles at any time or place, even if there is no rational basis for believing that taking the time to apply for a search warrant would compromise any legitimate law enforcement or public safety interests. Gomez, 1997 NMSC 6, PP 34-35. This federal blanket rule purportedly was based on the traditional exigent circumstances warrant exception, but the United States Supreme Court created a broadened categorical exception that did not require any inquiry into the true exigencies of a situation, so long as (1) there was probable cause for the search, and (2) the search took place in an automobile. Id. P 34. As discussed in more depth in II.C., infra, Gomez rejected the federal approach and reaffirmed the continued viability of the time-honored totality of the circumstances analysis in interpreting the reasonableness requirements for warrantless searches under our New Mexico Constitution. Id. P 40.

[*20] We reach a similar conclusion here, and we decline the invitation of the State to follow the federal line of cases represented by Belton and Thornton. The federal use of a search incident to arrest rationale to sanction a warrantless search that has nothing to do with its underlying justification–preventing the arrestee from gaining access to weapons or evidence–is an anomaly that has been criticized widely. See, e.g., State v. Pierce, 642 A.2d 947, 959 (N.J. 1994); People v. Blasich, 541 N.E.2d 40, 44-45 (N.Y. 1989); State v. Kirsch, 686 P.2d 446, 448 (Or. Ct. App. 1984); Commonwealth v. White, 669 A.2d 896, 902 (Pa. 1995).

Defendant failed to cite sufficient authority to rely on the state constitution at the suppression hearing. State v. Muñoz, 144 N.M. 350, 2008 NMCA 90, 187 P.3d 696 (Ct. App. 2008), certiorari granted, No. 31,151, June 27, 2008:

[*27] Defendant has entirely failed to preserve the issue under Gomez. He did not argue to the district court that the state constitution provides greater protection than the Federal Constitution and did not state any reason why it should. See Gomez, 1997 NMSC 6, P 23, 122 N.M. 777, 932 P.2d 1. He failed to even mention the New Mexico Constitution. Affsprung relies on the Fourth Amendment, not the New Mexico Constitution. See Affsprung, 2004 NMCA 38, P 18, 135 N.M. 306, 87 P.3d 1088. If Defendant is arguing on appeal that his trial counsel’s mention of “an additional Miranda issue” in the context of his arguments below raised a separate state constitutional argument that the agents were obligated to inform him that he had a right not to cooperate with them, his argument is an unreasonable stretch of the district court record.

A protective sweep on arrest is authorized even when the defendant does not resist. State v. Whisler, 2008 MT 276, 345 Mont. 292, 190 P.3d 1098 (2008).*

Defendant’s fishtailing was reasonable suspicion for a stop. State v. Wendling, 2008 SD 77, 754 N.W.2d 837 (2008).*

The use of a ruse to wake up the defendant at 3 a.m. to tell him that his car had been burglarized did not make the subsequent consent invalid after the police explained the ruse and their desire to search. Luna-Martinez v. State, 984 So. 2d 592 (Fla. App. 2 DCA 2008) (Comment: This is so bizarre. At least my state recognizes that a 3 a.m. knock-and-talk is invalid.)

A knock-and-talk of the home does not constitutionally require advice of rights to refuse a search. State v. Flores, 144 N.M. 217, 2008 NMCA 74, 185 P.3d 1067 (Ct. App. 2008) certiorari denied, No. 31,005, April 23, 2008.*

A driver’s compliance with the Minnesota implied-consent law does not create a waiver of the driver’s statutory physician-patient privilege regarding an alcohol-concentration test result taken solely for medical-treatment purposes. Because Minn. Stat. § 595.02, subd. 1(d) contains no exception for alcohol-concentration test results, absent a specific waiver of the statutory physician-patient privilege, alcohol-concentration test results and medical records are not admissible in a criminal prosecution. State v. Poetschke, 750 N.W.2d 301 (Minn. App. 2008).

