Defendant’s driving too slow at night on a military reservation was not reasonable suspicion. Court’s initial conclusion that it was is reversed and the stop suppressed. United States v. Pompa, 2008 U.S. Dist. LEXIS 72988 (S.D. Ga. September 24, 2008):

Again and again courts have recognized that driving well below the speed limit, even late at night, is in and of itself insufficient to furnish reasonable suspicion. See generally Johnson v. Sprynczynatyk, 2006 ND 137, 717 N.W.2d 586 (N.D. 2006) (no reasonable suspicion to stop driver traveling between eight and ten miles per hour in a 25 m.p.h. zone at 12:43 a.m.); Faunce v. State of Florida, 884 So.2d 504 (Fla. Dist. Ct. App. 2004) (no reasonable suspicion to stop truck traveling 10-15 m.p.h. in a 35 m.p.h. zone at 11:00 p.m.); Richardson v. State of Texas, 39 S.W.3d 634 (Tex. App. 2000) (no reasonable suspicion to stop vehicle traveling 45 m.p.h. in a 65 m.p.h. zone at 2:00 a.m.). Most courts recognize that some other indicia of impairment is necessary. See. e.g. State v. Hiatt, 184 N.C. App. 190, 645 S.E.2d 902, at *3 [published in full-text format at 2007 N.C. App. LEXIS 1292] (N.C. Ct. App. 2007) (unpublished table opinion) (finding reasonable suspicion where defendant “was driving 15 m.p.h. under the speed limit and weaving within the lane”); State of Iowa v. Miller, 682 N.W.2d 83, at *1, 3 [published in full-text format at 2004 Iowa App. LEXIS 527] (Iowa Ct. App. 2004) (unpublished opinion) (finding reasonable suspicion to stop defendant who was traveling below speed limit, stopped 15 feet away from stop line at a traffic light, made an abrupt stop that caused the front of the vehicle to dip, made an extremely slow left hand turn, failed to acknowledge the officer when he pulled up beside her, and was driving “immediately next to the curb of the road” and weaving to avoid parked vehicles); see United States v. Little, 178 F.3d 1297, at *4 [published in full-text format at 1999 U.S. App. LEXIS 5875] (6th Cir. 1999) (unpublished table opinion) (finding stop constitutional where driver had been traveling at “an unusually slow speed,” had allowed her speed to fluctuate, and had twice crossed the highway’s white shoulder line).

The Court initially concluded that, given the lateness of the hour, the exceptionally slow speed of the SUV and its pausing along (or perhaps in) the roadway for a minute or so pushed this case into the realm of reasonable suspicion. But after further reflection, the Court is now persuaded that defendant’s driving pattern–while somewhat unusual–was not sufficiently anomalous or suspicious in character as to furnish justification for an investigatory seizure of this motorist. There is no evidence that the defendant violated any provision of the Georgia traffic laws prior to the stop.

Being Tasered is a seizure. Wilson v. City of Lafayette, 2008 U.S. Dist. LEXIS 72384 (D. Colo. September 10, 2008).*

Court finds that defendant’s limited understanding of English was not an impediment to his consenting to a search of his vehicle. His actions showed he understood. United States v. Mendez, 2008 U.S. Dist. LEXIS 72393 (W.D. N.C. August 25, 2008).*

Officers’ dealing with a meth lab and their belief immediate action was required entitled them to qualified immunity. Minton v. Shultz, 2008 U.S. Dist. LEXIS 72471 (E.D. Tenn. September 23, 2008).*

Strip search on arrest of the wrong man with the same name as the man named in a warrant stated a claim for relief because there were enough discrepancies between the identifiers and the person they had before them to put them on notice it was not the same man. Caceres v. Port Auth. of N.Y. & N.J., 2008 U.S. Dist. LEXIS 72507 (S.D. N.Y. September 23, 2008).*

Claim of arrest before probable cause existed stated a claim. Cruz v. City of Philadelphia, 2008 U.S. Dist. LEXIS 72581 (E.D. Pa. September 23, 2008).*

When a search incident is proper, it can also be considered a plain view because the officer has a right to be where he or she was. United States v. Small, 2008 U.S. Dist. LEXIS 71846 (D. Me. September 19, 2008).*

A consent to enter during a knock and talk is not a consent to search. United States v. Ellis, 2008 U.S. Dist. LEXIS 71177 (W.D. La. June 24, 2008).

