A landlord has no reasonable expectation of privacy in his rental property zoning violation which was found when officers responded to an assault call at the apartment and saw and photographed it. City of Marion v. Brewer, 2008 Ohio 5401, 2008 Ohio App. LEXIS 4550 (3d Dist. October 20, 2008).

Traffic stop for a suspended license led to the officer seeing something peeking out of the defendant’s fanny pack that could have been the handle of a knife or gun. That justified a frisk, and meth was found. Eaton v. State, 294 Ga. App. 124, 668 S.E.2d 770 (2008).*

A pouch defendant handed to officers as he was being arrest was subject to search incident. State v. Gagaris, 2008 Ohio 5418, 2008 Ohio App. LEXIS 4536 (12th Dist. October 20, 2008).*

Defendant passenger in a car, whose bag was right behind him in the car, had an expectation of privacy in the bag. His consent to search was valid. United States v. Sparks, 287 Fed. Appx. 918 (2d Cir. 2008) (unpublished).*

Defendant had no reasonable expectation of privacy against police entry into a common hallway shared with others. United States v. Gray, 283 Fed. Appx. 871 (2d Cir. 2008) (unpublished).*

Officers had probable cause to arrest the defendant who drove another man to a police sting to buy drugs. He statement was voluntary. United States v. Delossantos, 536 F.3d 155 (2d Cir. 2008).*

“Immediately adjoining” area for a protective sweep under Buie permitted sweep of kitchen when defendant was arrested in the adjoining room and even though the officers had no individualized suspicion that somebody else was present. The smaller the place, the more likely the whole place can be swept. Also, defendant asked the officer to get pants for him to wear to jail, and that sent the officer through the kitchen. United States v. Brookshire, 2009 U.S. Dist. LEXIS 1140 (N.D. Ind. January 8, 2009):

Because the Defendant focuses on the second type of Buie sweep, he does not specifically address the area that he considers the place of his arrest or dispute that the kitchen was immediately adjoining the hallway in which he asked a deputy to go to get his pants. The D.C. Circuit rejected a defendant’s narrow construction of his place of arrest and corresponding adjoining spaces and held that “[i]f an apartment is small enough that all of it immediately adjoins the place of arrest and all of it constitutes a space or spaces from which an attack could be immediately launched, … then the entire apartment is subject to a limited sweep of places where a person may be found.” United States v. Thomas, 429 F.3d 282, 287-88 (D.C. Cir. 2005) (brackets, quotations marks, and citations omitted) (upholding search of bedroom that was a straight shot down the hallway even though it was fifteen feet away from the area of apprehension); see also United States v. Lauter, 57 F.3d 212 (2d Cir. 1995) (upholding precautionary sweep of second room of a two-room apartment, which was immediately adjacent to room where the defendant was arrested); United States v. Ford, 56 F.3d 265, 270 (D.C. Cir. 1995) (finding that a bedroom immediately adjoining a hallway in which the defendant was arrested was within the scope of a precautionary Buie sweep). Although the Seventh Circuit has not directly addressed the meaning of “immediately adjoining” in the context of the confined quarters of a small house or apartment, in dicta it characterized Buie as allowing police to “walk through rooms adjacent to the one in which they make an arrest, to ensure that no danger lurks within,” and that the “officers need not demonstrate any danger; they may simply look as a precaution.” United States v. Brown, 64 F.3d 1083, 1086 (7th Cir. 1995) (using the Buie scenario as an example of the kind of intrusion that is justified by a lower degree of suspicion).

“First, we address the State’s argument that Kelley did not have standing to challenge the search of his apartment because he was in police custody at the time of the search.” Kelly v. State, 371 Ark. 599, 269 S.W.3d 326 [slip op. at *4] (December 6, 2007):

First, we address the State’s argument that Kelley did not have standing to challenge the search of his apartment because he was in police custody at the time of the search. When determining whether a defendant had standing to challenge a search, the pertinent inquiry is whether the defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize the expectation as reasonable. See Mazenpink v. State, 336 Ark. 171, 907 S.W.2d 648 (1999). Even though Kelley was not present in his home during the search, he clearly had a subjective expectation of privacy in the area searched because a search of his home was involved, and society would be prepared to recognize a person’s subjective expectation of privacy in his own home. See Mazenpink v. State, supra (defendant who was not present in his home at the time of the search still had standing to challenge the searching officers’ failure to use proper knock-and-announce procedures). Thus, Kelley did have standing to challenge the search of his apartment.

The search was suppressed for violation of the Arkansas nighttime search rule for failing to show separate probable cause and reasons for a nighttime entry.

