“[C]ontinuing and related illegal firearm activity” showed nexus to the defendant’s house. It was a logical inference, not a direct fact. United States v. Williams, 544 F.3d 683, 2008 FED App. 0378P (6th Cir. 2008):

While Williams correctly asserts that the warrant affidavit never tied the .25 and .45 caliber handguns to the Tarnow Street residence, he overlooks the Government’s logical, and indeed legally correct, assertion that “it is reasonable to suppose that some criminals store evidence of their crimes in their homes, even though no criminal activity or contraband is observed there.” Here, the warrant application demonstrated “continuing and related illegal firearm activity,” from which the issuing judge could infer that evidence pertaining to the handguns would be found in Williams’s residence.

A magistrate may infer a nexus between a suspect and his residence, depending upon “the type of crime being investigated, the nature of things to be seized, the extent of an opportunity to conceal the evidence elsewhere and the normal inferences that may be drawn as to likely hiding places.” United States v. Savoca, 761 F.2d 292, 298 (6th Cir. 1985); see United States v. Hodge, 246 F.3d 301, 305-06 (3d Cir. 2001) (noting that a court “is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense,” and holding that it was reasonable to infer that a suspected drug dealer would keep evidence of his crime at his residence (citation omitted)); United States v. Jackson, 756 F.2d 703, 705 (9th Cir. 1985) (holding that it was a reasonable inference that a bank robber would keep stolen currency in his residence despite the passage of more than two months between the time of the robbery and the search).

Knowledge that the owner of a vehicle had a suspended license does not justify a stop of the vehicle. Holly v. State, 2008 Ind. App. LEXIS 1258 (June 17, 2008):

We agree with Wilkinson that a police officer’s knowledge that the registered owner of a vehicle lacks a valid license, by itself, is insufficient to provide the officer with reasonable suspicion sufficient to permit an investigatory stop. The central inquiry in determining whether an investigatory stop is permissible is whether the officer has a reasonable suspicion that criminal activity is afoot. Terry, 392 U.S. at 30. Although an officer needs only “a minimum level of objective justification for making a stop,” the justification must be “more than an inchoate and unparticularized suspicion or hunch.” Beverly, 801 N.E.2d at 1261. A police officer’s knowledge that an owner of a vehicle may not lawfully drive creates reasonable suspicion of criminal activity only where the officer has reason to believe that the owner is actually driving the vehicle. In a case such as this where the officer has observed absolutely nothing that would indicate that the driver of the vehicle is the owner and the officer has no reason to believe that the vehicle is stolen or that a law is otherwise being broken, the officer lacks objective justification for conducting an investigatory stop. (emphasis in original)

Plaintiff sufficiently alleged state action for a private search instigated by police used to revoke his probation under a PLRA dismissal. The case is remanded without the defendants ever having participated in the case. Radunz v. Haden, 286 Fed. Appx. 314 (7th Cir. 2008) (per curiam).*

Defendant failed to show that he had guest standing in the apartment that was searched. The witnesses called did not show that he was guest, only an occasional visitor with nothing there. Also, the tenant’s lease precluded full- or part-time co-residents. At best, he merely “hung out” or “visited” the premises, and his actions were inconsistent with being a co-resident or even a guest. United States v. King, 2008 U.S. Dist. LEXIS 65945 (D. Del. August 26, 2008).*

While Virginia law may require it, there is no constitutional requirement that the affidavit for a search warrant be attached to the search warrant when it is served. United States v. McMillan, 2008 U.S. Dist. LEXIS 65964 (E.D. Va. August 26, 2008).*

Defendant consented to a search of his person, and his attempted withdrawal came after discovery of drugs. Allison v. State, 293 Ga. App. 447, 667 S.E.2d 225 (2008).*

Officers were looking for a parole violator, and they had information from a CI that he was driving a particular car. That information proved to be wrong, but the person stopped gave a false ID when he was stopped. The stop would not be suppressed because, although mistaken, it was not unconstitutional [not to mention the independent crime of providing the false ID]. United States v. Jaison, 285 Fed. Appx. 881 (3d Cir. 2008) (unpublished):

“When the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest.” Hill v. California, 401 U.S. 797, 802 (1971). The reasonableness of the mistaken arrest of another party is “determined by considering the totality of the circumstances surrounding the arrest.” United States v. Glover, 725 F.2d 120, 122 (D.C. Cir. 1984). The District Court found that Wehrle obtained information, from confidential informants, that the individual sought operated the vehicle in which Thompson was arrested, that these informants had provided reliable information in the past, and that Thompson’s physical appearance was sufficiently similar to the individual on the “wanted” poster. The District Court has not clearly erred with respect to these underlying factual determinations, and we hold that Wehrle’s initial detention of Thompson was reasonable under the totality of the circumstances.

