Cellphone was a proper subject of a search incident to protect the information on it from being removed or tampered with on arrest, including incoming cellphone calls from altering the incoming call log. United States v. Santillan, 571 F. Supp. 2d 1093 (D. Ariz. 2008):

In this case the defendant was arrested and agents searched the incoming and outgoing calls on his cell phone mere minutes after the arrest and seizure of his phone, and as soon as practicable given the high speed chase that had just transpired. The search of the phone was roughly contemporaneous with the arrest. Furthermore, the agents knew that other suspects were still at large, had heard transmissions indicating that weapons were being prepared by the smugglers and their cohorts, and had good reason to believe that the suspects had been in contact with the defendant. The agents thus had a valid concern that more incoming calls to the defendant’s cell phone could destroy evidence that was then located on the cell phone’s recent contacts lists. Because this was a search clearly conducted as part of a “continuous series of events closely connected in time to the arrest,” see McLaughlin, 170 F.3d at 891, it must be concluded that it was permissible as a search incident to arrest.

Posted Feb. 3 is a discussion and link to an article The iPhone Meets the Fourth Amendment by Prof. Adam M. Gershowitz. Can it not, should it not be argued that a search of a cellphone separately requires a showing of probable cause to believe it is involved with a crime or could contain evidence of a crime? Some cellphones, at least, are a closed and locked container, and a search incident should be limited as to them.

Talking high-resolution photographs and notes of documents seen during the execution of a warrant is a search and seizure of the information in the documents. United States v. Jefferson, 571 F. Supp. 2d 696 (E.D. Va. 2008):

Certainly, Hicks should not be read to sanction a result so inimical to Fourth Amendment values. Instead, the more reasonable reading of Hicks, consistent with the Hoffa line of cases, is that a search and a seizure of information that is subject to the strictures of the Fourth Amendment occurs where, as here, law enforcement officials photograph the contents of documents, or take notes reflecting the contents of documents. That search and seizure of information does not offend the Fourth Amendment (1) where the documents fall within the warrant’s scope or (2) where the document discloses probable cause in plain view, i.e. on its face. If the seizure satisfies neither of these conditions, then the document’s contents may not be photographed or otherwise recorded without running afoul of the Fourth Amendment. This does not mean, however, that law enforcement officials may not examine documents in the course of the search to ascertain whether they fall within the scope of the warrant. Yet, if this examination discloses neither that the document is within the scope of the warrant, nor that there is probable cause to seize it under the plain view doctrine, agents may not seize the document’s information by photographing, copying, or making notes of it. Of course, the agents are not required to erase from their memories what they saw in the documents, and if they subsequently obtain information that, coupled with what they saw, gives them probable cause to seize the documents, they may then seek a warrant to seize the documents.

The independent source doctrine permitted the seizure here.

In addition to the thirteen items seized by photograph, agents seized certain information by way of written notes made after reviewing bank records discovered in the course of their search. Specifically, agents seized bank account numbers, names of account-holders, and names of financial institutions. The government argues that seizure of defendant’s banking information was authorized under the plain view doctrine because the agents were investigating various schemes by which defendant allegedly solicited and received bribes in return for the performance of official acts. The government argues that because the crime under investigation involved the receipt of things of value, agents had probable cause to believe that the bank accounts were evidence of a crime.

The government’s argument is not entirely persuasive. The mere fact that the alleged crime under investigation involved the receipt of funds may not give rise to a reasonable belief that all of a suspect’s financial records are themselves evidence of a crime. In any event, suppression of defendant’s bank account information is unwarranted because law enforcement officials obtained the same information by legitimate, independent means. Specifically, the FBI submitted a request to the United States Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) for information related to their investigation into defendant’s alleged crimes. The FinCEN request resulted in the production of the same financial information seized by the agents during the August 3, 2005 search. The FinCEN request was not based on information seized during the search, and defendant has not challenged the validity of the FinCEN search. In addition, the government introduced evidence during the course of the suppression hearing showing that law enforcement officials obtained information from multiple sources, including credit reports and subpoenas served on various financial institutions, regarding all accounts that the government seeks to introduce during its case in chief. Because agents obtained this information from legitimate, independent sources, suppression is not warranted.

Defendant’s wife’s private search was complete so the officers could not exceed her private search. United States v. Starr, 533 F.3d 985 (8th Cir. 2008):

[T]he Supreme Court has recognized “that a third party’s inspection of the contents of private books, papers, memoranda, etc. could be so complete that there would be no additional search by the [government] when it re-examines the materials.” Walter v. United States, 447 U.S. 649, 659 n.14 (1980). This is such a case. In her private search prior to contacting law enforcement, Mrs. Starr examined all of the evidence that she subsequently brought to police. When the police examined the evidence, the record indicates that the officers only viewed material that had already been viewed by Mrs. Starr. Because the officers’ search did not exceed the scope of Mrs. Starr’s private search, we conclude that the officers did not unconstitutionally intrude on Starr’s privacy interests.

