“The rapid, natural dissipation of alcohol in the blood creates a single-factor exigent circumstance that will justify the police taking a warrantless, nonconsensual blood draw from a defendant, provided that the police have probable cause to believe that defendant committed criminal vehicular homicide or operation.” State v. Shriner, 751 N.W.2d 538 (Minn. 2008).*

Officer’s viewing of defendant swerving within his own lane and driving erratically was sufficient to support his stop. State v. Loy, 2008 Tenn. Crim. App. LEXIS 425 (May 30, 2008).*

Officer had probable cause to search both driver and passenger when the car was stopped and they both smelled of burnt marijuana. State v. Fewell, 286 Kan. 370, 184 P.3d 903 (2008).*

Telling a motorist to roll down window restricts her freedom of movement, as did other actions thereafter. State v. Gross, 39 Kan. App. 2d 788, 184 P.3d 978 (2008):

Turning to our standard of review in this case, we must determine whether, under the totality of the circumstances, the officers’ conduct would have conveyed to a reasonable person in Gross’ position that she was free to refuse the officers’ requests or otherwise end the encounter. Here, when Gross was directed by Mains to roll down the window or open the passenger door, she was being detained for investigative purposes. At that point, the officers had made a show of authority and restricted the movement of both Stroot and Gross. Stroot had been detained when he was ordered to the back of the patrol car after attempting to walk away from his car and the patrol car. Gross became an object of this investigative detention when Mains approached the passenger side of Stroot’s car, directed her to roll down her window or open the door, and began questioning her. The officers’ show of authority prevented Gross and Stroot from leaving the area.

Stroot was prevented from walking away from the car by Boucard, and Gross’ point of exit from the car was being blocked by Mains while he asked her questions. Consequently, Gross’ movement was restricted or curtailed by Mains’ action. In addition, the patrol car was parked either parallel to Stroot’s car or behind Stroot’s car with the emergency lights activated. At that point, the officers were in control, and Stroot and Gross were obeying. Although Gross was reluctant to answer Mains’ questions, he persisted until she answered them. It became clear that the officers were not going to leave Stroot and Gross alone until the officers got the information they wanted. A reasonable person in Gross’ position would not have felt free to disregard the officers’ requests and terminate the encounter.

Search incident of a closet off a small room where defendant was arrested was valid. He was arrested on a warrant for possession of a weapon, and it was reasonable to believe that he might have a weapon nearby. State v. Wesley, 2008 Wisc. App. LEXIS 338 (May 6, 2008).

Officers knocked on defendant’s hotel room door, and he opened the door. He could have done nothing. His opening the door enabled the police to see contraband in plain view. Bouyer v. State, 264 S.W.3d 265 (Tex. App. — San Antonio 2008).*

A fire scene search is exigent circumstances, and what is found in plain view may be seized. King v. State, 987 So. 2d 490 (Miss. App. 2008):

P14. Since the firefighters in the present case were responding to an emergency situation, they did not require a warrant to enter King’s home. Furthermore, testimony by Johnson established that the movement of furniture and other debris was required to properly search for hot spots. If firefighters miss a hot spot, there is a danger that the house could reignite, creating yet another emergency. There is no evidence that the firefighters in this case went on a fishing expedition to satisfy their curiosity or otherwise did more than necessary to search for hot spots. “In searching solely to ascertain the cause [of a fire], firemen customarily must remove rubble or search other areas where the cause of fires is likely to be found. An object that comes into view during such a search may be preserved without a warrant.” Michigan v. Clifford, 464 U.S. 287, 295 n.6, 104 S. Ct. 641, 78 L. Ed. 2d 477 (1984).

