Informant was unproven going in, but the officers corroborated him, and that gave probable cause for the stop of defendant’s car. United States v. Nolen, 536 F.3d 834 (8th Cir. 2008).*

Owner of a pickup truck has standing to challenge the search of the bed of his truck. United States v. Chavez, 534 F.3d 1338 (10th Cir. 2008).*

Colorado officer’s extra-jurisdictional stop was not a Fourth Amendment issue under Moore. United States v. Gonzales, 535 F.3d 1174 (10th Cir. 2008).*

Once an objecting party is removed, it may be permissible under Randolph to ask his spouse for valid consent. Court notes a conflict in the Circuits. United States v. Henderson, 536 F.3d 776 (7th Cir. 2008) (2-1):

Our decision in Groves did not address the precise question presented here; the two circuits to have done so are split. In United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008), an en banc majority of the Eighth Circuit determined that Randolph‘s holding is case specific and extends no further than its particular facts. In Hudspeth, police uncovered child pornography on the defendant’s business computer while executing a search warrant. Believing that Hudspeth’s home computer contained more illicit material, police asked him for consent to search it. Hudspeth refused and was taken to jail. In the meantime, other officers went to Hudspeth’s home and spoke with his wife, Georgia. She refused to allow the officers to search the home after being told why Hudspeth had been arrested. Officers then requested permission to take the home computer, and Georgia asked what would happen if she refused. The officers explained that they would obtain a search warrant and leave an armed guard in the home to ensure no evidence was destroyed. Georgia relented and consented to the seizure and search of the home computer, on which police later discovered more child pornography. Id. at 955-56.

Discussing the effect of Randolph on existing consent-search law, the Eighth Circuit noted that Randolph relied on two factors to distinguish its holding from Matlock and Rodriguez: the defendant’s physical presence and immediate objection to the search. Id. at 959. Hudspeth was neither present nor immediately objecting when Georgia gave her consent to take the home computer. Accordingly, the Eighth Circuit concluded, “the narrow holding of Randolph, which repeatedly referenced the defendant’s physical presence and immediate objection, is inapplicable here.” Id. at 960. The court noted the Matlock principle that a tenant who chooses to share premises necessarily relinquishes some privacy and risks that in his absence a cotenant may allow authorities to search–even if he preemptively objected. “[T]he absent, expressly objecting co-inhabitant has assumed the risk that another co-inhabitant might permit the common area to be searched.” Id. at 961 (internal quotation marks omitted).

The Ninth Circuit reached the opposite conclusion in United States v. Murphy, 516 F.3d 1117 (9th Cir. 2008). There, the police followed two methamphetamine dealers to a rental-storage facility; they knew the defendant, Stephen Murphy, was living in one of the units with the permission of the renter, Dennis Roper. When police arrived at the unit, Murphy opened the door, and the officers could see an operating meth lab in plain view. After performing a limited protective sweep, the officers asked Murphy for consent to search, which he refused. Murphy was then arrested and taken to jail, and Roper appeared on the scene. Denying any knowledge of the lab, Roper consented in writing to a search of the unit. Citing Randolph, Murphy moved to suppress the evidence obtained from the search. The district court denied the motion, but the Ninth Circuit agreed with Murphy and reversed. Id. at 1119-20.

. . .

Like the Eighth Circuit, we see the contemporaneous presence of the objecting and consenting cotenants as indispensable to the decision in Randolph. Indeed, the fact of a conflict between present co-occupants plays a vital role in the Randolph majority’s “social expectations” premise; a third party, attuned to societal customs regarding shared premises, would not, “[w]ithout some very good reason,” enter when faced with a disputed invitation between cotenants. Randolph, 547 U.S. at 113. The calculus shifts, however, when the tenant seeking to deny entry is no longer present. His objection loses its force because he is not there to enforce it, or perhaps (if we understand the Court’s rationale correctly) because the affront to his authority to assert or waive his privacy interest is no longer an issue. As between two present but disagreeing residents with authority, the tie goes to the objector; police may not search based on the consent of one in the face of “a physically present inhabitant’s express refusal of consent” to search. Id. at 122. We do not read Randolph as vesting the objector with an absolute veto; nothing in the majority opinion suggests the Court was creating a rule of continuing objection.