Defendant was under investigation for being an unlicensed firearms exporter, buying 17 guns just before a trip to Guatemala. There were other international trips, too. A search warrant was obtained for the home, and a computer and iPhone were seized. Separate search warrants were obtained for the computers and phone. There was probable cause for the home based on the ATF Form 4473s that listed the home as defendant’s address. The court does not have to decide nexus because there was at least a substantial basis for concluding there was nexus. United States v. Corleto, 2009 U.S. Dist. LEXIS 10826 (D. Utah February 5, 2009).*

Blocking defendant’s car on a parking lot, and defendant then pulling up along side the police car was submission to a show of authority and a seizure. United States v. Salazar, 2009 U.S. Dist. LEXIS 10888 (D. Kan. February 12, 2009).*

Defendant admitted that the pants he wore to the hospital after being shot were not his. The pants were searched looking for ID, and 28 grams of cocaine were found. No search warrant was required, and defense counsel was not ineffective for not arguing that it was. Claytor v. United States, 2009 U.S. Dist. LEXIS 10705 (W.D. Va. February 12, 2009).*

Defendant’s stop on a road on the edge of Quantico Marine Base was justified because Quantico is a closed military base as a whole, even though this particular road would seem not to be. United States v. Guajardo, 2009 U.S. Dist. LEXIS 11410 (E.D. Va. February 17, 2009)*:

In an unpublished opinion, the Fourth Circuit specifically found Quantico to be a closed military base. United States v. Tate, 129 F.3d 118, 1997 WL 693049, *1 (4th Cir. Oct. 29, 1997)(“The question we must decide in this appeal is whether MCB Quantico is a closed military base. We find that it is.”) In the decision, the Court noted several factors indicating that Quantico is a closed installation. For example, the base houses a helicopter squadron that provides support for the President of the United States, and also serves as headquarters for the Marine Corps’ Systems Command. Id. Indeed, every Marine Corps officer, as well as many high-ranking foreign military officers, receive training at Quantico. Id. Additionally, signs posted at every gate state that the base is closed and warn that all persons and vehicles entering the base are subject to search. Id. Thus, Quantico is a closed military base, even despite the fact that Fuller Road, upon which defendant was traveling when he was stopped, is open to public use for vehicular traffic. See United States v. Daniels, 471 F.Supp.2d 634, 638-39 (E.D. Va. 2007) (noting that signage located at Quantico gates indicates that entry onto the base is deemed consent to a search).

Defendant was not stopped when he got out of his car. His furtive movements justified a “protective sweep” of the car for a weapon. United States v. Walker, 2009 U.S. Dist. LEXIS 11264 (E.D. Va. February 13, 2009)*:

In the present case, Officer Gohlke’s knock on the window and Walker’s exit of the vehicle do not constitute a stop. The officers did not ask or demand that Walker exit the vehicle; he did so voluntarily. There is no evidence that the officers had their guns drawn, were especially hostile to Walker, blocked his car from leaving, or physically touched Walker. Furthermore, the officers were tasked with investigating trespassing on the premises–as required by the ownership–therefore the questions regarding Walker’s residence were justified. Accordingly, the knock on the window and Walker’s voluntary exit did not require any reasonable articulable suspicion because a reasonable person would have known he was free to leave–therefore it was not a stop.

Defendant’s handcuffing was not per se an arrest. The trial court erred in so concluding. State v. Sheppard, 271 S.W.3d 281 (Tex. Crim. App. 2008):

Indeed, appellee was not free to leave at that point; he was being temporarily detained while Officer Smith conducted his investigation. That is precisely what Terry permits-a temporary detention, in which the person is not free to leave, while the police officer investigates whether a crime has been committed. But a Fourth Amendment Terry detention is not a custodial arrest, and the use of handcuffs does not automatically convert a temporary detention into a Fourth Amendment arrest. As Professor LaFave explains, handcuffing a person who has been temporarily detained “is not ordinarily proper, but yet may be resorted to in special circumstances, such as when to thwart the suspect’s attempt to ‘frustrate further inquiry.'”