Defendant’s claim that he had an expectation of privacy in his trash at the curb was foreclosed by Greenwood and Third Circuit cases. United States v. McKenzie, 283 Fed. Appx. 13 (3d Cir. 2008) (unpublished).*

Officer’s entry into a third person’s home complied with Steagald because officers had an arrest warrant and sufficient reason to believe that the defendant was there. The “protective sweep” thereafter for weapons was valid when one person there admitted that there were guns in the house. United States v. Cantrell, 530 F.3d 684 (8th Cir. 2008).

Affidavit for search warrant was supported by two affidavits, and one was defective for stating that a CI was actually a concerned citizen. While “troubling,” it was not reversible error because the other affidavit provided probable cause, too. State v. Keener, 2008 UT App 288, 191 P.3d 835, 609 Utah Adv. Rep. 19 (2008):

[*P15] Because the two affidavits were considered together, Judge Atherton was not misled regarding Lambson being a concerned citizen with a presumption of reliability. Nonetheless, even considering that Lambson was afforded only the low level of reliability of a criminal informant, when we consider the other information presented in the affidavit under a totality-of-the-circumstances analysis, Judge Atherton had a substantial basis to conclude that evidence of wrongdoing would be found at Keener’s residence. And although we recognize that the state constitutional protection against unreasonable searches and seizures is broader than the similar federal constitutional protection, Keener’s argument in this regard is not warranted under the circumstances of this case. Accordingly, we affirm the district court’s denial of Keener’s motion to suppress the evidence obtained from the search of his residence.

Defendant appears not to have preserved his suppression motion by changing the issue from his privacy interest in the premises to whether a plain view was adequate. Nevertheless, going to the merits of the search claim, the evidence admitted against him from the search was harmless at best. State v. Harding, 221 Ore. App. 294, 189 P.3d 1259 (2008).*

Trash left out for collection provided probable cause for a search warrant for defendant’s house. Locher v. State, 293 Ga. App. 67, 666 S.E.2d 468 (2008).*

The search of defendant’s car was justified under the automobile exception because it was readily mobile and there was probable cause. As to the search of his house, there is no requirement that the search warrant name the defendant. United States v. Blaylock, 535 F.3d 922 (8th Cir. 2008)*:

Within this framework, we consider whether the search of the blue Nissan comports with the Fourth Amendment. The testimony about King driving the Nissan to meet Detective Ropka demonstrates that the Nissan was readily mobile. And, the car’s registration to Blaylock and King indicates it was subject to regulations that necessarily diminished any expectation of privacy in the vehicle. The question, then, is whether probable cause existed for the search. We conclude there was more than sufficient probable cause for the officers to conclude the Nissan contained evidence of illegal activity. On two separate occasions within the month prior to the search, the Nissan was used to further drug trafficking. On August 30, Blaylock retrieved crack cocaine from the Nissan before selling it to Detective Ropka. On September 8, the transaction between King and Detective Ropka occurred in the car. These facts demonstrated a clear link between the car and drug trafficking sufficient to provide probable cause to search the Nissan.

. . .

None of the arguments raised by Blaylock undermines the district court’s conclusion that the search conducted pursuant to the warrant comported with the Fourth Amendment. First, a search warrant need not name any particular defendant against whom evidence will be used in order to be valid; it must only “particularly describ[e] the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.

District court’s determination that defendant consented to a search was binding on the appeals court since there was some evidence to support. United States v. Skeffery, 283 Fed. Appx. 75 (3d Cir. 2008) (unpublished).*

Defendant’s probable cause argument would fail as a matter of law, so his appellate counsel was not ineffective for not raising it. United States v. Simmons, 2008 U.S. Dist. LEXIS 56961 (M.D. Pa. July 25, 2008).*

Defendant’s stop was for a minor misdemeanor, but it revealed that defendant was driving on a suspended license, and that justified a search incident. State v. Singleton, 2008 Ohio 3557, 2008 Ohio App. LEXIS 3008 (8th Cir. July 17, 2008).*

Maine’s commercial truck checkpoint statute constitutionally permitted the defendant’s checkpoint stop and review of his logbook and toll receipts under Burger. When the logbook looked false, the officer had probable cause for a search of the cab. State v. Melvin, 2008 ME 118, 2008 Me. LEXIS 119 (July 17, 2008).*

Officer’s subjective determination that he did not have probable cause for a blood test was not determinative. Here, there objectively was probable cause. State v. Preston, 293 Ga. App. 94, 666 S.E.2d 417 (2008):

The fact that the officer did not believe he had probable cause to request the blood test does not require a different finding on whether the circumstances in fact gave rise to probable cause to support the request. The scope of a person’s fourth amendment rights, including the protection against unreasonable searches and seizures, is determined objectively, not by the subjective conclusions of a law enforcement officer. Here, an objective assessment of the undisputed facts concerning Preston’s condition demonstrated probable cause that he was driving under the influence, which satisfied the requirements of the implied consent statute.

