Exigent circumstances justified a SWAT Team’s entry into a FEMA trailer that they had surrounded. Apparently there was some risk of the offender’s escape. State v. Berry, 989 So. 2d 120 (La. App. 5 Cir. 2008):

Exigent circumstances may arise from the need to prevent the offender’s escape, minimize the possibility of a violent confrontation that could cause injury to the officers and the public, and preserve evidence from destruction or concealment. Brisban, 00-3437 at 5, 809 So.2d at 927-28.

On review, we find that the entry was justified by exigent circumstances. Although the officers were prepared to and did wait hours after the other family members exited the trailer, the circumstances were exigent from the moment of their arrival. The officers were trying to avoid a violent confrontation that could have injured them and others at the scene. Deputy Williams testified regarding the danger they faced in walking into a trailer in this situation, since they believed Berry was armed. The officers were simply forming strategies and waiting for an opportunity to detain Berry in the safest manner possible. Viewing the scene through the open door, Deputy Williams reacted to Berry’s movement in the kitchen cabinet immediately, hurriedly entering the trailer to detain him. The record also supports the conclusion that the officers feared for Berry’s escape, as he was hiding from them, refusing to come out.

We further find that probable cause was also present to justify the intrusion into the trailer. The police had information that Berry was seen earlier in possession of a firearm and had, in fact, discharged a firearm, causing damage to Mr. and Mrs. Armstrong’s trailer. …

Comment: Escape by tunneling out or teletransportation? Once somebody creates situation that the SWAT Team has to surround one’s house, how long are the police supposed to wait to bring the situation to a conclusion to wait him out? Two hours, six, all day, two days? The Fourth Amendment does not put a time limit on it.

While defendant was ordered during a traffic stop to empty his pockets, his statement he “willingly” did so converted it to implied consent. Normally, failure to object is not consent, but here it would be. State v. Harrison, 2008 Iowa App. LEXIS 397 (June 25, 2008).*

Parolee and probation searches cannot be arbitrary and have to be based on need. Need here was justified by a belief defendant had drugs and then a flushing sound when defendant knew the officers were outside. State v. Young, 988 So. 2d 759 (La. App. 5 Cir. 2008).*

Police arrived at a domestic disturbance with reports of a gun fired inside a FEMA trailer. They waited to enter until the children came out, which took quite awhile. Nevertheless, the delayed entry was still with exigent circumstances. State v. Berry, 989 So. 2d 120 (La. App. 5th Cir. 2008):

On review, we find that the entry was justified by exigent circumstances. Although the officers were prepared to and did wait hours after the other family members exited the trailer, the circumstances were exigent from the moment of their arrival. The officers were trying to avoid a violent confrontation that could have injured them and others at the scene. Deputy Williams testified regarding the danger they faced in walking into a trailer in this situation, since they believed Berry was armed. The officers were simply forming strategies and waiting for an opportunity to detain Berry in the safest manner possible. Viewing the scene through the open door, Deputy Williams reacted to Berry’s movement in the kitchen cabinet immediately, hurriedly entering the trailer to detain him. The record also supports the conclusion that the officers feared for Berry’s escape, as he was hiding from them, refusing to come out.

We further find that probable cause was also present to justify the intrusion into the trailer. The police had information that Berry was seen earlier in possession of a firearm and had, in fact, discharged a firearm, causing damage to Mr. and Mrs. Armstrong’s trailer. Although it is unclear as to whether the children were in the trailer at the time the firearm was discharged, the record shows that they were present in the trailer when Mrs. Armstrong went to the trailer after hearing the gunshot. Further, Mr. Armstrong was outside at the time he heard the gunshot. The trailer was on his property. When the officers responded, Berry created a situation where he barricaded himself in the trailer for hours, refusing to respond to the officers’ attempts to contact him.

Defendants had no reasonable expectation of privacy in being seen through garage doors with drugs. There was no showing that the officer even had to walk up to the gap to look. This case is virtually the same as State v. James, 980 So. 2d 769 (La. App. 4th Cir. March 12, 2008), of which the court quotes seven pages [so why not just say “this case is the same, affirmed; unpublished”?]. State v. Fournette, 989 So. 2d 199 (La. App. 4th Cir. 2008).*

Bailing from a car during a pursuit and running away from it is an abandonment of the car. The court cites to a similar unpublished opinion. Watkins v. Commonwealth, 2008 Ky. App. LEXIS 213 (July 11, 2008):

While being pursued by a police officer, Watkins sought to evade police before coming to a sudden stop in a median between lanes of traffic. He immediately got out of the car and fled to a wooded area. As in Blackford, this evidence does not suggest Watkins intended to retain any privacy interest in the car. As such, Watkins could not establish that he retained a reasonable expectation of privacy in the automobile once he fled the scene.