Thompson next argues that the officers were obligated to release him once they suspected that he was not the individual sought, and that the evidence seized should therefore be suppressed as the fruit of an unlawful detention. The Supreme Court has stated that when an “officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). The District Court found that Thompson presented false identification to the officers, and that the officers observed that his behavior was elusive and suspicious, all prior to the officers’ realization that they had mistakenly detained the wrong individual. The District Court did not clearly err with respect to these factual findings, and we therefore conclude that the District Court properly denied Thompson’s motion to suppress.

Taxicab driver as a citizen informant who called 911 to report a man brandishing a gun provided police reasonable suspicion for defendant’s stop. The dispatcher did not ask the cabdriver his name, but that did not make him otherwise unreliable. United States v. Torres, 534 F.3d 207 (3d Cir. 2008).*

Response to a 911 call at a motel led police to observe the bleeding defendant and a blood trail into a room. When the police tried to go into the room with defendant, he fled. The officers continued into the room, and the record supports that the contraband was found in plain view in the room and its evidentiary value was immediately apparent. United States v. McNeill, 285 Fed. Appx. 975 (3d Cir. 2008) (unpublished).*

Defense counsel is not ineffective for not giving defendant a copy of the suppression hearing transcript. State v. Shelton, 2008 Ohio 4016, 2008 Ohio App. LEXIS 3396 (2d Dist. August 8, 2008).*

Defendant probationer’s live-in girlfriend’s consent to a search of their house to police obviated the need for probation officers to have reasonable suspicion for a probation search. State v. Boysel, 2008 Ohio 4037, 2008 Ohio App. LEXIS 3395 (4th Dist. August 1, 2008).*

Police responding to a noise complaint at defendant’s house found no noise when they arrived. Their entry into the premises was without exigent circumstances. The exigent circumstance here, contributing to the delinquency of a minor for giving alcohol, was disproved by the fact that the officers never even seized evidence of the offense (beer cans). State v. Andrews, 2008 Ohio 3993, 177 Ohio App. 3d 593 (11th Dist. 2008). The opinion also was a rare support for the exclusionary rule’s justification of judicial integrity:

[*P20] The slow erosion of its protection for expediency’s sake or the attitude that a warrant is just a “technicality” should be troubling to all citizens but especially to the judicial branch, which is tasked with standing as the bulwark for our constitutional rights. The founders of our democracy courageously fought a tyrant who ordered warrantless searches of their homes and shops, and they created our cherished Bill of Rights in order to “transform the aspiration for freedom and arbitrary government intrusion into the guarantees of fundamental law.” Samuel Dash, The Intruders (2004), 3.

. . .

[*P38] Pundits bemoan reversals of convictions based upon a “technicality.” But as Justice Clark so eloquently explained in the landmark decision in Mapp v. Ohio (1961), 367 U.S. 643: “There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine ‘[t]he criminal is to go free because the constable has blundered.’ People v. Defore (1926), 150 N.E. 585, 587. In some cases this will undoubtedly be the result. But, as was said in Elkins [(1960), 364 U.S. 206] ‘there is another consideration – the imperative of judicial integrity.’ Id. at 222. The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States (1928), 277 U.S. 438, 485: ‘Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by its example…If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.'” Id. at 659.

