Revocation of probation § 1983 claim was barred by Heck. Trevino v. McLean, 2008 U.S. Dist. LEXIS 94868 (W.D. Tex. September 11, 2008).*

“When a trial lawyer’s failure to pursue a motion to suppress is the basis for a claim of ineffective assistance, ‘the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.'” Here, the search was proper. Smith v. State, 294 Ga. App. 692, 670 S.E.2d 191 (2008).*

Consent was a one witness issue in this case, and “[t]he trial court granted the motion to suppress based upon its findings that the officer’s testimony describing the encounter was nebulous and lacked credibility.” The granting of the suppression motion was justified by the evidence. State v. Holloway, 294 Ga. App. 683, 670 S.E.2d 208 (2008).*

Questions to the passenger were justified by the officer’s suspicions. State v. Funderburg, 2008 NMSC 26, 144 N.M. 37, 183 P.3d 922 (April 15, 2008):

[*31] … As we have made clear, after finding drugs on the passenger, Officer Minter did not immediately turn his attention to Defendant and begin interrogating him as a suspect, as in Patterson or Williamson, about drugs on his person. He never asked for consent to search Defendant personally, and did not do so until much later in the investigation after his arrest. If the officer had focused prematurely on Defendant as a suspect, then our inquiry today would be different. However, Officer Minter, suspecting that other evidence of the passenger’s criminal act could be found in the car, asked Defendant a single question–whether there was anything in the car he needed to know about–before requesting Defendant’s consent to search the car. These two simple inquiries were reasonably designed to confirm or dispel Officer Minter’s suspicion about the criminal activity of the passenger, not the driver, and the presence of other contraband in the car. The officer reasonably directed his inquiry at the driver, the one person who presumably would know about the car’s contents and who could provide consent for its search.

[*32] In weighing the officer’s intrusion on Defendant’s privacy, we should ask ourselves what other actions a reasonable officer would be expected to take under similar circumstances, if not those taken in this instance. Upon developing reasonable suspicion that other drugs or drug paraphernalia might be in the car, based on the passenger’s possession of similar contraband, Officer Minter had other options, but none that would have spared Defendant the risk of an even greater intrusion into his privacy. For example, the officer could have detained the car and conducted his own warrantless search on the basis of some theory of exigent circumstances, though no such theory was raised in this case. The officer could have detained the car, awaiting a warrant or a drug dog, and allowed Defendant to leave, no doubt at Defendant’s considerable inconvenience. The officer could have erred on the side of caution, and simply let the car go, thereby ignoring his suspicions and turning a blind eye to criminal activity. Or, Officer Minter could take the simplest, most direct approach with minimal intrusion on Defendant’s privacy, and ask a brief question about the contents of the car before requesting Defendant’s consent to search the car. Officer Minter chose the last option, and we hold that his choice was constitutionally reasonable under the circumstances.

Videotape of defendant’s stop corroborated state’s claim of consent. Serrano v. State, 291 Ga. App. 500, 662 S.E.2d 280 (2008).*

Annhydrous ammonia leak is not exigent circumstances for a warrantless entry into defendant’s garage. State v. Moore, 2008 NMCA 56, 144 N.M. 14, 183 P.3d 158 (App. 2008):

[*14] Our cases therefore establish that mere probable cause that a methamphetamine lab exists is not per se an exigent circumstance that will justify a warrantless entry into a home. Police officers must still have knowledge of specific, articulable facts that demonstrate that immediate action is necessary “to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.” Copeland, 105 N.M. at 31, 727 P.2d at 1346; see State v. Duffy, 1998 NMSC 14, P 70, 126 N.M. 132, 967 P.2d 807 (“[T]he presence of exigent circumstances must be supported by specific articulable facts.”), modified on other grounds by State v. Gallegos, 2007 NMSC 7, P 17, 141 N.M. 185, 152 P.3d 828.

N.M. “misdemeanor arrest rule does not apply to investigatory stops. We further hold that, under the Fourth Amendment, the stop was reasonable because an officer may reasonably rely on information from another officer that a crime has been or is being committed. Because the Court of Appeals improperly relied on New Mexico’s misdemeanor arrest rule, we reverse the Court of Appeals opinion and remand to the Court of Appeals to determine whether the stop was pretextual and, if so, whether article II, section 10 prohibits pretextual stops.” This was a stop for a seatbelt violation. State v. Ochoa, 2008 NMSC 23, 143 N.M. 749, 182 P.3d 130 (2008).