(Comment: So, if the unpublished opinion is so unimportant, why is it unpublished? Here, the court had to distinguish away a 1959 opinion that favored the defendant, which it did not do well.)

Search of a church office computer of the pastor was unconstitutional. The operational realities of the workplace are to be considered. And, the defendant had a subjective expectation of privacy in his office computer. The fact that his superiors in the church could enter the office did not mean that the police could, too. State v. Young, 2007 Fla. App. LEXIS 20515 (Fla. App. 1DCA December 26, 2007):

Although the district superintendent had personal authority to enter Young’s office, and to authorize others to do so, this authority did not displace the law enforcement officers’ obligation to respect Young’s independent constitutional rights and it did not rise to the level of “common authority” required for valid third party consent. Neither Moreland nor Neal had ever used Young’s workplace computer, worked in his office, or kept property there. Instead, the office was kept locked, and the church had no specific policy giving church officials the right to control and use the office. No testimony at the suppression hearing revealed that any church officials had ever exerted such authority over the office. Thus, the State failed to meet its burden to prove that the officials had common authority under constitutional standards, and there was no showing that Young assumed the risk that church officials would invite police officers in to search the office.

New Mexico holds that the exclusionary rule is inapplicable in civil abuse and neglect proceedings. State ex rel. Children, Youth & Families Dep’t. v. Michael T., 2007 NMCA 163, 143 N.M. 75, 172 P.3d 1287 (2007):

[*11] An abuse and neglect proceeding is not a criminal prosecution. See In re Pamela A.G., 2006 NMSC 19, P 12, 139 N.M. 459, 134 P.3d 746 (holding that the confrontation clause of the Sixth Amendment to the federal constitution does not apply because “neglect and abuse proceedings are civil proceedings”). Instead, abuse and neglect proceedings are brought on behalf of children by the state. NMSA 1978, § 32A-4-10 (2005). A stated purpose of the Children’s Code is “to provide for the care, protection and wholesome mental and physical development of children … and then to preserve the unity of the family whenever possible. The child’s health and safety shall be the paramount concern.” NMSA 1978, § 32A-1-3(A) (1999) (emphasis added). Under the Abuse and Neglect Act, “the paramount concern [in determining custody is] the child’s health and safety.” NMSA 1978, § 32A-4-7(D) (2005).

[*12] Father argues that abuse and neglect proceedings are quasi-criminal in nature and that extending the exclusionary rule is consistent with New Mexico’s policy protecting Father’s liberty interest in raising his children. Father’s argument based on his rights as a parent ignores the underlying purpose of abuse and neglect proceedings and the Children’s Code, which is to protect the rights of children. While this abuse and neglect proceeding may ultimately result in termination of Father’s rights to parent his children, the purpose of the proceeding is to protect the children, not to punish Father. Because the nature of the proceeding is to protect the interests and well-being of the children, the purposes of the exclusionary rule-deterring unreasonable searches and seizures (under the United States Constitution) and preserving the status quo in order to protect a person’s liberty interest (under the New Mexico Constitution)-would not be advanced if the evidence is suppressed.

[*13] We have found no cases, and the parties do not cite to any, in which any other jurisdiction has applied the exclusionary rule in the context of abuse and neglect proceedings. Other jurisdictions that have addressed the issue have held that the exclusionary rule should not apply in civil abuse and neglect proceedings because it may thwart the State’s interest in the protection of children.