DNA sample was taken from defendant under a ruse that anybody arrested for exposing himself in public needed to give a sample. It was matched to a murder. The taking of the DNA was not unreasonable. Holmes v. State, 2008 Ga. LEXIS 741 (September 22, 2008).

A consent to search by a Spanish speaking defendant was not voluntary on the totality. The officer’s own testimony was the key. United States v. Vidal-Pina, 2008 U.S. Dist. LEXIS 71644 (D.N.J. September 22, 2008):

The government’s theory is that Vidal-Pina was calculating and deceptive and that his answers about his work demonstrate proficiency in English that corroborates the officers’ testimony that he understood the contents of the consent-to-search form and the verbal request to search the truck. But this simply doesn’t square with Maroney’s testimony that he was prepared to let Vidal-Pina go; it doesn’t square with the testimony that reveals, when taken as a whole, that Vidal-Pina initially communicated with a store employee and apparently got the gist of the pedigree information Maroney wanted, had enough business dealings in this country to describe what he does for a living, and never went any further in his communications without assistance. The inconsistencies to be found do not relate to Vidal-Pina’s conduct, but rather to the witnesses, who are at some odds about how much Spanish Turbett knew, or what precise answers Vidal-Pina gave to potentially explosive questions like “[w]hat were those counterfeit bills doing in your car?”; or why someone who knew he had identification documents in his car that could clear up Maroney’s dilemma knowingly remained silent about them, and then knowingly permitted police to search the truck for anything they could find in it, including contraband that he knew was there.

Traffic stops may be based on reasonable suspicion, and dictum in Whren is just that. United States v. Johnson, 2008 U.S. Dist. LEXIS 71494 n. 4(M.D. Pa. September 17, 2008):

In light of language from Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), there has been some confusion regarding whether probable cause or reasonable suspicion is needed to effect a traffic stop. Compare id. at 810 (dictum) (decision to stop automobile is reasonable when police have probable cause) with Prouse, 440 U.S. at 663 (holding) (traffic stops require “at least” reasonable suspicion). The Third Circuit dispelled any such confusion in United States v. Delfin-Colina, 464 F.3d 392 (3d Cir. 2006), when it held that reasonable suspicion–and not probable cause–is required for a “routine” traffic stop, id. at 397. As the traffic stop at issue here was not “routine,” the reasonableness of its scope is more fully addressed infra.

A child porn raid on a religious compound in Arkansas occurred within a hour of this post in the Western District of Arkansas after an e-mail between AUSAs on the case was accidentally sent to the press. The raid was to be in October. Texarkana Gazette story here. The Arkansas Democrat-Gazette e-mailed subscribers at 6:05 p.m., just after the raid started, apparently holding the story until the raid occurred.

Update: Sunday’s TG article.

Plaintiff who alleged that she had a loaded gun pointed at her head during an arrest was excessive because she was unarmed was sufficient to state a claim. The law has been established at least since 2002. Hickman v. Marzec, 2008 U.S. Dist. LEXIS 70256 (D. Del. September 18, 2008).*

Defendant was accused of converting a FEMA trailer to his own use as a hunting lodge in Alabama. A picture of the hunting lodge from open fields violated no expectation of privacy of the defendant. United States v. Broome, 2008 U.S. Dist. LEXIS 70195 (M.D. Ala. September 3, 2008).*

Police conditioning entry into premises to get necessities for a baby by turning over a stun gun was not valid consent. United States v. Williams, 2008 U.S. Dist. LEXIS 70179 (W.D. Pa. September 2, 2008).*

Officers ordered defendants out of car at gunpoint where they merely appeared in a car at a house where a search warrant was about to be executed. Other than their showing up, there was no articulable suspicion that they did anything wrong. The detention and search was unlawful. State v. Smith, 145 Wn. App. 268, 187 P.3d 768 (2008), ordered published June 24, 2008:

¶22 This court has held that when a person comes into the residence in which a search is being conducted, any detention must be justified by specific and articulable facts that create an objective, reasonable belief that the suspect is armed and dangerous and may not be based on a generalized suspicion that people present during narcotic searches are often armed. State v. Lennon, 94 Wn. App. 573, 580-81, 976 P.2d 121 (1999). There are no facts to show an individualized suspicion that Ms. Smith posed a threat to officer safety.