Officer had the authority to look for a parolee, but his opening a drawer violated the Fourth Amendment and was not subject to qualified immunity (although the damages likely won’t be much). Cuevas v. De Roco, 531 F.3d 726 (9th Cir. 2008).

While the area could be characterized as “high crime,” nothing else supported reasonable suspicion. “We conclude that beyond the character of the neighborhood, the observations in this case are too minimal to support a reasonable suspicion and the balance tilts in favor of the individual’s right to personal security and freedom from arbitrary detention.” The fact defendant was handcuffed at gunpoint was not an arrest. He was arrested after drugs were found. People v. Leggions, 382 Ill. App. 3d 1129, 321 Ill. Dec. 978, 890 N.E.2d 700 (2008):

By drawing their pistols and putting defendant in handcuffs, the police did not arrest him. Gannon testified he radioed the other officers to approach the Yukon for the purpose of investigating a possible drug transaction. Soon after the police converged on the Yukon and ordered the occupants out, they saw the cocaine in plain view; at that point, they acquired probable cause to arrest defendant.

“Although much of the [warrant] application was tainted and, therefore, not relevant to this analysis, the untainted portions nevertheless are sufficient to support a finding of probable cause. … These circumstances show ‘a fair probability that contraband or similar evidence will be found in the targeted place.’ … As the redacted application demonstrates probable cause, Murray‘s second prong is satisfied.” United States v. Swope, 542 F.3d 609 (8th Cir. 2008):

Swope urges a strictly literal interpretation of the second Murray prong, asking whether the tainted information in any way “affected [the magistrate’s] decision to issue the warrant.” Murray, 487 U.S. at 542. However, no circuit has adopted such a reading, and we decline to do so here. “Invalidating a search warrant because the magistrate was affected in some minor way by tainted information, when the warrant would have been granted even without the tainted information,” United States v. Jenkins, 396 F.3d 751, 758-59 (6th Cir.), cert. denied, 546 U.S. 813, 126 S. Ct. 336, 163 L. Ed. 2d 48 (2005), “would work against the principle that the fruit of the poisonous tree doctrine not be used to place the government in a worse position than it would have been in absent its illegal conduct,” United States v. Dessesaure, 429 F.3d 359, 366 (1st Cir. 2005) (internal marks omitted). Swope’s approach would constitute a per se rule in favor of suppression when the supporting affidavits contain tainted information, thereby undermining the independent source doctrine’s foundational goal of “putting the police in the same, not a worse, position than they would have been in if no police error or misconduct had occurred.” Nix, 467 U.S. at 443. We therefore read the second prong to “signify affect in a substantive manner,” United States v. Herrold, 962 F.2d 1131, 1141 (3rd Cir.), cert. denied, 506 U.S. 958, 113 S. Ct. 421, 121 L. Ed. 2d 344 (1992), i.e., whether removing the tainted information also removes the basis for probable cause.

We note that the phrase from Murray relied upon by Swope was peripheral to Murray’s holding. Other circuits have reasoned that the offhand nature of the phrase-and its easy characterization as dicta-suggests that the Court did not intend for that phrase to displace the practice of redacting problematic information from search warrant application affidavits and analyzing the remainder for probable cause under Franks. See United States v. Markling, 7 F.3d 1309, 1316-17 (7th Cir. 1993); United States v. Restrepo, 966 F.2d 964, 970 (5th Cir. 1992), cert. denied, 506 U.S. 1049, 113 S. Ct. 968, 122 L. Ed. 2d 124 (1993). Although the context in Franks differs from the present context–the affidavit in Franks did not include information derived from a Fourth Amendment violation, but instead included facts that the police fabricated–other circuits have found that difference to be insufficient to justify a departure from the traditional Franks-based redaction analysis. See Dessesaure, 429 F.3d at 366-67 (“Every circuit to consider the question has held that the Court’s instruction in Murray to analyze whether the tainted information affected the magistrate’s decision to issue the warrant did not mean to change the dominant pre-existing approach under Franks.”) (citing cases). Even after Murray, probable cause continues to be the benchmark for evaluating tainted affidavits. See United States v. Hernandez Leon, 379 F.3d 1024, 1027 (8th Cir. 2004) (stating that “[t]he sufficiency of a warrant affidavit which contains information from an unlawful search is evaluated after deleting that information”); United States v. Johnston, 876 F.2d 589, 594 (7th Cir.) (Posner, J., concurring), cert. denied, 493 U.S. 953, 110 S. Ct. 364, 107 L. Ed. 2d 350 (1989) (citing cases and stating that “[l]oads of court[s] of appeals cases” have held that a redaction analysis is the proper test for affidavits containing tainted information).

