Officer’s reasonable error of fact about window tint did not void the stop. State v. Wimberly, 2008 Fla. App. LEXIS 11440 (Fla. App. 5th DCA July 25, 2008):

If an officer makes traffic stop based on a mistake of fact, the court must determine whether the officer’s mistake of fact was reasonable. Great deference is given to the judgment of trained law enforcement officers “on the scene.” See Saucier, 533 U.S. at 205-06 (discussing excessive force claims while noting that excessive force and probable cause determinations are subject to same Fourth Amendment analysis). “The principal components of a determination of reasonable suspicion or probable cause will be … viewed from the standpoint of an objectively reasonable police officer. …” Ornelas, 517 U.S. at 696. “[W]hat is generally demanded of the many factual determinations that must regularly be made by agents of the government … is not that they always be correct, but that they always be reasonable.” Illinois v. Rodriguez, 497 U.S. 177, 185, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990). An officer’s mistake of fact may provide the objective basis for reasonable suspicion or probable cause under the Fourth Amendment because of the intensely fact-sensitive nature of reasonable suspicion and probable cause determinations. See Ornelas, 517 U.S. at 695-96. Consequently, an officer’s mistake of fact does not necessarily render his actions unreasonable, because what is reasonable will be dependent on the specific circumstances presented by each case. Chanthasouxat, 342 F.3d at 1276. To hold otherwise would force police to determine conclusively whether a violation had occurred before they have probable cause to investigate it. Such a standard would be more expansive than the Fourth Amendment, which limits only “unreasonable” searches and seizures.

Trial court’s credibility determination on defendant’s consent. Pritchard v. State, 987 So. 2d 204, 33 Fla. L. Weekly D 1852 (Fla. App. 5th DCA 2008).*

A Miranda violation with a voluntary statement does not justify suppression of evidence derived from it. Reaves v. State, 284 Ga. 181, 664 S.E.2d 211 (2008).*

State officer’s arrest was certainly with probable cause, so the court does not need to grapple with the outer limits of what Virginia v. Moore means on the officer’s jurisdictional limits. United States v. Sed, 2008 U.S. Dist. LEXIS 52916 (W.D. Pa. July 11, 2008).*

Actual discovery of the alleged unlawful nature of plaintiff’s search was within the statute of limitations period even though the search was beyond it. Johnson v. Garza, 2008 U.S. Dist. LEXIS 52947 (N.D. Ill. July 11, 2008).*

Affidavit for search warrant for documents in a tax fraud case clearly showed probable cause to believe that tax fraud was occurring. United States v. Auffenberg, 2008 U.S. Dist. LEXIS 52736 (D. V.I. May 5, 2008).*

A computer probation search condition was permissible because it was related to defendant’s child pornography offense. United States v. Goddard, 537 F.3d 1087 (9th Cir. 2008):

Likewise, the concept of monitoring and most of Condition 6 is consistent with Rearden. Subjecting computers and other devices able to access the Internet to monitoring, search and seizure is critical to preventing Goddard from viewing or obtaining child pornography, and requiring him to provide billing records is reasonably related to this objective. Accord United States v. Jeremiah, 493 F.3d 1042, 1046 (9th Cir. 2007) (monitoring finances permissible for defendant who failed to pay restitution).

“Gun stop” anonymous call about possession of a gun led officers to a knock-and-talk at defendant’s apartment in NYC. The court credits the officers that the defendant consented to the entry and search. United States v. Grant, 2008 U.S. Dist. LEXIS 60986 (S.D. N.Y. August 1, 2008).*

False statement in the affidavit that a gun would be found was not material (and Franks not even cited) where the search found a gun in plain view and there was probable cause anyway. United States v. Williams, 2008 U.S. App. LEXIS 17094, 2008 FED App. 0480N (6th Cir. August 8, 2008) (unpublished).*

During a search of suitcases, officers had probable cause to cut into candles which contained meth. The issue was presented as exceeding consent by cutting into the candles, which would have been potentially a valid claim, but the court obviated that issue by finding probable cause. United States v. Santana-Aguirre, 537 F.3d 929 (8th Cir. 2008).*