“[T]he State’s seizure of gambling devices and proceeds [need not] be pursuant to a search warrant before the State may seek forfeiture of the property when the property’s possessor was not convicted of an offense. We hold that a search warrant is not required for the State to initiate a forfeiture proceeding under Article 18.18(b) when officers enter a gaming establishment with the owner’s consent and there is probable cause for seizure of the property.” In re Gambling Proceeds & Devices, 261 S.W.3d 439 (Tex.App. — Houston (14th Dist.) 2008).*

Officer properly concluded he had particularized suspicion for defendant’s detention after a traffic stop. State v. McMaster, 2008 MT 294, 345 Mont. 408, 191 P.3d 443 (2008).*

Police possession of a car for impoundment did not dissipate the initial exigency for an automobile search. The trial court’s suppression order is reversed. State v. Ruiz, 219 Ore. App. 148, 182 P.3d 246 (2008).*

Malfunctioning taillight led to one occupant’s admission she was in possession of Xanax, so that justified a search incident. State v. Stoutes, 980 So. 2d 230 (La. App. 2d Cir. 2008).*

The officer was justified in making a stop because defendant was waving down cars, apparently for the purpose of drug sales. A full blown search of the defendant was, however, unjustified. The video of the search contradicted the officer’s testimony. State v. Whitehead, 980 So. 2d 243 (La. App. 2d Cir. 2008) (Comment: What? A cop lied? I’m shocked, shocked to hear that police officers might lie.)

Officers had probable cause based on the totality of the circumstances of what they knew about defendant’s potential drug trafficking and the odor of marijuana in the car to search it. Waiting two miles to pull it over after a traffic violation was not unreasonable. Turner v. State, 261 S.W.3d 129 (Tex. App. –- San Antonio 2008).*

Trial court erred in concluding defendant did not have standing to contest a search warrant for his person. Defendant did not have standing as to the premises he was in as a casual visitor. State v. Heller, 2008 Tenn. Crim. App. LEXIS 556 (July 24, 2008):

We conclude that the evidence preponderates against the finding of the trial court only with regard to the defendant’s standing to challenge the search of his person. Because the defendant was directly identified as the object of the search warrant, he possesses the requisite standing to challenge a search of his person. An individual has a reasonable expectation of privacy in his or her person. State v. Cothran, 115 S.W.3d 513, 521 (Tenn. Crim. App. 2003) (citing State v. Transou, 928 S.W.2d 949, 958 (Tenn. Crim. App. 1996)).

Defendant’s taillight violation justified his stop, so defense counsel was not ineffective for not arguing it. Garza v. State, 261 S.W.3d 361 (Tex. App.—Austin 2008).*

911 call from defendant’s significant other did not provide reasonable suspicion for defendant’s stop. State v. Roybal, 2008 UT App 286, 191 P.3d 822, 609 Utah Adv. Rep. 26 (2008).*

In a civil case over an excessive protective sweep allegedly based on an emergency, the court denies the officer summary judgment because the sweep was excessive. Hunsberger v. Blessard, 564 F. Supp. 2d 559 (W.D. Va. 2008):

Viewing the facts in the light most favorable to the Hunsbergers with the above precepts in mind, the court concludes that even if Wood’s initial entry could be viewed as objectively reasonable, his findings once inside, at least before he entered the bedroom of the Hunsbergers’ daughter and probably before, should have dispelled any reasonable belief that an emergency, in fact, existed justifying further intrusion. Therefore, accepting the facts in the light most favorable to the Hunsbergers, the court concludes that Wood’s warrantless excursion into the Hunsbergers’ home exceeded the scope of the emergency and community caretaker doctrines and, therefore, was impermissible.

Defendant was stopped at a driver’s license checkpoint riding in a car. The driver’s license was expired, so the officer asked all passengers for their DL so one could drive. All had drug histories and one had an outstanding warrant. Consent was sought and obtained, and the consent was valid. United States v. Lesane, 2008 U.S. Dist. LEXIS 51254 (E.D. Va. July 3, 2008).* (The court poses the question (“Consequently, ‘when an officer seeks to expand the investigation of a motorist beyond the reasons for the checkpoint, the officer must have a reasonable suspicion that the particular person seized is engaged in criminal activity or obtain consent during the time period the defendant is lawfully seized.’ [Brugal, 209 F.3d at 357].”) then fails to answer it except by stating a conclusion.)