Defendant was stopped and arrested for custodial traffic offenses, so his vehicle could be searched incident to that arrest, and the question of consent does not have to be resolved. United States v. Gray, 2008 U.S. Dist. LEXIS 99995 (N.D. Ill. December 11, 2008).*

Call from CI to defendant that officer was listening to setting up drug deal was PC when the defendant showed up. United States v. Diaz-Delgado, 2008 U.S. Dist. LEXIS 100427 (S.D. Cal. December 10, 2008).*

Defendant was talking to officers in his backyard and then fled into his house to avoid them. He came out of the bedroom but was uncooperative, and he was peppersprayed and arrested in the living room. The first entry into the room to look for others was valid as a protective sweep. In the second entry, the officer looked under the bed finding drugs. The second entry was not valid as a search incident. “In Chimel, the United States Supreme Court held that a lawful arrest creates a situation justifying a contemporaneous, warrantless ‘search of the arrestee’s person and the area within his immediate control.'” The bedroom was not within his area of immediate control. State v. Sanders, 2008 WI 85, 311 Wis. 2d 257, 752 N.W.2d 713 (2008).

The circuit erred in finding that defendant’s detention for the drug dog was 38 minutes and not 78 seconds. [This generates a biting dissent about the state supreme court granting insufficient deference to the findings of the trial court and then applying only one Terry prong to fit its needs.] State v. Arias, 2008 WI 84, 311 Wis. 2d 358, 752 N.W.2d 748 (2008).*

Suspicious conduct in a low crime rural area was worthy of looking into, and that quickly developed into reasonable suspicion. State v. Noteboom, 2008 SD 114, 758 N.W.2d 457 (2008).

The fact the D.C. jail permitted U.S. Marshals to take custody of plaintiff and serve an arrest warrant on him is not a Fourth Amendment claim. Bailey v. United States Marshal Serv., 584 F. Supp. 2d 128 (D.D.C. November 3, 2008)*:

Bailey cannot derive a personal constitutional tort from an issue of comity between two sovereigns. Bailey cites several cases which involved a dispute between two sovereigns regarding personal jurisdiction of one in custody. But here, there was no dispute between two sovereigns. According to the complaint, Bailey’s custodian, the District of Columbia, willingly relinquished custody upon request of the federal marshals presenting a facially valid arrest warrant. The conduct of the D.C. jail officials and the federal marshals did not run afoul of the Fourth Amendment or common law prohibitions on false arrest and false imprisonment.

Exclusionary rule does not apply to driver license suspension proceedings. Beller v. Rolfe, 2008 UT 68, 194 P.3d 949, 613 Utah Adv. Rep. 25 (2008).*

Anonymous tipster who briefly came forward and then disappeared after defendant’s arrest was no more entitled to credibility than as an anonymous informant. Baptiste v. State, 995 So. 2d 285 (Fla. September 18, 2008).*

Defendant was approached by an officer and consented to a search of his person. State v. Corbett, 758 N.W.2d 237 (Iowa App. 2008).*

Defendant showed sufficient doubt about counsel’s performance in failing to file a motion to suppress and urging a guilty plea before the videotape of the stop was even made available to the defense. The videotape of the defendant’s stop was reason
to fire defense counsel and hire another lawyer, and the pleadings and the video were sufficient to show a likelihood of success as to consent not being voluntary. On the merits of the stop, it was based on a traffic violation, but the record is devoid of anything showing reasonable suspicion. On the merits of the search, the defendant was asked to follow the police officer to another location for the writing of his warning, but the officer retained the paperwork during this “decamp[ment].” The court does not decide the merits of the consent issue because there was no suppression hearing, but it is outlined for the District Court. Remanded for a full hearing on the merits of the search claim and counsel’s strategy for the guilty plea rather than a conditional plea. United States v. Cavitt, 550 F.3d 430 (5th Cir. 2008).*

A Michigan v. Long protective sweep of defendant’s car was based on reasonable suspicion based on defendant’s actions and the location of the stop. United States v. Walker, 2008 U.S. Dist. LEXIS 101545 (E.D. Va. December 16, 2008)*:

The incident occurred just after 12:00 a.m. in an area known by the police to be a high crime, high narcotics, and high violence area; Walker jumped out of the car when the police approached the vehicle to ask him a question; he appeared nervous, his voice was shaky, and he began to look around nervously; and he gave inconsistent information about his place of residence. Based on these circumstances, this Court finds that the officers had a reason to detain and conduct a protective sweep of the vehicle so as to protect themselves and the public. Therefore, the seizure and protective sweep of the vehicle was constitutionally justified.