. . .

¶24 Less intrusive action on the part of the officers could have achieved the desired result. Notably, the detective had recorded the comings and goings of other visitors and had not detained anyone else.

¶25 Because the officers had no reasonable articulable suspicion that Ms. Smith had committed or was about to commit a crime or that she was a threat to anyone’s safety, the seizure violated Ms. Smith’s Fourth Amendment rights. All “evidence obtained as a result of an unlawful seizure is inadmissible.” State v. Reichenbach, 153 Wn.2d 126, 135, 101 P.3d 80 (2004).

Search warrant for package received at a mail drop was properly executed even though the package had been moved to defendant’s car. Search warrants are for things and places, and things move. Ferguson v. State, 292 Ga. App. 7, 663 S.E.2d 760 (2008):

“[S]earch warrants are not directed at persons; they authorize the search of ‘places’ and the seizure of ‘things,’ and as a constitutional matter they need not even name the person from whom the things will be seized.” (Citations and punctuation omitted.) Scott v. State, 213 Ga. App. 84, 86 (1) (444 SE2d 96) (1994). “If a search warrant, read as a whole, points out the premises, person or property to the exclusion of all others, and on inquiry leads the officers unerringly to them, it meets the description requirement.” (Citations and punctuation omitted.) Minter v. State, 206 Ga. App. 692, 693 (1) (426 SE2d 169) (1992). The police obtained a search warrant for a particular package “located at 4002 Stone Mountain Highway (U.S. 78), Suite 530, Snellville, Gwinnett County, Georgia.” The supporting affidavit described the package, including its specific tracking number. The package was located at that address and was seized at that address, although Ferguson was at the point of departing with the package in his vehicle at the time officers seized it.

Police officer’s involvement with police made juvenile’s interview at school subject to Miranda. In the Interest of T.A.G., 292 Ga. App. 48, 663 S.E.2d 392 (2008).*

Defendant’s nervousness during stop was caused by the officer’s manner of questioning. Cuaresma v. State, 292 Ga. App. 43, 663 S.E.2d 396 (2008):

Crumbley and Cuaresma next contend that their detention exceeded permissible limits and that they did not give valid consent to search the truck. The officer testified that Crumbley seemed nervous and that his answers were evasive. However, the officer’s manner of questioning from the outset of the stop would have made anyone nervous. Moreover, at this point, the officer’s only knowledge of criminal wrongdoing was that the truck had made an illegal lane change. A police officer who stops a motorist for a routine traffic violation is not permitted to expand the detention into a fishing expedition for evidence of unrelated offenses.

. . .

Here, the videotape speaks for itself. It vividly shows that the officers used intimidation, harassment, and threats of arrest to convince Crumbley to consent to the search. Crumbley’s so-called consent, at best, was merely an “acquiescence to authority” since the officers essentially told Crumbley that the truck would be searched regardless of his consent. It is obvious from the videotape and the officer’s testimony at the motion to suppress hearing that the officers had no particularized, objective basis for suspecting Crumbley of criminal activity, yet the officers decided to conduct a drug investigation rather than ticket Crumbley and release him. The consent in this case was coerced and thus invalid. The trial court erred in denying the motion to suppress.

Student’s violation of specific instructions to come by the office and leave his backpack everyday justified the principal searching his backpack when he was found at school. In fact, the principal was waiting for him at the front door of the school when his bus arrived, and defendant entered the school through a different entrance. The search was justified by the school’s needs and it located a .380 semi-automatic, and the Massachusetts constitution does not require a greater standard. Commonwealth v. Smith, 72 Mass. App. Ct. 175, 889 N.E.2d 439 (2008)* (state link temporarily unavailable).

