Nonmutual collateral estoppel did not apply to defendant’s case where his co-defendant won a motion to suppress after defendant’s was denied. Because of a lack of record or findings of fact and conclusions of law from the other proceeding, nonmutual collateral estoppel apply to defendant motion. Perez-Grahovac v. State, 894 N.E.2d 578 (Ind. App. 2008).*

Defendant’s answers to basic questions during his traffic stop gave the officer reasonable suspicion for a further detention. People v. McCarley, 2008 NY Slip Op 7455, 55 A.D.3d 1396, 865 N.Y.S.2d 459 (4th Dept. 2008).*

Defendant who stayed some at the place searched and actually got some mail there had an expectation of privacy in the premises. Commonwealth v. Bostick, 2008 PA Super 233, 958 A.2d 543 (2008):

Appellant was more than a casual visitor to 3018 N. 8th Street and had an objectively reasonable expectation of privacy there. At the suppression hearing, Appellant’s attorney presented the testimony of Darlene Cooper, the woman who was arrested in the house. N.T. Hearing at 13. Ms. Cooper testified that she leased the property at 3018 N. 18th Street. Id. at 14-15. She indicated that Appellant stayed there “[s]ometimes, not regularly, he came through and spend [sic] the night sometimes.” Id. at 15. Her testimony continued as follows:

[Appellant’s counsel]: Did [Appellant] ever have mail sent to that particular residence?

[Ms. Cooper]: Yes.

The fact a different judge in the District of Columbia later drew a different conclusion on whether probable existed after the search occurred did not mean that there was not probable cause when the warrant issued. Here, the D.C. Cir. concludes that there was PC, and the good faith exception would save the warrant in any event. United States v. Spencer, 530 F.3d 1003 (D.C. Cir. 2008).*

The search here produced evidence that linked defendant to a bank robbery, and it was consented to by a person with apparent authority. Even it it wasn’t valid, it was harmless here because it produced some of the money and was not the fact that caused defendant’s conviction. United States v. Turner, 287 Fed. Appx. 426, 2008 FED App. 0409N (6th Cir. 2008)* (unpublished).*

“The district court did not err, much less plainly err, by finding that probable cause existed for the traffic stop.” United States v. Garcia, 284 Fed. Appx. 791 (11th Cir. 2008) (unpublished).*

Search of defendant’s car was preceded by a request for consent that was refused, then the officers said that they smelled marijuana, so they searched. They didn’t find marijuana, but instead a gun. The search is suppressed for lack of justification. The video of the stop did not support the officers’ version. United States v. Pearson, 2008 U.S. Dist. LEXIS 86304 (S.D. Ohio September 10, 2008):

It follows that because the Officers conceded that they were not in fear for their safety and that the marijuana odor was the sole justification for their search of Defendant and his vehicle, there existed no independent cause for the search. While the initial stop may have been legitimate, the Court does not find that something occurred during the traffic stop which generated the necessary reasonable suspicion to justify the search of Defendant’s person and vehicle. Perez, 440 F.3d at 370.

Two 911 calls were received, the first anonymous, the second not, about an ongoing altercation. The police arrived and corroborated what they were told in the 911 calls, and this gave the officers cause to search defendant’s car for a weapon. United States v. Whitaker, 546 F.3d 902 (7th Cir. 2008).*

Plaintiffs sufficiently alleged that they were unreasonably subjected to unreasonable group strip searches to survive a motion to dismiss. Streeter v. Sheriff of Cook County, 576 F. Supp. 2d 913 (N.D. Ill. 2008).*

Officer dispatched on a 911 call pursued a man on a warrant for his arrest, and it turned out the arrest was just barely across the state line. The arrest was under a valid warrant, and the officer acted reasonably not knowing he was outside of his jurisdiction. The court determines that common law did not permit arrests outside of the officer’s jurisdiction, but the officer was still entitled to qualified immunity. Engleman v. Murray, 546 F.3d 944 (8th Cir. 2008) (2-1):