Arresting plaintiff outside her house for the benefit of TV cameras obviated the need for a protective sweep. Milligan v. United States, 2008 U.S. Dist. LEXIS 36635 (M.D. Tenn. May 2, 2008).*

Affidavit for search warrant for child porn on defendant’s computer failed to show probable cause. Also, presence of adult porn on the computer says nothing about the presence of child porn, and the court refuses to make this inference at the request of the state. Commonwealth v. Kaupp, 453 Mass. 102, 899 N.E.2d 809 (January 16, 2009):

After reviewing Officer Maglio’s affidavit, we conclude that the affidavit, read as a whole and in a nontechnical manner, does not establish probable cause to believe that child pornography was located among the defendant’s private files. The portions of the affidavit suggesting that the defendant’s private files contained child pornography consisted of (1) the fact that both Joester and Sinister had a copy of the recently released movie Spiderman, suggesting that the movie had passed from one computer to another; (2) the fact that child pornography had been observed in Joester’s open share; and (3) Officer Maglio’s statement that the defendant “could not guarantee that there were not any child pornographic images stored in electronic format within his computer.” None of these facts, even when considered together, provided a “substantial basis” to believe that the defendant’s private files contained child pornography.

With respect to the presence of the Spiderman movie on both computers, the inference urged by the Commonwealth is simply too attenuated. The presence of Spiderman on both computers bears on probable cause only if it may reasonably be inferred that sharing an electronic copy of a commercial movie suggests an interest in sharing child pornography. Such an inference is not reasonable. The fact that the defendant could access child pornography does not advance the Commonwealth’s contention that the defendant copied child pornography from Joester onto his computer. …

The Commonwealth urges us to draw an adverse inference from the defendant’s admission that he had a personal collection of pornography on his computer. We decline to do so. The affidavit provides no basis to conclude that an interest in adult pornography (which, if not obscene, is constitutionally protected, see Miller v. California, 413 U.S. 15, 24-25, 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]; Commonwealth v. Donahue, 358 Mass. 803, 263 N.E.2d 589 [1970]) is a basis to infer an interest in child pornography. See United States v. Falso, supra at 122 (rejecting inference between sexual abuse of minor and possession of child pornography where association was neither stated nor supported in affidavit).

“Because of the foregoing, the bank teller’s out of court identification must be suppressed. To be clear, the bank teller did nothing improper, but the lack of any intervening event to sever the causal connection between the illegal search and the photo lineup means that suppression must be ordered.” It was not attenuated enough. United States v. Carter, 2009 U.S. Dist. LEXIS 9607 (N.D. Ill. February 6, 2009).*

Defendant was stopped on a bicycle for an equipment violation, and his strange responses led officers to believe that it was stolen. The patdown and drawing of weapons was justified. United States v. Banks, 2009 U.S. App. LEXIS 2491 (8th Cir. February 2, 2009).*

Targets of a search have a Fourth Amendment right of access to search warrant materials before indictment. In re Searches & Seizures, 2008 U.S. Dist. LEXIS 107087 (E.D. Cal. December 19, 2008):

In addressing the question left unanswered by the decision in Times Mirror, several courts have recognized that those individuals whose property is the subject of a search pursuant to warrant have a pre-indictment right of access to search warrant materials, including the supporting affidavit, grounded in the Fourth Amendment. In re Search Warrants Issued on April 26, 2004, 353 F. Supp. 2d at 591 (affirming the magistrate’s order and recognizing “a search subject’s pre-indictment Fourth Amendment right to inspect the probable cause affidavit.”); In re Search Warrant for 2934 Anderson Morris Road, 48 F. Supp. 2d 1082, 1083 (N.D. Ohio 1999) (“Generally, a person whose property has been seized pursuant to a search warrant has a right under the Warrant Clause of the Fourth Amendment to inspect and copy the affidavit upon which the warrant was issued.”); Up North Plastics, Inc., 940 F. Supp. at 232 (denying government’s pre-indictment motion to keep in place a previously entered order sealing the affidavit in support of a search warrant); In re Search Warrants Issued August 29, 1994, 889 F. Supp. at 299 (granting a home and business owner’s pre-indictment motion to unseal search warrant materials, stating “the Fourth Amendment right to be free of unreasonable searches and seizures includes the right to examine the affidavit that supports a warrant after the search has been conducted and a return has been filed”); see also United States v. Oliver, 208 F.3d 211, 2000 WL 263954, *2 (4th Cir. 2000) (unpublished) (recognizing a Fourth Amendment right to examine the search warrant affidavit); In the Matter of Searches of Semtex Industrial Corporation, 876 F. Supp. 426, 429 (E.D.N.Y. 1995) (observing in response to a motion to unseal a warrant affidavit brought by a business that had been subject to search that such materials may not be sealed indefinitely pending the government’s decision to seek an indictment); Matter of Wag-Aero, Inc., 796 F. Supp. 394, 395 (E.D. Wisc. 1992) (vacating sealing order upon finding that the search target’s due process rights would be violated by continued sealing of the supporting affidavit).