Standing was not litigated during the suppression hearing, but, when the evidence was offered in the state’s case in chief, the defendant objected again, and state argued the defendant lacked standing and the defendant had no evidence of standing, and the trial court agreed with the state. The question of admissibility of evidence is open until the trial. Gregory v. State, 2008 Ind. App. LEXIS 1149 (May 5, 2008).*

Use of force against an autistic man who was resisting was not excessive. Plaintiff also received medical treatment right away. Cooper v. Worsham, 2008 U.S. Dist. LEXIS 41191 (W.D. Ky. May 22, 2008).*

Officer had sufficient probable cause for plaintiff’s arrest despite claim that the officer falsified the serial number on a $20 bill in his report to justify the arrest. Fox v. Graff, 276 Fed. Appx. 936 (11th Cir. 2008) (unpublished).*

The fact that an officer has discretion in whether to conduct an inventory does not make it unconstitutional. The fact that the officer suspected he might find meth did not make the inventory unconstitutional as a bad faith inventory. United States v. Hall, 497 F.3d 846 (8th Cir. 2007):

“There must be something else; something to suggest the police raised ‘the inventory-search banner in an after-the-fact attempt to justify’ a simple investigatory search for incriminating evidence.” Rowland, 341 F.3d at 780 (quoting Marshall, 986 F.2d at 1175). That “something else” is not present here. The Hospital asked Officer Kasper to remove Hall’s vehicle. Officer Kasper thus had a legitimate reason to treat the case as a private-property tow, and acted accordingly. Pursuant to the Policy, Officer Kasper called a tow company and conducted an inventory search. In doing so, he completed a CRPD vehicle impounding report, cataloguing both the lawful and incriminating contents of the vehicle. Cf. Id. 341 F.3d at 782 (finding an inventory search invalid when “law enforcement sifted through the vehicle’s contents searching only for and recording only incriminating evidence”). Officer Kasper testified that he knew Hall’s vehicle was linked to the manufacture of methamphetamine and that the reason officers were securing the vehicle was because of this suspicion. As we stated above, however, provided that the search is conducted according to standard procedures, officers “may keep their eyes open for potentially incriminating items that they might discover in the course of an inventory search, as long as their sole purpose is not to investigate crime.” Marshall, 986 F.2d at 1176. The search here was conducted pursuant to the Policy, and, looking at the totality of the circumstances, we find no evidence that the searching officers acted in bad faith.

ATF agents executing a search warrant for illegal firearms did not violate any possessory interest or the Fourth Amendment by picking up a gun not specified in the search warrant and taking it to another officer to look at to determine whether it was an illegal weapon. It was in plain view during the execution of a valid search warrant. United States v. Kelly, 276 Fed. Appx. 261 (4th Cir. 2007)* (unpublished).*

The BATFE agents did not unlawfully search or seize the three weapons prior to the time Vasquez determined that they were possessed unlawfully. The agents’ decision to take the guns to Vasquez, who was located on the premises, was clearly “[]related to the objectives of the authorized intrusion” and therefore not an additional or unlawful search. Arizona v. Hicks, 480 U.S. 321, 325, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987). Nor did this movement of the guns constitute an unlawful seizure because the agents did not “meaningfully interfere” with Kelly’s possessory interest in the guns. Id. at 324; cf. Garces, 133 F.3d at 74 (“[W]e find neither search nor seizure in [the agents’] carrying the key about the house to determine its evidentiary value.”); United States v. Menon, 24 F.3d 550, 560 (3d Cir. 1994) (stating that agent executing a search warrant did not seize documents when she moved them to another room for a fellow officer to inspect). Thus, we conclude that the agents’ seizure of the three guns was lawful pursuant to the plain view doctrine.