Officers saw a juvenile smoking a joint, and he discarded it as they approached. It was retrieved and the juvenile and his companion were handcuffed and arrested. The companion was searched, finding marijuana. The arrest of the companion was unjustified. In re Antonio B., 166 Cal. App. 4th 435 (2d Dist. 2008):

Detective Cepeida’s “policy” of handcuffing any suspect he detains for further investigation regardless of the circumstances of the stop ignores the constitutional directive that a detention based upon reasonable suspicion of criminal activity must be conducted using the least intrusive means reasonably available under the circumstances of that particular detention. (People v. Celis, supra, 33 Cal.4th at pp. 674–675.) Because the use of handcuffs on appellant during the stop was not warranted under the circumstances, the seizure constituted an arrest rather than a detention. As there was no probable cause to arrest appellant at the time he was handcuffed, the arrest was illegal, and the consent to be searched, which on this record flowed directly from the illegal arrest, was not voluntary. Therefore, the evidence discovered must be suppressed. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 783–784, 791 [195 Cal. Rptr. 671, 670 P.2d 325] [evidence found in search must be suppressed when defendant consented to search during illegal detention]; People v. Valenzuela (1994) 28 Cal.App.4th 817, 833 [33 Cal. Rptr. 2d 802] [“it is axiomatic that a consent to search produced by an illegal arrest or detention is not voluntary”].)

After acquired information may nullify probable cause for an arrest or continued detention, but the question is what the officers knew at the beginning as to the legality of the stop. Here, the after acquired information nullified one offense but not another. United States v. Creighton, 277 Fed. Appx. 796 (10th Cir. 2008) (unpublished).*

Certificate of appealability on a 2254 claim is denied. As to the Fourth Amendment claim, defendant had no standing, effectively reaching the merits of the claim. Stone v. Powell mentioned in passing as an alternative ground. Long v. Roberts, 277 Fed. Appx. 801 (10th Cir. 2008).*

Search of defendant’s computer was shown to be voluntary on the totality of circumstances. United States v. Smith, 276 Fed. Appx. 568 (9th Cir. 2008) (unpublished).*

“Please, go ahead” is consent to search a vehicle. United States v. $545,855.00 in United States Currency, 277 Fed. Appx. 652 (8th Cir. 2008) (unpublished).*

Trial court’s finding that the officer was not entirely credible on the question of reasonable suspicion for a stop was not unsupported by the evidence. State v. Karkiewicz, 2008 Ohio 2256, 2008 Ohio App. LEXIS 1931 (3d Dist. May 12, 2008) (drifted over fog line once).*

The trial court’s finding that there was reasonable suspicion for a stop was based on defendant drifting over the fog line twice. State v. Hoffman, 2008 Ohio 2253, 2008 Ohio App. LEXIS 1930 (3d Dist. May 12, 2008).*

The trial court’s finding that there was no reasonable suspicion for continuing the stop was supported by the evidence. State v. Bailey, 2008 Ohio 2254, 2008 Ohio App. LEXIS 1933 (3d Dist. May 12, 2008).*

Mother of adult son had no apparent authority to consent to a search of a padlocked closet in their house. When asked for consent, she said that only he had the key. People v. Snipe, 2007 NY Slip Op 27375, 17 Misc. 3d 571, 841 N.Y.S.2d 763 (Bronx Co. 2007).*

Defendant’s wife, co-owner of their truck, had apparent authority to consent to a search of it. Howard v. State, 239 S.W.3d 359 (Tex. App. — San Antonio 2007).*

“Based on the record before us we conclude that the encounter between the officer and appellant was a consensual encounter and did not change into an investigatory stop upon the officer asking P.W. for consent to conduct a pat down.” P.W. v. State, 965 So. 2d 1197 (Fla. App. 4DCA 2007). (Comment: Like a minor really knows he has a choice to refuse consent?)*

Officer’s mistake as to speed limit where he stopped the defendant who legally was not speeding was a stop without probable cause. State v. McLamb, 186 N.C. App. 124, 649 S.E.2d 902 (2007).*

During a traffic stop, the defendant passenger asked to go to the bathroom. The officer conditioned going to the bathroom on consenting to a search. The consent was invalid. State v. Haynes, 221 Ore. App. 204, 190 P.3d 386 (2008).