Civil discovery requests do not implicate the Fourth Amendment.
Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008):

[T]he discovery efforts of the private Plaintiff do not implicate the Fourth Amendment protection against unreasonable searches and seizures. See United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656 (1984) (confirming that the Fourth Amendment “proscrib[es] only governmental action,” and does not apply to searches conducted by private individuals); see also United States v. International Business Machines Corp., 83 F.R.D. 97, 102 (S.D.N.Y. 1979) (“It strains common sense and constitutional analysis to conclude that the fourth amendment was meant to protect against unreasonable discovery demands made by a private litigant in the course of civil litigation.”).

Comment: What happens when a court is determining whether to enforce the discovery demand?

Reading Caballes and Muehler together, the stop was not unlawfully extended. People v. Salinas, 383 Ill. App. 3d 481, 322 Ill. Dec. 593, 891 N.E.2d 884 (2008):

Our supreme court was called upon to interpret and apply the Caballes and Muehler holdings in People v. Harris, 228 Ill. 2d 222 (2008). …

. . .

Applying the reasoning of Caballes, Muehler, and Harris to the facts at hand, we conclude that no fourth amendment violation occurred. Because defendant was lawfully seized, Officer Velez was not required to have reasonable suspicion to commence a conversation with defendant about the narcotics surveillance operation. Harris, 228 Ill. 2d 222, [slip op.] at 16-17. (“During a lawful seizure, *** police may ask questions unrelated to the original detention and are not required to form an independent reasonable suspicion of criminal activity before doing so”). Moreover, because “the possession of contraband ‘compromises no legitimate privacy interest'” (Caballes, 543 U.S. at 408, 160 L. Ed. at 847, 125 S. Ct. at 837, quoting United States v. Jacobsen, 466 U.S. 109, 123, 80 L. Ed. 2d 85, 100, 104 S. Ct. 1652, 1661 (1984)), the conversation did not infringe on defendant’s constitutionally protected interest in privacy. Accordingly, as long as Officer Velez’s actions did not unreasonably prolong the duration of the stop, no fourth amendment violation occurred. Although defendant adamantly contends that the conversation necessarily prolonged the duration of the stop, he cites to no evidence to substantiate his claim. The record reveals once defendant was stopped, Officer Velez immediately informed defendant of the surveillance operation and revealed that defendant had been seen accepting a box from the South Trumbull residence. Defendant, in turn, immediately acknowledged that he had received a box from the residence, admitted the box contained narcotics, and informed Officer Velez that his passenger was unaware of the narcotics transaction. Indeed, at oral argument, defense counsel conceded that the conversation was “brief”.

Accordingly, the facts in this case are readily distinguishable from those present in People v. Bunch, 207 Ill. 2d 7, 796 N.E.2d 1024, 277 Ill. Dec. 658 (2003), and People v. Parra, 352 Ill. App. 3d 584, 817 N.E.2d 141, 288 Ill. Dec. 16 (2004), the primary cases defendant relies upon to support his contention that the police in this case prolonged the stop, because the records in Bunch and Parra revealed that the officers engaged in conversations unrelated to the purpose of the traffic stops with the defendants after they had concluded their investigations of the traffic stops. See Bunch, 207 Ill. 2d at 19 (finding that the defendant’s fourth amendment rights were violated when “the purpose of the traffic stop concluded” but “[t]he officer’s directions to defendant *** continued”); Parra, 352 Ill. App. 3d at 589 (explaining that “[b]ecause [the officer’s] questions occurred after the purpose of the stop was completed, the questions impermissibly prolonged defendant’s detention”). Here, in contrast, the purpose of the stop had not concluded when Officer Velez commenced his conversation with defendant about the narcotics surveillance operation. Based on the facts in this case, we find the conversation initiated by Officer Velez, although unrelated to the traffic stop, did not infringe on defendant’s fourth amendment rights. Accordingly, we find that the trial court correctly found that defendant’s motion to suppress lacked merit.

Comment: It was observed by Prof. Tracy Maclin, Police Interrogation During Traffic Stops: More Questions Than Answers, 31 Champion 34 (Nov. 2007), that Muehler has no application to traffic stops, and that complete skews the analysis.