Search of defendant’s car after defendant was placed in the police car was not justified by any exigent circumstance or reasonable suspicion that a weapon or evidence would be found, so the trial court should have suppressed. The nervous behavior testified to by the officer was insufficient to constitute a belief in a threat. United States v. Thibodeaux, 276 Fed. Appx. 372 (5th Cir. 2008) (unpublished).*

Plaintiff’s civil rights claim was correctly dismissed as completely frivolous on SOL grounds. Also, part of the claim was directed at Fourth Amendment claims, and one was barred by Heck and one would not have been. Palmer v. City of Harrisburg, 2008 U.S. App. LEXIS 9122 (3d Cir. April 25, 2008) (unpublished).*

Summary judgment was properly granted the city against the plaintiffs for the warrant to enter their property for code violations since they never contested the validity of the warrant or the cause for issuance. Exendine v. Sammamish City, 275 Fed. Appx. 596 (9th Cir. 2008) (unpublished).*

Defendant’s vehicle was contraband for forfeiture at the time of his arrest because of a prior drug sale from the car. Therefore, the police could inventory it on seizure for forfeiture under Florida v. White. United States v. Shipe, 2008 U.S. Dist. LEXIS 59614 (E.D. Tenn. May 23, 2008).*

Government did not exceed defendant’s wife’s private search of his child porn under Jacobsen when they got his computer and DVDs and got a warrant and searched them later. “[O]n the facts of this case, the subsequent search did not enable the Government to “learn[] something … that it could not have learned from the private searcher’s testimony.” Runyan, 275 F.3d at 461. Accordingly, the Court finds that the Government’s search of the imaged hard drives of the Netcap computers did not exceed the scope of the private search and, thus, did not violate the Fourth Amendment.” United States v. Guindi, 2008 U.S. Dist. LEXIS 59580 (N.D. Cal. March 25, 2008).*

Probable cause for a vehicle stop and search was present when the police were surveilling a house that was near the location of a wiretapped cellphone. When they reasonably believed that the cocaine supplier would have likely been using that vehicle, there was probable cause. United States v. Jackson, 548 F. Supp. 2d 1314 (M.D. Fla. 2008).*

Officers responding to a domestic dispute had exigent circumstances to enter defendant’s trailer because of a screaming woman inside. Alternatively, the trial court’s finding of some form of announcement was supported by the record. State v. Hill, 2008 MT 260, 345 Mont. 95, 189 P.3d 1201 (2008).*

Defendant was standing behind another man who was doing a drug deal, and he was apparently involved in the sale. Defendant was ordered to the ground but instead attempted to strike the officer. Defendant was knocked down, handcuffed, and frisked, and it was based on reasonable suspicion. State v. Logan, 2008 Ohio 3636, 2008 Ohio App. LEXIS 3066 (9th Dist. July 23, 2008).*

Oklahoma determines that separate exigent circumstances are no longer required for a search under the automobile exception under the state constitution, and it follows Ross and Dyson. Gomez v. State, 2007 OK CR 33, 168 P.3d 1139 (2007):

[*P16] Because we believe the United States Supreme Court’s decisions in Ross and Dyson rest on sound principles, we are persuaded they should inform our construction of Article 2, § 30. We therefore hold that a warrantless search of a vehicle is not unreasonable under Article 2, § 30, of the Oklahoma Constitution in the absence of a showing of exigent circumstances when police have probable cause to believe that evidence of a crime is present. To the extent that Davis, Whitehead, and Lawson hold to the contrary, they are overruled.

There was probable cause on the totality, considering the deference that search warrants get, and the trial court erred in suppressing. State v. Edwards, 185 N.C. App. 701, 649 S.E.2d 646 (2007).*

Defendant’s employer could consent to search of work computers for child porn. United States v. Bassignani, 2007 U.S. Dist. LEXIS 65648 (N.D. Cal. August 20, 2007).*

The need to secure a vehicle for officer safety does not require that the officer actually see a gun. Commonwealth v. Mack, 2008 PA Super 153, 953 A.2d 587 (2008).

The trial court erred in failing to suppress the defendant’s admission, in response to a question posed by a police officer after he had been handcuffed, but before he had been read his Miranda rights, that the item the officer had felt in his buttocks was a bag of cocaine, but the error was harmless in light of the fact that the officer was entitled to conduct a search incident to defendant’s arrest. State v. Lafawn, 2008 Ohio 3475, 2008 Ohio App. LEXIS 2930 (1st Dist. July 11, 2008).*

Police had probable cause to search defendant’s car for evidence of a burglary, so defendant’s wallet found in the car was lawfully found. State v. Davis, 2008 Ohio 3453, 2008 Ohio App. LEXIS 2921 (June 5, 2008).*

(Website was bogged down this morning for some unknown reason.)

