Police investigating a protest group meeting in St. Paul raided with guns drawn. The purpose of the search is unknown to the targets. They do know they were accused of fire code violations. See CNN.com: Police raid headquarters of RNC protesters. Guns drawn for a fire code violation? Too many people? That certainly sounds dangerous.

There certainly will be other protester arrests in the days to come.

Update, Sunday: The federal government appeared to be involved in that raid and others per Salon. Is this China and the Olympics?

Defendant’s confession he had child porn supported the search of his computer with reasonable suspicion while he was on probation. United States v. Gomes, 2008 U.S. App. LEXIS 11679 (11th Cir. May 29, 2008) (unpublished).*

While the N.M. evironmental control statutes permit warrantless searches under Burger v. New York, material facts remain in dispute on whether the statute was followed. Copar Pumice Co. v. Morris, 2008 U.S. Dist. LEXIS 42350 (D. N.M. March 21, 2008).*

Consensual immigration encounter ripened into probable cause based on what the defendant told the officers. His fingerprints were not suppressable. United States v. Moya-Matute, 559 F. Supp. 2d 1189 (D. N.M. 2008).*

Defendant’s failure to raise before Litchfield that specific trash search issue could not benefit from that case’s retroactivity. Jefferson v. State, 891 N.E.2d 77 (Ind. App. 2008).*

Stop of minor after curfew when officers were responding to a call of shots fired was reasonable under Fourth Amendment and state constitution. A.M. v. State, 891 N.E.2d 146 (Ind. App. 2008):

In this case, A.M. was walking down the street at 1:00 a.m. well after curfew. The officers were aware that gunshots had recently been fired in the area. A.M. was miles from home and known to frequent the area with other individuals that the officer had arrested on prior occasions. Consequently, the officers were justifiably concerned that a violation had occurred. The officers were also reasonably concerned that A.M. might be armed, and thus justifiably concerned for their safety. These considerations outweigh the intrusion to A.M. Accordingly, we conclude that under the totality of the circumstances, A.M.’s rights were not violated under Article I, Section 11 of the Indiana Constitution.

Entry into defendant’s property to seize dead animals was permitted under open fields doctrine, even under Indiana’s expansive expectation of privacy. Baxter v. State, 891 N.E.2d 110 (Ind. App. 2008)*:

Unlike Fourth Amendment analysis, analysis of searches under the Indiana Constitution does not focus on reasonable expectations of privacy. See Trimble, 842 N.E.2d at 803. Still, the concept of open fields may be relevant in assessing the degree of intrusion a particular search makes on a citizen’s ordinary activities, which is a consideration under the Indiana Constitution. Here, the abandoned house and accompanying dilapidated buildings on the property where the dead horses were found were at least several hundred yards away from Baxter’s residence. Officer East and Deputy Smith went to the property on the basis of the tip and the confirmation by Baxter’s son that the dead horses were there. Other persons besides Baxter and his family, i.e. Silgas employees, were permitted to enter the property. Officer East and Deputy Smith also did not have to enter any closed buildings or structures, or climb any fences, to see the dead horses. We find the degree of intrusion into Baxter’s ordinary activities caused by the viewing of the dead horses to be infinitesimal.

Schmerber only requires probable cause for a routine blood draw and not a “clear indication.” Here, defendant was linked to a 1973 murder by an AFIS hit on an old fingerprint on a tissue box. A search warrant was obtained for the blood. “Accordingly, we conclude that a search warrant for the taking of a routine blood sample by a medically qualified person satisfies the requirements of the fourth amendment when the warrant is supported by probable cause.” State v. Grant, 286 Conn. 499, 944 A.2d 947 (2008).

Defendant relied on a discredited prior case as the reason why defense counsel should have filed a motion to suppress. Since the motion would not have prevailed, no IAC. People v. Echols, 382 Ill. App. 3d 309, 887 N.E.2d 793 (2d Dist. 2008).*

Nebraska probation agreement included provision that defendant was subject to probation searches by any PO or law enforcement officer, so this LEO search was valid. State v. Colby, 16 Neb. App. 644, 748 N.W.2d 118 (2008).*

Wife had apparent authority to consent to a search of a briefcase in the common area. United States v. Gallagher, 66 M.J. 250 (C.A.A.F. 2008):

Today we are asked the question whether, when one spouse consents to a search of the entire house, the apparent authority doctrine extends that consent to an androgynous, unmarked, unlocked, briefcase kept in a common area of the home, which could reasonably hold the object of the search. Based on the facts of this case, we hold that it was not objectively unreasonable for the officer to believe the consent to search the home extended to the briefcase, and the apparent authority doctrine applies. Because Appellant’s wife had apparent authority to consent to the search, the military judge did not abuse his discretion in admitting the evidence found in the briefcase during the permissive search or the evidence based on the derivative seizure and subsequent command authorized search of Appellant’s computer.