Single passing of money for some small object did not amount to probable cause or reasonable suspicion. Court distinguishes cases with multiple exchanges. Commonwealth v. Dunlap, 596 Pa. 147, 941 A.2d 671 (2007):

We begin by reaffirming the premise that “every commercial transaction between citizens on a street corner when unidentified property is involved does not give rise to probable cause ….” Lawson, 454 Pa. at 29, 309 A.2d at 394. First, we find that this case is immediately distinguishable from Lawson. In that case, officers observed three separate transactions. In each transaction, a random individual would approach Lawson and hand him currency. Lawson would then retreat to where his wife was located and retrieve an object, which he would then hand to the purchaser. Id. at 25-26, 309 A.2d at 392-93. After observing the multiple transactions, the officers became suspicious and approached the Lawsons. They, undoubtedly fearing apprehension, fled into a local bar. Id. In the case at bar, Officer Devlin observed only a single transaction, not multiple, complex transactions like in Lawson. Additionally, Appellant made no attempt to flee upon police intervention as Lawson and his wife did.

Arrest warrant permitted entry when defendant, after being stopped in his driveway for a traffic offense, fled inside. State v. Hart, 2007 Ohio 7162, 2007 Ohio App. LEXIS 6262 (2d Dist. December 28, 2007).*

Defendant consented to the police search, and the officers did not exceed the scope of the consent, and it was all harmless anyway. State v. Frye, 2007 Ohio 7111, 2007 Ohio App. LEXIS 6218 (5th Dist. December 26, 2007).*

Possession of unlawful firearms is a continuing offense, and the information was only days old, so it was not stale. Here, e-mails provided the probable cause to believe that defendant would be acquiring an unregistered silencer. United States v. Lester, 285 Fed. Appx. 542 (10th Cir. 2008) (unpublished).

Defendant was drinking and playing with a loaded gun, and that made his roommate uncomfortable, so he called the police. They arrived and found the defendant asleep next to a loaded rifle which they seized. He was a felon in possession. The roommate had apparent authority to consent to an entry. United States v. Waits, 285 Fed. Appx. 465 (9th Cir. 2008).*

Defendant’s patdown revealed evidence by plain feel. He happened upon a search in progress, and, when a flashlight was shined in his face, he appeared confused and shoved his hands into his pants pockets. That led to a patdown. State v. Mullins, 2008 Ohio 3516, 2008 Ohio App. LEXIS 2972 (12th Dist. July 14, 2008).*

Defendant actually waived his argument on appeal of apparent authority to consent by arguing voluntariness of consent in the district court. United States v. Peña-Baez, 285 Fed. Appx. 553 (10th Cir. 2008) (unpublished).*

In appellate review of a motion to suppress, the testimony at trial can also be considered. State v. Robertson, 988 So. 2d 294 (La. App. 3d Cir. 2008).*

Based on the credibility of witnesses, the court finds that defendant’s girlfriend had apparent authority to consent to entry. “The Court also finds the implicit consent was particularly logical in the context of the fact that Defendant had just beaten her a short time earlier.” United States v. Stiner, 551 F. Supp. 2d 1350 (M.D. Fla. 2008), Accepted by, Adopted by United States v. Stiner, 551 F. Supp. 2d 1350 (M.D. Fla., 2008)
.*

Officer’s parking near defendant and walking up to the car was not a seizure because the defendant was not blocked in and the officer did not demonstrate such a show of authority that defendant was compelled to stay. State v. Wilkes, 756 N.W.2d 838 (Iowa Sup. 2008):

We conclude under all the facts and circumstances that no seizure occurred under the Fourth Amendment when Wood approached the vehicle. Simply put, neither of the officers displayed coercive or authoritative behavior to transform this encounter into a seizure for Fourth Amendment purposes. Prior to smelling alcohol on Wilkes’ person, the stop was consensual. Once Wood smelled the alcohol, he had a reasonable and articulable suspicion of criminal activity to detain Wilkes and administer sobriety tests. See Mark A. Bross, The Impact of Ornelas v. United States on the Appellate Standard of Review for Seizure Under the Fourth Amendment, 9 U. Pa. J. Const. L. 871, 881 (2007) (noting that a voluntary encounter may turn into seizure supported by reasonable suspicion or probable cause). As a result of our determination that a seizure did not occur until after Wood had a reasonable suspicion sufficient to restrain Wilkes, it is not necessary to consider whether the encounter was within the “community caretaking” exception to the Fourth Amendment.