P15. King claims that “the criminal activity that firefighters were looking for was evidence of the possession of illegal drugs” and that “Johnson’s own testimony indicated that he was indeed looking for evidence of other criminal activity (drugs) not related to the fire ….” However, Johnson testified that firefighters are trained “to recognize certain objects that may be used for illegal activities for our safety and anybody elses [sic] safety that enters that structure.” Nowhere in Johnson’s testimony did he indicate that he entered King’s home to look for evidence of drugs. It is logical that firefighters would seize any drugs or other objects that might be a danger to the public. Furthermore, it is clear that if an object’s criminal nature is readily apparent, it may be seized in such situations if the object is in plain view. Anderson v. State, 864 So. 2d 948, 950 (P8) (Miss. Ct. App. 2003); United States v. Green, 474 F.2d 1385, 1389 (5th Cir. 1973); United States v. Loos, 165 F.3d 504, 506 (7th Cir. 1998); United States v. Finnigin, 113 F.3d 1182, 1186 (10th Cir. 1997). Quite simply, any criminal items that Johnson found in plain view were admissible without a warrant.

Tennessee city court judges can issue search warrants. State v. Ford, 2008 Tenn. Crim. App. LEXIS 565 (May 7, 2008).*

Under Texas’ bizarre statutes permitting JPs to issue search warrants when there is no lawyer in rural counties, this warrant for blood in a DUI was valid. Muniz v. State, 264 S.W.3d 392 (Tex. App.—Houston (1st Dist.) 2008).*

Defendant was a bystander to a drug operation, and there was no reasonable suspicion tying him to the operation to justify his detention. Lopez-Vazquez v. State, 956 A.2d 1280 (Del. 2008):

The observed nervous behavior by an unknown person standing next to and conversing with a known drug suspect gave police a “hunch” that the unknown person might be involved with the target of their investigation. Nothing in the record, however, provides concrete reasons why the remainder of the wholly innocent events that occurred before the seizure (for example, entering into a multi-unit apartment building after Hernandez, spotting Lopez-Vazquez outside of the building–and alone–an hour later by himself) combine into a “suspicious conglomeration” which supports a Terry stop. We do not find the totality of the circumstances to give rise to the requisite reasonable and articulable suspicion of criminal activity by Lopez-Vazquez required under Terry to justify seizing him.

Investigative detention was justified by defendant providing an obviously false ID, he was fidgeting with furtive movements, his passenger had a felony warrant out for her, and the officer was alone and backup would not arrive for a while. Grissom v. State, 262 S.W.3d 549 (Tex.App.—Texarakana 2008).*

Merely standing outside of a house where a search warrant is being executed does not justify a patdown under Ybarra. People v. Sandoval, 163 Cal. App. 4th 205, 77 Cal. Rptr. 3d 156 (3d Dist. 2008).

Volunteer fireman from Texas who was driving on I-10 in Louisiana who used his emergency lights to stop defendant’s car which was being operated erratically was not state action. State v. Lavergne, 991 So. 2d 86 (La. App. 1st Cir. 2008).*

Ind. Code § 11-8-8-8(a)(7) permitting searches of a convicted sex offender’s computer without cause is unconstitutional under the Fourth Amendment. Doe v. Prosecutor, Marion County, Indiana, 566 F. Supp. 2d 862 (S.D. Ind. 2008) (David Hamilton, C.J.):

At the hearing, the defendants suggested that these effects are not substantial because no one in our society can ever have absolute assurances of privacy. Defendants point out, for example, that a court might issue a search warrant for plaintiff Doe’s computer, thus exposing his clients’ and his confidential information to scrutiny by police officers. That much is true, but the logic of the argument runs contrary to nearly 220 years of American constitutional law. The Fourth Amendment protects the privacy of Americans by placing a neutral judicial officer between the police and the privacy of the home and papers (and now computers), by requiring a warrant based on probable cause, and by requiring that the warrant be specific. See United States v. United States District Court for Eastern District of Michigan, 407 U.S. 297, 317 (1972); accord, Coolidge, 403 U.S. at 449 (“When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.”), quoting Johnson v. United States, 333 U.S. 10, 14 (1948). To suggest that the removal of that neutral judicial officer as a barrier does not significantly impair a citizen’s privacy in his home is to imply that the warrant requirement is no big deal, that it imposes no meaningful restraints upon law enforcement. The “most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-–subject only to a few specifically established and well delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who
seek exemption … that the exigencies of the situation made that course imperative.’” Coolidge, 403 U.S. at 454-55 (footnotes and citations omitted).