(Comment: The use of “protective sweep,” originally a look for persons in a building under Buie, now includes a look for weapons, too.)

How to tell that the government is going to win: The first line of the opinion starts out “On June 7, 2006, Detective Jason Cebuhar, a 12-year veteran of the Rockford, Illinois, police department, received information ….” Defense counsel’s not filing a more “elaborate” motion to suppress would not have changed the outcome. The consent question turned on credibility. The officers, of course, had no motive to lie. United States v. Dean, 550 F.3d 626 (7th Cir. 2008) (this opinion was hardly worth publishing).*

Assuming that the police violated the Fourth Amendment by holding for 48 days defendant’s computer seized from the computer repair guys after the shop found child pornography, defendant’s admissions when he was called in to talk about it and his consent to search his house for another hard drive was an independent source. This was merely “but for” causation without exploitation of an illegality. United States v. Budd, 549 F.3d 1140 (7th Cir. 2008).* Also, defendant’s claim that he would have destroyed the evidence had he gotten access to it but for the illegal seizure was speculative and violated the principle that he had no constitutional right to destroy evidence, citing Segura v. United States, 468 U.S. 796, 815-16 & n.10 (1984)):

In this case, Budd demonstrated nothing more than but for causation. There is no evidence that the government exploited the illegal seizure of the computer; the government did nothing more than place the unsearched computer into an evidence room and leave it there. It was Budd who called the police, volunteered that he had “pretty graphic” files on his computer, and agreed to come down for questioning at the police station. It was Budd who called Detective Teshak the day after Budd’s first interview to clarify some of his previous statements. Budd chose to make this second phone call, not because of police exploitation of the illegal seizure, but, as he told Detective Teshak, because he felt that in order to start the “healing” process, he needed to be truthful about the files on his computer. The illegal seizure indirectly prompted Budd’s first phone call to the Moline Police Department; however, the seizure was not exploited, nor did it compel Budd to incriminate himself. Budd’s statements to the police were not derivative of the seizure.

Conversations over commercially available hand held radios that were monitored by police had no reasonable expectation of privacy under the Montana Constitution or Fourth Amendment. State v. Cotterell, 2008 MT 409, 347 Mont. 231, 198 P.3d 254 (2008):

[*P52] In the case sub judice, Cotterell asserts that he had a reasonable expectation of privacy in the conversations he had with his son over their hand-held radios. On the facts of this case, we reject Cotterell’s position. Cotterell and his son engaged in their communications using widely available hand-held radios over a public channel that can be monitored by anyone using similar equipment. Contrary to Cotterell’s assertions, these sorts of conversations cannot be considered “private.” “Where a person has gone to considerable trouble to keep activities and property away from prying eyes, the person evinces a subjective expectation of privacy in those activities and that property.” Goetz, P 29 (citing State v. 1993 Chevrolet Pickup, 2005 MT 180, P 12, 328 Mont. 10, P 12, 116 P.3d 800, P 12). In this case, rather than keeping his “activities and property away from prying eyes”–or ears, as the case may be–Cotterell actually went to “considerable trouble” to announce his activities using a media that is accessible to any member of the public with commonly available technology.

Jail telephone calls were validly made and introduced into evidence. The fact the phone was handed to others after the recorded voice said that calls may be recorded was not determinative. Commonwealth v. Boyarsky, 452 Mass. 700, 897 N.E.2d 574 (2008).*

Officer’s statement to the defendant who was coming out of a drug house that if she surrendered the dope she would not be arrested (but cited) was tantamount to an arrest because no reasonable person would feel free to leave. Since there was no reasonable suspicion, the stop was unreasonable. State v. Allen, 224 Ore. App. 524, 198 P.3d 466 (2008):

This case is akin to Terhear/Goemmel, not Baker. Brown’s statements to defendant that he “knew she was coming from a dope house” and “that if she was honest and gave [him] the dope [he] would give her a citation” (emphasis added) are tantamount to the announcement in Terhear/Goemmel that the officer had just seen defendant break the law. Indeed, as Brown candidly acknowledged, his statement implicitly conveyed to defendant that, by surrendering “the dope,” she could avoid arrest. That implied threat of arrest was–as the state does not dispute–unsupported by reasonable suspicion, much less by probable cause. Those circumstances stand in stark contrast to Baker, where the officer merely inquired whether the defendant had bought drugs.