Smell of burnt marijuana coming from a car during a traffic stop did not justify a search of every person in the car, applying the Washington Constitution. State v. Grande, 164 Wn. 2d 135, 187 P.3d 248 (2008):

Our cases have strongly and rightfully protected our constitution’s protection of individual privacy. The protections of article I, section 7 do not fade away or disappear within the confines of an automobile. Parker, 139 Wn.2d at 505. We have always been careful to balance an individual’s privacy concerns with the safety concerns and law enforcement duties of police officers. Within this balance, we have carefully safeguarded constitutional privacy rights by adherence to the requirement of an individualized determination before those rights can be infringed.

Defendant’s consent to search for his brother in the house did not support the finding of drugs and crack that were secreted. Here, the court recognized that secreting money in a “less secure neighborhood” was indicative of nothing. State v. Riley, 2008 Ohio 2896, 2008 Ohio App. LEXIS 2406 (2d Dist. June 13, 2008):

[*P33] Even if Officer Jones was properly engaged in a search for firearms when he looked in the closet, his testimony that he saw what appeared to be a tennis shoe, but “not … real clearly,” with a plastic baggie partially out of the shoe, falls short of establishing that the incriminating character of the object was immediately apparent to him. He did not testify that he observed the crack cocaine in the baggie before he retrieved the baggie from the shoe. As for the money found under the liner in the trash can, even if Jones was properly engaged in a search for firearms at that time, there was nothing in his testimony, absent the prior, unlawful recovery of the crack cocaine, from which he could reasonably have determined that the money was either contraband or evidence of criminal conduct. It is easy to imagine innocent motives for hiding money in a place like underneath a trash can liner even in better neighborhoods, let alone in less secure neighborhoods.

Prosecutor’s review of search warrant materials was not enough to show that the prosecutor was complicit in any failures of the application of the warrant or the warrant. Mink v. Knox, 566 F. Supp. 2d 1217 (D. Colo. 2008).*

Owner of home had authority to consent to a search of a loft area which was accessible by all. State v. Jefferson, 2008 Ohio 2888, 2008 Ohio App. LEXIS 2416 (2d Dist. June 13, 2008).*

Dog sniff of storage units was not unreasonable, so alert on defendant’s unit created probable cause. The area outside the storage unit was not private. State v. Harris, 2008 Ohio 3380, 2008 Ohio App. LEXIS 2859 (12th Dist. July 7, 2008).*

State’s alternative ground to support search was not litigated below so the appellate court would not rely on it. State v. Hansard, 2008 Ohio 3349, 2008 Ohio App. LEXIS 2853 (4th Dist. June 25, 2008).*

Homeland Security was surveilling defendant in a motel room as a marijuana dealer in Plattsburg, NY. He paid cash and had no check out date. “He approached defendant in the parking lot, displayed his badge and asked if defendant would speak to him (defendant said ‘yes’); he then asked, ‘Do you smoke dope?’ (defendant said ‘yes’) and if defendant had any on him (defendant hesitated and then indicated he had some in his backpack). We agree that, after the initial request to speak, the agent’s ‘inquiry focus[ed] on the possible criminality of [defendant]’ a level two De Bour inquiry which was justified as the agent had a ‘founded suspicion that criminality [was] afoot. …'” Consent was valid. People v. Oldacre, 2008 NY Slip Op 5973, 53 A.D.3d 675 (3d Dept. 2008).*

While Louisiana recognizes standing in any person affected by a search, defendant could not show he was affected by this search. State v. Lewis, 988 So. 2d 789 (La. App. 4 Cir. 2008).*

The right of access of the press to search warrant materials was discussed at length by the Western District of Texas at El Paso in United States v. Ketner, 566 F. Supp. 2d 568 (W.D. Tex. 2008). In this case, the court finds that protecting the informants was a greater interest and declined to unseal the search warrant materials:

This same compelling interest leads the Court to conclude that, although there may be a qualified common law right of access to these affidavits inasmuch as they are judicial records and presumptively open, it should exercise its discretion to maintain them under seal. There is no doubt that disclosure of these documents at this point would seriously interfere with an ongoing investigation. Specifically, the Court finds that disclosing these documents to public view would pose a significant risk to the life or welfare of the cooperating witnesses and defendants, and expose these same individuals to intimidation. Critical to this conclusion is that the information at issue in this investigation can be accurately described with the exact same language used by the Gunn court:

These documents describe in considerable detail the nature, scope and direction of the government’s investigation and the individuals and specific projects involved. Many of the specific allegations in the documents are supported by verbatim excerpts of telephone conversations obtained through court-authorized electronic surveillance or information obtained from confidential informants or both. There is a substantial probability that the government’s ongoing investigation would be severely compromised if the sealed documents were released. [Gunn, 855 F.2d at 574]

Thus, the Court finds the public’s right of access to documents filed in support of search warrants should yield to such grave concerns.

Officer’s knowledge about the others present before a controlled delivery of drugs in a FedEx package did not show that there was probable cause to believe he knew anything about it. His actions afterward fared no better. For all it showed, he was a bystander. United States v. Valentine, 539 F.3d 88 (2d Cir. 2008):

The officers’ interpretation of Valentine’s actions seems to have been largely informed by his presence at the surveilled apartment building and his familiarity with other men who knew the intended recipient of the FedEx delivery. “[I]n order to find probable cause based on association with persons engaging in criminal activity, some additional circumstances from which it is reasonable to infer participation in criminal enterprise must be shown.” Ingrao, 897 F.2d at 864 (quotation marks omitted). Nothing in the record linked Valentine to Lebron’s suspected narcotics activity or the FedEx delivery, and without more, his presence at the intended site of the controlled delivery — which was also his residence — cannot support probable cause. It is for these reasons that we disagree with the conclusion of the district court and find that the cumulative record is insufficient as a matter of law to “warrant a man of reasonable caution in the belief” that Valentine committed a crime. Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 69 L. Ed. 543, T.D. 3686 (1925).

It is not clear whether Samson applies to New York parolees for a suspicionless search. Here, however, there was suspicion, so that question does not have to be decided. United States v. White, 2008 U.S. Dist. LEXIS 102015 (S.D. N.Y. December 16, 2008)

Courts disagree as to whether or not the relevant parole regulation in New York is similar to the California statute at issue in Samson, and thus there is no consensus on whether or not Samson applies to cases involving New York parolees. Several courts have noted in dicta that New York does not have a statute similar to the California statute at issue in Samson, and they declined to decide whether the parole regulation and waiver signed by parolees in New York are sufficiently similar to the California statute for Samson to apply, instead finding the searches lawful on other grounds. See Alvarado v. City of New York, 482 F. Supp. 2d 332, 336 (“Samson specifically addressed a California parole statute that explicitly allowed for a search without cause by a parole officer. New York does not have an analogous provision.”) (internal citation omitted); Gathers v. White, 2007 U.S. Dist. LEXIS 9054, at *9, fn. 4 (E.D.N.Y Feb. 8, 2007) (noting that New York does not have parole-specific statutory search provisions and declining to decide whether the features of “New York’s parole landscape mean that New York allows the sort of suspicionless search of parolees that California does”); United States v. Justiniano, 2008 U.S. Dist. LEXIS 27709, *14-*15 (W.D.N.Y. May 29, 2008) (declining to apply Samson standard of suspicionless searches of parolees because “New York has no analogous statute” to the one at issue in Samson). However, opinions by other judges have suggested that the New York parole regulation and waiver are similar to the California statute in Samson. See United States v. Massey, 461 F.3d 177, 180 (2d Cir. 2006) (Miner, J. concurring) (finding the “waiver” signed by parolees authorizing searches in New York to be, “for all practical purposes, indistinguishable from the ‘waiver’ apparently signed in Samson in the form prescribed by California law”); United States v. Stuckey, 2006 U.S. Dist. LEXIS 58173, *8 (S.D.N.Y. 2006) (finding that the relevant parole regulation in New York is “[s]imilar to the California statute at issue in Samson” and holding that Samson may be dispositive, and in any case, the search was rationally and reasonably related to the parole officer’s duties).