“Based on the pattern of conduct alleged in the affidavit and the proximity in time of the last controlled purchase to the application for the search warrant, the allegations contained in the affidavit were not stale. Those allegations indicated that there was a fair probability that evidence of illegal drugs and firearms would be found at the defendant’s 103 Coleman Street residence.” United States v. Shan, 563 F. Supp. 2d 361 (D. Conn. 2008).*

Evidence of defendant’s interest in property searched (unopened mail) was offered to show that defendant fled from the premises, which was harmless at best, so the merits of the search do not need to be inquired into. State v. McCool, 211 Ore. App. 56 (2008).*

Threat of illegal searches directed at plaintiff was speculative at best, so court would not grant an injunction. Nenninger v. United States Forest Serv., 2008 U.S. Dist. LEXIS 51212 (W.D. Ark. July 3, 2008).*

Defendant’s shoes were properly seized on his arrest for fear that they might be disposed of. A shoeprint tied the defendant to the scene of the crime. State v. Fana, 109 Conn. App. 797, 953 A.2d 898 (2008).

Recovery of a DVD from defendant’s person as a search incident for theft of DVDs was proper. Breaston v. State, 893 N.E.2d 6 (Ind. App. 2008).*

Defendant’s stop for a traffic offense led to his fidgeting and relating of impossible travel plans, both of which led the officer to believe defendant was under the influence of drugs. That led to a valid detention to bringing in a dog which alerted. United States v. Hogan, 539 F.3d 916 (8th Cir. 2008).*

Emergency entry into defendant’s premises was not justified because the police had no information that anybody was inside. The mere possibility is not enough. State v. Fausel, 109 Conn. App. 820, 953 A.2d 891 (2008):

At the suppression hearing, Huggins testified that he did not know if anyone else was inside the defendant’s house but was concerned about the possibility that someone might be injured and in need of assistance. By way of explanation for the entry, Huggins suggested that Wayne’s illegal entry of the home insinuated a burglary and the possibility that someone was injured. Before Huggins entered, however, Wayne indicated that no one else was in the house, and he indicated that his friend, the defendant, lived there. As corroboration, Wayne provided the defendant’s name, which was consistent with the information in the possession of the officers. On this basis, there was no indication that Wayne’s entry into the house was illegal. In sum, there is no evidence in the record to indicate that the officers ever had any reason to believe that there was anybody inside the house in immediate danger or in need of aid. A mere concern that someone might be inside and might be in need of immediate assistance does not warrant police intrusion into a private dwelling under the emergency doctrine. Thus, the police were not justified in entering the defendant’s house pursuant to the emergency exception. (court’s emphasis)

When officer who stopped defendant’s car because he could not see the expiration date could see the expiration date as he approached the car on foot, everything after that was invalid. Meredith v. State, 878 N.E.2d 453 (Ind. App. 2007):

Likewise, here, we conclude that once Officer Lackey had verified the valid expiration date on the temporary tag, and prior to any personal contact with Meredith, the objective purpose for the investigative detention had been satisfied. Thus, Officer Lackey was constitutionally barred from detaining Meredith any further. But Officer Lackey pushed the envelope beyond constitutional limits once, if not twice. First, Officer Lackey continued to detain Meredith without probable cause or reasonable suspicion after he had confirmed that the temporary tag was valid. And Lackey then detained Meredith after he had determined that Meredith had not consumed any alcohol.

Rebuttal question of officer that defendant did not remain silent when asked about consent, but defendant refused consent, was proper to impeach the defendant. State v. Chavez, 191 P.3d 760 (Colo. App. 2007):

It follows that the use of evidence of a defendant’s refusal to consent to a search for impeachment purposes does not impermissibly burden the Fourth Amendment right to be free from unreasonable searches and seizures. See Coulthard, 230 S.W.3d at 582-84 ; see also People v. Summitt, 104 P.3d 232, 235 (Colo. App. 2004) (recognizing that “[e]vidence that a defendant asserted a constitutional right may be admitted to impeach when the defendant testifies at trial”), rev’d on other grounds, 132 P.3d 320 (Colo. 2006); cf. McNatt, 931 F.2d at 256-58 (evidence of the defendant’s refusal to consent to a search of his truck was a fair response to his claim an officer had planted cocaine in his truck). Thus, where, as here, the defendant testifies at trial, evidence of the defendant’s refusal to consent may be admitted for purposes of impeachment (if relevant for that purpose) and a prosecutor may comment on that refusal in closing argument.

Here, the prosecutor did not introduce evidence of defendant’s refusal to consent to a search during the People’s case-in-chief, nor did the prosecutor allude to that refusal in opening statement. However, after defendant denied living at the apartment on direct examination by his counsel, the prosecutor sought to introduce evidence of defendant’s refusal in the course of cross-examining defendant, and such evidence was later introduced in rebuttal.