Engleman concedes that the Arkansas arrest warrant was valid and supported by probable cause. Arkansas law authorizes law enforcement officers to execute its arrest warrants “in any county in the state” but does not authorize out-of-state arrests. Ark. Code Ann. § 16-81-105. Deputy Murray cites no Oklahoma authority that would permit an Arkansas officer to effect an arrest on an Arkansas warrant in Oklahoma. Cf. Stuart v. Mayberry, 231 P. 491, 494 (Okla. 1924) (concluding that warrant issued in Oklahoma had no effect in Kansas). Nevertheless, we are mindful that the Fourth Amendment is not “a redundant guarantee of legislatures might have enacted.” Virginia v. Moore, 553 U.S. —, 128 S. Ct. 1598, 1602 (2008). Therefore, “[i]n determining whether a search or seizure is unreasonable, we begin with history.” Id. “When history has not provided a conclusive answer, we have analyzed a search or seizure in light of traditional standards of reasonableness ….” Id. at 1604.

At the time the Bill of Rights was adopted, a warrant issued in one English county was not valid in another county unless a justice of the peace in that county “backed” the warrant. See William Blackstone, 4 Commentaries *292. “[W]hen a warrant is received by the officer he is bound to execute it, so far as the jurisdiction of the magistrate and himself extends.” Id. at *291; see Blatcher v. Kemp, (1782) 126 Eng. Rep. 10, 10 n.a (Maidstone Assizes) (“No constable can act under a warrant, out of his district ….”); R v. Chandler, (1700) 91 Eng. Rep. 1264, 1265 (K.B.) (“[W]here a precept or warrant is directed to men by the name of their office, it is confined to the districts in which they are officers.”). Under a historical understanding of the Fourth Amendment, whatever limits on search and seizure, the jurisdiction of the issuing judge and the executing officer is limited, and a warrant is not valid if an officer acts outside of that limited jurisdiction. See Lawson v. Buzines, 3 Del. (3 Harr.) 416, 416 (Sup. Ct. 1842) (concluding that “a constable of the city … has no authority out of the city limits” to execute an arrest warrant issued in that county); Copeland v. Isley, 19 N.C. (2 Dev. & Bat.) 505, 505 (1837) (“[A]n officer must proceed to arrest at some place actually in his own county ….”). Moreover, the Constitution explicitly provides a procedure for extradition between states, suggesting that an officer from one state may not simply cross into another state to arrest an individual. See U.S. Const. art. IV, § 2 (“A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.”).

Notwithstanding the historical prohibition on executing an arrest warrant outside of the arresting officer’s jurisdiction, we conclude that Deputy Murray is entitled to qualified immunity because it was objectively reasonable for an officer in Deputy Murray’s position to have believed that he was executing the arrest in Arkansas. “Officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause or exigent circumstances, for example, and in those situations courts will not hold that they have violated the Constitution.” Saucier v. Katz, 533 U.S. 194, 206 (2001).

The back deck of defendant’s home was within the curtilage under the Dunn factors even though defendant’s property backed up to a golf course that enabled officers to walk right up to the back fenceline. The court also finds that the officers could not even see inside the house from the back deck as they said they did. Also, the Seventh Circuit has not yet recognized knock-and-talk, so the court declines to do so here. United States v. Conrad, 578 F. Supp. 2d 1016 (N.D. Ill. 2008).*

A IAC claim of failure to advise a defendant of the possibility of a conditional plea to preserve a suppression issue is cognizable in a § 2255. He still, however, has to prove a failure of performance and prejudice, and here he cannot. United States v. Cedeno, 2008 U.S. Dist. LEXIS 73411 (M.D. Pa. September 25, 2008).*

Man running in a gang stronghold area was stopped by the police, and, while that is not reasonable suspicion, the fact that the officers knew a crime had occurred makes it reasonable to believe that he was running from it. In re H.M., 167 Cal. App. 4th 136, 83 Cal. Rptr. 3d 850 (2d Dist. 2008):

Similarly, here, it was reasonable for Magallon to assume that a crime committed in a gang stronghold would involve a weapon, and that a person fleeing from such a crime would likely be armed. As explained in Souza, “we must allow those we hire to maintain our peace as well as to apprehend criminals after the fact, to give appropriate consideration to their surroundings and to draw rational inferences therefrom, unless we are prepared to insist that they cease to exercise their senses and their reasoning abilities the moment they venture forth on patrol.’ [Citation.]” (People v. Souza, supra, 9 Cal.4th at p. 241, citing People v. Holloway (1985) 176 Cal.App.3d 150, 155 [221 Cal. Rptr. 394].) “Failure to cursorily search suspects for weapons in a confrontation situation in an area where gang activity and weapon usage is known from the officers’ past experience would be most careless.” (In re Stephen L. (1984) 162 Cal.App.3d 257, 260 [208 Cal. Rptr. 453].)

