NYS started two days ago issuing RFID (radio frequency ID) chip enhanced driver’s licenses (EDL). The State’s official statement off its website is here. It’s press release is here. Story on Switched.com here. The system is designed to faciliate travel to and from Canada, but it also can be used for travelers to Mexico, the Carribean, and Bermuda.

On September 16, 2008, NYS began to issue WHTI-Compliant Enhanced driver licenses (EDL) (includes Enhanced learner permits) and Enhanced non-driver photo ID cards (ENDID) to applicants who can prove U.S. citizenship and NYS residency. An EDL or ENDID can be used instead of a passport at U.S. land and sea border crossings between Canada, Mexico, Bermuda and the Caribbean.

WHTI is a federal law that regulates which documents U.S. citizens can use when they travel in the Western Hemisphere. You can read more about this initiative at the web site of the U.S. Department of Homeland Security (DHS).

There are plans for the State Department to produce “enhanced” cards for such travel.

If they can monitor your movements at the border, they can monitor your movements anywhere there is a chip reader.

Search incident of vehicle for driving on a suspended license that produced drugs was invalid under state constitution because it was not calculated to recover evidence of driving on a suspended license. Baniaga v. State, 2008 Ind. App. LEXIS 2013 (August 6, 2008):

We conclude that Officer Ball’s search of Baniaga’s vehicle was not reasonable in light of the totality of the circumstances. Although Baniaga was under arrest for driving while suspended, the officer did not fear for his safety and there was no indication that Baniaga had engaged in drug activity. Moreover, Officer Ball admitted that he did not need to search the vehicle to preserve further evidence of Baniaga’s licensure offense. Thus, we conclude that the search of Baniaga’s vehicle violated the protections provided by Article I, section 11 of the Indiana Constitution. Consequently, the trial court abused its discretion by admitting evidence stemming from the vehicle search. Thus, we reverse Baniaga’s conviction for possession of cocaine and remand with instructions for the trial court to vacate the conviction and sentence imposed thereon.

Note: This was decided six weeks ago and just appeared on Lexis.

Officer walking up to an illegally parked car is not a stop. State v. Good, 2008 Ohio 4502, 2008 Ohio App. LEXIS 3831 (12th Dist. September 8, 2008).*

Officer received a tip in-person about a man with a gun, and the officer approached a group the man was in, and they disbursed. The defendant had a bulge and walked with a limp like he had a gun. The tip was detailed and corroborated by action, but the observation was what justified the stop. State v. Vaughn, 2008 Ohio 4585, 2008 Ohio App. LEXIS 3868 (8th Dist. September 11, 2008).*

The facts of a communal living arrangement may be that of a home sufficient to give a person standing in a common area. The court has to look to the realities of the living arrangement. United States v. Werra, 2008 U.S. Dist. LEXIS 68790 (D. Minn. September 11, 2008):

The parties have not identified, and I have not found, any reported decisions that have, with sustained reasoning, expressly examined the distinction between traditional family homes and multi-unit apartment buildings. Determining whether a person has a reasonable expectation of privacy in an area or an item is, of course, a fact-specific inquiry. Before turning to the details of 63 Menlo Street, however, it may be useful to identify several illustrative factors for analyzing whether a residence is more akin to a traditional home or a multi-unit apartment building.

The most important factor is whether or not the building contains recognizably separate living units. Distinct, complete living spaces indicate that the dwelling is more like an apartment building because each tenant’s functional home is not shared by others in the building. While each tenant would have a reasonable expectation of privacy in his or her personal living space within that kind of building, that expectation would not extend to common areas shared with other tenants. By contrast, if the building did not contain compartmentalized living spaces, the residents would effectively be living together in a single, shared unit. This might occur, for example, where all tenants shared essential parts of the living space, such as bathrooms and kitchens. In that circumstance, each tenant would presumably have a reasonable expectation of privacy throughout the entire interior of the building.