Here, as in Terhear/Goemmel, “[a]n ordinary citizen, faced with such a statement by a uniformed police officer, would not believe that he or she was free to leave.” 142 Or App at 458. Rather, a person in defendant’s position “would reasonably believe that he or she was not free to go until the officer took some further action, such as issuing a citation or telling the individual that he or she could move on. Common experience and common sense admit no other answer.” Id.; see generally State v. Holmes, 311 Or 400, 410, 813 P2d 28 (1991) (“The pivotal factor is whether the officer, even if making inquiries a private citizen would not, has otherwise conducted himself [or herself] in a manner that would be perceived as a nonoffensive contact if it had occurred between two ordinary citizens.”). Accordingly, defendant was seized when Brown told her that he “knew she was coming from a dope house” and “that if she was honest and gave [him] the dope [he] would give her a citation.”

An officer pulling over to check a vehicle parked on the side of a highway with its lights flashing is subject to the community caretaking function, assuming that a “stop” even occurs. Here, the officer walked up to the side window and determined that the driver was intoxicated. The court admits that the Wisconsin courts have unnecessarily confused the Cady doctrine. State v. Kramer, 2008 WI App 62, 311 Wis. 2d 468, 750 N.W.2d 941 (2008), review granted 2008 WI 115, 2008 Wisc. LEXIS 384 (2008):

P19 Under the first factor, Kramer argues that the public interest in the officer’s conduct was low. We disagree. The public has a substantial interest in encouraging police officers to be on the look-out for and offer aid to motorists who may be stranded or otherwise in need of assistance. “Contacts of this sort are not only authorized, but constitute an important duty of law enforcement officers.” State v. Goebel, 103 Wis. 2d 203, 208, 307 N.W.2d 915 (1981) (officer stopped to see if a motorist who had pulled to the side of the road was in need of assistance).

P20 Kramer seems to be arguing that this interest was not implicated here because he was not attempting to signal for help and because there was no indication that he or his truck was in distress. This argument misses the mark because Kramer’s flashing hazard lights signaled to any reasonable observer that Kramer or his truck might be experiencing some sort of problem. It is common knowledge that motorists with vehicle trouble often pull over and activate their hazard lights without taking additional steps to flag down passers-by.

. . .

P35 In sum, apart from the community caretaker law we apply today, well-settled Fourth Amendment law provides that a search or seizure may not be found legal or illegal because of an officer’s subjective motives or thoughts.

P36 The reason community caretaker cases in Wisconsin have strayed from well-settled Fourth Amendment law appears to be that, in Anderson, we misinterpreted the United States Supreme Court’s decision in Cady. It seems the same sort of misreading of Cady occurred in Illinois, prompting an appellate court justice there to explain the misreading and propose a course correction, albeit in a concurrence. Because the case law addressed by the Illinois justice is essentially the same as Wisconsin case law, and because the justice aptly addresses the topic, we begin by quoting from that concurrence.

. . .

P41 We do not suggest that the entire community caretaker analysis used in Wisconsin is problematic. To the contrary, the most significant aspect of our current test is the directive that courts consider four factors in balancing the public need and interest in the officer’s action with the intrusion on individual privacy. See, e.g., Anderson, 142 Wis. 2d at 169-70. The Anderson balancing requirement tracks what Presiding Justice O’Malley in Cordero recommends as the full community caretaker test. See Cordero, 830 N.E.2d at 841-42 (suggesting a case-by-case balancing of the individual’s interest in proceeding about his or her business, unfettered by police, against the public’s interest in having police officers perform public assistance services).