Neither the Eighth nor the Ninth Circuit considered the limiting effect of Justice Breyer’s concurrence on the scope of the majority opinion. As we have noted, Justice Breyer joined the other four members of the majority with the understanding that the Court’s opinion was “case specific” and “does not apply where the objector is not present and objecting.” Id. at 126-27 (Breyer, J., concurring) (internal quotation marks omitted). That, and the specific limiting language in the majority opinion itself, convince us that Randolph’s holding ought not be extended beyond the circumstances at issue there. See id. at 106 (“We hold that, in the circumstances here at issue, a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.”) (emphasis added).

The Ninth Circuit’s decision in Murphy essentially reads the presence requirement out of Randolph, expanding its holding beyond its express terms and giving rise to many questions with no readily identifiable principles to turn to for answers. If an objecting co-occupant’s presence is not required, are there any limits to the superiority or duration of his objection? What circumstances (if any) operate to reinstate a co-occupant’s authority to consent to a search? May an occupant arrested or interviewed away from the home preemptively object to a police request to search and effectively disable his co-occupants from consenting even in his absence? Murphy‘s answer–that the objecting occupant’s objection is binding until he, and only he, objectively manifests his consent to a search–ignores Randolph‘s social-expectations foundation. A prior objection by an occupant who is no longer present would not be enough to deter a sensible third party from accepting an invitation to enter by a co-occupant who is present with authority to extend the invitation. Under these circumstances even an initially reluctant guest would feel confident he was not breaking any unwritten social rules by entering. Just as a tenant’s mere presence is not enough to override his cotenant’s consent, see Rodriguez, 497 U.S. at 170 (tenant asleep in the next room), so too his objection is not enough if he is absent from the later entry by authorities with the voluntary consent of his cotenant.

Our dissenting colleague suggests that this view of social expectations is Hobbesian: “Only in a Hobbesian world would one person’s social obligations to another be limited to what the other is present and able to enforce.” Infra p. 22. This rather overstates our analysis, which is limited to the present, narrow context of an outsider confronted with a contemporaneous disagreement between two residents with equal authority to consent to entry. In this situation, a visitor who relies on the express permission given by one resident after the departure of the objecting resident is not necessarily opportunistic, nor always a social outlaw. True, “adjourn[ing] to a nearby coffee shop rather than risk[ing] the wrath of the absent tenant” is one way to resolve the dilemma, id., but it is hardly the only socially acceptable option. See Randolph, 547 U.S. at 129-30 (Roberts, C.J., dissenting) (“The fact is that a wide variety of differing social situations can readily be imagined, giving rise to quite different social expectations. … The possible scenarios are limitless, and slight variations in the fact pattern yield vastly different expectations about whether the invitee might be expected to enter or to go away.”). We know of no social convention that requires the visitor to abstain from entering once the objector is no longer on the premises; stated differently, social custom does not vest the objection with perpetual effectiveness.

This is an issue to be resolved en banc by the Seventh Circuit or a cert grant may be brewing.

Egregious Payton violation of warrantless entry into the home justifies exclusion of evidence obtained for deportation despite Lopez-Mendoza. Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008):