A related factor is the legal right of a resident to exclude others from certain parts of the building. See United States v. Anderson, 154 F.3d 1225, 1232 n.3 (10th Cir. 1998), cert. denied, 526 U.S. 1159 (1999) (“The right to exclude others is an important consideration in determining whether an individual has [a reasonable expectation of privacy].”). The presence or absence of locks may be a factor in making this determination, because it could be a manifestation of a resident’s belief that he had the right to exclude others from a particular part of a building. However, the presence or absence of locks is not a dispositive factor. It is, for example, conceivable that an apartment building could contain five distinct units and no locks, because the tenants of each unit were friends or the building was located in a safe area. In that situation each tenant would still presumably have the legal right to exclude others from the unit he or she personally occupied.

The number of people living in a building can also be relevant in categorizing the building. For example, if 30 people lived in a large building, then it most likely would be characterized as a multi-unit apartment building. But if three people lived in the same building, it could be either a multi-unit apartment building or a home, depending on how the space was divided and what rights each individual had with respect to that space.

I also note that the formal legal relationship among the residents of a building is not necessarily determinative in classifying the residence as either a traditional home or a multi-unit apartment building. For example, if two people living together as a couple each had access to all spaces in the dwelling, then it would be considered a traditional home, whether or not they were legally married. See, e.g., United States v. Paradis, 351 F.3d at 27 (holding that the apartment of defendant’s girlfriend was his “home” for purposes of the Fourth Amendment).

Here, the defendant did not satisfy the court’s requirements.

USPS employee had no reasonable expectation of privacy in a work computer where he was warned about a lack of privacy in the computer by a screen banner. United States v. Mosby, 2008 U.S. Dist. LEXIS 56583 (E.D. Va. July 25, 2008):

Similar to Simons, the warning banner at issue here clearly informs the employee that he has no expectation of privacy and states that the computer is monitored and may be intercepted for official use, including criminal prosecution. Moreover, Mosby had to acknowledge and agree to the policy every time he used the computer. Thus, in light of the detailed warning banner and Mosby acknowledging the warning every time he logged onto the computer, the Court finds that Mosby had no legitimate, objectively reasonable expectation of privacy in his work computer. As such, it is unnecessary for the Court to determine whether the search was reasonable. See Simons, 206 F.3d 392 at 398; see also Leventhal, 266 F.3d at 73 (“Without a reasonable expectation of privacy, a workplace search by a public employer will not violate the Fourth Amendment, regardless of the search’s nature and scope.”).

Plea agreement reserved right to appeal only one search issue, not both. [The unpreserved one would have been decided on consent, anyway.] There was sufficient nexus between defendant’s actions, his prior record as a convicted child molester, his digital camera, and the statement from young boys that he had photographed them nude to get a search warrant for his house. It was reasonable to infer that more would be in the house. United States v. Paton, 535 F.3d 829 (8th Cir. 2008).*

Fire and police entry to investigate the smell of a fire in a warehouse with a suspected grow operation was valid, despite the fact no fire was found and the police came along for protection, including having to subdue two dogs guarding the entrance. The court will not second guess the decision of the firefighters to go floor by floor rather than to the top floor first. [Come on: how can a court ever second guess a fireman’s decision how to search for a fire?] United States v. Klump, 536 F.3d 113 (2d Cir. 2008):

Applying these standards, we find no clear error in the district court’s determination that the firefighters and agents reasonably believed it was necessary to enter the warehouse. Upon arrival, the fire chief smelled what he described as a “half electrical, half oily … kind of sweet” smell that “definitely had an odor of something burning.” Having been to major fires in buildings where there was very little or no smoke outside, just an odor, the fire chief decided, in his professional judgment, that it was necessary to enter the warehouse and investigate the cause of the odor.