The court “assume[s], without deciding, that a seizure had occurred by the time the officer observed signs of intoxication.” It is clear to me, however, that this almost certainly would be found to not be a stop. The bluelights were not turned on to stop the defendant–they were turned on to show that the police car was just parked there.

The search of defendant’s house followed his admission he had a gun. The finding of the gun was consistent with his plea of self-defense, so any claim of unlawful search was rendered harmless by his defense. State v. James, 267 S.W.3d 832 (Mo. App. 2008):

Assuming arguendo that the trial court’s ruling on the motion to suppress was erroneous, the admission of the evidence the police collected at Defendant’s home was harmless beyond a reasonable doubt because Defendant admitted during the trial that he used the SKS rifle to kill Victim inside that dwelling. The discovery of the body, rifle, shell casings, bullet fragments and other evidence was completely consistent with Defendant’s own trial testimony that he killed Victim in self-defense.

Eleven minute delay for drug dog to arrive was not unreasonable. United States v. Jones, 2008 U.S. Dist. LEXIS 90118 (E.D. Tenn. July 2, 2008).*

Defendant was stopped for following too close (6′ at 30 mph), and there was a strong smell of raw marijuana justifying the search. Pollack v. State, 294 Ga. App. 400, 670 S.E.2d 165 (2008).*

When defendant shows “but for,” the burden shifts to the state to explain it away. Here they did. State v. Ashbaugh, 225 Ore. App. 16 (2008):

In order to establish a “minimal factual nexus,” the defendant must show that there is at least a “but for” relationship between the unlawful stop and the consent. Id. at 25. The burden then shifts to the state. If the state cannot establish “independence”–that is, that the evidence inevitably would have been discovered through the exercise of lawful procedures (such as a mandatory inventory policy), or that it was obtained not only as a result of the illegality, but also as the result of a chain of events that did not include an illegality (that is, an “independent source”)–it must prove “attenuation.” State v. Tyler, 218 Ore. App. 105, 110, 178 P.3d 282 (2008). Factors on which the state might rely to make that showing include the amount of time that elapsed between the illegality and the request for consent and the presence of any intervening or mitigating circumstances. Id.

In accordance with those principles, we must first determine whether defendant has established the requisite “but for” relationship. Hall, 339 Ore. at 25. We have explained that relationship, albeit in the civil context, as follows: one event is the “but for” cause of a second event if the second event would not have occurred if the first event had not occurred. Wallach v. Allstate Ins. Co., 206 Ore. App. 137, 143, 135 P.3d 404 (2006), aff’d, 344 Ore. 314, 180 P.3d 19 (2008); see also Blacks Law Dictionary 213 (8th ed 2004) (defining “but-for test” as “[t]he doctrine that causation exists only when the result would not have occurred without the party’s conduct”). The state asserts that, although the request for consent occurred after the unlawful stop, defendant has failed to show that the request occurred as a result of it. Defendant’s position is that, if her interaction with the officers had ended before they took her identification and began a warrant check, the subsequent series of events culminating in the officers’ request for consent to search would never have occurred. Instead, the encounter would have ended and, presumably, the officers would have moved on.

An officer with an anonymous report of drug activity in a parked car could approach the car to inquire, but that was it. Corroboration here was only to the extent of the fact the car was where it was said to be and two people were in it. Nothing else was learned from talking to the people in the car to justify further detention, and the motion to suppress was properly granted. State v. Wilson, 2008 Tenn. Crim. App. LEXIS 962 (December 11, 2008).*

Police officer’s conduct of a knock-and-talk looking for a person involved in a rollover accident were engaged in a criminal investigation, and the occupant was entitled to warnings of a right to refuse entry. State v. Freepons, 147 Wn. App. 689, 197 P.3d 682 (2008):

The Washington Supreme Court has noted that “there is a fundamental difference between requesting consent to search a home and requesting consent to enter a home for other legitimate investigatory purposes.” Khounvichai, 149 Wn.2d at 564 (emphasis added). Here, the deputies’ intention to search the residence for evidence of a crime was clear.