Common user could consent to an entry onto a loading dock and a protective sweep, but the user could not consent to a search of a closed box. United States v. Diaz, 2008 U.S. App. LEXIS 10777 (11th Cir. May 16, 2008) (unpublished).*

Defendant failed to show that the officer withheld material information from the magistrate or that he knew of what was attributed to him by defendant. United States v. Lum, 557 F. Supp. 2d 461 (D. Del. 2008).*

L.A. County S.O.’s stop of a billboard truck for driving around a middle school with pictures of an aborted fetus was arguably reasonable when it happened, but the 75 minute detention thereafter to figure out whether the driver had violated any laws was unreasonable. Also, the ticketing that did occur had no reasonable basis in the law. The officers were not entitled to qualified immunity for the 75 minute detention while they waited for a superviser to try and figure out whether plaintiffs could be charged with anything. Center for Bio-Ethical Reform v. Los Angeles County Sheriff’s Office, 533 F.3d 780 (9th Cir. 2008):

This basis for continued detention does not comport with Fourth Amendment standards. The investigative purposes permitted by detention are ones of fact, not law. See Michigan v. Summers, 452 U.S. 692, 700 n.12 (1981) (listing some investigative techniques that may be used during a Terry stop: “interrogation[;] … communicat[ion] with others, either police or private citizens, in an effort to verify the explanation tendered or to confirm the identification or determine whether a person of that identity is otherwise wanted[;] … [and determination of whether] in fact an offense has occurred in the area”). Thus, an officer’s uncertainty about the law cannot excuse the detention. To permit otherwise “would remove the incentive for police to make certain that they properly understand the law that they are entrusted to enforce and obey.” See United States v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir. 2000); see also United States v. Tibbetts, 396 F.3d 1132, 1138 (10th Cir. 2005) (“[F]ailure to understand the law by the very person charged with enforcing it is not objectively reasonable.”) (emphasis in original); cf. United States v. Booker, 496 F.3d 717, 722 (D.C. Cir. 2007) (“Unlike stops premised on mistakes of fact, ‘[s]tops premised on a mistake of law, even a reasonable, good-faith mistake, are generally held to be unconstitutional.'”) (alteration in original) (quoting United States v. Coplin, 463 F.3d 96, 101 (1st Cir. 2006)).

Judgment for police defendants affirmed on the claim that there was no probable cause for issuance of the search warrant. A substantial basis was shown. Kelley v. McCafferty, 2008 U.S. App. LEXIS 13906, 2008 FED App. 0380N (6th Cir. June 26, 2008).* (unpublished)

Allegation city officer was outside his jurisdiction in making stop on interstate highway was not a § 1983 claim under Moore. Rose v. City of Mulberry, 533 F.3d 678 (8th Cir. 2008)*:

Our cases on this issue have been mixed. In Bissonette, we noted in dicta that “a search unauthorized by state law would ipso facto violate the Fourth Amendment.” … We have held or made statements to that effect in other cases. … Nevertheless, we have also held that “[c]onduct by a government official that violates some state statutory or administrative provision is not necessarily constitutionally unreasonable.” … This position, too, has support within our cases. …

Whatever the state of our circuit law has been on this question, the Supreme Court recently held that a police officer who makes an arrest that is based on probable cause but who is prohibited by state law from doing so does not violate the Fourth Amendment. Virginia v. Moore, 128 S. Ct. 1598, 1607 (2008). Moore was arrested for the misdemeanor of driving with a suspended license despite the fact that in the circumstances of his case Virginia law authorized only the issuance of a summons. The Court held that although a state may provide more protection from warrantless arrests than the federal Constitution, that enhanced protection does not govern the scope of the protections afforded by the Fourth Amendment. Id. at 1606-07. If state laws could define the contours of the Fourth Amendment, its protections would “vary from place to place and from time to time.” Id. at 1607 (quoting Whren, 517 U.S. at 815).