Under these circumstances, the firefighters had an objectively reasonable basis for believing that there was a fire inside the warehouse. Nothing in the Fourth Amendment required them to wait until they saw actual smoke or flames to enter a building that they reasonably believed might be on fire. Cf. Brigham City v. Stuart, 547 U.S. 398, 406 (2006) (holding that the Fourth Amendment does not require police “to wait until another blow render[s] someone ‘unconscious’ or ‘semi-conscious’ or worse before entering”).

Nor is it relevant that no fire or smoke was found. The objective standard for assessing reasonableness focuses on what the facts, as they appeared at the moment of entry, would lead a reasonable, experienced officer to believe. See Zabare, 871 F.2d at 292. It does not permit a court to evaluate the officer’s belief on the basis of hindsight. See id.

Klump maintains that the warrantless entry was unreasonable because the firefighters and agents entered the warehouse to look for evidence of a crime, not to respond to a legitimate exigency. As Klump concedes, however, the Supreme Court has made clear that the subjective intent of government agents is irrelevant to determining whether a particular search was reasonable under the Fourth Amendment. See, e.g., Brigham, 547 U.S. at 404-05 (citing cases). Rather, “[a]n action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the circumstances, viewed objectively, justify [the] action.'” Id. at 404 (alteration in original) (quoting Scott v. United States, 436 U.S. 128, 138 (1978)). Thus, even if the agents’ subjective motives in entering the warehouse could “be so neatly unraveled,” id. at 405, they simply do not matter. Klump argues that this rule should not apply where the threat is to property or evidence, rather than life or limb. He offers no principled reason to adopt this distinction, however, and we can conceive of none.

We also reject Klump’s assertion that the scope of the search exceeded the exigency. He asserts that the firefighters and agents had no reason to search the first and second floors of the warehouse because the burning smell appeared to originate from the top of the building. He contends that the firefighters and agents should have proceeded directly to the third floor and, having found no fire or smoke there, immediately left the warehouse. We disagree. Under the totality of the circumstances, the firefighters acted reasonably in searching all three floors to locate the source of the burning smell and determine whether the warehouse was on fire. Indeed, “the exigencies of the situation made that course imperative.” Warden v. Hayden, 387 U.S. 294, 298 (1967) (internal citation and quotation marks omitted).

Defendant’s cellphone was seized from his person at the time of arrest, and it was searched incident to the arrest 90 minutes later. It was valid as a search incident. People v. Diaz, 165 Cal. App. 4th 732, 81 Cal. Rptr. 3d 215 (2d Dist. 2008). The court explains the rationale for cellphone search incident:

(3) In reliance upon this authority, courts have upheld delayed warrantless searches of wallets (see, e.g., United States v. Passaro (9th Cir. 1980) 624 F.2d 938, 944), purses (People v. Decker (1986) 176 Cal.App.3d 1247, 1252 [222 Cal. Rptr. 689]), address books (United States v. Rodriguez (7th Cir. 1993) 995 F.2d 776, 777–778) and pagers (United States v. Chan (N.D.Cal. 1993) 830 F.Supp. 531, 536). Recently, one federal court applied the same rationale in upholding the warrantless search of a cell phone seized from the defendant incident to his arrest. In rejecting the defendant’s claim that the search was not substantially contemporaneous with his arrest, the court stated: “In general, as long as the administrative processes incident to the arrest and custody have not been completed, a search of effects seized from the defendant’s person is still incident to the defendant’s arrest. [Citations.] Although the police had moved Finley, the search was still substantially contemporaneous with his arrest and was therefore permissible.” (United States v. Finley (5th Cir. 2007) 477 F.3d 250, 260, fn. 7.) The court also rejected the defendant’s claim that his cell phone was a possession within his immediate control as contemplated by Chadwick, reasoning as follows: “Chadwick held that, [o]nce law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest. [Citation.] Finley’s cell phone does not fit into the category of ‘property not immediately associated with [his] person’ because it was on his person at the time of his arrest.” (Ibid.)