In addition to the open question of whether or not Samson applies to cases involving New York parolees, the scope of Samson’s holding is unclear. The suspicionless search at issue in Samson was a search of the parolee’s person. At no point in the opinion does the Supreme Court address the issue of whether a suspicionless search of a parolee’s residence is permitted by the Fourth Amendment, under the California statute or otherwise.

Article: Does the Fourth Amendment Follow the Flag? On Findlaw.com by Prof. Michael Dorf, discussing In re Terrorist Bombings of U.S. Embassies in East Africa (Fourth Amendment Challenges), posted here on Nov. 27.

[FYI: U.S. District Court cases on Lexis passed last year’s total about a week ago. They will pass 100,000 for the first time next week.]

Officer’s practice of patting down every person he puts in his patrol car while a ticket is being written was unreasonable when the patdown is not based on articulable suspicion the defendant is armed. The state’s consent argument is unavailing because no reasonable person would feel he could not comply. State v. Thomas, 2008 Ohio 6595, 2008 Ohio App. LEXIS 5491 (7th Dist. December 11, 2008):

[*P29] Based on this evidence alone, it seems clear that Sergeant Timberlake acted in violation of Lozada. There were no dangerous conditions facing Sergeant Timberlake or appellant which would have necessitated that they leave the roadside and enter the police cruiser. Per Sergeant Timberlake’s own testimony, the only reason he wanted to place appellant in his cruiser was for his own convenience. Thus, pursuant to Lozada, it would appear that Sergeant Timberlake’s search for weapons before placing appellant in the cruiser was unreasonable.

. . .

[*P39] But in addition to these facts, before asking if appellant would consent to a pat down, Sergeant Timberlake told appellant that he was going to take him back to the cruiser and issue him a citation. If the officer makes a show of authority sufficient to communicate to a reasonable person that he was not free to leave, the consent to search is not voluntarily given. State v. Ingram (1992), 82 Ohio App.3d 341, 344, 612 N.E.2d 454, citing Florida v. Bostick (1991), 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389. This is a factual determination for the trial court to make. Id.

[*P40] A reasonable person in appellant’s position would not feel free to leave at the point in time when Sergeant Timberlake requested permission to conduct a pat down. At this time, Sergeant Timberlake told appellant that he was going to issue him a citation and told him that he was going to place him in the cruiser. It was entirely reasonable for appellant to feel that he was not free to leave at this point. A reasonable person would likely feel that he was required to accompany the officer to his cruiser and await the issuance of the citation. “The potentially coercive effect of the roadside detention is far more compelling when the officer requests permission to search before completing the citation.” (Emphasis sic.) State v. Bickel, 5th Dist. No. 2006-COA-034, 2007 Ohio 3517, at P26. “Once the detention is ended by the issuance of the citation a reasonable person would at least inquire as to whether or not he is free to go on his way.” (Emphasis added.) Id. at P33.

Defendant who was on the premises for 15 minutes before the police arrived, and who was a regular social guest at the house, but not an overnight guest did not have standing. United States v. Johnson, 2008 U.S. Dist. LEXIS 101396 (S.D. Ill. December 16, 2008):

Here, Defendant’s 15-minute “drop in” visit would hardly be recognized as a valuable societal institution where one seeks out shelter and privacy away from the public, as would an overnight guest. The Court will not construe and extend Olson and Carter to warrant Defendant’s claim to Fourth Amendment protection in this situation.