In INS v. Lopez-Mendoza, the Supreme Court held that the Fourth Amendment exclusionary rule does not generally apply in deportation proceedings, where the sole issues are identity and alienage. 468 U.S. 1032, 1034 (1984). “However, the Court expressly left open the possibility that the exclusionary rule might still apply in cases involving ‘egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.'” Orhorhaghe v. INS, 38 F.3d 488, 492-93 (9th Cir. 1994) (quoting Lopez-Mendoza, 468 U.S. at 1050-51). We have since “t[aken] up the Supreme Court’s suggestion” and “held that, even in administrative proceedings in which … the exclusionary rule [does [*9] not ordinarily apply], administrative tribunals are still required to exclude evidence that was ‘obtained by deliberate violations of the Fourth Amendment or by conduct a reasonable officer should know is in violation of the Constitution.'” Id. at 493 (quoting Adamson v. Comm’r, 745 F.2d 541, 545 (9th Cir. 1984)). In assessing whether the INS agents’ conduct amounts to an “egregious violation” of the petitioners’ rights, “we must first determine whether the agents violated the Fourth Amendment. If they did, then we must determine whether the agents committed the violations deliberately or by conduct a reasonable officer should have known would violate the Constitution.” Id. (footnote omitted).

. . .

2. Applicability of the Exclusionary Rule for “Egregious” Violations

The statements sought to be suppressed were obtained from Gastelum and Lopez in the custody immediately following the unconstitutional entry of their residence. The government has made no attempt to bear its burden of showing any change in circumstances or attenuation that would prevent the statements from qualifying as fruits of the Fourth Amendment violation. See Brown v. Illinois, 422 U.S. 590, 604-05 (1975). The statements would therefore be excludible in a criminal case. See Wong Sun v. United States, 371 U.S. 471, 485-86 (1963). In the present proceeding, however, we must next consider whether “the violations were sufficiently egregious to warrant the application of the exclusionary rule in these civil deportation proceedings.” Orhorhaghe, 38 F.3d at 501. A Fourth Amendment violation is “egregious” if “evidence is obtained by deliberate violations of the [F]ourth [A]mendment, or by conduct a reasonable officer should [have known] is in violation of the Constitution.” Gonzalez-Rivera v. INS, 22 F.3d 1441, 1449 (9th Cir. 1994) (quoting Adamson, 745 F.2d at 545) (emphasis and final alteration original). We conclude that reasonable officers should have known that they were violating the Fourth Amendment in entering Gastelum’s and Lopez’s home without a warrant, consent, or exigent circumstances.

Few principles in criminal procedure are as well established as the maxim that “the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton, 445 U.S. at 590. Accordingly, although the voluntary consent of a party who has authority over the premises renders the warrantless entry of a person’s home by law enforcement personnel constitutionally valid, see, e.g., Matlock, 415 U.S. at 169-71, exceptions to the warrant requirement are “jealously and carefully drawn,” Jones v. United States, 357 U.S. 493, 499 (1958). As we have already noted, in keeping with the narrow scope of the consent exception, we “ha[ve] never sanctioned entry to the home based on inferred consent” in the absence of a request by the officers or ongoing, affirmative cooperation by the suspect. Shaibu, 920 F.2d at 1426 (citing United States v. Impink, 728 F.2d 1228, 1233-34 (9th Cir. 1984)); …. Indeed, a full decade before the events giving rise to this litigation took place, we held that “in the absence of a specific request by police for permission to enter a home, a defendant’s failure to object to such entry is not sufficient to establish free and voluntary consent. We will not infer both the request and the consent.” Shaibu, 920 F.2d at 1428.

Against this unequivocal doctrinal backdrop, reasonable officers would not have thought it lawful to push open the door to petitioners’ home simply because Gastelum did not “tell them to leave or [that] she did not want to talk to them.” There is nothing ambiguous or arcane about our holding in Shaibu, which was handed down ten years prior to the INS agents’ entry of petitioners’ home. Nor has the government pointed to any authority in our Fourth Amendment jurisprudence suggesting that the warrant requirement applies with any less force in the administrative context. See Camara, 387 U.S. at 534 (requiring a warrant for civil administrative searches of residences). We conclude that reasonable INS agents should have known that they were violating the Fourth Amendment when they entered Gastelum’s and Lopez’s residence. Our confidence in this result is further underscored by our cognizance of “the extensive training INS agents receive in Fourth Amendment law.” Orhorhaghe, 38 F.3d at 503 n.23 (citing Lopez-Mendoza, 468 U.S. at 1044-45). Thus, the INS agents’ Fourth Amendment violation was “egregious” under this Circuit’s controlling interpretation of the term. See Adamson, 745 F.2d at 545. The fruits of the constitutional violation accordingly should have been suppressed.