Admission of possession of a knife during a traffic stop coupled with defendant’s nervousness justified frisk. Hicks v. State, 293 Ga. App. 745, 667 S.E.2d 715 (2008).*

Massachusetts explains the relationship between the Franks doctrine and dog reliability. Here, the dog’s false positives in the past militated against probable cause. “Nonetheless, the cumulative subtractions from the trustworthiness of the alert brought the corrected affidavit information below the level of probable cause.” French v. Hines, 182 Md. App. 201, 957 A.2d 1000 (2008):

Another corollary of the Franks doctrine is that the motion and hearing judges will inspect an affidavit not only for positive misstatements but also for material omissions of fact. See United States v. Hall, 113 F.3d 157, 158-159 (9th Cir. 1997) (at warrant hearing a police officer withheld important knowledge of a sole informant’s tainted credibility; probable cause lacking, warrant invalidated). See also Commonwealth v. Dion, 31 Mass. App. Ct. 168, 173 (1991) (excluding a harmful misstatement of the defendant’s criminal record and including a favorable but omitted laboratory test of white powder found in the defendant’s apartment; sufficient facts remain to support finding of probable cause). In the present circumstance in which the positive alert of a drug-detection dog furnishes the essential support for the probable cause finding, the hearing judge will consider information withheld from the warrant judge or magistrate which tends to subtract from the reliability of the dog’s performance. United States v. Ludwig, 10 F.3d 1523, 1528 (10th Cir. 1993) (dictum; a dog alert could fall short of probable cause if the dog had a “poor accuracy record”); United States v. Sundby, 186 F.3d 873, 876 (8th Cir. 1999) (dictum; a court may look behind a search warrant for omitted information undermining a dog’s reliability); and United States v. Donnelly, 475 F.3d 946, 955 (8th Cir.), cert. denied, 127 S. Ct. 2954 (2007) (dictum; police affiants cannot withhold negative history casting doubt upon a dog’s reliability).FN5 See Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 10-6[c][l][i] (2008-2009 ed.) (“Omissions may be as bad as commissions”); 1 LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 2.2(g) at 527 n. 357 (4th ed. 2004) (issuance of warrant should require demonstration of dog’s reliability).

5. Each of the cited decisions observes that a positive alert by a properly trained and reliable dog can, by itself, furnish probable cause for issuance of a search warrant. Each adds that the dog’s reliability is impeachable by demonstrated misstatements in, or omissions from, an affidavit. Massachusetts decisions, also, have treated the alert of a trained narcotics-detection dog in combination with other indicia as sufficient support of probable cause to search. Commonwealth v. Sinforoso, 434 Mass. 320, 324 (2001). Commonwealth v. Feyenord, 445 Mass. 72, 83 (2005), cert. denied, 546 U.S. 1187 (2006). Commonwealth v. Pinto, 45 Mass. App. Ct. 790, 793 (1998). However none of those decisions addressed circumstances in which a search warrant affiant allegedly embellished or concealed facts bearing upon the reliability of the dog’s performance under the lens of the Franks standard.

Search incident under a mattress revealing a gun, where the defendant was handcuffed face down on the floor and after his arrest, was unreasonable under a realistic application of Chimel. United States v. Julius, 577 F. Supp. 2d 588 (D. Conn. 2008):