Under the Strickland deferential standard of client performance, the court should consider that defense counsel has a reason for not pursuing a suppression, such as the fact that the officers may testify to things not in the reports which harm defendant’s position. State v. Greathouse, 2008 Ohio 3023, 2008 Ohio App. LEXIS 2552 (8th Dist. June 12, 2008):

“A failure to file a motion to suppress may constitute ineffective assistance of counsel where there is a solid possibility that the court would have suppressed the evidence. [Citation omitted.] However, even when some evidence in the record supports a motion to suppress, we presume that defense counsel was effective if defense counsel could reasonably have decided that the filing of a motion to suppress would have been a futile act. [Citation omitted.]” State v. Jackson, Cuyahoga App. No. 86542, 2006 Ohio 1938, P18.

. . .

. . . Therefore, we are mindful that counsel may have been aware of additional facts that were not contained in the report but would have been elicited through the officers’ testimony had there been a formal hearing. This could have weighed into counsel’s decision not to pursue a suppression motion and instead to recommend that defendant enter a no contest plea.

Trial court’s determination on conflicting evidence that defendant’s grandmother consented to a search of her home was binding in the appeals court. People v. Williams, 383 Ill. App. 3d 596, 322 Ill. Dec. 613, 891 N.E.2d 904 (2008).*

Defendant wanted to cooperate with officers in a DUI stop and that made the sobriety test consensual. State v. Osburn, 2008 Ohio 3051, 2008 Ohio App. LEXIS 2562 (9th Dist. June 23, 2008).*

The encounter with defendant was consensual, and it led to a patdown with the officer asking if he had anything on him, and he admitted to cocaine. Police were called to a gun store because a man with a warrant was trying to buy a gun, so they came to check him out. Defendant’s claim of language being a barrier was something that he had to prove and did not. People v. Marujo, 192 P.3d 1003 (Colo. 2008)*:

This court has enumerated a list of factors that may demonstrate that “a reasonable, innocent person would not feel free to decline the officers’ requests or otherwise terminate the encounter.” Jackson, 39 P.3d at 1184. The factors include but are not limited to:

(1) whether there is a display of authority or control over the defendant by activating the siren or any patrol car overhead lights;
(2) the number of officers present;
(3) whether the officer approaches in a non-threatening manner;
(4) whether the officer displays a weapon;
(5) whether the officer requests or demands information;
(6) whether the officer’s tone of voice is conversational or whether it indicates that compliance with the request for information might be compelled;
(7) whether the officer physically touches the person of the citizen;
(8) whether an officer’s show of authority or exercise of control over an individual impedes that individual’s ability to terminate the encounter;
(9) the duration of the encounter; and
(10) whether the officer retains the citizen’s identification or travel documents.

Id. For a police-citizen encounter to rise to the level of a seizure, the obligation to comply must be greater than the obligation an innocent citizen would normally feel to cooperate with the police. Johnson, 865 P.2d at 842-43.

Ripping out plaintiff’s penis piercing during a second unnecessary strip search made jailers liable for his injury. The second strip search was unreasonable and excessive force was applied. Alvarez v. Iniguez, 2008 U.S. Dist. LEXIS 82113 (C.D. Cal. September 5, 2008).*

When probation officers receive information from police about a probation violation, they must independently assess whether there is cause for a residence search; they cannot defer that judgment to the police. Culver v. State, 956 A.2d 5 (Del. 2008):

A majority agree that 7.19 requires probation officers to assess any “tip” relayed to them and independently determine if a reasonable suspicion exists that would, in the ordinary course of their duties, prompt a search of a probationer’s dwelling. In this case, the probation officers accepted, without conducting any independent analysis, and relied on information police received from an anonymous caller whose “tip” made it clear the caller had no personal information about Culver consistent with illicit drug activity. Had probation officers independently analyzed the information consistent with their own agency’s regulations, they would have concluded that no reasonable suspicion existed to search Culver or his dwelling. We therefore hold that probation officers unlawfully searched Culver’s dwelling and that the fruits of that unlawful search must be suppressed. To hold otherwise would render 10 Del. C. § 4321 and the regulations promulgated under it meaningless. The Superior Court’s denial of Culver’s motion to suppress is REVERSED, his conviction is VACATED and the case is REMANDED for action consistent with this Opinion.

Hot pursuit of a DUI suspect (a class A misdemeanor) justified entry into the defendant’s home. This situation is like Santana, and Welsh is distinguished because it involved a fine-only offense, not a jailable offense. People v. Wear, 229 Ill. 2d 545, 893 N.E.2d 631, 323 Ill. Dec. 359 (2008):

Here, we see little relevant difference between this case and Santana. In both cases, the officers had probable cause to arrest when they were standing in the doorway, which is considered a public place. The Santana Court held that police were not required to refrain from entering the home and arresting her without a warrant. Similarly, Officer Dawdy was not required to refrain from entering Foiles’ home and arresting Wear without a warrant because he had probable cause to arrest the Wear at the threshold and Wear continued inside.