One inference a reasonable juror could draw from defendant’s refusal to consent to a search (though not the only one) was that he had dominion and control over the apartment, Dozal, 173 F.3d at 794, and therefore evidence of that refusal was relevant to impeach him on that point. Accordingly, defendant’s right to due process was not violated by admission of the evidence.

. . .

Because defendant volunteered that he had invoked his right to remain silent, and the prosecutor did not comment on it in the jury’s presence, we do not perceive any violation of defendant’s right to due process. Cf. People v. Chavez, 545 P.2d 716, 720-21 (Colo. App. 1975) (not published pursuant to C.A.R. 35(f)) (no error in prosecutor’s references in rebuttal closing argument to defendant’s failure on the date of the offense to mention factual basis for defense relied on at trial where the defendant, not the prosecutor, elicited evidence of the defendant’s exercise of his right to remain silent); State v. Jennings, 333 N.C. 579, 430 S.E.2d 188, 199-200 (N.C. 1993) (no error where defendant’s counsel, not prosecutor, elicited testimony that defendant exercised his right to remain silent); Commonwealth v. Caputo, 439 Mass. 153, 786 N.E.2d 352, 362 (Mass. 2003) (same); People v. Gray, 166 Ill. App. 3d 586, 520 N.E.2d 93, 97, 117 Ill. Dec. 103 (Ill. App. Ct. 1988) (same).

Comment: This opinion really troubles me, but the defendant opened the door for some stupid reason, so we’re stuck with it.

The use of the word “‘all,’ in and of itself, does not render a warrant a general warrant,” particularly, as here, the warrant “reasonably sought all documents with other people’s names.” United States v. Greene, 2008 U.S. Dist. LEXIS 42762 (E.D. Pa. June 2, 2008).*

There was a fact dispute as to the crime that plaintiff was fleeing from and whether the officers properly identified themselves before a PIT maneuver was used to stop him. Three of four factors favored plaintiff. Marshall v. West, 559 F. Supp. 2d 1224 (M.D. Ala. 2008):

Defendants do not dispute that the use of the PIT maneuver constituted a “seizure” for purposes of the Fourth Amendment; thus, the court focuses on the level of force used during the seizure and whether it was “objectively reasonable.” Scott, 127 S.Ct. at 1776. The factors upon which the parties concentrate in analyzing the constitutionality of West’s use of the PIT maneuver are: (1) the extent of Plaintiff’s injuries; (2) whether Plaintiff was resisting or fleeing an arrest; (3) whether Plaintiff posed an immediate threat; and (4) the severity of the crime.

. . .

In sum, while the extent of Plaintiff’s injuries weighs in favor of West, the court finds that the other three factors weigh in favor of Plaintiff and tilt the scales toward a finding that West used excessive force. Accepting the factual inferences in the light most favorable to Plaintiff, Plaintiff’s crime was a misdemeanor seatbelt infraction; Plaintiff did not pose an immediate threat to Defendants or innocent bystanders; and Plaintiff understandably resisted Defendants’ demands that he pull over because Defendants failed to adequately identify themselves to Plaintiff as law enforcement officers. On these summary judgment facts, which may not be the actual facts at trial, the court finds that Plaintiff has established that, when West used the PIT maneuver to bump Plaintiff off the roadway, he used excessive force in violation of the Fourth Amendment.

Crediting the defendant’s own testimony, he was free to leave and nothing was done to restrain him in the police station. The encounter was thus consensual. United States v. Cameron, 562 F. Supp. 2d 725 (N.D. W.Va. 2008).*

Defendant’s laptop computer was subject to a border search, and it was a “routine search.” [Apparently only “nonroutine searches” are intrustive searches of the person.] United States v. McAuley, 563 F. Supp. 2d 672 (W.D. Tex. 2008):

The Defendant believes that a search of the computer is much more intrusive than ordinary searches at ports of entry because of the type of information available on a computer. (Def. Amended Mot. to Supp., 4.) The Court is not persuaded by this contention. Incredible amounts of personal and sensitive information are already subject to scrutiny at ports of entry in peoples’ wallets, purses, locked glove boxes, and locked containers or luggage. People carry personal items such as Social Security cards; state and federal identification cards; medicines and medical records; names and addresses of family and associates; day planners with itineraries and travel documents; credit cards; check books and registries; business cards; photographs; and membership cards. All of these items are already subject to routine border searches. See Cardenas, 9 F.3d at 1148 n. 3. A computer is simply an inanimate object made up of microprocessors and wires which happens to efficiently condense and digitize the information reflected by the items listed above. The fact that a computer may take such personal information and digitize it does not alter the Court’s analysis.