(4) We reach the same result here. Cell phones may contain personal information, but so do wallets, purses and the like. The fact that electronic devices are capable of storing vast amounts of private information does not give rise to a legitimate heightened expectation of privacy where, as here, the defendant is subject to a lawful arrest while carrying the device on his person. Whether Diaz could have kept his cell phone in a briefcase or backpack is of no moment. Because he had the phone on his person at the time of his arrest, it was taken “out of the realm of protection from police interest” for a reasonable amount of time following the arrest. (United States v. Passaro, supra, 624 F.2d at p. 944; see also United States v. Edwards, supra, 415 U.S. at pp. 808–809 [“‘While the legal arrest of a person should not destroy the privacy of his premises, it does-for at least a reasonable time and to a reasonable extent-take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence’”].)

(5) Diaz also contends that “a cell phone text message search exceeds the original rationale for searches incident to arrest: to ensure officer safety and to preserve evidence that could be concealed or destroyed.” The United States Supreme Court has recognized, however, that “[a] police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” (United States v. Robinson, supra, 414 U.S. at p. 235.) In any event, “[t]he need to preserve evidence is underscored where evidence may be lost due to the dynamic nature of the information stored on and deleted from cell phones or pagers.” (United States v. Mercado-Nava (D. Kan. 2007) 486 F.Supp.2d 1271, 1278.)

Erratic driving is enough reasonable suspicion for a stop and a field sobriety test. (Plaintiff here was not under the influence and she sued.) Amundsen v. Jones, 533 F.3d 1192 (10th Cir. 2008):

We recognize that most cases addressing potential Fourth Amendment violations arising from traffic stops for suspicion of driving under the influence will involve additional indicia of intoxication beyond the suspect’s driving pattern. See, e.g., State ex rel. Verburg v. Jones, 121 P.3d 1283, 1286 (Ariz. Ct. App. 2005) (holding that reasonable suspicion justified the field sobriety tests because the driver drove erratically, had bloodshot and watery eyes, slurred speech, and had trouble exiting the vehicle); Dixon v. State, 737 P.2d 1162, 1163 (Nev. 1987) (holding that reasonable suspicion justified the field sobriety tests where the driver weaved across lanes, stumbled out of the vehicle, swayed while standing, and admitted to drinking three beers). Simply because these indicia are often noted by officers and reviewing courts, however, does not mean that an officer must possess facts in addition to an improper driving pattern in order to reasonably suspect that the driver is under the influence of drugs or alcohol. Instead, our precedent counsels that driving conduct alone can establish reasonable suspicion of impairment, and thus, no additional indicium of intoxication is necessary to justify a roadside sobriety test.

Defendant was not seized when he was asked to come outside and talk to the officers, and his production of his bong was consensual. United States v. Fernandes, 2008 U.S. App. LEXIS 14780 (5th Cir. July 10, 2008) (unpublished).*

Officers destroyed lawful plants that they reasonably and mistakenly believed were marijuana plants. Therefore, they had qualified immunity. The plants were found on open fields. Waltman v. Payne, 535 F.3d 342 (5th Cir. 2008) (unpublished).*

Defendant’s knock-and-announce claim would fail as a matter of law under Hudson, so the court will not even address it. United States v. Taggart, 2008 U.S. Dist. LEXIS 56425 (E.D. Ark. July 8, 2008).*

In plaintiff’s § 1983 case against the police for an alleged excessive search of his house, taking the evidence in the best light possible, the police lawfully conducted a protective sweep. Also, bringing a dog onto the premises during the search was not unreasonable. Peals v. Terre Haute Police Dep’t, 535 F.3d 621 (7th Cir. 2008).*

First time informant was shown to be reliable by the monitoring of his phone call with the defendant. United States v. Turrentine, 2008 U.S. Dist. LEXIS 56413 (E.D. Mo. July 23, 2008).*

Defendant was clearly free to go when the officer started to ask more questions, so the stop was not unreasonably extended. United States v. Farrior, 535 F.3d 210 (4th Cir. 2008)*:

Contrary to Farrior’s assertion, the officers did not unreasonably prolong the traffic stop. Under our and other circuits’ precedents, the traffic stop ended once Officer Morris returned his license and registration, orally warned him to fix his tag light, and told him that he was free to go. See, e.g., United States v. Singh, 363 F.3d 347, 356 (4th Cir. 2004) (holding that once an officer issues a warning or citation and returns a driver’s license and registration, the driver may “proceed on his way, without being subject to further delay by police for additional questioning” (internal quotation marks omitted)); United States v. Alexander, 448 F.3d 1014, 1016 (8th Cir. 2006) (“Once an officer has decided to permit a routine traffic offender to depart with a ticket, a warning, or [no ticket at all], the Fourth Amendment applies to limit any subsequent detention or search.”). But the end of the traffic stop did not signal the beginning of an unconstitutional seizure in this case.

The Supreme Court has made it very clear that a “seizure does not occur simply because a police officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434 (1991). In the absence of a seizure, a police-citizen encounter is considered consensual and “will not trigger Fourth Amendment scrutiny.” Id. at 434. Under Bostick, the question is whether a reasonable person would have felt free to decline the officer’s request or otherwise terminate the encounter. Id. at 439. So long as a reasonable person would feel free “to disregard the police and go about his business,” California v. Hodari D., 499 U.S. 621, 628 (1991), the encounter is consensual and no reasonable suspicion is required. See also United States v. Sullivan, 138 F.3d 126, 131 (4th Cir. 1998) (“When a stop is over and its purpose served, … mere questioning by officers, without some indicated restraint, does not amount [to] … a seizure under the Fourth Amendment.”). Employing the Bostick inquiry, the district court determined that the encounter between Farrior and Officer Morris was consensual because “a reasonable person in Farrior’s position would have felt free to decline Officer Morris’s request.” (J.A. 60-61.) We do not find any error in the district court’s analysis.

Defendants were clearly guests with standing. They had duffle bags in bedrooms and one even had a key, which he offered out of his pocket to the arresting officer to lock the door. However, there was a hidden compartment in the house, and they had no standing as to it. United States v. Ontiveros, 547 F. Supp. 2d 323 (S.D. N.Y. 2008).*

Plaintiff’s resistance to his arrest made the force used reasonable. Creveling v. Columbia County, 2008 U.S. Dist. LEXIS 33080 (M.D. Pa. April 22, 2008).*

Defendant consented to a search and produced marijuana and then resisted. The record supports the finding of consent. United States v. Richardson, 275 Fed. Appx. 571 (8th Cir. 2008) (unpublished).*

Defendant was hospitalized for an accident, and an officer wanted a blood draw. Defendant refused to consent. Defendant had a catheter installed, and the officer asked for the urine before it was disposed of. Defendant did not waive his expectation of privacy or abandon his urine, and his actions showed that he wanted to maintain his expectation of privacy. State v. Funk, 2008 Ohio 4086, 2008 Ohio App. LEXIS 3449 (4th Dist. August 7, 2008):

[*P17] Here, we find that competent, credible evidence does not support the trial court’s finding that Funk abandoned his urine (waste) before it went down the commode. He did not do a single thing (act) to even suggest that he was abandoning his urine. In fact, he expressed his desire to maintain his privacy by not consenting to a chemical test for alcohol content. While we agree that a typical person probably abandons his or her urine by flushing it down the toilet, that did not happen here.

[*P18] The State implies that Funk abandoned his urine to the hospital when he allowed the hospital to insert a catheter to gather his urine. While we agree that the hospital had his implied consent to dispose of his urine by flushing it down the commode, we do not agree that the hospital had his consent to turn it over to law enforcement so that they could perform a chemical test for alcohol. See Ferguson v. City of Charleston (2001), 532 U.S. 67.

[*P19] The State seems to argue that the Fourth Amendment protects property interests, rather than privacy interests. This is not so. California v. Rooney (1987), 483 U.S. 307 (holding that “[t]he primary object of the Fourth Amendment is to protect privacy, not property) (White, J., dissenting).