Moreover, additional facts are present in this case that are not present in Santana. Unlike Santana, Dawdy was already in pursuit of defendant after he turned around at Bruce Street. As Wear continued toward Foiles’ house, there were more and more indications that Wear had committed a DUI. Officer Dawdy observed a swerve and a traffic violation, then turned on his rotator and takedown lights. These were apparently ignored or unobserved by Wear as he then rolled through a stop sign, and staggered to a door opened by Foiles. He stated, repeatedly, “I made it home” while the door was open and Dawdy stood less than a foot away. At this point, Dawdy testified, he smelled the odor of alcohol emanating from his breath. Although this was not a high-speed chase, under Dawdy’s testimony, he told Wear to stop and return to his vehicle five or six times even after he had been following Wear with his lights illuminated for five or six blocks.

We next reject Wear’s contention that our decision is controlled by the United States Supreme Court’s decision in Welsh v. Wisconsin, 466 U.S. 740, 80 L. Ed. 2d 732, 104 S. Ct. 2091 (1984). In Welsh, a driver lost control of his car and came to a stop in a field. A witness saw the driver walk away and told the police that the driver was either very inebriated or very sick. The police went to the driver’s house, which was a short distance away. The police entered the home without a warrant and arrested the driver who was in his bed naked by that time. Welsh, 466 U.S. at 742-44, 80 L. Ed. 2d at 738-39, 104 S. Ct. at 2093-94. In Welsh, the Supreme Court first reasoned that the warrantless arrest violated the fourth amendment because there was no immediate or continuous pursuit from the scene of the crime. Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099. In contrast, in the instant matter there was an immediate and continuous pursuit at some point after Dawdy illuminated his police vehicle’s lights on Bates and Lincoln, and one that continued up to and through the threshold of Foiles’ house.

The Welsh court also found the warrantless arrest violated the fourth amendment because, in Wisconsin, driving while intoxicated was a nonjailable civil offense. Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 745-46, 104 S. Ct. at 2100. As the Welsh Court noted, “an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made.” Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099. The Welsh Court’s opinion was premised on the gravity a state assigns to the offense as the “the best indication of the State’s interest in precipitating an arrest.” Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 746, 104 S. Ct. at 2100, see also Welsh, 466 U.S. at 755, 80 L. Ed. 2d at 747, 104 S. Ct. at 2100 (Blackmun, J., concurring) (noting that the outcome of the case depended in large part on Wisconsin’s fine-only penalty). Moreover, the Welsh Court explicitly stated that “[b]ecause we conclude that, in the circumstances presented by this case, there were no exigent circumstances sufficient to justify a warrantless home entry, we have no occasion to consider whether the Fourth Amendment may impose an absolute ban on warrantless home arrests for certain minor offenses.” Welsh, 466 U.S. at 749 n.11, 80 L. Ed. 2d at 743 n.11, 104 S. Ct. at 2097 n.11.

Hot pursuit of a drug offender from Chicago into Illinois did not require suppression of anything from the Indiana arrest in violation of Indiana law in an Illinois prosecution. People v. Galan, 229 Ill. 2d 484, 893 N.E.2d 597, 323 Ill. Dec. 325 (2008), revg People v. Galan, 367 Ill. App. 3d 876, 856 N.E.2d 511, 305 Ill. Dec. 706 (2006):

We agree with the State that defendant’s arrest should not be quashed nor the evidence against him suppressed. The Supreme Court has stated that to determine whether a governmental action violates the fourth amendment, courts must “inquire first whether the action was regarded as an unlawful search or seizure under the common law when the [fourth] Amendment was framed.” Houghton, 526 U.S. at 299-300, 143 L. Ed. 2d at 414, 119 S. Ct. at 1300. This does not mean, as defendant suggests, however, that we must examine the common law of arrest as it existed in Indiana before the adoption of the Uniform Act on Fresh Pursuit. Instead, as the State suggests, it means that we must examine the common law in place at the time of the enactment of the fourth amendment. As noted above, this court has already done this, stating, “[a]t common law, municipal and county police officers had no authority to arrest a defendant outside the territorial limits of the political entity which appointed them to their office. The sole exception to this rule at common law was when the officers were in ‘fresh pursuit’ of a suspected felon fleeing that jurisdiction.” Lahr, 147 Ill. 2d at 382.