E. Pre-Enforcement Challenges Under the Fourth Amendment

The defendants argue that the Fourth Amendment is not implicated until there has been an actual search, so that any pre-enforcement claim based on the Fourth Amendment cannot be ripe. The court is not persuaded that Fourth Amendment rights are so vulnerable to threats that stop short of actual warrantless searches. It is true that many cases addressing pre-enforcement challenges to laws involve First Amendment rights. See, e.g., Steffel, 415 U.S. 452; Epperson, 393 U.S. at 100; Kucharek, 902 F.2d at 515; Wisconsin’s Environmental Decade, 747 F.2d at 409. But other cases allowing pre-enforcement challenges have arisen in many other contexts. Abbott Laboratories v. Gardner allowed a pre-enforcement challenge to regulations governing drug labeling. 387 U.S. at 153. Even in the First Amendment cases, the Supreme Court has carefully addressed the ripeness issue in terms much broader than the First Amendment, framing the question in terms of whether the challenged law affects any constitutionally protected interest. See, e.g., Babbitt, 442 U.S. at 298 (“When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.”); Steffel, 415 U.S. at 459 (“it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights”).

In addition, the few cases that have considered pre-enforcement challenges based on the Fourth Amendment have not applied a blanket rule but have used the factors discussed above: the magnitude of the threat of enforcement and the nature of the harm that would be caused by enforcement. In Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., the plaintiffs brought a pre-enforcement challenge to a local ordinance that stated that a business must obtain a license before it could sell any items that were designed or marketed for use with illegal cannabis or drugs. 455 U.S. 489 (1982) (holding that ordinance was not void for vagueness or overbreadth). One provision of the ordinance required businesses that sold these items to keep a record of each sale of a regulated item, including the name and address of the purchaser, which would be open to police inspection. The Court of Appeals had expressed concern about potential Fourth Amendment problems resulting from this provision because customers could be subjected to police scrutiny on the basis of the purchase of a legal item. The Supreme Court elected not to address the Fourth Amendment issues that had been raised, stating: “In a pre-enforcement challenge it is difficult to determine whether Fourth Amendment rights are seriously threatened. [Plaintiff] offered no evidence of a concrete threat below.” Id. at 504 n.22.

Though the Hoffman Estates Court did not find that particular claim to be ripe, it did not adopt a blanket rule against any and all pre-enforcement challenges based on the Fourth Amendment. Instead, the Court’s reasoning plainly left open the possibility that a plaintiff could offer evidence of a concrete threat of enforcement and could bring a pre-enforcement challenge to a statute based on the Fourth Amendment. The Court also noted that the case involved economic regulation, where the government may adopt more detailed rules or regulations that could narrow the scope of the law. Id. at 504.

In this case, the state statute requires the plaintiffs to give blanket consent that effectively exempts their homes and computers from the Fourth Amendment, affecting not merely economic activity but core privacy interests in the home. In addition, the legal issue does not depend on further factual development that would better await further experience under the new law. These plaintiffs’ Fourth Amendment challenge is therefore ripe for decision.

V. Merits of the Fourth Amendment Claim

Turning to the merits of the plaintiffs’ Fourth Amendment claim, the court concludes that section 8(b), as applied to the plaintiff class of persons who no longer are under any form of court supervision, will violate the plaintiffs’ Fourth Amendment rights. The parties have not cited, and the court has not found, any American law that attempts to authorize such a broad intrusion on personal privacy and security, without a warrant, probable cause, or even reasonable suspicion, for persons not in prison or subject to parole, probation, or other court supervision.