Warrant was stale [without much explanation], but the good faith exception saves it [also without much explanation]. United States v. Jones, 2009 U.S. App. LEXIS 2429 (11th Cir. February 10, 2009) (unpublished).*

Record showed defendant consented to a search of his person and rental car on the parking lot of a store that was an open air drug market at night. His cooperation showed consent [but not his acquiescence to a claim of authority?]. United States v. Boyd, 2009 U.S. Dist. LEXIS 9636 (M.D. N.C. February 9, 2009).*

Dog sniff of defendant’s house was not a violation of the Fourth Amendment. “Here there is no indication the encounter between Chapman and law enforcement was not consensual. Chapman was present and did not object to the arrival of the canine unit or the sniff on the front porch. Under the circumstances, the canine unit was lawfully present on Defendant’s front porch when the sniff occurred. Thus, the dog sniff did not violate the Fourth Amendment.” [Which begs the question of knowing one can object, like the officers would stop if he did.] United States v. Chapman, 2009 U.S. Dist. LEXIS 9435 (E.D. Tenn. February 6, 2009).*

Officer’s touching the defendant to attempt to restrain him amounts to a seizure. State v. Gross, 2009 Ohio 611, 2009 Ohio App. LEXIS 533 (8th Dist. February 12, 2009)*:

{¶ 30} The testimony presented in this case demonstrated that, in fact, although Gross attempted to leave, Ramsey prevented him from doing so by “laying hands on him.” Franklin, supra. Subsequently, when Gross informed the officers that his identification was inside his bag, this did not amount to a “consent” to search. Locklear, ¶36, cf., State v. Hull, Ashtabula App. No. 2003-A-0068, 2005-Ohio-2526, ¶13.

Defense counsel was not ineffective for not filing a motion to suppress that would have been denied because defendant committed a traffic violation by backing into traffic, and the stop was clearly justified. State v. Alexander, 2009 Ohio 597, 2009 Ohio App. LEXIS 505 (8th Dist. February 12, 2009).*

Defendant was stopped for a traffic offense, and she had a BOLO out because of suspected drug activities. A drug dog was validly run around the car by another officer while the first officer was checking the license. State v. Dixon, 2009 Ohio 559, 2009 Ohio App. LEXIS 474 (12th Dist. February 9, 2009).*

There were exigent circumstances for the warrantless entry of defendant’s hotel room after his arrest outside because of a missing gun and likely confederates having access to them. United States v. Granados, 587 F. Supp. 2d 1112 (D. S.D. November 4, 2008):

Exigent circumstances also supported the warrantless entry into Granados’ hotel room. The task force reasonably believed that it was necessary to immediately arrest the person traveling with Morales to protect public safety. Morales was known to have had guns and a knife in the past, and no weapons were found on his person or in the Expedition after he was arrested. Morales had located and visited the CI’s family seeking payment for a past delivery of marijuana. The controlled transaction took place on a Saturday evening while hotel guests and employees were moving about the hotel and parking lot and civilians were sitting alongside the street near the Kelly Inn to watch a motorcycle event. Further, based on the facts set out above, members of the task force had reason to believe that a third person was traveling with Morales and was waiting for him in Room 250. It was reasonable to assume that the third person may have been watching the transaction and arrest from his hotel room or was alerted by Morales’ failure to return with the money that something had gone wrong. See United States v. Padilla, 869 F.2d 372, 379-80 (8th Cir. 1989) (arrestee’s failure to communicate with suspect may have signaled that the deal had gone sour). The task force was justified in entering Granados’ room without a warrant because of its reasonable belief that it was necessary to protect the general public, hotel guests and employees, the CI’s family, and the officers and agents themselves from a possible violent action from Morales’ associate.

Defendant’s parole search was justified and was not conducted to harass him. After all, the parole officer testified that he was not harassing the defendant. There was more: The defendant previously had been arrested for marijuana possession while on parole and couldn’t hold a job. United States v. Widener, 2008 U.S. Dist. LEXIS 90072 (E.D. Tenn. November 4, 2008).*

Summary judgment denied the government on a Bivens claim by Arab men detained for four hours after landing at JFK for alleged “terrorist surveillance” from ambiguous activity on an international flight. The government even argued that their race justified their detention. Farag v. United States, 587 F. Supp. 2d 436 (E.D. N.Y. November 24, 2008) (link via NYLJ):