While the Defendant’s computer was password protected, it too does not affect this Court’s analysis. A password on a computer does not automatically convert a routine search into a non-routine search. A password is simply a digital lock. Locks are usually present on luggage and briefcases, yet those items are subject to “routine” searches at ports of entry all the time. See Flores-Montano, 541 U.S. at 154-55.

Defendant’s signing of consent form after being Mirandized did not break the causal connection between the illegal search of his house and the consent. United States v. Adkins, 2008 U.S. Dist. LEXIS 44532 (E.D. Tenn. June 6, 2008).*

Probable cause alone is not enough for inevitable discovery. United States v. Troxel, 564 F. Supp. 2d 1235 (D. Kan. 2008):

Based on a balancing of these factors, the court finds that it does not have “a high level of confidence that the warrant in fact would have issued.” See Souza, 223 F.3d at 1205. It appears that the Government relies on the fact that at the time the search of the cooler occurred, the officers had probable cause. In light of the Tenth Circuit’s strict standard for inevitable discovery in this context, however, this is not enough. See United States v. Moore, 37 Fed. Appx. 963, 2002 WL 1335594 (10th Cir. Jun. 19, 2002) (discussing that Souza and other cases emphasize that “probable cause alone will not excuse the absence of a warrant otherwise required” in cases in which “obtaining a warrant was the only way the police could have legally opened the package”); see also United States v. Brown, 64 F.3d 1083, 1085 (7th Cir. 1995) (“[W]hat makes a discovery ‘inevitable’ is not probable cause alone … but probable cause plus a chain of events that would have led to a warrant independent of the search.”). The Tenth Circuit is “very reluctant to apply the inevitable discovery exception in situations where the government fails to obtain a search warrant and no exception to the warrant requirement exists.” United States v. Souza, 223 F.3d 1197, 1206 (10th Cir. 2000) (concluding that the doctrine should apply in the unique situation, relying heavily on the fact that the police had taken steps to obtain a warrant at the time of the premature, illegal search). The Tenth Circuit “more typically and readily appl[ies] the inevitable discovery exception in situations where some exception to the warrant requirement would have inevitably led to discovery of the evidence.” United States v. Moore, 37 Fed. Appx. 963, 968 (10th Cir. 2002). Here, there was no exception to the warrant requirement that would have inevitably led officers to the discovery of the items in the cooler.

Based on the balancing of the Cabassa factors, combined with the fact that no exception to the warrant requirement applied to these items, the court finds that the items must be suppressed.

Code enforcement officers did not violate the Fourth Amendment by entering defendant’s apartment building property to investigate claims that electrical meters had been bypassed in a way that was dangerous to anybody coming near it. They also have qualified immunity. Lease v. Tyler, 2008 U.S. Dist. LEXIS 49743 (M.D. Pa. June 30, 2008).*

A Toledo Municipal Ordinance requiring convenience stores to make surveillance videos of the activity inside of stores went too far under the Fourth Amendment because the videotaping included when the stores were closed and production of the videotape for the police was required without cause. The ordinance appears to impose unconstitutional conduct, so plaintiffs have shown a likelihood of success on the merits. The purpose of the ordinance to record potential crime was valid, but production of the tapes for periodic inspections was not. Midwest Retailer Associated v. City of Toledo, 563 F. Supp. 2d 796 (N.D. Ohio 2008).*

Defendant’s car was blocked in by police officers, so he was not free to leave. United States v. Corvera-Leal, 2008 U.S. Dist. LEXIS 50078 (D. Utah July 1, 2008).*

Third Circuit strictly interprets waiver of Fourth Amendment claims for appeal. United States v. Larken, 538 F.3d 175 (3d Cir. 2008) (not posted on Third Circuit’s website or FindLaw as of this posting):

All of the suppression issues that Rose raises on appeal are new; he did not raise them before the District Court. We disagree with the contention that Rose raised before the District Court the argument that the warrant, because it did not indicate for which of the offenses listed in the affidavit the magistrate found probable cause, authorized a general search in violation of the First and Fourth Amendments. Rose did not argue this to that Court. Instead, he argued that the warrant permitted a search for various items of evidence that could not be related to any crime, that were protected by the First Amendment, and that contained information of which the Government was already aware. Only now does Rose focus on the relationship between the warrant and the affidavit’s list of offenses, asking whether the former specifically refers to any part of the latter.