A. Entry into the Home

Section 8(b) cuts into the heart of the Fourth Amendment – privacy in the home. Section 8(b) requires the members of the plaintiff class to consent to the search of their personal computers or internet-capable devices “at any time.” Even if law enforcement officers chose to wait outside the home to demand the right to search a registrant’s portable devices (the statute is silent on the point), personal computers will most often be inside the home. By granting unlimited access to these devices, the Indiana legislation crosses the most fundamental boundary under the Fourth Amendment, and dispenses with the warrant requirement. The ability of the individual to retreat into his home, and there to be free from unreasonable intrusion by the government, stands “at the very core” of the protections granted by the Fourth Amendment. See Silverman v. United States, 365 U.S. 505, 511 (1961).

B. Required “Consent”

[Forced consent is unconstitutional. They just cannot be expected to not own a computer to avoid searches.]

C. The Scope of Computer and Device Searches

. . .

In the meantime, of course, the plaintiffs are being told, under penalty of criminal prosecution, that they must give unlimited consent to any type of computer searches and internet monitoring that the defendants care to try, and that they must allow law enforcement authorities to enter their homes at any time to carry out the work. The result is the unconstitutional chilling of and intrusion upon plaintiffs’ privacy and security at home, and in their papers and effects.

. . .

VI. The State’s “Special Needs” Argument

. . .

The Supreme Court’s “special needs” cases admittedly seem to invite extension. It is not difficult to characterize any need as special, so as to make law enforcement easier with respect to particular categories of crimes. But if the motive for extending the doctrine is to detect and eradicate crime, then there is no limit to the special needs exception, and the exception will easily expand to replace the Fourth Amendment itself. That is why a special needs exception cannot be based on the ordinary and important law enforcement purpose of reducing crime. See Ferguson, 532 U.S. at 82-83; Edmond, 531 U.S. at 41-44; Richards v. Wisconsin, 520 U.S. 385, 392, 394 (1997) (rejecting Wisconsin’s argument that the knock-and-announce rule permitted exemption for felony drug investigations, and observing that if per se exception based on “special circumstances of today’s drug culture” was “allowed for each category of criminal investigation that included a considerable–-albeit hypothetical-–risk of danger to officers or destruction of evidence, the knock-and-announce element of the Fourth Amendment’s reasonableness requirement would be meaningless”); Torres v. Puerto Rico, 442 U.S. 465, 473-74 (1979) (rejecting suspicionless search of traveler’s baggage based on law authorizing searches of all American cargo and passengers, and refusing to dispense “with the fundamental Fourth Amendment prohibition against unreasonable searches and seizures simply because of a generalized urgency of law enforcement”); Katz v. United States, 389 U.S. 347, 360 (1967) (Douglas, J., concurring) (observing that the Fourth Amendment does not distinguish between types of crimes “because a particular crime seems particularly heinous”). To extend the doctrine that far would effectively nullify the Fourth Amendment.

The heart of defendants’ special needs argument here is that sex crimes are “a serious threat in this Nation,” see Connecticut Department of Public Safety, 538 U.S. at 4 (approving sex offender registry against due process challenge), and thus warrant this unprecedented action. The court agrees with the premise but must disagree with the conclusion. As heinous as sex and violent crimes are, many other crimes are also threats to our Nation. The social contract reflected in our Constitution imposes limits on law enforcement to protect liberty and privacy. Americans invest a significant portion of public resources to promote social peace and safety. But our founders drew a clear line, based on observed and experienced abuses, on the government’s ability to invade fundamentally personal areas. To enter the homes of or to search the personal effects, papers, and bodies of persons in the general population, public officials must have cause to believe that they will find evidence of a crime. It is almost always possible to characterize the Fourth Amendment as an inconvenience to law enforcement officials as they carry out their vital duties. That inconvenience, however, is one of the fundamental protections that separates the United States of America from totalitarian regimes. The right to feel safe and secure in one’s own home, person, and belongings is central to our way of life.

See Indianapolis Star article here.

This opinion shows a remarkable level of scholarship. Don’t just read my blurb.