Under the principles of Chimel, as applied in Blue and Hernandez, the search in this case can be sustained only if the evidence permits a finding that there was some risk the defendant could reach into the area where the gun was located after he was taken away in handcuffs by Officer Barry. The Government urges that a reasonably prudent officer in Deputy Wood’s position would believe that the area under the mattress was within the defendant’s grab area after he was arrested. Govt.’s Supp. Mem. at 11. In support of this contention, the Government states that “the search through the clothing and underneath the mattress began instantaneously with the defendant’s removal from the bed to the corner of the room where the firearm was found and lasted only a few seconds as the defendant was being escorted around the bed by Officer Barry.” Id. at 12. I do not agree with the Government’s statement of the facts. Deputy Wood began the search after the defendant was handcuffed. See Tr. 149-50. His search through the clothing and other items on the floor took more than a few seconds. By his own estimate, the cursory search took nearly a minute. Tr. 147. By the time Deputy Wood lifted the mattress, the defendant was on the opposite side of the bed near the doorway. The defendant was securely under the control of Officer Barry the entire time. On these facts, it cannot be said that the area under the mattress was within the defendant’s immediate control as defined in Chimel.

Comment: It is refreshing to see a court actually apply Chimel without being seduced by the government’s argument that anything goes during a search incident, which is exactly where the cases have been going for the last decade. This is one of the issues in Arizona v. Gant, argued Tuesday in the Supremes.

Officers investigating a shooting in a house could seize all the guns they found in the house. Welsch v. Twp. of Upper Darby, 2008 U.S. Dist. LEXIS 65287 (E.D. Pa. August 26, 2008).*

Defendant’s arrest for loitering and trespassing was supported by the record, and the search of his waistband that produced crack was justified because he was reaching there rather than showing his hands. State v. Mounds, 110 Conn. App. 10, 953 A.2d 938 (2008).*

Hotel in a known drug area wanted a tenant out, and the police came and entered her room without justification, and that justified suppression. Exigent circumstances [hardly] applies. State v. Keith, 2008 Ohio 4326, 178 Ohio App. 3d 46, 896 N.E.2d 764 (2d Dist. 2008).*

Under plaintiffs’ allegations, the defendant officers were dealing with a property dispute and not a situation of true exigency like a burglary report. The record also showed that the complainant was a “friend of the police.” Gallagher v. City of Winlock, 287 Fed. Appx. 568 (9th Cir. 2008) (unpublished).*

Informant’s information was corroborated as in Gates, so there was probable cause for the stop and search. United States v. McBurney, 2008 U.S. Dist. LEXIS 54230 (D. Minn. February 15, 2008).*

Officer’s independently had reasonable suspicion for a stop of defendant’s vehicle, so the prior illegal search of his house was not the but for cause of the stop of the car. United States v. Li, 2008 U.S. Dist. LEXIS 54501 (D. Colo. July 9, 2008).*

There was probable cause on the totality of circumstances. Defendant’s attack on the search warrant affidavit was against parts of it and essentially downplayed the standard of review of a search warrant: totality of circumstances.
United States v. Hayden, 2008 U.S. Dist. LEXIS 54367 (N.D. Ind. July 16, 2008).*

Officers were allowed to make a reasonable mistake as to the scope of the warrant for a search of the premises that actually included a separate renter they did not know about, as in Garrison. The good faith exception saves it, anyway. United States v. Esterline, 287 Fed. Appx. 693 (10th Cir. 2008):

Even if we were to assume for appellate purposes the warrant was overbroad, we conclude the officers’ failure to realize this overbreadth was objectively reasonable. The district court found the trailer to be a single residence with roommates, not a multi-unit dwelling. The finding is fully supported by the evidence. Nothing inside or out would suggest the trailer contained multiple separate units. The residence is identified by a single address and the components were melded into one large structure interconnected with common passageways. The residential area contained only one common living room and kitchen centrally located between Counts and Esterline’s bedrooms.

Informant’s corroborated information that defendant kept drugs in his bedroom but sold them outside the premises was probable cause to search the house anyway. United States v. Briggs, 2008 U.S. Dist. LEXIS 57339 (W.D. Ky. July 28, 2008):

Based upon the information provided by the anonymous caller and the corroborating observations of the officers, the Court concludes that the magistrate had a substantial basis for concluding that evidence of a crime would be found in the Defendant’s home. This holding is further bolstered by the rule set forth in United States v. Newton which provides that evidence that a defendant is a drug dealer with “continual and ongoing operations” in and of itself creates probable cause to search his home. 389 F.3d 631 (6th Cir. 2004), vacated on other grounds, 546 U.S. 803, 126 S. Ct. 280, 163 L. Ed. 2d 35 (2005); see also United States v. Bethal, 245 Fed. Appx. 460, 467 (6th Cir. 2007).