Officer acted as a potential buyer to access a home with a real estate agent to corroborate an informant, and this entry did not violate the Fourth Amendment because the entry never exceeded the extent of the consent given by the defendant to entries with the real estate agent. People v. Lucatero, 166 Cal. App. 4th 1110, 83 Cal. Rptr. 3d 364 (5th Dist. 2008):

In these limited circumstances, there is no constitutional violation undermining the validity and authority of the search warrant issued. We believe an investigating officer may pose as a potential buyer and enter a home under this misrepresentation, assuming the officer’s actions do not exceed the scope of the consent. The officer must act as a potential buyer and do nothing that would violate the homeowner’s legitimately held privacy expectations, as defined in the context of the homeowner’s general invitation to members of the public to view the interior of the home for purposes of marketing the home.

We find support for our conclusion in a long line of cases beginning with Lewis v. United States, supra, 385 U.S. 206. In Lewis, a federal narcotics agent, by misrepresenting his identity as a potential buyer of narcotics, was invited into the defendant’s home. The Lewis court acknowledged that the invitation to enter would not have been extended had the defendant been told the potential buyer was in fact an undercover officer. The court rejected as a general rule that law enforcement must never constitutionally use ruse or trick during the investigation of criminal offenses. Instead, the court repeated the general rule governing Fourth Amendment challenges: “[T]he particular circumstances of each case govern the admissibility of evidence obtained by stratagem or deception.” (Lewis v. United States, supra, at p. 208.)

While the facts are close, the officers had reasonable suspicion that defendant’s car was involved in a robbery, and the driver when he was stopped acted guilty to them. United States v. Drake, 543 F.3d 1080 (9th Cir. 2008).*

Existence of a search warrant is not an automatic defense to trespass for wrongful execution of the warrant. Brutsche v. City of Kent, 164
Wn.2d 664, 193 P.3d 110 (2008):

Thus, under the Restatement (Second) of Torts § 210, section 214(1) applies even if the entry onto the property is initially lawful for purposes of a search pursuant to a valid warrant.fn8 The fact that a valid warrant exists is not an automatic bar to a trespass claim.

8. One court has stated that the presence of a valid search warrant is a complete defense to a suit for trespass. Wright v. United States, 963 F. Supp. 7, 19 (D.D.C. 1997). But the authority cited in Wright for this proposition does not support the conclusion. The court relied on Hammel v. Little, 66 App. D.C. 356, 87 F.2d 907, 912 (D.C. Cir. 1936). In Hammel property was seized for violation of the internal revenue laws, and upon acquittal of the owner, the property was returned. He brought a claim of trespass, claiming that probable cause is never justification for an illegal seizure. Id. at 908. The court rejected this argument, reasoning that the relevant question is whether the seizure was lawful and proper, and under civil rules of evidence this question had been resolved against the plaintiff even though he had been acquitted. Id. at 912. The court also said, however, that it has “never been the law that trespass will lie for an act of seizure unless it appears that the act was tortious or unauthorized.” Id. Given this explanation, Hammel cannot be said to support a blanket defense because of the presence of a valid warrant.

. . .

CONCLUSION

We adopt Restatement (Second) of Torts § 214 and conclude that liability in trespass may arise if by intentionally doing an act that a reasonable person would not regard as necessary to execute the warrant and thereby damage the property, or by executing the warrant in a negligent manner and thereby damaging the property, law enforcement officers exceed the scope of their privilege to be on the land to execute a search warrant. Although a trespass action is a permissible cause of action, summary judgment was properly granted in this case because, as a matter of law, on the evidence submitted, the officers did not exceed the scope of their privilege to be on the property to execute the search warrant.

Trial counsel’s affidavit in response to a 2255 pleading that there was no basis for a motion to suppress went unanswered, so the 2255 was denied on that ground. United States v. Pryor, 2008 U.S. Dist. LEXIS 77709 (S.D. Tex. October 3, 2008).*

“[A] law enforcement officer signaled by an anonymous citizen-driver in a manner obviously intended to invite the officer’s intervention as to a third party–but without any indication as to the nature of the citizen’s concern or any other information–does not have reasonable suspicion adequate to stop and seize the third party.” Blue lights are a stop. State v. Day, 263 S.W.3d 891 (Tenn. 2008).*

Officer must have reasonable suspicion before he turns on the blue lights of the patrol car. State v. Davidson, 2008 Tenn. Crim. App. LEXIS 737 (September 10, 2008).*