Although the question whether race or ethnicity may be used as one factor among others in evaluating reasonable suspicion or probable cause (outside of the identification scenario, and absent any compelling statistical evidence) remains unresolved by either the Supreme Court or the Second Circuit, there is a significant body of pre-9/11 precedent concluding that race is not indicative of criminal propensity. The Ninth Circuit’s decision in Montero-Camargo is one example; although the en banc court held that there were sufficient non-ethnic factors to constitute reasonable suspicion to stop the defendants, the majority rejected the district court’s and the panel majority’s “reli[ance] in part upon the Hispanic appearance of the three defendants[,]” 208 F.3d at 1131, concluding that “Hispanic appearance is, in general, of such little probative value that it may not be considered as a relevant factor where particularized or individualized suspicion is required ….” Id. at 1135. Similarly, in United States v. Clay, the Eighth Circuit held that the defendant’s race, considered together with several other factors, did not create reasonable suspicion for a Terry stop, stating that “[a]lthough color of skin is an identifying factor, this court has consistently rejected the use of race in combination with other factors to justify investigative searches and seizures.” 640 F.2d 157, 159 (8th Cir. 1981) (citations omitted) (emphasis added).

There is no doubt that the specter of 9/11 looms large over this case. Although this is the first post- 9/11 case to address whether race may be used to establish criminal propensity under the Fourth Amendment, the Court cannot subscribe to the notion that in the wake of 9/11 this may now be permissible. As the Second Circuit recently admonished, “the strength of our system of constitutional rights derives from the steadfast protection of those rights in both normal and unusual times.” Iqbal v. Hasty, 490 F.3d 143, 159 (2d Cir. 2007), cert. granted sub nom. Ashcroft v. Iqbal, U.S. , 128 S.Ct. 2931, 171 L. Ed. 2d 863 (2008).

History teaches much the same lesson: The Supreme Court’s approval of the internment of large numbers of Japanese-Americans during World War II, see Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194 (1943), is now widely regarded as a black mark on our constitutional jurisprudence. The daughter of two such internees — Kiyo Matsumoto — recently became the third Asian-American woman to be elevated to the federal bench. At her induction ceremony, Judge Matsumoto recalled the closing words of Justice Murphy’s dissent in Korematsu; they are equally apt here:

All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.

323 U.S. at 242.

The Court “fully recognize[s] the gravity of the situation that confront[s] investigative officials of the United States as a consequence of the 9/11 attack[,]” Iqbal, 490 F.3d at 159 (2d Cir. 2007), and that the mindset of airline travelers has understandably been altered by 9/11. This justifiable apprehension must be assuaged by ensuring that security is strictly enforced, and by the passage of time without, hopefully, other episodic affronts to our country; but fear cannot be a factor to allow for the evisceration of the bedrock principle of our Constitution that no one can be arrested without probable cause that a crime has been committed.

Qualified immunity was also denied, but the court did not want to deter officers in the future:

For example, if the jury were to find that the agents knew or should have known that Elmasry was not suspiciously “timing” events; that the agents knew or should have known why plaintiffs changed their seats; and that the agents heard and understood enough of the English portions of plaintiffs’ mixed Arabic-English conversations to place their actions in context, the Court could not grant the agents qualified immunity. Under such circumstances, there would be no factual justification for the agents’ actions other than plaintiffs’ ethnicity, and no reasonable officer would have thought it appropriate to arrest or investigatively detain an Arab simply for speaking Arabic on an airplane–whether before or after 9/11. Thus, because of the factual nature of the qualified immunity issue, summary judgment cannot be granted.

On a concluding note, nothing that the Court has written should be construed as suggesting that law enforcement officials should be anything but vigilant in policing suspicious conduct on domestic airline flights. Moreover, “individuals consent to substantial intrusions on their Fourth Amendment interests at airports and onboard commercial aircraft.” Shqeirat v. U.S. Airways Group, Inc., 515 F. Supp. 2d 984, 993 (D. Minn. 2007) (citing Cassidy v. Chertoff, 471 F.3d 67, 76 (2d Cir. 2006) (“[S]ociety has long accepted a heightened level of security and privacy intrusion with regard to air travel.”)).

Certainly, the agents could have engaged the plaintiffs in consensual conversation. See Royer, 460 U.S. at 497-98 (“[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual . . . in [a] public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.”); United States v. Lee, 916 F.2d 814, 816-19 (2d Cir. 1990) (holding that, where officers approached a suspicious person in an airport terminal “and, with credentials displayed, asked if they could speak with him”; the individual consented; the officers told him “that he was suspected of carrying contraband”; and he consequently allowed them to search his person; the encounter did not implicate the Fourth Amendment). For aught that appears on the present record, the plaintiffs were more than willing to answer any questions put to them and give the agents whatever information they may have required. And if the plaintiffs had fully cooperated by telling the agents where they worked and, in Farag’s case, giving his federal employee tax identification number, the agents should have been able to quickly confirm whether plaintiffs were being truthful.