Officers on plaintiff’s back porch at 11:30 p.m. were clearly on the curtilage and not open fields, and they were not permitted to be there. The plaintiff had a subjective and reasonable expectation of privacy in his hown as to a view in the back door at that hour. Young v. City of Radcliff, 561 F. Supp. 2d 767 (W.D. Ky. 2008):

The first question under Katz is whether Young manifested a subjective expectation of privacy in the object of the challenged search. Burton and Smallwood’s testimony indicates that they were peering into the interior of Young’s home through his glass back doors, effecting a visual search of the interior of Young’s home. The Supreme Court has described observation of the interior of the home as “the prototypical … area of protected privacy.” Kyllo, 533 U.S. at 27. Indeed, “[a]t the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Id. at 31 (quoting Silverman v. United States, 365 U.S. 505, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961). It is hardly remarkable, therefore, to conclude that Young could subjectively expect privacy when he was inside a room at the back of his home at 11:30 at night. Cf. Ciraolo, 476 U.S. at 215 (quoting Katz, 389 U.S. at 361) (Harlan, J. concurrence)) (noting, “a man’s home is, for most purposes, a place where he expects privacy …”).

The second part of the Katz inquiry examines whether this expectation was one society recognizes as reasonable, or in other words “what the person wanted to protect his privacy from, for example, non-family members … strangers passing by on the street.” Widgren, 429 F.3d at 579 (citation omitted). The Fourth Amendment protection of the home does not “require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer’s observations from a public vantage point where he has a right to be and which renders the activities clearly visible.” Ciraolo, 476 U.S. at 213.

Officers had detailed and corroborated information about defendant’s drug activity from a CI and that gave reasonable suspicion to stop him under their collective knowledge. United States v. Motley, 561 F. Supp. 2d 1174 (D. Nev. 2008).*

A seizure did not occur here until defendant was ordered to put his hands on the car. A momentary detention to talk to a suspect is not a stop. United States v. Terril, 2008 U.S. Dist. LEXIS 68280 (E.D. Pa. September 9, 2008)*:

Accordingly, at the earliest, the seizure of Defendant occurred when the officers ordered the three individuals to place their hands on the car, and Defendant moved to do so. Brown, 448 F.3d at 246 (recognizing that momentary compliance is not sufficient to consummate a seizure, but noting that a defendant demonstrates more than momentary compliance when he yields to an officer’s authority by “turning to face [a] car and placing (or moving to place) his hands on the vehicle.”); cf. United States v. Valentine, 232 F.3d 350, 359 (3d Cir. 2000) (recognizing that momentary compliance with an officer’s orders does not constitute a seizure).

There was PC for defendant’s arrest based on wiretap information that linked him to the vehicle parked in his driveway that was not his. United States v. Omari, 2008 U.S. App. LEXIS 19212 (3d Cir. September 5, 2008) (unpublished).*

Officers had RS for a frisk associated with a traffic stop but before the frisk a bag of drugs fell out of the defendant’s sleeve. Then, the search incident doctrine applied. United States v. Howard, 2008 U.S. Dist. LEXIS 68166 (N.D. W.Va. September 8, 2008).*

Defendant had no standing in property searched adjacent to his own to claim fruit of the poisonous tree doctrine for his own search. United States v. Chandler, 2008 U.S. Dist. LEXIS 68310 (E.D. Ark. August 26, 2008):

Furthermore, a defendant can prevail on a fruit of the poisonous tree claim only if he has standing regarding the violation which constitutes the poisonous tree. Here, Chandler concedes that he did not own the property searched, and he states that he had no authority or control over who accessed the property. Chandler alleges no facts indicating that he had a socially recognized reasonable expectation of privacy in his neighbor’s property. See United States v. Schroeder, 129 F.3d 439, 442 (8th Cir. 1997)(citations omitted) (“This legitimate expectation is based not solely on ownership, nor on positive law, but on what is socially recognized as reasonable.”).