In our Court, suppression issues raised for the first time on appeal are waived absent good cause under Rule of Criminal Procedure 12. See United States v. Lockett, 406 F.3d 207, 212 (3d Cir. 2005); United States v. Martinez-Hidalgo, 993 F.2d 1052, 1057-58 (3d Cir. 1993); …. Although a few of our opinions have inadvertently applied plain error review under Rule of Criminal Procedure 52(b), see United States v. Loy, 191 F.3d 360, 369 n.6 (3d Cir. 1999); United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998); United States v. Martinez-Zayas, 857 F.2d 122, 134 (3d Cir. 1988), for the reasons stated below, we do not find these cases to be controlling. Further, the Criminal Rules’ text, their history, and pertinent policy considerations direct a waiver approach. Thus, a suppression issue not raised in the District Court is waived absent good cause, and we accordingly affirm.

Installing peer-to-peer software on a computer to permit others access to the contents of the computer was a waiver of any expectation of privacy in the computer. The officer entered the computer and viewed defendant’s child porn. United States v. Ganoe, 538 F.3d 1117 (9th Cir. 2008):

Although as a general matter an individual has an objectively reasonable expectation of privacy in his personal computer, see United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007), we fail to see how this expectation can survive Ganoe’s decision to install and use file-sharing software, thereby opening his computer to anyone else with the same freely available program. The crux of Ganoe’s argument is that he simply did not know that others would be able to access files stored on his own computer. But he knew he had file-sharing software on his computer; indeed, he admitted that he used it — he says to get music. Moreover, he was explicitly warned before completing the installation that the folder into which files are downloaded would be shared with other users in the peer-to-peer network. Ganoe thus opened up his download folder to the world, including Agent Rochford. To argue that Ganoe lacked the technical savvy or good sense to configure LimeWire to prevent access to his pornography files is like saying that he did not know enough to close his drapes. Having failed to demonstrate an expectation of privacy that society is prepared to accept as reasonable, Ganoe cannot invoke the protections of the Fourth Amendment. See United States v. Bautista, 362 F.3d 584, 589 (9th Cir. 2004).

Virginia defendant was properly sued in California. He received a telephone call about plaintiff being on the TSA No-Fly list, and he directed she be detained. She was handcuffed in front of her daughter, held three hours, and released. Rahinah v. Dep’t of Homeland Security, 538 F.3d 1250 (9th Cir. 2008).*

Affidavit for search warrant was not so facially deficient that the good faith exception should not apply. State v. Akers, 2008 Ohio 4164, 2008 Ohio App. LEXIS 3523 (12th Dist. August 18, 2008).*

Defendant invited officers into his house because he didn’t want to talk to them on his step. They were there to talk about a grow operation, and they knew that confederates had been arrested with guns. Once inside, defendant was acting nervously, and that justified a patdown. United States v. Wise, 2008 U.S. Dist. LEXIS 62535 (E.D. Mo. February 19, 2008).*

Denial of defendant’s motion to suppress evidence is reversed and his conviction for drug- and firearm-related offenses is vacated where: (1) the Sixth Circuit leaves unanswered whether probable cause or “reason to believe” is the correct standard governing when officers may enter a residence to execute an arrest warrant under Payton and Steagald; but (2) an apartment manager in this case was acting as an agent of the government, and officers’ remaining information failed to establish even a reasonable belief that defendant was inside an apartment; and (3) thus, a search of the apartment violated defendant’s Fourth Amendment rights, and all evidence obtained as a result should have been suppressed. United States v. Hardin, 539 F.3d 404, 2008 FED App. 0317P (6th Cir. 2008).

Defendant’s husband was a police officer, and he consented to a search of her car which was half his for drugs. Her refusal to consent came after he consented, and it was too late to prevent the search. Lynn v. Commonwealth, 257 S.W.3d 596 (Ky. App. 2008).