Defendant was charged with exchanging body fluids while HIV positive, and he challenged the release of medical information under state law and HIPAA. The Idaho Supreme Court held that the defendant assumed the risk of delivery of his HIV records to law enforcement when he sought the lab tests under HIPAA. State v. Mubita, 145 Idaho 925, 188 P.3d 867 (2008):

The State asserts the district court correctly held that Mubita lacked standing to assert a search and seizure violation with regard to his health records because he voluntarily released the records to a third party. The State relies upon United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976), and State v. Kluss, 125 Idaho 14, 867 P.2d 247 (Ct. App. 1993), to argue that Mubita had no legitimate expectation of privacy in information he voluntarily turned over to a third party. The State points out that Mubita voluntarily turned over the laboratory results in order to obtain the Health Department’s HIV-related services. The additional documents that Mubita executed to obtain Health Department services were the Health Department’s own records. As such, he has no standing to claim a Fourth Amendment violation based on the Health Department’s disclosure of these records.

Forty minute lost of sight of defendant during pursuit extinguished hot pursuit. State v. Ballou, 145 Idaho 840, 186 P.3d 696 (App. 2008):

In this case, the state acknowledges that it was forty minutes between the time the officers lost sight of Ballou and the time they knocked on his apartment door. Additionally, like the facts of Johnson [United States v. Johnson, 256 F.3d 895, 908 (9th Cir. 2001)], these forty minutes were not spent waiting for reinforcements. Rather, the officers spent this time knocking on the doors of other apartments in the search for Ballou. The officers had no idea which apartment Ballou had retreated into and there was no continuous knowledge of Ballou’s whereabouts. Therefore, based on the time lapse of forty minutes and the fact that the officers did not know which apartment Ballou had entered, we conclude that the initial entry into Ballou’s apartment was not justified by the hot pursuit exception to the warrant requirement.

The police established video surveillance of defendant’s house because of reports of drug transactions on the premises, and the video surveillance was not in violation of any of defendant’s rights. Laterza v. Commonwealth, 244 S.W.3d 754 (Ky. App. 2008).

Defendant showed enough in his post-conviction petition to get a hearing on defense counsel’s failure to file a motion to suppress. Going to the merits of the search issue, the court finds that defendant showed a dispute of facts that could have gone either way, and he might prevail if his version were believed. Baldwin v. State, 145 Idaho 148, 177 P.3d 362 (2008).

Failure to appear arrest is within the inherent power of a court and occurs based on the direct knowledge of the judge issuing the order, so it complies with the Fourth Amendment. State v. Mohs, 743 N.W.2d 607 (Minn. 2008).*

Defendant’s stop was over and he was found by the trial court free to leave when he was asked for and gave consent, and the consent is supported by the evidence (over a strong dissent). Malbrough v. Commonwealth, 275 Va. 163; 655 S.E.2d 1 (2008).*

Search of a backpack on the premises was within the apparent authority of the consenter because there were no identifying marks on the backpack which would show that it belonged to someone else. Where there was an elderly person on the premises who consented, it was reasonable to conclude that an elderly person would use a backpack, too. [Right!] Glenn v. Commonwealth, 654 S.E.2d 910 (Va. 2008).*

Idaho finds a reasonable expectation of privacy in a camouflaged hooch in a National Forest because he had a subjective expectation of privacy in a temporary dwelling, and even a temporary dwelling is entitled to constitutional protection. State v. Pruss, 145 Idaho 623, 181 P.3d 1231 (2008):

The first inquiry under the two-part test is an issue of fact. Did Pruss have a subjective expectation of privacy in his hooch? The district court found that he did. That finding is supported by substantial and competent evidence. Pruss attempted to camouflage his hooch so that it would not be readily observable. More significantly, one can certainly infer that a person has a subjective expectation of privacy in his dwelling, even if it is a temporary structure like a tent, travel trailer, or the hooch in this case.

The second inquiry is an issue of law. Is society willing to recognize Pruss’s expectation of privacy as being reasonable? Stated differently, “the correct inquiry is whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” Oliver v. United States, 466 U.S. 170, 182-83, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984).