Comment: Of course he had standing. Arresting a defendant and removing him from the house deprives him of standing? Ridiculous. The docket sheet omits the name of the AAG who put forth this insipid argument.

The question of defendant’s standing to contest the search of the apartment he allegedly was staying in was not the point. The apartment could legitimately be searched under the tenant’s consent because, regardless of defendant’s standing, she consented to its search. Luna v. State, 268 S.W.3d 594 (Tex. Crim. App. October 29, 2008).*

Defendant was observed by an officer with another in a car pull up next to a woman walking, and they asked her if she wanted to get into the car and smoke crack. She declined. The officer talked to the woman, and she was frightened by the experience and related what happened. That was sufficient showing of reasonable suspicion for a stop of the car under Terry. State v. Lee, 2008 Wash. App. LEXIS 2962 (December 29, 2008):

In sum, the trial court in this case properly considered the totality of the circumstances known to the officers at the time of the investigatory detention. Those circumstances, as established by evidence that is not disputed on appeal, were as follows: Stevens reported that two individuals in a specific car pulled over and told her to get in the vehicle to smoke crack cocaine while showing her that they possessed both crack and a crack pipe. Furthermore, Officer Haines corroborated much of Stevens’s report in that he saw the car pull up to her in a high-crime area, saw the occupants speak with her briefly and saw her then walk quickly away, appearing frightened. The undisputed facts support the trial court’s conclusion that the Terry stop was justified by the informant’s statements and the circumstances corroborated by the officer’s own observations.

Arkansas concludes that questioning about drugs right on the heels of a warning ticket would lead a reasonable person to believe he was not free to leave and suppressed. Bedsole v. State, CACR08-376 (Ark. App. January 7, 2009):

The issue presented is whether a reasonable person in Roger Bedsole’s position would have felt free to ignore State Trooper Condley’s post-traffic-stop questions and proceed on his way. Bedsole was traveling east on I-40 in Pope County when Condley noticed Bedsole’s car cross the fog line onto the shoulder. Condley initiated a traffic stop. Bedsole pulled over and got out of his car to talk to Condley. Bedsole provided his driver’s license, the rental agreement for his car, and answered Condley’s questions. Condley issued Bedsole a warning. The video tape of the stop reveals that, right after receiving the warning, Bedsole began to turn toward his vehicle. At that instant, Condley said “[l]et me ask you a question.” The Trooper asked whether Bedsole had any drugs or weapons in his car. Bedsole said that he did not. Condley then asked to search the car. And Bedsole agreed.

. . .

The circumstances of the Lilley stop and this one were similar, though not identical. The officer asked Lilley to come back to his patrol car, where there was a drug dog in the backseat, and Lilley complied. Lilley, 362 Ark. at 437–38, 208 S.W.3d at 786–87. The officer then ran the appropriate checks, asked Lilley some general questions, and issued a warning. Ibid. Here, Bedsole voluntarily got out of his car and spoke with Trooper Condley near the front of the patrol car. Bedsole remained between the vehicles while Condley ran the appropriate checks and asked him general questions. This record contains no evidence that Condley had a drug dog with him. In sum, the citizen’s location in Lilley presented greater coercive circumstances than in this case.

Trooper Condley then issued Bedsole the warning and, after a moment’s pause, said “[l]et me ask you a question.” Officer Condley testified that he “gave [Bedsole] a warning and handed his driver’s license back and then started talking to him about if he had anything illegal in the vehicle.” 362 Ark. at 438, 440, 208 S.W.3d at 787–88. Bedsole also testified that, after Trooper Condley issued the warning and returned his paperwork, “[h]e never quit talking to me.” The video confirms this testimony. …

This case presents a closer question than Lilley. After considering the totality of the circumstances, however, we conclude that a reasonable person would not have felt free to ignore Trooper Condley’s final questions and proceed on his way. We therefore hold that the post-warning encounter was not consensual. Because the State concedes that Condley did not have reasonable suspicion, the Trooper illegally detained Bedsole. The circuit court should have suppressed all the evidence obtained as a result of that illegal detention. Lilley, 362 Ark. at 445–46, 208 S.W.3d at 792.

(Comment: As I have repeatedly said here, the police-citizen balance always tips toward the police in these cases because courts refuse to recognize the reality that a person is just not free to terminate roadside encounter, get back in a car, and leave. The police know it, and they exploit it. Judges who refuse to recognize it are engaging in legal fiction, just to affirm the trial court’s denial of a suppression motion. The conventional wisdom is that the Arkansas Supreme Court will grant review and probably affirm the trial court in about eight weeks, notwithstanding the thoughtfulness and reputation of the people on the Court of Appeals panel.)