Police received a call from room 110 of a motel that there was a strong odor of a meth lab, so they came to the motel and found the smell coming from room 109, and it was overpowering, not just strong. Exigent circumstances justified the entry. State v. Meeks, 262 S.W.3d 710 (Tenn. 2008):

The hazards posed by an actively operating methamphetamine laboratory are so significant that a number of state and federal courts have determined that the discovery of an actively operating methamphetamine laboratory, in and of itself, creates an exigent circumstance justifying immediate action without the attendant delays that accompany obtaining a search warrant. See, e.g., United States v. Lloyd, 396 F.3d 948, 954 (8th Cir. 2005); Williams v. State, No. CR-06-1752, 2008 Ala. Crim. App. LEXIS 103, 2008 WL 2223068, at *6 (Ala. Crim. App. May 30, 2008); Barth v. State, 955 So.2d at 1118; State v. White, 175 Ohio App. 3d 302, 2008 Ohio 657, 886 N.E.2d 904, 911 (Ohio Ct. App. 2008). Other courts that have recognized the dangers of actively operating methamphetamine laboratories have stopped short of adopting a per se rule. Rather, they have based their finding of exigency on the location of the particular laboratory. United States v. Atchley, 474 F.3d 840, 851 n.6 (6th Cir. 2007); State v. Chapman, 107 Ore. App. 325, 813 P.2d 557, 560-61 (Or. Ct. App. 1991). These courts have focused on whether there were people in the vicinity of the actively operating methamphetamine laboratory, notably neighbors, law enforcement officials, and those manufacturing the methamphetamine. United States v. Atchley, 474 F.3d at 851; State v. Simmons, 714 N.W.2d 264, 273-74 (Iowa 2006); Bishop v. Commonwealth, 237 S.W.3d 567, 570 (Ky. Ct. App. 2007). Regardless of the approach taken, whether a per se rule or a determination based upon the presence of others in the vicinity, the scope of a permissible warrantless search remains limited to the scope of the exigency. United States v. Layman, 244 Fed. Appx. at 211; State v. Bilynsky, 2007 ME 107, 932 A.2d 1169, 1176 (Me. 2007); Coffey v. State, 2004 OK CR 30, 99 P.3d 249, 252 (Okla. Crim. App. 2004).

FL1 distinguishes FL4 Rabb case: a dog sniff in a common hallway does not violate the Fourth Amendment. Stabler v. State, 990 So. 2d 1258 (Fla. App. 1st Dist. 2008).

Parole search was legitimate and occurred bacause defendant admitted marijuana use. People v. Johnson, 2008 NY Slip Op 7153, 54 A.D.3d 969, 864 N.Y.S.2d 132 (2d Dist. 2008).*

Probation search was justified by reasonable suspicion on information received from other law enforcement officers. United States v. Johnson, 2008 U.S. App. LEXIS 20405 (8th Cir. September 15, 2008) (unpublished).*

Postal employees consent to a search of their belongings when they come to work. Postal regulations and signs provide for it, and they know it well. United States v. Sihler, 562 F.2d 349 (5th Cir. 1977). United States v. Esser, 284 Fed. Appx. 757 (11th Cir. 2008) (unpublished).

The fact the street was under construction and lanes were hard to follow did not make the officer’s testimony unbelievable about probable cause for defendant’s stop for improper lane usage. United States v. McCane, 2008 U.S. Dist. LEXIS 52591 (W.D. Okla. July 10, 2008)* (Comment: Of course. The ends can justify the means.)

Plaintiff’s claim that defendants detained her at the police station for questioning without probable cause was sufficient to stay in court. Saenz v. Lucas, 2008 U.S. Dist. LEXIS 52400 (S.D. N.Y. June 9, 2008)*:

Plaintiff has sufficiently alleged a plausible claim that her detention and interrogation at the police station with DiGiacomo and Lucas and her detention and interrogation with Lucas at Eggenhauser’s office were without probable cause and under circumstances in which the officers’ conduct would have communicated to a reasonable person that she was not free to terminate the encounter. Plaintiff alleges that she was detained and interrogated without probable cause after she protested that she wanted to leave and did not want to be involved, and that the officers interrogated and threatened her and made false statements to coerce her to retaliate against Tancredi. Therefore plaintiff’s claims against DiGiacomo and Lucas survive this motion to dismiss.