The search warrant said it was issued January 24, 2006, but it had to be 2007. This was a mere scrivener’s error, and the warrant was served within ten days as required by state law. (Presented as an IAC claim.) United States v. Nelson, 2008 U.S. Dist. LEXIS 63443 (N.D. Okla. August 19, 2008).*

Officer had reasonable suspicion for further detention of defendant at a traffic stop. The officer recognized defendant’s car from having frequented an “open air drug market” a month earlier. “Context is important in evaluating a reasonable suspicion determination, and the fact that the Mercedes had only recently been pulled over in an area known for open-air drug trafficking could serve to put Officer White on alert.” That, coupled with the defendant’s excessive nervousness and shaking hands and failure to make eye contact. He also received a radio call that defendant was a well known drug dealer. All this was reasonable suspicion. United States v. Branch, 537 F.3d 328 (4th Cir. 2008).*

Use of a ruse that defendant was a suspect in a nonexistent crime to get his DNA and then test it against another crime did not make his consent invalid. The police did not misrepresent that they did not have a warrant, and defendant was not a stranger to police procedure. Wyche v. State, 987 So. 2d 23 (Fla. 2008).

Defendant’s refusal of consent prevented the police from seeking consent from his mother. The parent-child hiearachy of ability to consent, since this is an adult child, does not alter the outcome. Martin v. United States, 952 A.2d 181 (D.C. App. 2008).

Defendant’s lying to officers gave probable cause to arrest him, and that justified a search incident. Taylor v. State, 891 N.E.2d 155 (Ind. App. 2008).*

Arrest warrant for violating parole and seeing a gun is probable cause to believe the defendant is a felon in possession. United States v. Loveland, 2008 U.S. Dist. LEXIS 58995 (D. Minn. August 5, 2008).*

Defendant was stopped for speeding on an ATV illegally on a public road, and, when he retrieved his license from a fanny pack, drugs were seen in plain view. The seizure was valid. Howard v. State, 987 So. 2d 506 (Miss. App. 2008).*

Housemates had common authority to consent to a search of the common areas of defendant’s house. State v. Robinson, 986 So. 2d 716 (La. App. 5th Cir. 2008)*; State v. Butt, 2008 Ohio 2587, 2008 Ohio App. LEXIS 2164 (2d Dist. May 30, 2008)*.

Defendant was stopped in a high crime area, and he was startled and acted nervous. That added up to reasonable suspicion. State v. Honeycutt, 987 So. 2d 250 (La. App. 5th Cir. 2008), released for publication August 1, 2008*; State v. Huntley, 986 So. 2d 792 (La. App. 5th Cir. 2008).*

Mistake of fact as to the purpose of the stop of the defendant for a malfunctioning light was not enough to void it because the lights looked like they were malfunctioning. United States v. McHugh, 2008 U.S. Dist. LEXIS 42171 (E.D. Va. May 29, 2008).*

There is no expectation of privacy in a dormitory hallway. Trial court erred in finding one. State v. Houvener, 145 Wn. App. 408, 186 P.3d 370 (2008).*

“‘There is no authority–either statutory or otherwise–permitting an officer to seize a witness without a warrant, absent exigent circumstances or officer safety.’ State v. Carney, 142 Wn. App. 197, 203, 174 P.3d 142 (2007) (Bridgewater, J.), petition for review filed (Wash. Jan 23, 2008) (No. 81124-5); see id. at 206-07 (Penoyar, J., concurring); id. at 210 (Quinn-Brintnall, J., dissenting).” State v. Dorey, 145 Wn. App. 423, 186 P.3d 363 (2008).*