Officer stopped van at the request of ICE, but it was also because he was speeding. The defendant was told he was free to leave and the stop continued, so it was not unreasonable. United States v. Chicas, 287 Fed. Appx. 830 (11th Cir. 2008) (unpublished).*

Officer’s smell of marijuana coming from the passenger compartment was enough to permit a search of the passenger compartment. United States v. Crumb, 287 Fed. Appx. 511, 2008 FED App. 0445N (6th Cir. 2008) (unpublished).*

Officers had probable cause to stop defendant for suspicion of bank robbery since he matched the description of the robber and was seen within thirty minutes of the robbery walking in the neighborhood. United States v. Jones, 535 F.3d 886 (8th Cir. 2008).*

Question to defendant “what’s in your pocket?” is not a seizure. The five minute stop led to consent. Carnes v. State, 293 Ga. App. 549, 667 S.E.2d 620 (2008)* (Comment: Remember, Georgia is notoriously bad in over-interpreting the validity of consent during a highway stop. See Tracey Maclin, Police Interrogation During Traffic Stops: More Questions Than Answers, 31 Champion 34 (Nov. 2007).)

Defendant lacked standing to question the seizure of a gun from the person of a co-defendant. United States v. Griffin, 287 Fed. Appx. 845 (11th Cir. 2008) (unpublished).*

Defendant’s affidavit of guest standing may have been enough to get a hearing, but his failure to testify left the record empty on that issue, so the court finds he lacks standing. United States v. Lane, 2008 U.S. Dist. LEXIS 62964 (D. Neb. August 18, 2008).*

Defendant did not challenge the officer’s [self-serving] assertion that a standardized inventory policy existed. Under Bertine, less intrusive measures were not required, so the officer did not just have to let the vehicle go with somebody else. United States v. Sandifer, 2008 U.S. Dist. LEXIS 80668 (S.D. Miss. August 11, 2008).*

Information from an unnamed state DOJ employee that defendant violated his probation did not satisfy the reasonable suspicion standard. It did not show that he had personal information of illegal activity. Sierra v. State, 958 A.2d 825 (Del. 2008).*

State showed that the DUI roadblock in this case satisfied the high state standard. The approval that was challenged as merely being a rubberstamp approval by superiors was still an approval. State v. Nevels, 2008 Tenn. Crim. App. LEXIS 811 (September 3, 2008).*

Long protective search of defendant’s car for weapons was not justified on these facts. In the closest comparable case in Ohio, that case depended on that defendant’s history of violence toward the police. Here, there was no such factor, and there was nothing else to indicate that a weapon would be found. State v. Wilcox, 2008 Ohio 3856, 177 Ohio App. 3d 609 (2d Dist. 2008).*

Defendant’s standing at a crosswalk at 4 a.m. and watching the light change twice before crossing is not indicative of criminal activity. Defendant’s stop thus lacked reasonable suspicion. State v. Cosby, 2008 Ohio 3862, 177 Ohio App. 3d 670, 895 N.E.2d 868 (2d Dist. 2008).*

A nurse in a hospital called to tell the police a man was administered drugs and told not to drive and then he drove off under the influence of dilaudid. This was reasonable suspicion for a stop. State v. Cummings, 2008 Ohio 3848, 2008 Ohio App. LEXIS 3234 (6th Dist. August 1, 2008).*

Freezing defendant’s home until a search warrant could be obtained was justified by probable cause and fear that the house might be accessed and drugs disposed of. State v. Prater, 2008 Ohio 6730, 2008 Ohio App. LEXIS 5625 (2d Dist. December 19, 2008).*

Defendant’s stop and arrest for DUI was based on trial court’s finding that she did not dim her lights for oncoming traffic. State v. Graves, 2008 Tenn. Crim. App. LEXIS 976 (December 17, 2008).*

Defense counsel was not ineffective for not moving to suppress a patdown just to put him in a patrol car that produced drugs by plain feel. State v. Rippy, 2008 Ohio 6680, 2008 Ohio App. LEXIS 5562 (10th Dist. December 18, 2008).*