“[N]either history nor this Nation’s experience requires us to disregard the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.” Payton v. New York, 445 U.S. 573, 601, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). The respect for the sanctity of the home does not depend upon whether it is a mansion or hut, or whether it is a permanent or a temporary structure. As stated eloquently by William Pitt, “‘The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter–all his force dares not cross the threshold of the ruined tenement!'” Miller v. United States, 357 U.S. 301, 307, 78 S. Ct. 1190, 2 L. Ed. 2d 1332 (1958) (quoting remarks attributed to William Pitt).

A structure need not be one’s “home” in order for the occupant to have a legitimate expectation of privacy there. Minnesota v. Olson, 495 U.S. 91, 96, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990). “‘[T]he Fourth Amendment protects people, not places,’ and provides sanctuary for citizens wherever they have a legitimate expectation of privacy.” Id. at 96 n.5.

Throughout our State’s history, its citizens have engaged in various types of outdoor recreational activities on public lands. Idaho’s first game laws were enacted by the Territorial Legislature in 1864. Idaho’s state park system will celebrate its centennial this year. While engaging in outdoor recreational activities on public lands, our citizens often use various types of portable shelters such as backpacking tents, wall tents, tent trailers, and travel trailers. The central purpose of the constitutional protection against unreasonable searches and seizures forecloses any distinction between such types of shelters. See, United States v. Ross, 456 U.S. 798, 822, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982) (“a constitutional distinction between ‘worthy’ and ‘unworthy’ containers would be improper”). If the travel trailer is protected against government intrusion, then so is the tent.

Utilizing public lands for outdoor recreational activities is a longstanding custom in this State that is recognized as valuable to society. For example, on May 1, 2007, the Governor of Idaho issued a proclamation declaring June 2007 to be “Great Outdoors Month” and “invit[ing] citizens to observe this month by taking advantage of the many opportunities our state offers for family outdoor recreation activities.” As the Governor recognized in his proclamation, “[O]utdoor activities contribute to the physical well-being and happiness of the people of the state.” We hold that a person using a temporary shelterFN2 on public lands as his or her living quarters has a reasonable expectation of privacy in that shelter and that the government may not intrude into the shelter without a search warrant, absent an exception to the warrant requirement.

2. By “temporary,” we mean not permanent. Temporary does not refer to the length of time the person utilizes the temporary shelter as his or her abode.

The court’s press release is here.

False assertion that search warrant was coming tainted consent. State v. Tietsort, 145 Idaho 112, 175 P.3d 801 (App. 2007):

In the case before us, the district court made a factual finding, which is supported by the evidence, that before Tietsort consented to a search of outbuildings and vehicles, the officers told him that they were waiting for a search warrant to arrive. The district court also found that Tietsort’s consent to a search of his outbuildings and vehicles was voluntary. In making this finding of voluntariness, however, the court did not consider whether the officers’ assertions to Tietsort that they had discovered stolen items and could obtain a search warrant constituted an exploitation of any illegality in the prior search that tainted the consent and rendered it involuntary.

A consent is not rendered invalid merely because an officer has said that a warrant will be sought if consent is refused, … but a false representation that the officer possesses a warrant amounts to coercion. Bumper v. North Carolina, 391 U.S. 543, 548-50 (1968). The State’s burden to show that consent was freely and voluntarily given cannot be met by “showing no more than acquiescence to a claim of lawful authority.” Id. at 548-49. The Bumper opinion explains: “When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion–albeit colorably lawful coercion. Where there is coercion there cannot be consent.” Id. at 550. Here, officers did not falsely represent that they possessed a warrant, but they did assert the ability and intent to obtain one. An officer’s false, erroneous or baseless representation of the ability to obtain a warrant weighs against a finding of voluntariness, …. (citations omitted)

Officers had probable cause based on defendant’s meeting up with CI and what they heard on the wire about drugs and counting of money. United States v. Easter, 2007 U.S. Dist. LEXIS 93235 (M.D. Pa. December 18, 2007).*

Defense counsel was not ineffective for not filing a suppression motion because it would not prevail on the merits, which the court determines under the IAC claim. There was cause for the defendant’s stop and the gun was seen in plain view. State v. Altman, 2007 Ohio 6761, 2007 Ohio App. LEXIS 5935 (5th Dist. December 14, 2007).*

A school search was reasonable when it was based on a note passed that was only reasonably interpreted as a threat to kill another student. In re Garn, 2007 Ohio 6765, 2007 Ohio App. LEXIS 5941 (5th Dist. December 13, 2007).* (Comment: A threat of violence in school always leads to a search being sustained.)