Baggage on an airplane from St. Croix VI to NYC can be subjected to a border search, even though there is no traditional customs. Defendant had drugs that were so well sealed that a dog did not alert, but the search was conducted anyway after the plane was boarded, and the bags removed for a search. United States v. Stevens, 2008 U.S. Dist. LEXIS 97904 (D. V.I. April 16, 2008):

The Virgin Islands, acquired from the Kingdom of Denmark in 1917, is an unincorporated territory of the United States. Congress has the power under Article IV, § 3, cl. 2 of the Constitution to make “all needful Rules and Regulations respecting the Territory … belonging to the United States.” Pursuant to this power, Congress has created a border for customs purposes between the Virgin Islands and the continental United States. 19 U.S.C. §§ 1401(h) and 1467; United States v. Hyde, 37 F.3d 116, 121 (3d Cir. 1994). Our Court of Appeals has explained, “[A]s far as the interests of the sovereign are concerned, we perceive the interest of the United States in warrantless searches without probable cause at this “internal” border to be little different from its interest in such searches at its international borders.” Id. at 122. Accordingly, the search of Stevens’ luggage at the airport in St. Croix did not require a warrant or probable cause, and it survives any constitutional challenge. The drugs found in her luggage supply the necessary probable cause for her detention and subsequent arrest.

The plaintiff was an undercover FBI agent working at a motorcycle rally in New Jersey. He was stopped by local officers while in character, and he was arrested and hurt during the arrest when he was manhandled and handcuffed. He identified himself as an FBI agent and produced his credentials, and, after one telephone call to somebody who did not and would not know, he was arrested for impersonating an FBI agent. Defendant’s motion for summary judgment denied. Plaintiff presented a fact question for trial. Frohner v. City of Wildwood, 2008 U.S. Dist. LEXIS 97536 (D. N.J. December 1, 2008).*

A protective sweep was justified by hearing somebody inside yell “flush it!” and seeing a receiver to an M-16 rifle during an entry. Officer safety was an issue. United States v. Valladares, 2008 U.S. Dist. LEXIS 96936 (C.D. Cal. November 5, 2008).*

Under Milwaukee’s trash collection “winter rules,” residents are not required to put their trash containers at the curb and city trash collectors are expected to enter upon a householder’s property to retrieve it. Therefore, defendant did not have a reasonable expectation of privacy in trash on the curtilage on trash day. United States v. Simms, 2008 U.S. Dist. LEXIS 96883 (E.D. Wis. August 26, 2008).*

Conflict in the government’s own witness’s testimony made the court unable to conclude that the defendant consented to seizure of papers off his person or any other exception to the warrant requirement. United States v. Angelov, 2008 U.S. Dist. LEXIS 96908 (S.D. Fla. October 14, 2008).*

Defendant was in a high crime area at night and adjusted his waistband in a manner the officer said looked like he was checking a gun. None of the factors cited by the police was sufficient and collectively (as Arvizu requires) sufficient. United States v. Doughty, 2008 U.S. Dist. LEXIS 74248 (S.D. N.Y. September 18, 2008):

But Officer Rodriguez’s impression of how he looked adjusting his weapon, without more, is insufficient grounds to provide “reasonable suspicion” of criminal activity. He did not testify that he relied on his professional experience as a police officer or on any particular training in the police academy or subsequently to identify Defendant’s movement as consistent with movement of a person carrying a gun in the waistband. See Arvizu, 534 U.S. at 273-74 (in determining whether reasonable suspicion exists, Court stressed importance of allowing officers to draw upon “their own experience and specialized training”). Further, there are a myriad of innocent explanations for Defendant’s conduct. He could have been simply hitching up his pants or tucking in his shirt. And the fact that neither officer saw a bulge — a telltale sign of weapons possession — makes it less likely that his suspicion was that of an objectively reasonable police officer. Cf. United States v. Scott, 250 Fed. Appx. 534, 535 (4th Cir. 2006) (explaining how a bulge or visible object underneath clothing provides reasonable suspicion); United States v. Roundtree, 596 F.2d 672, 674 (5th Cir. 1979) (reasonable suspicion established where defendant had bulge on inside of his calf which he was seen “adjusting”). Thus, this factor too would not, standing alone, sufficiently elevate a reasonable officer’s suspicions to the level where the officer is permitted to stop and detain the suspect for questioning.