Blood draw from defendant was with probable cause and a search warrant, and not based on implied consent. He was unconscious, so any issue of consent was meaningless. Copas v. State, 891 N.E.2d 663 (Ind. App. 2008).*

Defense counsel was not ineffective for not challenging the USMJ as not neutral and detached where it could not be discerned from the search warrant affidavit that it referred to the defendant whom the judge knew. Flowers v. United States, — F.Supp.2d —-, 2008 WL 2397687 (N.D. Ind. June 10, 2008).*

Excessive force claim is not barred by Heck. Owens v. City of Atlantic City, 2008 U.S. Dist. LEXIS 47584 (D. N.J. June 6, 2008).*

Defendant’s husband was a police officer and both were on the title of their vehicle. His consent to searching the vehicle was valid. Lynn v. Commonwealth, 257 S.W.3d 596 (Ky. App. 2008).*

When a deputy serving an arrest warrant on a probationer had reason to believe from the warrant that the probationer resided at the address given, he had the limited authority to enter the home to search for the probationer after defendant said that the probationer had moved. Once inside, he had the authority to seize marijuana in plain view. Wall v. State, 291 Ga. App. 278, 661 S.E.2d 656 (2008).*

Trial court erred in imposing any burden on the defendant to show that consent was not voluntary after expressing doubts about the credibility of the two officers involved in defendant’s stop on a bicycle and their request for consent. After the officers testified, the trial court assumed the burden shifted. It alway remains with the state to show voluntariness on the totality of circumstances. Lewis v. State, 979 So. 2d 1197 (Fla. App. 4 DCA 2008).*

Trial court’s credibility finding that the defendant consented to production of a single pill when in the presence [confronted would be a better word] of multiple officers was supported by the evidence. They testified the defendant was free to leave, and it was not determinative that defendant was not expressly told he was. Garcia v. State, 979 So. 2d 1189 (Fla. App. 4 DCA 2008).*

A search incident to a citation is invalid. State v. Marten-Hoye, 2008 WI App 19, 307 Wis. 2d 671, 746 N.W.2d 498 (2008):

P13 Thus, the United States Supreme Court has interpreted the Fourth Amendment as allowing searches incident to arrests, see Robinson, 414 U.S. at 224-26, but not searches incident to issuing citations, see Knowles, 525 U.S. at 116-19. Marten-Hoye, therefore, categorizes the police conduct in this case as analogous to the conduct in Knowles, and argues that Ben-Ami conducted an impermissible “search incident to citation.” The State, however, distinguishes Knowles on the grounds that there, the police issued a citation rather than arresting Knowles. The State argues that here, Ben-Ami effected an arrest of Marten-Hoye rather than detaining her merely to issue a citation, because the police action amounted to an arrest and, unlike in Knowles, Marten-Hoye was not issued a citation before she was searched. Thus, the State contends, the search was incident to an arrest rather than to a citation, and thus was constitutionally permissible. We conclude that the police conduct in this case is not addressed squarely under any controlling precedent, as the parties contend, but that the necessary implication from Knowles is that the search was unconstitutional.

Officers’ justification for protective sweep was invalid. Mere suspected presence of a gun inside is insufficient when the defendant is arrested, and there is no suspicion somebody else is inside. State v. Sharpe, 2008 Ohio 267, 174 Ohio App. 3d 498, 882
N.E.2d 960 (2d Dist. 2008):

[*P46] The protective sweep exception to the warrant requirement in Buie and Lyons requires some positive indication that another person or persons remain in the residential premises where a subject is arrested, and that they pose a threat to the safety of officers or others. Lacking that indication, there is not a need to act which is sufficient to avoid the requirement of a prior warrant if the house is to be searched after a defendant’s arrest there. Mere suspicion that a weapon remains inside is insufficient. Likewise, not knowing whether anyone else is there is an insufficient pretext, because the need for protection necessarily implies that another person or persons are there. Faced with such doubts, and absent any reason to believe that other persons may be inside, officers must obtain a warrant before they conduct a search of a defendant’s house after a defendant’s arrest there.