Affidavit for search “devoid of any temporal reference” was void and the good faith exception will not save it. The State’s invitation to apply Hudson to save the warrant is rejected, too, because Hudson is premised on a valid warrant, which this is not. State v. Lee, 2008 Ohio 3157, 2008 Ohio App. LEXIS 2679 (1st Dist. June 27, 2008):

[*P15] The state asserts that even if the affidavit failed to establish probable cause, the good-faith exception to the exclusionary rule applied here to overcome suppression of the evidence.

[*P16] In support of its position, the state first urges us to reconsider our holding in Lauderdale in light of the recent United States Supreme Court decision in Hudson v. Michigan, which the state contends has severely restricted the application of the exclusionary rule. For the following reasons, we decline to do so.

. . . [Hudson is a vastly different situation.]

[*P21] Unlike the interests at issue in Hudson, the constitutional guarantee that a search warrant only issue upon a showing of probable cause protects every citizen’s interest in preventing the government from seeing or taking evidence without justification. This was the interest police officers violated in the case before us and in Lauderdale. And because this violation had everything to do with the seizure of the evidence sought, we hold that the exclusionary rule was the proper remedy to be applied. And notwithstanding the state’s argument to the contrary, our holding finds support in Hudson. As stated by the Court, “[u]ntil a valid warrant has issued, citizens are entitled to shield ‘their persons, houses, papers, and effects,’ from the government’s scrutiny. Exclusion of the evidence obtained by a warrantless search vindicates that entitlement.”

Officer’s personal knowledge defendant is driving on a suspended license is probable cause to stop him. People v. Pate, 2008 NY Slip Op 5827, 52 A.D.3d 1118, 860 N.Y.S.2d 318 (3d Dept. 2008).*

Placing a GPS device under defendant’s car to trace its movements to connect him to a burglary did not violate his expectation of privacy. The N.Y. Constitution affords no additional rights in this regard. People v. Weaver, 2008 NY Slip Op 4960, 52 A.D.3d 138, 860 N.Y.S.2d 223 (3d Dept. 2008):

In addressing this issue, we are guided by the well-settled principle that “where there is no legitimate expectation of privacy, there is no search or seizure” under the Fourth Amendment (United States v Moran, 349 F Supp 2d 425, 467 [2005]). As the federal courts have observed, a defendant has no reasonable expectation of privacy in the publicly accessible exterior of his or her vehicle, and the undercarriage is part of the vehicle’s exterior (see New York v Class, 475 U.S. 106, 112-114 [1986]; United States v Rascon-Ortiz, 994 F2d 749, 754 [10th Cir 1993]; see also People v Jackson, 143 AD2d 471, 472 [1988]). Nor can a defendant expect privacy as to the location of his or her vehicle on public streets (see United States v Knotts, 460 U.S. 276, 281-282 [1983]; People v Edney, 201 AD2d 498, 499 [1994], lv denied 83 NY2d 910 [1994]). Thus, it has been held that collecting information about the movement of a vehicle on public thoroughfares by means of an electronic device attached to a vehicle’s undercarriage, which does not damage the vehicle or invade its interior, does not constitute a search or seizure in violation of the Fourth Amendment (see United States v Knotts, 460 U.S. at 281-282; United States v McIver, 186 F3d 1119, 1126-1127 [9th Cir 1999], cert denied 528 U.S. 1177 [2000]; United States v Coulombe, ___ F Supp 2d ___, ___, 2007 WL 4192005, *4 [ND NY 2007]; United States v Moran, 349 F Supp 2d at 467). Moreover, nothing in the Fourth Amendment prohibits the police from using science and technology to enhance or augment their ability to surveil that which is already public (see United States v Knotts, 460 U.S. at 282, 284). Inasmuch as constant visual surveillance by police officers of defendant’s vehicle in plain view would have revealed the same information and been just as intrusive, and no warrant would have been necessary to do so, the use of the GPS device did not infringe on any reasonable expectation of privacy and did not violate defendant’s Fourth Amendment protections (see People v Wemette, 285 AD2d 729, 729-730 [2001], lv denied 97 NY2d 689; People v Edney, 201 AD2d at 499).