Third party did not have the authority to consent to a search inside a closet in co-tenant’s separate bedroom. United States v. Chisholm, 2009 U.S. Dist. LEXIS 140 (E.D. N.Y. January 5, 2009):

Relatives with joint access do not automatically have authority to consent to a search of closed containers in a room occupied by a defendant. See United States v. Orejuela-Guevara, 659 F. Supp. 882, 887-89 (E.D.N.Y. 1987) (holding that joint occupant had no common authority over or implied right of access to containers in co-occupant’s closet); see also United States v. Davis, 332 F.3d 1163, 1169 (9th Cir. 2003) (tenant did not have authority to consent to search of defendant’s gym bag in defendant’s bedroom); United States v. Block, 590 F.2d 535, 541 (4th Cir. 1978) (mother had authority to consent to search of son’s bedroom but no authority to consent to search of son’s footlocker in the bedroom); United States v. Robinson, 999 F. Supp. 155, 162-63 (D. Mass. 1998) (mother had authority to consent to search of adult son’s bedroom for items open to view but not a closed vinyl bag in the room or the pockets of a pair of pants in the room). Once a search extends beyond the common areas of the jointly occupied premises, the determination of whether a third party has the requisite authority to consent requires “layered analysis to identify and accommodate these areas entitled to independent constitutional protection.” Orejuela-Guevara, 659 F. Supp. at 887. An adult’s dresser drawer is generally recognized as a place where a person can place private items and can expect them to remain private. See Randolph, 547 U.S. at 112 (“[W]hen it comes to searching through the bureau drawers, there will [*24] be instances in which even a person clearly belonging on the premises as an occupant may lack any perceived authority to consent . . . .”).

. . .

Even if Ms. Staley had actual or apparent authority to hang clean clothes in Defendant’s closet, I agree with Judge Go that there is no evidence that she had any authority over or interest in rummaging through the pockets of Defendant’s jackets. Nor is there any evidence that Ms. Staley or Ms. Chisholm had authority over or an interest in what was on or in a box perched on the closet rod, especially given Judge Go’s finding that that Ms. Staley’s access to Defendant’s bedroom was essentially limited to tidying up the room and putting away clean laundry. (R&R 41.) Ms. Staley thus did not have the required actual or apparent authority to grant consent to a search of the locations of the closet where evidence was seized, as required by Moore v. Andreno, 505 F.3d at 208-09. The Government’s objections with respect to the search of the closet are thus denied, and this portion of the R&R is adopted in full.

Absent objecting defendant did not stand in the position of the present and objecting target in Randolph. State v. Oliver, 2008 Mo. App. LEXIS 1756 (December 16, 2008):

Fourth, there is no obligation that the officers had to tell Wife that Appellant had previously refused to give his consent to search. See Hudspeth, 518 F.3d at 959. Wife was in the bedroom speaking to the caseworker when Appellant informed the officers that they needed to get a search warrant for the computer and there is nothing in the record which suggests Wife knew Husband had previously denied consent. “Thus, we must conclude [the officers’] failure to advise [Wife] of her husband’s earlier objection to a search of the home computer did not convert an otherwise reasonable search into an unreasonable one.” Hudspeth, 518 F.3d at 960-61. “[T]he Fourth Amendment’s reasonableness requirement did not demand that the officers inform [Wife] of her husband’s refusal.” Id. at 960.

The NYC Taxicab and Limousine Commission is seriously considering video recording passengers in NYC Taxicabs, according to a posting yesterday afternoon on the City Blog on NYTimes: A ‘Black Box’ for Taxicabs?:

You may be recorded.” Soon, a select group of New York City yellow taxicabs will be marked with decals bearing that message.

As part of a data-collection experiment, the New York City Taxi and Limousine Commission will install windshield-mounted cameras, similar to the “black boxes” in aircraft, that will record data on vehicle use, road accidents and other information in and around the city’s yellow taxicabs.

The information about the cameras has been making the rounds of the Internet, including a Web site known as YellowCabNYC. The Daily News, which reported on the pilot project, described the initiative as a form of surveillance, but officials at the Taxi and Limousine Commission disputed that term.

A seven-page presentation [pdf] [dated 12/18/08] released by the commission said the windshield-mounted cameras, under the model name MacBox III, were proposed by a manufacturer, Drivequest Technologies.

Las Vegas has required this for years. You can see them in the cabs.