[*P47] We find that, on this record, the officers lacked a reasonable and articulable suspicion that, following Defendant’s arrest, other persons who might pose a danger to the officers remained inside Defendant’s house. Therefore, the trial court erred when it held that the protective sweep exception announced in Buie permitted the warrantless “protective sweep” search of Defendant’s house police performed following his arrest.

. . .

[*P51] The firearm posed no danger to anyone after Defendant was arrested, except to the extent that another person might use it. However, police had no basis to believe, much less suspect, that anyone else was in the house. That they did not know whether anyone else was inside is insufficient to justify their entry. The concern that another person might be there was wholly speculative, and presented no emergency requiring police to enter the house without a warrant to find the gun.

Affidavit for search warrant did not show the informant’s basis of knowledge, but the affidavit related statements against penal interest and the officer corroborated significant details. Thus, the officer showed probable cause. United States v. Evans, 2008 U.S. Dist. LEXIS 34285 (D. Vt. April 23, 2008).*

Outstanding traffic warrant justified limited entry and protective sweep when the person wanted answered the door. When defendant answered the door, he was inside, and the kitchen was right next to him, so the officers could conduct a protective sweep of the kitchen and plain view supported seizure of drugs on the kitchen counter. United States v. Williams, 2008 U.S. Dist. LEXIS 34278 (W.D. La. February 5, 2008)*:

In this case, the officers knew of an outstanding traffic warrant for the defendant. The defendant does not challenge the existence or validity of the warrant. In addition, the officers had several reasons to believe the defendant was home. First, they had identified the pickup truck parked outside as one the defendant drove. Second, when the officers knocked on the front door, Williams opened the door. Baugh immediately recognized Williams, having previously viewed a photograph of him. Since the officers had an arrest warrant and reason to believe that Williams was home, they had the authority to enter into the home to arrest him.

. . .

Each of these cases — Charles, Thomas, and Mayo — supports the holding that the kitchen in this case constituted an immediately adjoining space under Buie. In this case, the defendant was arrested in the doorway of his house, with the majority of his body inside the house. The kitchen immediately adjoins the area just inside the front door. Furthermore, a wall that extends five feet from the front of the house toward the back made it impossible for the officers to see a portion of the kitchen. In the portion of the kitchen not visible, there was adequate space from which another individual could launch an attack. By taking just a few steps, Baugh or Kent could see around the corner and ensure their safety. This distance is comparable to that covered by the officers in Charles and Mayo, and significantly less than that covered by the officer in Thomas. As a result, the officers could look into the kitchen for other persons, even if they did not have probable cause or reasonable suspicion.

Two hour delay for processing at the Laredo border crossing was not unreasonable. Defendant’s story was that he was in Mexico for two weeks visiting with a child, and the Customs officers thought the car seemed unusually clean for a two week trip with a child. The car was subjected to a mobile x-ray inspection, and then directed to the side for a further more intense search that produced drugs hidden in the dash. United States v. Cervantez-Valerio, 275 Fed. Appx. 417 (5th Cir. 2008) (unpublished)*:

Cervantez’ contention that the search of his vehicle became unreasonable merely because the Officers searched unsuccessfully for contraband for roughly two hours fails. As Flores-Montano makes clear, the Fourth Amendment does not shield individuals from “inconvenience or delay at the international border”. Id. at 155. n.3 (“We think it clear that delays of one to two hours at international borders are to be expected.”).

. . .

Cervantez also maintains the Government impermissibly used a probe to determine there was cocaine behind his dashboard, claiming the Officers had no reasonable suspicion to believe they would uncover contraband. This claim, however, is similarly disposed of by Flores-Montano.