Anonymous tip ordinarily would not be enough for a parole search, but, here, coupled with defendant’s recidivist history and the officer’s knowledge of parole violations for drug use, it was enough. People v. Burry, 2008 NY Slip Op 4956, 52 A.D.3d 856, 859 N.Y.S.2d 499 (3d Dept. 2008):

The tip received by Johnson here was very specific with regard to the location of the drugs. Thus, the tip provided predictive information of illegal activity. This, coupled with Johnson’s knowledge of defendant’s recidivist history, previous parole violation and illegal drug use, possession and sales, was sufficient to provide the requisite individualized reasonable suspicion to support the search of defendant’s home and the seizure of the drugs and related items found there (see Florida v J.L., 529 U.S. at 270-271; United States v Muhammad, 463 F3d at 121; People v Huntley, 43 NY2d at 181-182). We, therefore, find that defendant’s motion to suppress that evidence was properly denied.

Search of lost wallet for criminal evidence after having already obtained defendant’s name and address from it was unreasonable. The defendant did not waive an expectation of privacy in his wallet by losing it. Wolf v. State, 291 Ga. App. 876, 663 S.E.2d 292 (2008):

1. The trial court reasoned that, because Wolf lost his wallet, he lost all expectation of privacy therein. This reasoning is erroneous. Wolf’s wallet was lost, not abandoned. Although “it is settled law that one has no standing to complain of a search or seizure of property he has voluntarily abandoned,” the question of whether a defendant has abandoned an item of personal property hinges upon his intent, that is, “whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.” It is also true that “what a person knowingly exposes to the public … is not a subject of Fourth Amendment protection.”

In the case before us, however, there is no evidence that the loss of Wolf’s wallet was either voluntary or knowing, or that it was anything other than inadvertent. Wolf claimed ownership of the wallet when the officer showed it to him at the concert, and thus he evidenced his continued expectation of privacy in an item that, like a briefcase, suitcase, or other closed container, is “traditionally a repository for items of a private nature.” Such “items of a private nature” (Wolf’s driver’s license, automobile insurance card, and money, as well as the contraband) were present in the wallet when it was found, and there is no reason to think that Wolf voluntarily discarded or abandoned these items.

. . .

Under the facts of this case, the inevitable discovery doctrine does not apply. Moore testified that, as soon as he found the wallet and determined that Wolf’s license was inside, he and the security officers at the concert “began to look through the crowd to see if [they] could recognize Wolf.” No effort was made to turn in the wallet at the station at that time. Further, the officers learned that Wolf was present at the concert because they located his parked car there. Shortly after locating his car, they found Wolf himself, making an inventory of the wallet’s contents unnecessary. Thus, the evidence was too speculative to support a finding that the contraband would have been inevitably discovered.

. . .

“The indirect fruits of an illegal search or arrest should be suppressed when they bear a significantly close relationship to the underlying illegality.” Wolf’s arrest, and the search of his person which revealed the hollow pen, resulted from the impermissible intrusion into his lost wallet. It follows that the pen must also be suppressed as “fruit of the poisonous tree.” (footnotes omitted)

Idaho’s crash scene inventory of defendant’s car was valid; she was incapacitated. United States v. Howell, 261 Fed. Appx. 55 (9th Cir. 2007)* (unpublished):

The Idaho Impound Procedure states in relevant part that “[a]t a crash scene where no probable cause exists that a vehicle was involved in a crime and the vehicle must be towed,” and the “owner/operator is incapacitated,” state troopers are to “complete the EH 06 05-01 Towed/Abandoned Vehicle Inventory/Notice form, listing every item that can be identified as belonging with the vehicle.” Trooper Olsen, the officer who responded to Howell’s crash scene, did just this. Howell had already been transferred to the hospital, and so Trooper Olsen proceeded with the mandated inventory of the vehicle’s contents.

Claim of racial animus in conducting searches of plaintiff’s business is a Fourteenth Amendment equal protection claim, not a Fourth Amendment claim. Richards v. City of Los Angeles, 261 Fed. Appx. 63 (9th Cir. 2007)* (unpublished):

Consistent with Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), we have consistently refused to analyze impermissible racial motivations as violations of the Fourth Amendment. An illegitimate subjective motivation of a police officer will not invalidate an “objectively justifiable” seizure. Whren, 517 U.S. at 812; see also United States v. Cervantes, 219 F.3d 882, 890 (9th Cir. 2000), abrogated on other grounds by Brigham City v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 164 L. Ed. 2d 650 (2006). As the district court recognized, where the claim is that a facially neutral law is being applied differently on the basis of race, the appropriate analysis is under the Equal Protection Clause. Richards’ claim for racial harassment is therefore properly addressed with his equal protection claim, where he also alleges that the raids of his establishment and his arrests were motivated by racial animus.