As one of the comments says:

“Of course you can continue to have sex in NYC cabs. It will just be recorded.”
— coco

In 2007, the S.D. N.Y. upheld a TLC requirement of GPS transmitters in cabs, posted here.

The facts justified a warrantless entry to secure the premises pending getting a warrant based on a man going inside with a gun report and other highly suspicious activity indicative of a crime inside. State v. Motley, 2008 Ohio 6937, 2008 Ohio App. LEXIS 5835 (9th Dist. December 31, 2008)*:

[*P14] In its decision denying Motley’s motion to suppress, the trial court stated that the officers responded to a call from Motley’s neighbor who observed a male with a gun enter 664 Blaine, a known drug house. Shortly before receiving this call, Officer Hankins arrested a man who had purchased drugs from 664 Blaine. The court stated that the outside of the house “was fraught with indicia of drug dealing” including covered windows and video surveillance equipment. As the officers approached the door, a female flung the door open, after exclaiming her frustration that the surveillance camera had been manipulated to conceal the identity of the individual(s) standing behind the door. The officers observed two males run away from the door. Once inside the apartment, the officers observed a gun as well as other contraband. The officers obtained a warrant before searching the residence. The trial court held that, in light of the totality of the circumstances, the officers had probable cause for a warrantless entry.

The Michigan statute that would criminalize air fresheners hanging from rear view mirrors was unconstitutionally vague. A stop on that statute was still valid, and the court does not suppress under DeFillippo and Krull. United States v. Davis, 2008 U.S. App. LEXIS 25757 (6th Cir. December 19, 2008):

While we have held the Michigan statute unconstitutional, that does not end the matter of whether Davis’s motion to suppress was improperly denied. The usual remedy when evidence is obtained through an unconstitutional search is exclusion; however, the good faith exception to the Exclusionary Rule applies to searches conducted in good faith reliance on a presumptively valid statute. Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987); Michigan v. De Fillippo, 443 U.S. 31, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979). In Michigan v. DeFillippo, the Supreme Court held that the Exclusionary Rule did not apply to a seizure performed pursuant to a Detroit statute that was later declared to be void for vagueness. In doing so, it explained that the Exclusionary Rule was a remedy designed to deter unlawful police conduct, and that exclusion of evidence obtained through a good faith search based upon a presumptively valid statute would have no deterrent effect. 443 U.S. at 38 n.3.

This logic applies equally here. United States v. Cardenas-Alatorre, 485 F.3d 1111, 1116 (10th Cir. 2007) (holding that DeFillippo “compel[s]” admission of evidence even though the statute at issue was arguably vague). As explained above, MICH. COMP. LAWS § 257.709(1)(c) is unconstitutionally vague. But, as the Supreme Court explained in DeFillippo, absent unusual circumstances, Westland police are not expected to know this. Indeed, police are under a duty to enforce all laws that are not obviously unconstitutional. 443 U. S. at 38. The statute at issue here is not so obviously vague that officers could reasonably be charged with knowledge of its unconstitutionality. And, given the breadth of the language of this enactment, it is difficult to say their reliance upon it was not “objectively reasonable.” Krull, 480 U.S. at 349-50; cf. Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) (“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”).

Opinion ordered withdrawn December 31, 2008.

A week ago was “NLJ on CA6’s Davis’s fuzzy dice” posted here. This is about United States v. Davis, 2008 U.S. App. LEXIS 25757 (6th Cir. December 19, 2008), posted here, holding that the Michigan statute on things hanging from a vehicle mirror was unconstitutional, but the search there was valid under DeFillippo and Krull. I see on NLJ again that the 6th Circuit has withdrawn the opinion.

Was obtaining and executing the Sherry Johnson search warrant delayed because of the Presidential election? See Anchorage Daily News today: Trooper, union say politics delayed Johnston drug case. The principals in this controversy contend that obtaining the search warrant was either delayed because of politics or because they wanted to make another Oxy buy before getting the warrant. So much for her right to a fair trial. They blame her in the press for the delay. There is even a claim that the Secret Service was present so she wasn’t dealing drugs then. Bizarre.

So, can she claim the delay in executing the search warrant made the probable cause stale? The state will contend that this was (apparently) an ongoing drug operation. Even three months would not be stale. See, e.g., here.

How convenient to blame her in the press for the delay for a CYA.

Elena Kagan, Solicitor General
David Ogden, Deputy Attorney General
Tom Perrelli, Associate Attorney General

Their short bios are here on TalkingPointsMemo.com.

Excellent new law review article: Andrew Guthrie Ferguson & Damien Bernache, The “High-Crime Area” Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis, 57 Am. U. L. Rev. 1587 (2008).