Implied consent law does not eliminate defendant’s power to refuse to consent. But, comment on refusal does not violate the constitution. State v. Buell, 145 Idaho 54, 175 P.3d 216 (App. 2008):

It must be acknowledged, of course, that an individual who has been instructed by a police officer to perform field sobriety tests has the power to prevent the tests by refusing to cooperate, but that power does not equate to a constitutional right to refuse. The Idaho Supreme Court explored this dichotomy between a right to refuse and the power to prevent in a related context in State v. Woolery, 116 Idaho 368, 775 P.2d 1210 (1989), where a blood sample, to be tested for alcohol concentration, was taken without consent from a driver injured in an automobile accident. The Court considered the application of Idaho’s implied consent law, I.C. § 18-8002, which provides that anyone who drives in this state is deemed to have given consent to an evidentiary test of breath, blood or urine for intoxicants, but which also provides certain consequences for a driver’s refusal to submit to the test. The Court observed: “‘Consent’ describes a legal act; ‘refusal’ describes a physical reality. By implying consent, the statute removes the right of a licensed driver to lawfully refuse, but it cannot remove his or her physical power to refuse.” Woolery, 116 Idaho at 372, 775 P.2d at 1214 (quoting State v. Newton, 636 P.2d 393, 397 (Or. 1981)).

The case before us involves no statutory implied consent like that applied in Woolery, but it does involve a separate exception to the warrant requirement established in Ferreira, which allows an officer to conduct field sobriety tests on reasonable suspicion. Like the driver in Woolery, Buell had no right recognized in law to refuse the tests, and his mere retention of physical power to prevent the testing does not mean that his consent, in a legal sense, was necessary for lawful administration of the tests. In accord, see McCormick v. Municipality of Anchorage, 999 P.2d 155, 159-62 (Alaska Ct. App. 2000) (stating in dicta that because there is no constitutional right to refuse consent to field sobriety tests requested by an officer with reasonable suspicion, evidence of the refusal of consent was admissible at the driver’s trial); State ex rel. Verburg v. Jones, 121 P.3d 1283, 1285-86 (Ariz. Ct. App. 2005) (holding same). Consequently, mere involuntariness in Buell’s performance of the tests demonstrates no Fourth Amendment violation.

Deciding the search in an appeal in a criminal case binds a later forfeiture action. Padgett v. State, 289 Ga. App. 95, 656 S.E.2d 233 (2008).*

Defendant’s detention as a probationer was based on reasonable suspicion since his assault victim named him as the person who committed an assault. Therefore, defense counsel was not ineffective for not challenging the basis for the stop. State v. Everett, 2007 Del. Super. LEXIS 374 (November 30, 2007).*

Implied consent is valid. The need for advice as to consequences serves a purpose beyond consent. State v. Dewitt, 145 Idaho 709, 184 P.3d 215 (App. 2008):

Informing a suspect about the consequences of refusing an evidentiary test is not intended to be an opportunity for a defendant to withdraw his consent; rather, it is an administrative tool designed to increase the likelihood that the suspect will peaceably submit to testing that he has no legal right to refuse. Even if the officer did not notify the defendant of the consequences of the refusal as required by I.C. § 18-8002(3), the results of the evidentiary test are admissible in a criminal prosecution. State v. Harmon, 131 Idaho 80, 85, 952 P.2d 402, 407 (Ct. App. 1998).

Plaintiff knew or should have known he had been subjected to a search by a date certain, so his civil case was barred by the statute of limitations. Santiago v. Davis, 2008 U.S. Dist. LEXIS 34965 (E.D. Pa. April 25, 2008).*

The officer’s observation of items changing hands, late at night, at a specific intersection he knew had high levels of drug-related activity, and the precipitous departure of one of the parties to the transaction when he saw the officer, was sufficient to justify the vehicle stop that led to defendant’s arrest and the discovery of the cocaine on her person. The search incident was valid. State v. Fornof, 218 Ariz. 74, 179 P.3d 954 (2008).*

Shooting an officer during an illegal entry would not be suppressed. It is not exploitation of the prior illegality. State v. Deisz, 145 Idaho 826, 186 P.3d 682 (App. 2008):

Although the officers acquired evidence of Deisz’s violent actions in close temporal proximity to their allegedly unlawful intrusion, this close temporal proximity is outweighed by the other factors in the Brown test. In Schrecengost, this Court held that Schrecengost’s actions–grabbing contraband seized from her at jail and attempting to flush it down the toilet after an illegal arrest–were her own and were independent of any police coercion caused by the illegal arrest and search for evidence. Accordingly, the intervening circumstance factor strongly militated against suppression. Schrecengost, 134 Idaho at 550, 6 P.3d at 406. Likewise, Deisz’s independent illegal acts of shooting one officer and aiming his gun at another were his own actions independent of any police coercion caused by the intrusion into his residence. We do not accept Deisz’s assertion that the officers’ intrusion was stealthy and therefore precipitated his illegal actions. Deisz averred in his affidavit that the officers did not knock or announce they were entering through the garage entrance. The record before us, however, does not contain evidence contradicting the officers’ testimony that they contacted Deisz over a cellular telephone and that they announced their presence just prior to when he shot at them. Finally, suppressing evidence related to Deisz’s shooting at the officers would not provide any deterrent effect to illegal police conduct. The rationale of the exclusionary rule is that police officers, knowing that unlawfully discovered evidence will be excluded at a subsequent trial, will avoid illegal conduct to the best of their ability. Id. at 550, 6 P.3d at 406. The police in the instant case did not enter Deisz’s residence with the expectation that he would shoot at them and they would obtain evidence of that criminal activity.