“[T]he district court did not clearly err when it found that his intent to withdraw consent to search the apartment was not objectively clear and unequivocal when it was communicated to officers who had no reason to know that he had granted such consent.” United States v. Hughes, 273 Fed. Appx. 587 (9th Cir. 2007)* (unpublished).

In a really interesting case, the defendant checked out of a hotel room and left a gym bag in the closet and the safe locked. Housekeeping discovered the situation, removed the bag, and called hotel engineering to open the safe. When the safe was opened, the hotel manager decided to open the package inside to see if it would survive 90 days in lost and found (e.g., was it biogradable or subject to spoilage?). The package contained a powder which they suspected was drugs, so they called the police. The police came and saw that it was cocaine, so they got sham cocaine to replace it, and they put the sham cocaine back in the safe and the gym bag into the closet in case the owner came back to claim it. He did, and he was arrested when he came out of the room. His motion to suppress was denied because the police search did not exceed the private search, and they used the information from the private search and their confirmation to get a search warrant for the cocaine. United States v. Story, 2008 U.S. Dist. LEXIS 29228 (D. S.C. April 9, 2008).*

No knock entry of a motel room for execution of an arrest warrant predated Hudson, and was still governed by it. Consent to search thereafter was still valid, even though the defendant was under arrest. United States v. Jones, 523 F.3d 31 (1st Cir. 2008).*

First Amendment retaliatory arrest claim made by a crime scene investigator against officers who arrested him fails on the pleadings, but the possible false arrest claim survives their qualified immunity claim. Rhodes v. Prince, 273 Fed. Appx. 328 (5th Cir. 2008) (unpublished).*

Suspected drug overdose of a woman thrashing about on the floor of a restaurant justified a search of her purse when officers and EMTs arrived. Commonwealth v. McCarthy, 71 Mass. App. Ct. 591, 884 N.E.2d 991 (2008).

Defendant’s stop and frisk was justified by reasonable suspicion on the totality of the circumstances, and the court of appeals erred in concluding otherwise. Commonwealth v. Marr, 2008 Ky. LEXIS 93 (April 24, 2008).*

The totality of circumstances justified defendant’s continued detention: he was stopped in front of a drug house, and somebody came and went from his truck, and he was excessively nervous when the officer tried to talk to him and acted evasive. Green v. State, 256 S.W.3d 456 (Tex. App. — Waco 2008).*

A license plate violation for how it is attached is governed by the law of where the vehicle is located and not where it is licensed. Here, the way the license was attached to this car from Ohio violated Tennessee law because it was not “clearly legible,” [a universal requirement,] and that justified the stop. United States v. Simpson, 520 F.3d 531, 2008 FED App. 0138P (6th Cir. 2008).*

“Based on the totality of the circumstances, we conclude the police officer had reasonable suspicion to believe the appellant was presently armed and dangerous and the protective search of him was justified.” United States v. Stachowiak, 521 F.3d 852 (8th Cir. 2008).*

Plaintiff’s claim against the City of New Orleans that he was forcibly “evacuated” from his fire escape at gunpoint during the Hurricane Katrina flooding was dismissed because the officers who were involved were not parties to the case and the suit would thus otherwise be based on respondeat superior. Reynolds v. New Orleans City, 272 Fed. Appx. 331 (5th Cir. 2008) (unpublished).*

Arrest without factual basis based on police officer’s failing to read the third line of the computer screen in the patrol car that the vehicle wanted was a motorcycle and not a passenger car was an arrest without qualified immunity. Phelan v. Village of Lyons, 531 F.3d 484 (7th Cir. 2008):

That said, Officer Dyas correctly notes that we may still take into account an officer’s reasonable, but mistaken beliefs as to the facts establishing the existence of probable cause. See Saucier, 533 U.S. at 206. Officer Dyas essentially argues that based on the information he received, it was reasonable for him to mistakenly believe that Phelan’s automobile was the stolen vehicle described in the LEADS report and thus that he had probable cause for the stop. But we have already concluded that Officer Dyas’s mistake was not a reasonable one. The third line of the LEADS report appeared on the same screen as the second line. Officer Dyas need not have expended more than an additional instant of attention to see the vehicle description on line three. Given the circumstances under which he was following Phelan, that additional instant would not have been hard to come by.