Search of defendant’s house after his arrest outside his house for violation of bail, the search authorized as a condition of bail, was reasonable. United States v. Gates, 2008 U.S. Dist. LEXIS 102989 (D. Maine December 19, 2008), citing State v. Ullring, 1999 ME 183, PP 26-27, 741 A.2d 1063, 1073 (1999).

Defendant walking away from the police knelt down and hid a gun under a block in an alley. He had no reasonable expectation of privacy where he left the gun. The officer could see the gun sticking out from under the block, too. United States v. Harris, 2008 U.S. Dist. LEXIS 102976 (D. Del. December 22, 2008).*

Court finds that there was no traffic violation from a purported license plate light being out to justify the stop. United States v. Babarovic, 2008 U.S. Dist. LEXIS 103001 (S.D. Tex. December 22, 2008).

Officers had reasonable suspicion for a patdown of two men who arrived at the ER to check on the condition of two gang members who had been shot and were dying. United States v. McGregor, 2008 U.S. Dist. LEXIS 102999 (D. Mass. December 17, 2008):

In light of the double homicide earlier in the evening and the officers’ observations in surveillance of the Boston Medical Center, they acted with reasonable caution in removing the occupants from the vehicle and pat-frisking them individually. The defendant did not resist those actions at the time and does not contest their permissibility now.

Court finds that defendant consented to entry for a protective sweep, and plain view supported the seizure. United States v. Aguado-Garcia, 2008 U.S. Dist. LEXIS 102960 (D. Utah December 17, 2008).*

Defendant made a sufficient showing to get access to procedural and policy manuals relative to his search claim to prepare for suppression motion. United States v. Charles, 2008 U.S. Dist. LEXIS 102918 (W.D. La. December 9, 2008):

It is undisputed that the policy and procedure manuals requested are not “investigative files in an ongoing criminal investigation,” as the Fifth Circuit recognizes the contours of the law enforcement privilege. In the absence of controlling authority, the undersigned will not recognize an expansion of the law enforcement privilege to include documents or manuals containing law enforcement policies and procedures. Therefore, the undersigned finds that the requested policy and procedure documents and manuals may not be withheld on the basis of the law enforcement privilege.

The government’s assertion that the manuals are irrelevant in a suppression hearing is also without merit. In U.S. v. Doe, 801 F.Supp. 1562 (E.D.Tex. 1992), cited by defendant, the policies of the police department regarding inventory searches was critical during a suppression hearing to whether or not the government would have inevitably discovered the evidence sought to be suppressed. Similarly, in the case at hand, where the credibility of the defendant and police officers must necessarily be assessed, the court can well envision that the occurrence of certain actions may be denied as against, or asserted and affirmed as in accordance with, departmental policy and procedure. Therefore, the undersigned finds that the subpoenaed policy and procedure manuals are relevant and necessary for effective representation by counsel.

Plain feel justified seizure of a drug container that felt like the size of a hockey puck. United States v. Jones, 289 Fed. Appx. 593 (4th Cir. 2008) (unpublished).*

Holding seized money for a year was not unreasonable under the circumstances. Lindsay v. City of Beeville, 288 Fed. Appx. 982 (5th Cir. 2008) (unpublished).*

First time informant was identified and corroborated and was sufficiently reliable for probable cause purposes. United States v. Jacinto-Sotelo, 2008 U.S. App. LEXIS 17893 (9th Cir. August 18, 2008) (unpublished).*

The court finds reasonable suspicion for a probation search based on a shooting of the probationer and another resident of his house while he was violating curfew. United States v. Webster, 2008 U.S. Dist. LEXIS 82911 (D. Del. October 17, 2008).*

Officers were following the defendant and saw a hand to hand drug deal and then stopped him for an apparent traffic violation. He gave a false name, and, when his real name was determined, they found a warrant for him. A search of the car produced a joint. He was strip searched and a plastic bag was taken that was protruding from his anus. The strip search was reasonable. United States v. Broadway, 580 F. Supp. 2d 1179 (D. Colo 2008):

Whether a strip search or body cavity search is “reasonable” under the Fourth Amendment “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell, supra, 441 U.S. at 559.

The alleged body cavity search in this case–if it occurred at all–could only have been fleeting and superficial. A review of the videotape shows a combative Defendant. The video shows Detective Gassman attempted a visual inspection of Defendant’s buttocks area, but does not at any time reveal any actual touching, penetration, attempted touching, or attempted penetration of Defendant’s anus or anal cavity. Accordingly, the scope of the search and the manner in which the search was conducted was reasonable.