Wisconsin holds that violation of a state statute for obtaining bank records warrants suppression of evidence and defendant’s confession obtained by confronting her with the evidence, reversing the court of appeals. State v. Popenhagen, 2008 WI 55, 309 Wis. 2d 601, 749 N.W.2d 611 (2008), revg State v. Popenhagen, 2007 WI App 16, 728 N.W.2d 45 (2006), posted here:

We conclude that suppression of both the bank documents and the defendant’s incriminating statements in the present case is an appropriate remedy when the bank documents were obtained in violation of Wis. Stat. § 968.135 and when the incriminating statements were obtained by law enforcement officers confronting the defendant with the unlawfully obtained bank documents. Accordingly, we conclude that the circuit court did not err as a matter of statutory interpretation in granting the defendant’s motion to suppress the bank documents and the defendant’s incriminating statements. We reverse the decision of the court of appeals and affirm the circuit court’s order to suppress evidence of the bank documents and incriminating statements at issue.

Defendant’s arrest five weeks after he was seen driving while barred under state law and the search incident that it occasioned was not shown to be pretextual. It was constitutional. State v. Christopher, 757 N.W.2d 247 (Iowa Sup. 2008):

Christopher argues officers should not be allowed to “save up an arrest” in order to “conduct an otherwise illegal search under the guise of search incident to arrest.” There is nothing in the record to suggest Butler arrested Christopher under pretext–i.e., there is no suggestion Butler had ulterior motives for making the arrest when he did. In any event, whether a Fourth Amendment violation has occurred does not turn on the officer’s actual state of mind or subjective motives. See State v. Kubit, 627 N.W.2d 914, 918-19 (Iowa 2001) (citing Maryland v. Macon, 472 U.S. 463, 470, 105 S. Ct. 2778, 2783, 86 L. Ed. 2d 370, 378 (1985)). Moreover, pretext is more appropriately addressed under due process. “[I]f the government delays filing charges to intentionally ‘gain [a] tactical advantage over the accused,’ the defendant’s due process rights under the Fifth Amendment are implicated.” State v. Edwards, 571 N.W.2d 497, 501 (Iowa Ct. App. 1997) (quoting State v. Trompeter, 555 N.W.2d 468, 470 (Iowa 1996)). Christopher does not contend the government acted intentionally to gain such tactical advantage.

Tenant’s voluntarily bringing weapons outside the house for inspection by BATF was not a violation of an expectation of privacy. United States v. Noe, 2008 U.S. Dist. LEXIS 69112 (E.D. Pa. September 12, 2008).*

Cracked windshield in violation of city ordinance justifies a stop and search incident under Belton. United States v. Britton, 2008 U.S. Dist. LEXIS 78387 (W.D. Tenn. October 3, 2008).

The record supported the district court’s conclusion that the officer did not intentionally provide false information in support of the search warrant. United States v. Worjloh, 546 F.3d 104 (2d Cir. 2008)* (per curiam) [but not unpublished].

Commercial trucking is a closely regulated industry in Missouri [where this case in the Ninth Circuit started, but the court cites law from elsewhere to conclude that]. So, asking for the log book was a reasonable start to a stop of a commercial truck, and the log book being incomplete and inconsistent with other paperwork was reasonable suspicion. United States v. Delgado, 545 F.3d 1195 (9th Cir. 2008):

We similarly conclude that commercial trucking is a pervasively regulated industry. Commercial trucking is subject to extensive federal regulation. See, e.g., 49 U.S.C. § 31142; 49 C.F.R. § 391.11; 49 C.F.R. § 391.15; 49 C.F.R. § 395.3; 49 C.F.R. § 395.8. Numerous states also impose substantial regulatory and inspection standards for commercial vehicles. See, e.g., Ariz. Rev. Stat. Ann. § 41-2066(A)(4); Cal. Veh. Code § 2813; Haw. Rev. Stat. § 286-209(a); Mont. Code Ann. § 61-10-141(1)(a); Nev. Rev. Stat. § 581.057(4); Or. Rev. Stat. § 825.250(1); Wash. Rev. Code § 46.32.010(2). Thus, Burger provides the appropriate analytical framework because “the myriad federal and state statutes that govern commercial trucking place it squarely within the class of industries to which Burger applies.” Castelo, 415 F.3d at 410 (citation omitted).