Here, the evidence clearly indicates that the Chicago police officers who eventually stopped defendant did so believing that he was engaged in drug trafficking and was attempting to escape. The Chicago police officers were thus in fresh pursuit of a person they suspected to be a fleeing felon. Pursuant to our analysis in Lahr, then, they had the commonlaw authority to effect an arrest of that person outside the territorial limits of the political entity that appointed them. Additionally, there is no question, and defendant has even agreed, that the arrest that occurred in this case was substantively authorized by Indiana statute. See Ind. Code Ann. §35-33-3-1 (Michie 1998).

It is also worth noting that defendant’s sole fourth amendment argument before this court revolves around his contention that Chicago police violated Ind. Code Ann. § 35-33-3-2 (Michie 1998). This is not surprising considering the procedural posture of this case. As already detailed, defendant’s first filed motion to suppress was very broad, requesting the trial court quash his arrest and suppress, among other things, the “[p]hysical evidence discovered and as a result of arrest and detention” and “[a]ll other knowledge and fruits *** and products of the arrest.” After holding a detailed evidentiary hearing and considering extensive argument on this motion, including evidence and argument regarding the home search, the trial court denied the motion to quash and suppress. Before this court, defendant advances no fourth amendment argument other than that based upon Indiana statute. Accordingly, if we find no fourth amendment violation based upon Indiana statute, there is no other basis argued for us to find such a violation. Defendant already advanced a variety of other fourth amendment based arguments in the trial court, lost those arguments, and no longer advances them on appeal.

Violation of Indiana law by Chicago police officers did not mandate exclusion.

Considering the exclusionary rule itself, we note that the Supreme Court has stated that “[s]uppression of evidence *** has always been our last resort, not our first impulse,” and applied the rule only where its deterrence benefits outweigh its substantial societal costs. Hudson, 547 U.S. at 591, 165 L. Ed. 2d at 64, 126 S. Ct. at 2163. This court, in discussing the rule, has stated:

“[T]he exclusionary rule that accompanies the fourth amendment has no constitutional footing. Instead, it is a judicially created, prudential remedy that prospectively protects fourth amendment rights by deterring future police misconduct [Citations.] Its application has been trimmed to instances where its remedial objectives will be most effectively served. [Citation.] That is, it applies only where its deterrent benefits outweigh its substantial social costs.” Willis, 215 Ill. 2d at 531-32.

Indeed, we have recognized that “[t]he State does not violate the fourth amendment when it introduces evidence obtained in violation of the fourth amendment. [Citation.] Rather, a fourth amendment violation is ‘fully accomplished’ by the illegal search or seizure, and excluding evidence cannot undo the invasion of the defendant’s rights.” Willis, 215 Ill. 2d at 531. As such, in Willis this court refused to apply the exclusionary rule in a situation where the fourth amendment was actually violated. See Willis, 215 Ill. 2d 517, 831 N.E.2d 531, 294 Ill. Dec. 581. By contrast, in this case, there was no constitutional violation and exclusion is even less warranted. Sanchez-Llamas v. Oregon, 548 U.S. 331, 348, 165 L. Ed. 2d 557, 577, 126 S. Ct. 2669, 2681 (2006) (statutory violations only remotely related to the gathering of evidence do not ordinarily trigger application of the exclusionary rule).

Odor of marijuana coming from defendant’s backyard, the curtilage, did not negate the warrant requirement. The warrantless entry into the backyard had to be suppressed. State v. Crenshaw, 2008 Ohio 4859, 2008 Ohio App. LEXIS 4069 (8th Dist. September 25, 2008).*

Saying to the defendant “come here” is a seizure under Terry. United States v. Holcomb, 2008 U.S. Dist. LEXIS 73362 (W.D. Pa. August 29, 2008).*

Quarles public safety exception applies to a knife as well as a gun. People v. Allah, 2008 NY Slip Op 7068, 54 A.D.3d 632, 863 N.Y.S.2d 682 (1st Dept. 2008).*

Habeas petitioner’s attempt to cast manufactured exigent circumstances claim as a Fourteenth Amendment issue rather than a Fourth Amendment issue did not circumvent Stone. COA denied. Barber v. Jones, 2008 U.S. App. LEXIS 11526 (10th Cir. May 28, 2008):

Mr. Barber argues that Stone does not apply to this issue, because the arresting officers’ conduct in “creating an ‘exigent circumstance’ through fraud and de[]ception … was in violation of the 14th Amendment and that is not the same as the 4th Amendment.” Aplt. Br. at 16. A person who asserts that his arrest or physical incarceration was unreasonable or unwarranted, however, is making a Fourth Amendment argument-he cannot use the Fourteenth Amendment as “a fallback to protect interests more specifically addressed by the Fourth Amendment in this context.” Becker v. Kroll, 494 F.3d 904, 919 (10th Cir. 2007). Mr. Barber’s claim is a Fourth Amendment claim, and it is barred by Stone.