M.R.E. 315(f)(1) search authorization for Air Force member’s dorm room was presented by affidavit for a search warrant, and the base commander authorized the search which could be used in civilian court. The base commander’s authority was sufficient under the Fourth Amendment. People v. Jasmin, 167 Cal. App. 4th 98, 84 Cal. Rptr. 3d 19 (1st Dist. 2008):

Although scant California authority exists discussing the constitutional legitimacy of military searches, cases from other jurisdictions indicate that it is hardly a novel proposition. (See Chapman, supra, 954 F.2d at pp. 1367–1371; United States v. Brown, supra, 784 F.2d at pp. 1036–1037; United States v. Banks (9th Cir. 1976) 539 F.2d 14, 16–17; Wallis v. O’Kier (10th Cir. 1974) 491 F.2d 1323, 1324–1325; United States v. Grisby (4th Cir. 1964) 335 F.2d 652, 656; U.S. v. Reppert, supra, 76 F.Supp.2d at p. 189; United States v. Rogers (E.D.Va. 1975) 388 F.Supp. 298, 302; People v. Coit (Colo.Ct.App. 1997) 961 P.2d 524, 527–528; State v. Long (1978) 37 N.C.App. 662, 667 [246 S.E.2d 846, 850].) Indeed, we are unaware of any cases holding military authorizations to search as unconstitutional. Since there is no evidence that the search was not supported by probable cause or that Colonel Patrick was so involved in the investigation of the crimes that his neutrality was compromised, the search complied with the Fourth Amendment.

Officer stalled his decision whether to give the defendant a traffic ticket and instead kept the conversation going to find whether he could find more. State v. Broughton, 221 Ore. App. 580, 193 P.3d 978 (2008):

The officer had all the information he needed to cite defendant for the malfunctioning brake light. Instead of issuing the citation or informing defendant that she was free to leave, the officer delayed by doing neither while he contemplated whether or not to issue the citation. That delay was not an “unavoidable lull in the investigation” as we described in Rodgers. Rather, the officer engaged defendant in a conversation unrelated to the traffic stop that was not supported by reasonable suspicion of other criminal activity and that had the “effect of detaining defendant beyond a completed traffic stop[,]” resulting in an unlawful extension of what initially was a lawful traffic stop. See Amaya, 176 Ore. App. at 43-44 (citing Toevs, 327 Ore. at 537). To allow an officer to elicit potentially incriminating information from a motorist while that officer considers whether to issue a citation allows an officer to extend a stop for too long.

Officer’s inability to articulate exactly what he was arresting the defendant for did not make stop invalid when it was otherwise with probable cause. State v. Miller, 191 P.3d 651 (Ore. 2008).*

Consent was granted to search for guns in a house, and on seeing a gun case on the floor, the officer had everybody in one room, secured it, and then “the deputy conducted a cursory search of the remaining rooms in the house, akin to a protective sweep,” and marijuana was seen in plain view in a backpack. The search did not exceed its authorized scope. United States v. Simpson, 259 Fed. Appx. 164 (11th Cir. 2007)* (unpublished). Comment: A cursory search for weapons seems like an oxymoron to me.

Officer had a tip that the defendant had been driving down the highway smoking dope, and he found the car, smelled burnt marijuana around it, and followed tracks in the snow to an apartment. At the apartment, he asked the occupants to step outside to talk rather than going in. He had justification for a patdown, and found a knife on one, and the other consented to a frisk and the officer felt something soft and removed it, producing a baggie of marijuana. The stop and frisk were otherwise reasonable, but the case was remanded for better fact finding on the plain feel doctrine of Dickerson, an issue of first impression in Vermont. State v. Ford, 2007 VT 107, 182 Vt. 421, 940 A.2d 687 (2007).*

Officer lied to the defendant and told him that he was having difficulty getting clearance of defendant’s license after the officer had already been told it was clear. The additional minute and eighteen seconds of the stop [and the lie] did not make the stop unreasonable when the officer asked for and got consent when the continuation was actually based on reasonable suspicion. United States v. Walton, 258 Fed. Appx. 753, 2007 FED App. 0841N (6th Cir. 2007)* (unpublished). Comment: The dissent blisters the officer for lying to the defendant to get consent.