Preemptive civil suit against a criminal investigation to enjoin it is barred under Younger v. Harris. The defendant was charged with a crime after the suit was brought. Bernegger v. Haney, 2008 U.S. Dist. LEXIS 70740 (N.D. Miss. September 18, 2008):

Certain types of injury, such as the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered “irreparable” in the special legal sense of the term. Younger, 401 U.S. at 46. Rather, “the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution.” Id. “No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and hence unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid.” Id. (citations omitted).

Indeed, it would produce illogical and untoward results, if a criminal defendant or suspect were allowed to interfere with or halt criminal proceedings by preemptively filing a civil suit. Like Younger and the long line of cases to follow, there “does not appear from the record that [the Plaintiff has] been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith.” Douglas v. City of Jeanette, 319 U.S. 157, 164, 63 S.Ct. 877, 881, 87 L.Ed. 1324 (1943). There are no extraordinary circumstances present in this matter which would warrant enjoining the criminal proceedings. Compare Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).

Defendant’s gun was taken during a 2004 traffic stop and test-fired with the results going into IBIS (Integrated Ballistic Identification System) under a departmental policy of testing all guns in inventory. In 2006, the gun was linked to a murder and then back to the defendant. The 2004 test of the gun was not unreasonable. Engram v. State, 2008 Ind. App. LEXIS 2035 (September 19, 2008):

Engram also argues that the results of the 2004 ballistic test should have been suppressed because the test was performed without probable cause in violation of the Fourth Amendment. As noted above, the police department test-fired Engram’s handgun pursuant to a department policy. That policy required test-firing on all handguns of specified calibers that are in police custody, as well as documentation of the results in a national database. The constitutionality of routine test-firing by law enforcement of firearms legitimately in its custody is a matter of first impression. From the record it appears that the routine testing of firearms in the custody of the Indianapolis Police Department (now the Indianapolis Metropolitan Police Department) was commonplace in 2004, and there is no indication that the policy has changed in the interim. Thus, we consider whether the routine test-firing of firearms that are legitimately in police custody violates the Fourth Amendment.

. . .

Here, Engram has not shown that he exhibited an actual expectation of privacy in the unique markings made by his handgun on bullets and casings fired from that weapon. Engram argues in his brief that he had an expectation of privacy, but he does not support that argument with citations to the record supporting that contention. As such, Engram has waived his claim that he had a subjective expectation of privacy in the unique markings made by his handgun.

Further, Engram has not shown that the markings made by his firearm on bullets and casings constitutes a privacy interest that society is prepared to recognize as reasonable. Indeed, society has a substantial interest in maintaining a record of firearms confiscated by law enforcement incident to a valid arrest. Carrying a handgun requires a license, which is obtained only after the applicant is cleared to carry a handgun pursuant to statutory criteria. See Ind. Code §§ 35-47-2-1, -3. Given the danger of firearms when improperly used and the connection between firearms and violent crime, we cannot conclude that society is willing to recognize a privacy interest in the markings made by firearms on bullets and casings.

“Official conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Illinois v. Caballes, 543 U.S. 405, 408, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). Because Engram had no subjective expectation of privacy in the unique markings made by his handgun and because society is not willing to recognize such a privacy interest, we hold that the police department’s routine test-firing of weapons legitimately under its custody is not a search protected by the Fourth Amendment. See State v. Friedel, 714 N.E.2d 1231, 1236 (Ind. Ct. App. 1999) (“In order to challenge the constitutionality of a search, a defendant must have a legitimate expectation of privacy in that which is searched.”). The test-firing of Engram’s handgun revealed no private information but did provide an additional means to identify his weapon apart from its serial number. Engram’s argument that the 2004 test-firing of his handgun violated his Fourth Amendment rights must fail.