State Electrical Board had the statutory authority to seek a judicially ordered administrative search warrant for inspections, the one here was not a final order that was appealable because there were still procedures available before the Board. N.D. State Elec. Bd. v. Boren, 2008 ND 182, 756 N.W.2d 784 (2008):

[*P12] Although Boren contends that there is a final order because nothing remains pending in the district court, the statutory scheme contemplates additional proceedings before the Board. Section 43-09-22, N.D.C.C., provides a right of appeal from an inspector’s order. Furthermore, Boren has not established that he has exhausted his administrative remedies before the Board. Cf. Medical Arts Clinic, P.C. v. Franciscan Initiatives, Inc., 531 N.W.2d 289, 298 (N.D. 1995) (holding “if the impact of [a hearing officer’s] order compelling disclosure of claimed trade secrets cannot be ‘unmade’ and, after exhaustion of administrative remedies, there is no other recourse . . . , a writ of prohibition may be sought for judicial review of the hearing officer’s trade-secret decision[,]” but with limited scope of judicial review for that type of proceeding).

[*P13] We also observe that there is no specific right to appeal from an administrative search warrant provided in N.D.C.C. ch. 29-29.1. However, N.D.C.C. ch. 29-29.1 does provide procedural safeguards when a warrant is subsequently determined to be invalid. See N.D.C.C. § 29-29.1-05 (precluding use of facts discovered or evidence obtained as competent evidence in any action, or in imposing any sanctions, or as a basis for further seeking a warrant “if the warrant [issued under N.D.C.C. ch. 29-29.1] is invalid or if what is discovered or obtained is not a condition, object, activity, or circumstance which it was the legal purpose of the search or inspection to discover”). If the Legislature wanted to create a right of direct appeal to this Court from an administrative search warrant issued under this chapter, it could have written N.D.C.C. ch. 29-29.1 to do so.

Probation search of defendant’s wife was justified because of her dirty UA, and it produced evidence which led to his federal indictment. The probation search was conducted by probation officers, too. Randolph does not give a present potential target defendant veto power where he was not asked. United States v. Blake, 284 Fed. Appx. 530 (10th Cir. 2008) (unpublished).*

Defendant was asleep and was in no position to object or not to the co-occupant’s consent, so Randolph does not apply. United States v. Davis, 2008 U.S. App. LEXIS 14068, 2008 FED App. 0387N (6th Cir. July 1, 2008) (unpublished).*

Comment: These two cases involve a chronic and pointless exercise: Randolph does not grant a potential defendant veto power over a search where he has to be asked first. Actually, I believe that Randolph changed nothing for the police because they would try not to ask the target if there was somebody else without a vested interest in the search who was more likely to object.

USMJ’s violation of jurisdictional limitations of Rule 41(b) did not warrant suppression of evidence because it is not a constitutional requirement. Here, the USMJ sought ISP information out of state, and that was permitted by 18 U.S.C. § 2703(a). United States v. Berkos, 543 F.3d 392 (7th Cir. 2008).*

Officers had a warrant for arrest for defendant’s boyfriend for failure to report for deportation, and they went to their house and had evidence of her harboring him. After several attempts to locate him at home, they encountered her on a car ferry with an empty front passenger seat, and two non-English speaking passengers who were obviously nervous. The officers had probable cause to search the car to look for him. United States v. Silveus, 542 F.3d 993 (3d Cir. 2008).*

Muehler v. Mena does not permit a law enforcement officer to extend a stop to ask questions of a passenger. That case is limited to search warrants. State v. Smith, 286 Kan. 402, 184 P.3d 890 (2008):

In Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 299, 125 S. Ct. 1465 (2005), the United States Supreme Court held that law enforcement officers could ask questions unrelated to the purpose of a search when executing a warrant authorizing the search of a residence. This case raises the question of whether that decision alters our longstanding rule that a law enforcement officer violates the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights by asking a passenger in a vehicle stopped for a traffic violation to consent to a search that is unrelated to the purpose of the stop.

We conclude it does not. Mena does not overrule longstanding precedent limiting the scope of an investigatory detention, does not address the question of the scope of an investigatory detention, and is factually and legally distinguishable from this case.

See Tracey Maclin, Police Interrogation During Traffic Stops: More Questions than Answers, 31 Champion 34 (Nov. 2007), which also takes this view.