Seizure of plaintiff’s business computer, allegedly by consent, was not resolved by the district court, so the case was remanded for a determination of that issue. Blake v. County of Livingston, 257 Fed. Appx. 848, 2007 FED App. 0835N (6th Cir. 2007)* (unpublished).

Defendant’s stop was based on his being parked with his girlfriend and continued because of the smell of alcohol. He said they were going to have sex as his reason for being there. But his driver’s license had expired. During the conversation about whether he had anything on him or in the vehicle, defendant took off his shirt, which the officers took as preparatory to a fight. One officer knew the other was going to arrest the defendant, so he initiated an immediate search of the vehicle. The search was justified by both search incident for the suspended driver’s license and the automobile exception for a violation of the state open container law. The gun found was admissible. United States v. Black, 240 Fed. Appx. 95, 2007 FED App. 0627N (6th Cir. 2007) (unpublished):

The Supreme Court has explained that “when a [police officer] has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” New York v. Belton, 453 U.S. 454, 460 (1981). Further, the search may precede a “formal arrest” so long as the officers had probable cause to arrest prior to the search and the arrest “followed quickly on the heels of the challenged search.” Rawlings v. Kentucky, 448 U.S. 98, 111 (1980); see also United States v. Montgomery, 377 F.3d 582, 587-88 (6th Cir. 2004). Here, at the time that Offenbacher conducted the search, he and Ragland had (1) smelled a strong odor of alcohol coming from the vehicle; (2) discovered an unsealed, partly empty, bottle of alcohol in the car; and (3) learned that Black’s license was suspended. The officers thus had probable cause to arrest Black for driving while intoxicated, possessing an open alcoholic beverage container in an automobile, and driving with a suspended license. Furthermore, the record indicates that the officers handcuffed Black immediately after the gun was discovered in Black’s car–in other words, little time elapsed between the officers’ finding they had probable cause to arrest Black and their formal arrest of him. Therefore, Offenbacher’s search of the car was justified as a search incident to Black’s arrest.

A DWI roadblock violated some technical requirements of state law about the number of officers to be present, but there was no nexus to defendant’s DWI [and no prejudice]. State v. Williams, 2007 VT 85, 182 Vt. 578, 933 A.2d 239 (2007).*

Defendant’s own admissions to others he was “packing” supported a probation search with reasonable suspicion. United States v. Williams, 2007 U.S. Dist. LEXIS 64483 (W.D. Wis. August 28, 2007).*

Search of a computer for child pornography was conducted within a reasonable time, and it does not have to be within the time provided for in the warrant. United States v. Mutschelknaus, 564 F. Supp. 2d 1072 (D. N.D. 2008):

In this case, the computer and electronic storage media were seized within the ten (10) day time limit established in the search warrant and the forensic analysis took place within the sixty (60) days granted by the magistrate judge. As set forth above, the Federal Rules of Criminal Procedure do not require that the forensic analysis of computers and other electronic equipment take place within a specific time limit. Any subsequent search only needs to be conducted within a reasonable time. The Court finds that the forensic analysis conducted on the computer and electronic storage media by February 12, 2008, was done so within a reasonable amount of time after the execution of the search warrant and, therefore, the evidence shall not be suppressed.

Defendant’s refusal to get out of truck during traffic stop justified arrest for obstruction and a search incident of her purse, even though, if she exited voluntarily, the officer could not have searched it. State v. Zimmer, 146 Wn. App. 405, 190 P.3d 121 (2008):

Ironically, if Zimmer had agreed to Slyter’s request to search the passenger compartment of the truck and exited the truck as requested, Slyter could not have searched her purse. See Id. at 498-99 (officer may not search readily recognizable personal items of non-arrested individuals in vehicle). But because Zimmer did refuse to exit the truck, she was arrested for obstructing justice and Slyter’s lawful search of Zimmer’s purse was incident to her arrest. Moore, 161 Wn.2d at 885. Thus, Slyter’s search of Zimmer’s purse was directly related to her refusal to get out of the truck, the officers’ forcible removal of her from the truck, and her arrest for obstructing justice.