Plaintiff had no standing to challenge the seizure of an incriminating letter he mailed from jail when it was seized from the recipient. Lazore v. Immigration and Customs Enforcement, 2008 U.S. Dist. LEXIS 101101 (N.D. N.Y. December 15, 2008).*

Fourth Circuit holds, in light of its prior authority, that a driver not authorized by the rental company has no reasonable expectation of privacy in the rental car, recognizing a conflict in the circuits. United States v. Mincey, 2008 U.S. App. LEXIS 25508 (4th Cir. November 24, 2008) (unpublished).*

In responding to a 911 call, it was reasonable for the police to walk up to the one vehicle in the vicinity to see what was going on. United States v. Fields, 2008 U.S. Dist. LEXIS 102625 (N.D. Ind. December 18, 2008).*

Defendant IRS agents were sued under Bivens for $2,000 that disappeared between the seizure in plaintiff’s house and the bank where it was deposited. The motion to dismiss was denied because plaintiff was not obligated to pursue a Federal Tort Claims Act action first. Springer v. Horn, 2008 U.S. Dist. LEXIS 102548 (N.D. Okla. December 17, 2008).*

Search of plaintiff’s vagina for possibly hidden drugs was based on reasonable suspicion from another officer, and it was thus justified on plaintiff’s arrest under Schmerber. Rogers v. Phoenix Police Dep’t, 2008 U.S. Dist. LEXIS 102559 (D. Ariz. December 8, 2008).*

The consenter had no apparent authority to consent to a search of defendant’s shoe box because there was no common control. United States v. Taylor, 2008 U.S. Dist. LEXIS 102085 (N.D. Ohio December 9, 2008):

Here, as in Waller, Fultz, and Purcell, the court finds that Arnett lacked actual authority to consent to the search of Taylor’s closed shoe box because: (1) none of Arnett’s personal effects were contained in Taylor’s shoe box; (2) the evidence shows that Taylor exercised exclusive control over the shoe box; and (3) the evidence shows that Taylor never gave Arnett permission to open the shoe box. The government’s attempt to argue that Arnett had actual authority to consent to the search of the closed shoe box because some of Arnett’s personal effects were stored in the closet where the shoe box was found is unavailing. Significantly, “what matters is not whether [Arnett] had access to the [closet], but whether she had mutual use and joint access to or control over [the shoe box].” Fultz, 146 F.3d at 1106. Accordingly, in light of Waller, Purcell, and Fultz, the court finds that the government did not meet its burden of showing that Arnett had actual authority to consent to the search of Taylor’s closed shoe box.

Plaintiff’s Fourth Amendment illegal search claim accrued at the time of the occurrence, and there was no Heck bar at the time. Kirkland v. Doe, 2008 U.S. Dist. LEXIS 101472 (D. N.J. December 15, 2008):

Although Wallace only directly addressed the issue of whether the Heck bar applied to a false arrest claim, its reasoning is equally applicable to a claim for illegal search and seizure. See Dominguez v. Hendley, 545 F.3d 585, 589 (7th Cir. 2008) (citing Wallace for the proposition that “Fourth Amendment claims as a group do not necessarily imply the invalidity of a criminal conviction, and so such claims are not suspended under the Heck bar to suit.”); see also Mallard v. Potenza, No. 94-cv-222, 2007 WL 4198246, at *3 (E.D.N.Y. Nov. 21, 2007) (noting that courts have found it a “rather modest leap” to extend Wallace‘s holding to search and seizure claims). Here, as in Wallace, there was no conviction in existence at the time the illegal search and seizure took place. Hence, the Heck bar does not apply and the two-year statute of limitations has long expired for that claim. This Court agrees with other courts in finding that Wallace supersedes the Third Circuit’s analysis in Gibson of § 1983 claims for Fourth Amendment violations. Kirkland concedes that Wallace applies to his Fourth Amendment claims (Pl.’s Br. 5) and that the Heck bar does not defer accrual of those claims. Because Kirkland did not file his Complaint until after the two-year statute of limitations on his Fourth Amendment claims expired, those claims are dismissed.

(Comment: They get you coming and going. Heck led people to not file claims while they awaited the outcome of the Fourth Amendment claim, then Wallace holds it accrued in the beginning. Gotcha.)