District court’s finding that defendant was not an overnight guest with standing was supported by the evidence. United States v. Smith, 282 Fed. Appx. 143 (3d Cir. 2008) (unpublished).*

Defendant failed to show a Franks violation. United States v. Hawkins, 2008 U.S. App. LEXIS 11439, 2008 FED App. 0292N (6th Cir. May 23, 2008) (unpublished).*

Officers obtained three search warrants in October 1999, October 2000, and November 2003 and seized guns found during execution that were not listed in the search warrant. The seizures of hidden guns was valid. United States v. Prather, 2008 U.S. App. LEXIS 11505 (11th Cir. May 23, 2008) (unpublished):

Prather contends police also exceeded the scope of the warrants by seizing guns during the October 11, 1999, and November 14, 2003 searches. Although neither warrant specifically authorized the seizure of weapons, the police did not err in confiscating weapons when they found them. When law enforcement officers stumble across hidden guns during a lawful search for drugs, they are allowed to draw the reasonable inference that the guns may be related to drug trafficking occurring at the location. United States v. Smith, 918 F.2d 1501, 1509 (11th Cir. 1990) (finding firearms not named in a warrant were properly seized during search of drug house as “tools of the trade”). That is precisely what the police did in this case.

Wiretaps gave probable cause for defendant’s arrest for conspiracy, considering the low threshold to be connected to a conspiracy. United States v. Clarke, 2008 U.S. Dist. LEXIS 41697 (E.D. N.Y. May 28, 2008).*

Officer’s false claim he had a search warrant nullified the search under Bumper. State v. Brandon, 753 N.W.2d 18 (Iowa App. 2008):

There is no dispute that Brandon asked the deputies if they had a search warrant after they entered his living room. By making this inquiry, the defendant was clearly questioning the deputies’ authority to enter and search his home. In response to Brandon’s inquiry, the deputies did not ask Brandon if he consented to a search of his residence. Instead, one of the deputies replied he had an arrest warrant. Brandon was then arrested, removed from his home, and taken to jail. We believe the deputies’ response to the defendant’s question and their subsequent actions clearly signaled that further objection or inquiry by the defendant would have been futile, and that Brandon had no right to resist or refuse a search of his property.

At least reasonable suspicion is required for a traffic stop (surveying the cases). State v. Styles, 362 N.C. 412, 665 S.E.2d 438 (2008).

There was no apparent authority for an owner of premises to consent to a duffle bag of a guest. When she said it was somebody else’s, the officers were on notice. Motion to suppress should have been granted. Evans v. State, 989 So. 2d 1219 (Fla. App. 5DCA 2008):

Authority cannot be inferred merely from ownership of the house when the searching officer knows the suitcase belongs to the defendant. Salinas-Cano, 959 F.2d at 865-66. When a third party informs the officer that a closed container belongs to another person, it is not objectively reasonable for the officer, without making further inquiry, to search the container. We conclude that Dorsey’s comment to the officers that the duffle bag belonged to Evans put them on notice to make further inquiry sufficient to establish that she had both common control over the property and mutual use of it. See Marganet, 927 So. 2d at 58 (citing Salinas-Cano, 959 F.2d 861).

Search incident of the kitchen counter 6-8′ from him when defendant was arrested face down on the living room floor was reasonable. State v. Williams, 110 Conn. App. 329, 954 A.2d 878 (2008):

The defendant argues that under the circumstances of this case, the kitchen counter was not within his immediate control because there was little or no probability that he could have launched an attack on the police from his position face down and handcuffed in the living room. This argument has been rejected under more dubious circumstances. See State v. Fletcher, 63 Conn. App. 476, 481-82, 777 A.2d 691 (valid search incident to arrest when police handcuffed defendant, then opened closet four feet next to where he was standing, moved pile of clothing to reveal floorboards, removed floorboards themselves and discovered hidden cavity containing contraband), cert. denied, 257 Conn. 902, 776 A.2d 1152 (2001). The defendant’s argument seems to suggest that it was impossible for him to reach the kitchen counter from his location in the living room. The record and common sense suggest otherwise.

The defendant’s apartment had an open area between the kitchen and the living room. The kitchen counter where Setzer searched was located six to eight feet from where the defendant was sitting. The short distance between the defendant and the kitchen counter, coupled with the contraband’s location in a cup on top of the counter, does not allow us to conclude that it would have been impossible for the defendant to have reached items located in the area Setzer searched. Similarly, the fact that the defendant was handcuffed does not foreclose the possibility that he might have been able to reach a weapon located close by. See id., 482. Accordingly, we conclude that the court properly denied the defendant’s motion to suppress.

Defendant’s search was a true parole search with information from a phone call corroborated by the PO. Micheau v. State, 2008 Ind. App. LEXIS 2029 (September 16, 2008).*