Defendant’s arrest in his home was not supported by exigent circumstances, and he opened the door on a command from the officers. Therefore, the entry and arrest violated Payton. United States v. Reeves, 524 F.3d 1161 (10th Cir. 2008).

The length of defendant’s stop was not unreasonable. He consented while the officer was waiting for the computer check to come back, and the officer did not move him to the back of the patrol car until after he consented. United States v. Gonzalez, 275 Fed. Appx. 930 (11th Cir. 2008) (unpublished).*

It is irrelevant that the defendant was not charged with the trafffic offense that led to his stop as long as there is probable cause for the stop. Here there was, and a search incident was proper. United States v. Mitchell, 2008 U.S. Dist. LEXIS 37356 (S.D. Ga. May 7, 2008).*

Evidence supported the conclusion that defendant had abandoned the motel room he was in. It was checkout day, and he was seen running with a suitcase away from it, and the manager gave chase, among other things. In addition, the first entry produced nothing. United States v. James, 534 F.3d 868 (8th Cir. 2008).*

The search of defendant’s house was justified as a probation search with reasonable suspicion and because defendant consented to it. United States v. Becker, 534 F.3d 952 (8th Cir. 2008).*

Knowledge of the roommate’s computer and folder passwords created actual authority to consent to a search. United States v. Cole, 2008 U.S. Dist. LEXIS 62207 (D. Me. July 24, 2008).*

Probable cause for the search was shown. The search warrant affidavit in this case was not so bare bones as to render reliance on it unreasonable. The good faith exception would save it. United States v. Labelle, 2008 U.S. Dist. LEXIS 62140 (E.D. Mich. August 13, 2008).*

Indiana officer had reasonable suspicion for a trash pull. Taking the trash at night before the morning pickup was substantially the same time as the trash collector. Teague v. State, 891 N.E.2d 1121 (Ind. App. 2008).*

Anonymous caller of man with a gun was corroborated by a 911 call with detail including defendant’s license number where the 911 caller could be located by caller ID. The officer also corroborated details before acting on them. United States v. Massaro, 560 F. Supp. 2d 96 (D. Mass. 2008):

As the government points out, Massaro’s reliance on J.L. is, however, misplaced. Unlike the situation in J.L. in which there was only one anonymous, unrecorded call, here there were two calls, one anonymous and one recorded over the 911 line. The recorded call was from a woman who did not give her name but supplied her address and apartment number. By revealing her location, including the apartment number, she provided enough information to be held accountable if her allegations turned out to be untrue. Cf. J.L., 529 U.S. at 270 (contrasting an anonymous tip with a tip from someone who can be held responsible for a fabricated allegation). Although Massaro contends that the woman called from a known drug house, the 911 operator testified that she spoke clearly and provided detailed information. Also, unlike the situation in J.L., she supplied a basis for knowledge. She reported that she had seen a man outside her window pointing a gun. She did not give the 911 operator a detailed description of the armed man but she was able to supply the license plate number of his vehicle. The second, anonymous call corroborated the first call, thereby supporting its reliability.

Officers were lawfully in house with an arrest warrant, and they found defendant in somebody else’s bed, fully dressed and covered by a sheet such that weapons could be concealed. The government’s contention that defendant abandoned jacket did not have to be reached because the officers had reasonable suspicion to look in the jacket. United States v. Longs, 2008 U.S. Dist. LEXIS 44585 (D. Minn. June 5, 2008).*

Defendant’s guilty plea was a waiver of his search claim. Defendant did not waive ineffective assistance as to the plea itself, but that did not affect the search claim. Mangiapane v. United States, 2008 U.S. Dist. LEXIS 44616 (E.D. Mo. June 5, 2008).*

Defense counsel was not ineffective in the defendant’s suppression hearing where he vigorously cross-examined witnesses, and the court determined that the officers had a reasonable belief that the consenter had apparent authority to do so. United States v. Merrill, 2008 U.S. Dist. LEXIS 44645 (E.D. La. June 4, 2008).*