When a vehicle is stopped, a request for ID from the passenger is legally the same as a request of a pedestrian. State v. Afana, 147 Wn. App. 843, 196 P.3d 770 (December 4, 2008) (here the court is having to discuss five prior cases to see where this case lies; it is controlled by the Washington constitution, so those details are important only to Washington practitioners).

State showed sufficient nexus to places to be searched from information developed that showed that defendant had multiple stash houses. State v. Harry, 2008 Ohio 6380, 2008 Ohio App. LEXIS 5301 (12th Dist. December 8, 2008).*

911 call describing man who pulled a gun on his female companion was sufficiently corroborated by seeing people matching the description. A requirement of more corroboration or detail would make the 911 system incapable of being a crime tip system. United States v. Wooden, 551 F.3d 647 (7th Cir. December 29, 2008), lower court opinion posted here. As always, an interesting read from Judge Easterbrook:

Doubtless greater confidence can be achieved when police know a caller’s identity, for then, as the Court observed in J.L., the threat of penalties for lies makes information more reliable. Yet as a practical matter a name given by a caller does not make the tip less anonymous. Suppose that the 911 call in this case had begun: “My name is John Jenkins, and I would like to report …”. That a caller gives a name does not mean that he is John Jenkins (either the President of Notre Dame or any other John Jenkins). Caller ID does not solve this problem for public phones or even home phones, which can be used by multiple people (including guests at a party); some subscribers block the service. Cell phones, which almost always use caller ID, can be stolen. And it would undermine the goal of the 911 system to require a caller to prove his identity, perhaps by coming to the station with a driver’s license or passport, before the police react to the information. When crime is in progress, prompt action is essential. The fourth amendment prohibits unreasonable searches and seizures, and it has long been understood that, when the police believe that a crime is in progress (or imminent), action on a lesser degree of probability, or with fewer procedural checks in advance, can be reasonable. See, e.g., Brigham City v. Stuart, 547 U.S. 398 (2006).

. . .

A 911 system designed to provide an emergency response to telephonic tips could not operate if the police had to verify the identity of all callers and test their claim to have seen crimes in progress. A process of testing would frustrate the expedition that often is essential to protect lives and safety. A system that follows an “act fast, verify later” approach creates risks of unjustified action and makes it possible for someone holding a grudge to cause trouble. All of this goes into the calculus of reasonableness, together with the fact that Terry stops are brief, and people can quickly go on their way if the call proves to be unfounded. So we reiterate the holding of Drake and Hicks that a need for dispatch can make reasonable a stop that would not be reasonable if the police had time to investigate at leisure.

A violation of the Electronic Communications Privacy Act (ECPA), 18 U.S.C. §§ 2702-2703, in obtaining provider information is not remedied by suppression of evidence, just a damages action. United States v. Beckett, 544 F. Supp. 2d 1346 (S.D. Fla. February 19, 2008).*

Consent justified protective sweep here, so there is no need to determine whether an arrest is required first. United States v. Toledo, 2008 U.S. Dist. LEXIS 99669 (D. Utah December 9, 2008).*

“Year-old information suggestive of drug trafficking, freshened by same-day corroboration of the same, is not stale.” United States v. Jenkins, 2008 U.S. Dist. LEXIS 99366 (D. Maine September 29, 2008) (I hate the use of “the same” this way.).

It was not a Franks violation to fail to include that the informant was defendant’s former girlfriend with a motive to do him in. That did not undercut the showing of probable cause. State v. Bayonne, 996 So. 2d 1253 (La. App. 3d Cir. November 5, 2008).*

Probable cause was shown for defendant’s blood test based on a showing he was likely under the influence. Combs v. State, 895 N.E.2d 1252 (Ind. App. 2008).*

New crime during an illegal arrest will not be suppressed. State v. Newbern, 2008 Ohio 5712, 2008 Ohio App. LEXIS 4802 (5th Dist. November 4, 2008).*