Board of assessors tax assessment dispute required plaintiff to exhibit his property under a particularized discovery order. This did not violate the Fourth Amendment. Roketenetz v. Bd. of Assessors of Lynnfield, 72 Mass. App. Ct. 907, 892 N.E.2d 363 (2008).*

The basis for defendant’s traffic stop was unlikely, so the stop probably was unlawful, but defendant did not stop; he drove to his house and got out of the car. The officer stopped and followed. The defendant turned and said “I’m gonna kick your fuckin ass.” At that point, defendant could be lawfully arrested for threatening the officer, and the stop was valid. United States v. Caseres, 533 F.3d 1064 (9th Cir. 2008).

And, in South Carolina, a defendant who fled on foot from officers could not be convicted of resisting arrest when he had not been arrested. State v. Brannon, 379 S.C. 487, 666 S.E.2d 272 (2008).*

Defendant knew from testimony at a hearing that the pockets of clothes were searched, but he waited until the eve of trial to raise that as a suppression issue, and it was thus not timely. United States v. Oliver, 2008 U.S. Dist. LEXIS 55527 (N.D. Tex. July 22, 2008).*

Traffic stop led to officer smelling marijuana from defendant’s car, and that was probable cause. United States v. Burtton, 2008 U.S. Dist. LEXIS 55497 (D. Neb. July 9, 2008).*

During a traffic stop with a drug dog in tow, the officer directed the defendant to close the windows and turn on the air blower to facilitate the dog sniff. This was not unreasonable. People v. Bartelt, 894 N.E.2d 482 (Ill. App. 2008):

The set-up procedure is quick and nonintrusive; thus, it does not impermissibly lengthen the duration of the stop. It also ensures the canine remains outside the vehicle during the sniff, as both the doors and windows are closed. This is a practical technique that balances a defendant’s reasonable expectation of privacy with the opportunity to allow law enforcement to ferret out crime. No fourth-amendment violation occurs when an officer lawfully investigating a traffic violation orders the occupant to roll up the windows and turn on the blowers to facilitate a dog sniff.

Identified informant’s statement against daughter’s penal interest coupled with her highly specific information which showed it was first hand information was sufficient for probable cause for a SW. State v. Castilleja, 345 Ore. 255, 192 P.3d 1283 (2008).*

Defendant’s truck was validly stopped for a mudflap violation and that led to the officer looking at the log book which was out of date. The stop was valid [albeit almost absurd sounding when considering whether the mudflap was 8″ or 12″ off the ground (and how could the officer determine that while following him?)]. United States v. Pauyo, 2008 U.S. Dist. LEXIS 83194 (N.D. Tex. August 29, 2008).*

Powell makes it clear that probable cause is not required for an IRS summons. All that is required is a “legitimate purpose.” United States v. Schlabach, 2008 U.S. Dist. LEXIS 83410 (E.D. Wash. May 7, 2008).*

In two habeas cases, federal courts considered not only the trial court’s consideration of the Fourth Amendment claim, but also the state appeals court’s ability to consider the issues. Neri v. Hornbeak, 550 F. Supp. 2d 1143 (C.D. Cal. 2008)*; James v. Norris, 2008 U.S. Dist. LEXIS 83906 (E.D. Ark. October 16, 2008).*

Insurance policy’s exclusion for governmental action prevented coverage for damage caused during execution of a search warrant. Spangler v. Wenninger, 2008 U.S. Dist. LEXIS 75571 (S.D. Ohio September 9, 2008).*

Adult establishment had standing to litigate the Fourth Amendment claims of patrons stopped at a roadblock leaving the property. Mia Luna, Inc. v. Hill, 2008 U.S. Dist. LEXIS 74950 (N.D. Ga. September 22, 2008). (Comment: This is an interesting case on the rights of a store to pursue claims of patrons who either could not be found or would not want to pursue the claims on their own.)