Defendant injected himself into a homicide investigation, and the officers patted him down and found car keys, which they seized. “They acted reasonably in removing the car keys from Defendant’s person to prevent him from compromising their investigation. The subsequent pat down of Defendant when he was placed in the police wagon while the premises were secured was also reasonable. Defendant had at that point intentionally injected himself into the homicide investigation, and based upon his behavior, the Detectives suspected that Defendant could be involved in the crime that they were investigating.” United States v. Walker, 2008 U.S. Dist. LEXIS 72907 (E.D. Pa. September 23, 2008).*

Illegal stop was the cause of an inventory on defendant’s arrest for driving on a suspended license so it was suppressed under Wong Sun. United States v. Blackburn, 2008 U.S. Dist. LEXIS 74333 (S.D. Ala. September 26, 2008).*

During a consent search, the consenter lifted the lid of a box exposing the contents to the officer which were then in plain view. State v. Best, 2008 Tenn. Crim. App. LEXIS 744 (September 25, 2008).*

The defendant’s showing to get a Franks hearing was conclusory and no more than a desire to cross examine, so a hearing was denied. United States v. Longhi, 2008 U.S. Dist. LEXIS 74126 (D. Conn. September 26, 2008).*

911 call is quintessentially an emergency that has to at least be checked out, and it justifies an entry onto the curtilage to go to the door. Nail v. Gutierrez, 2008 U.S. Dist. LEXIS 80691 (N.D. Ind. October 10, 2008):

Dialing 911 is a common way to convey to the police that there is an emergency at hand. As the Seventh Circuit has noted:

A 911 call is one of the most common–and universally recognized–means through which police and other emergency personnel learn that there is someone in a dangerous situation who urgently needs help. This fits neatly with a central purpose of the exigent circumstances (or emergency) exception to the warrant requirement, namely, to ensure that the police or other government agents are able to assist persons in danger or otherwise in need of assistance.

United States v. Richardson, 208 F.3d 626, 630 (7th Cir. 2000). Anonymous 911 hangup calls often present an even higher need for police investigation. “Many 911 calls are brief, and anonymous, precisely because the speaker is at risk and must conceal the call. These persons are more rather than less in need of assistance.” United States v. Elder, 466 F.3d 1090, 1091 (7th Cir. 2006). Therefore, the fact that an anonymous 911 hangup was received from Nail’s residence more than justified entry onto his property for purposes of investigation. It is true, as Nail contends, that the 911 call could have been as benign as a child playing with the phone. But that possibility is not enough to quell the reasonable fear that an officer might have for occupants of the residence.

Inventory search law does not require less intrusive measures be applied. Even so, there was no evidence that the defendant even requested that the vehicle go to his house, which was just blocks away. United States v. Sandifer, 2008 U.S. Dist. LEXIS 80668 (S.D. Miss. August 11, 2008).*

Eyewitness called and gave her name. She was not an anonymous tipster. State v. Nowden, 2008 Ohio 5383, 2008 Ohio App. LEXIS 4529 (2d Dist. October 10, 2008):

[*P25] The call the police received was not an “anonymous tip” that lacked any apparent basis for the information the caller related. Adams v. Williams. The caller identified herself as Starlina Gevedon and gave a first-hand, eyewitness account of shootings that took place at a specific address. She also identified the shooter and the vehicle he used to drive away. That information provided the police agency a reasonable suspicion necessary for the stop of Defendant’s vehicle.