Officers had reasonable suspicion to handcuff defendant during an investigative stop. A drug dog then gave probable cause. United States v. Roberts, 572 F. Supp. 2d 1240 (D. Kan. 2008).*

A state search warrant used in a federal prosecution is considered in relation to the state crime under investigation, but it is always evaluated under the Fourth Amendment for probable cause. A state law violation is irrelevant. United States v. Jones, 572 F. Supp. 2d 601 (W.D. Pa. 2008).*

Defendant’s being in a high crime area with evasive conduct was reasonable suspicion. United States v. Washington, 2008 U.S. Dist. LEXIS 66208 (N.D. W.Va. August 28, 2008).*

Handcuffing defendant was reasonable under the circumstances because there was a gun and finding $300,000. United States v. Martinez-Esquivel, 2008 U.S. Dist. LEXIS 66207 (D. Utah August 27, 2008).*

Defendant signed a consent to search form shortly after being arrested, and the testimony supports the conclusion that the consent was voluntary. United States v. Edwards, 2008 U.S. Dist. LEXIS 66096 (E.D. Mo. August 5, 2008).*

Officers “had no basis before conducting the ‘security sweep’ to believe that a dangerous confederate of the defendants was hiding inside the premises of 55 Dunstable Road. In fact, they had no basis for believing that anyone at all was inside the house, as all of the targets of the investigation had been accounted for.” The court notes that a “security sweep” would be permitted on reasonable suspicion that a confederate was inside and armed, even on an arrest outside. United States v. Yoeung Eng, 571 F. Supp. 2d 239 (D. Mass. 2008):

6. Buie also permits a safety sweep in circumstances where officers have reason to fear that they are in imminent danger from the occupants of a dwelling even though the arrest (or a detention) occurs just outside the dwelling. United States v. Hoyos, 892 F.2d 1387, 1397 (9th Cir. 1989) (sweep justified even though defendant was arrested on the steps of his home — “A bullet fired at an arresting officer standing outside a window is as deadly as one that is projected from one room to another.”); see also United States v. Henry, 48 F.3d 1282, 1284 (D.C. Cir. 1995) (arrest in apartment hallway); …

7. The officers must have a reasonable basis for believing that a dangerous person is hiding inside the premises; the mere presence of a third party does not justify a safety sweep. See United States v. Paradis, 351 F.3d 21, 29 (1st Cir. 2003) (sweep of a residence unreasonable where officers had no reason to believe that an accomplice was inside); United States v. Satterfield, 743 F.2d 827, 844-845 (11th Cir. 1984) (same); ….

Defense counsel was not ineffective for waiving a consent search issue since it certainly would have failed. Stamper v. United States, 2008 U.S. Dist. LEXIS 58301 (E.D. Tenn. July 18, 2008).*

Similarly, defendant’s claim that defense counsel could have better impeached the officer is unavailing on an IAC claim where nothing was proffered to show that it would have succeeded. Frazier v. United States, 2008 U.S. Dist. LEXIS 57823 (W.D. Pa. July 29, 2008).*

Alabama finds defendant was free to leave when he was standing back at the patrol car and a second officer arrived with a drug dog. State v. Hale, 990 So. 2d 450 (Ala. Crim. App. 2008).* Comment: Not one fact mentioned in the opinion supports the conclusion that the defendant would reasonably believe he was free to go. This is it: “As in Tillman, in this case, the appellee had signed the warning citation and Burch had returned his driver’s license to him at the time Burch requested his consent to search.” On handing the license back, the conversation immediately turned to there being drugs in the vehicle.

Officers pulled up behind a juvenile’s car for a traffic stop after he had gotten out of the car, and they ordered him back to the car, supposedly for officer safety, and then searched the car. There was no showing of probable cause or other justification to search the car under the stipulated facts. J.T.C. v. State, 990 So. 2d 444 (Ala. Crim. App. 2008).*