Anonymous informant’s tip was not corroborated, and there was no showing of reliability. But, the officer’s experience with this defendant’s drug trafficking history was sufficient to show probable cause. State v. Shepherd, 2008 Ohio 5355, 2008 Ohio App. LEXIS 4519 (4th Dist. September 26, 2008).* (Comment: This case borders on the pathetic. The anonymous informant can be corroborated by the officer’s experience? There is no a word in this opinion that protects against the possibility [probability?] that this informant does not even exist or that it was the informant version of what we jokingly referred to in the early 70’s as a “Mississippi Search Warrant”.FN1)

1. One cop goes to the front door and another goes to the back. The officer at the front door knocks and says: “Police; we want to talk to you.” The officer at the back door says: “Come on in.”

Common sense dictates that ordinary objects, innocent in themselves, are tools of burglars. Direct proof of crime not needed, and probable cause can be inferred. United States v. Brooks, 2008 U.S. Dist. LEXIS 82067 (E.D. Pa. October 15, 2008):

Defense counsel emphasizes that the items taken or seen during the arrest that did not actually represent unambiguously illegal conduct (even if Mr. Brooks’s driving was illegal). However, it was not necessary that all the facts recounted in the probable cause affidavit constitute direct proof of a crime; it can be sufficient for purposes of finding probable cause to infer probable cause by “considering the type of crime, the nature of the items sought, the suspect’s opportunity for concealment and normal inferences about where a criminal might hide [evidence].” Jones, 994 F.2d at 1056 …. Likewise, common sense permits the acknowledgment that a limitless list of everyday “harmless” objects can, in the wrong circumstances, become handy “tools of the trade” of a criminal. Indeed, it is hard to imagine a nighttime burglar who would try to break into a dark house without some means of creating limited but focused light (to wit, a small flashlight) and some means to poke, pry, or unfasten (to wit, a screwdriver and/or knife) and to do so without his hands slipping or leaving prints (to wit, with gloves). That these tools are often used for good works does not mean they cannot be, or were not, used for the commission of a crime. The Court concludes that, looking at the “four corners” of Det. Harris’s affidavit, the issuance of the search warrant in this case meets the Gates test.

Wildlife poaching checkpoint led to defendant’s arrest for DUI. The checkpoint was legitimately set up and reasonably conducted. United States v. Fraire, 2008 U.S. Dist. LEXIS 84382 (E.D. Cal. October 8, 2008):

The Government argues that the checkpoint’s “special law enforcement concern” (poaching) entitled Ranger Felix to stop Mr. Fraire “without individualized suspicion.” The Government points to Illinois v. Lidster, 540 U.S. 419, 423, 124 S.Ct. 885 (2004), where the U.S. Supreme Court held that the Fourth Amendment forbids stops without individualized suspicion for general “crime control” purposes “in the absence of special circumstances.” The fact that a vehicle stops “normally lack individualized suspicion cannot by itself determine the constitutional outcome” in that the “Fourth Amendment does not treat a motorist’s car as his castle” and “special law enforcement concerns will sometimes justify highway stops without individualized suspicion.” Lidster, 540 U.S. at 424, 124 S.Ct. 885. The “practice of stopping automobiles briefly for questioning has a long history evidencing its utility and is accepted by motorists as incident to highway use.” Martinez-Fuerte, 428 U.S. at 561, n. 14, 96 S.Ct. 3074. A person’s “expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectations of privacy.” Martinez-Fuerte, 428 U.S. at 561, 96 S.Ct. 3074 (border patrol stops for illegal aliens “may be made in the absence of any individualized suspicion at reasonably located checkpoints”).

Mr. Fraire appears to contend that the Park checkpoint is per se illegal as a general crime control device. However, the record reflects the Park Service’s special law enforcement concerns to protect Park wildlife and visitors, to mitigate poaching and to educate on prohibition of Park hunting. Although Mr. Fraire questions the Park Service’s motives, nothing suggests that they are less than legitimate. As such, the focus turns to the checkpoint’s reasonableness.

Heck bars a civil case against plaintiff’s arrest because the conviction had not been set aside. Reed v. Cleveland, 2008 U.S. Dist. LEXIS 83993 (E.D. Ky. October 20, 2008).*