The justifications Officer Dyas advances for failing to read line three of the LEADS report do not change our assessment. First, he suggests that because he was pursuing a possible stolen vehicle, he had neither the luxury nor the time of an officer sitting at a desk perusing a computer screen or informational printout. Although Officer Dyas was in the field following Phelan’s car, it was hardly a hot pursuit situation. Officer Dyas’s decision to run Phelan’s plates was not prompted by any suspicious behavior on Phelan’s part, and it is undisputed that he had time to take a number of steps after receiving the response to his initial query. …

A violation of Nebraska’s nighttime search rule is irrelevant in federal court because the search there is governed solely by the Fourth Amendment. The need for a nighttime search was shown by the affidavit for the search warrant because all the drug activity at defendant’s house was during the nighttime. United States v. Howard, 532 F.3d 755 (8th Cir. 2008)* (Comment: I had a case about ten years ago where the state punted a case to the USAO after I filed my motion to suppress, apparently quite persuasively arguing that the state nighttime search rule was violated. The federal nighttime search rule was not, and the client was convicted.)

CA6: Plaintiff has no standing to contest future potential searches of his e-mails by the government in the hands of the ISP. Warshak v. United States, 532 F.3d 521, 2008 FED App. 0252P (6th Cir. 2008) (en banc):

There are several reasons why this claim is not “fit” for judicial review. To start, we have no idea whether the government will conduct an ex parte search of Warshak’s e-mail account in the future and plenty of reason to doubt that it will, making this a claim that depends on “contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotation marks omitted). Answering difficult legal questions before they arise and before the courts know how they will arise is not the way we typically handle constitutional litigation. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 894 (1990).

Senior Circuit Judge Boyce R. Martin, dissenting:

While I am saddened, I am not surprised by today’s ruling. It is but another step in the ongoing degradation of civil rights in the courts of this country. The majority makes much of the fact that facial challenges are no way to litigate the constitutional validity of certain laws. Yet our Supreme Court has no problem striking down a handgun ban enacted by a democratically elected city government on a facial basis. See Dist. of Columbia v. Heller, — U.S. —, 2008 WL 2520816 (June 26, 2008). History tells us that it is not the fact that a constitutional right is at issue that portends the outcome of a case, but rather what specific right we are talking about. If it is free speech, freedom of religion, or the right to bear arms, we are quick to strike down laws that curtail those freedoms. But if we are discussing the Fourth Amendment’s right to be free from unreasonable searches and seizures, heaven forbid that we should intrude on the government’s investigatory province and actually require it to abide by the mandates of the Bill of Rights. I can only imagine what our founding fathers would think of this decision. If I were to tell James Otis and John Adams that a citizen’s private correspondence is now potentially subject to ex parte and unannounced searches by the government without a warrant supported by probable cause, what would they say? Probably nothing, they would be left speechless.

Passenger’s purse left in car could not be searched just because the driver of the car was on parole and the officer wanted to conduct a parole search of the car. Viewed as pre-consent to a search, it is limited to that which the parolee has apparent authority over, and he had no apparent authority over the passenger’s purse. People v. Baker, 164 Cal. App. 4th 1152, 79 Cal. Rptr. 3d 858 (5th Dist. 2008).

Inventory was not completely in accord with the law, but close is good enough. Jackson v. State, 2008 Ind. App. LEXIS 1465 (July 11, 2008):

In the end, we conclude that the inventory search of the car did not violate Jackson’s rights under the Fourth Amendment. The towing of the car was authorized by statute and by police policy, and the inventory of the vehicle was similarly authorized by established police policy. Although this policy was not thoroughly followed, this alone does not establish that the inventory was a pretext. Inventory searches are not always unreasonable when standard procedures are not followed. United States v. Mayfield, 161 F.3d 1143, 1145 (8th Cir. 1998); see also Whren v. United States, 517 U.S. 806, 816, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) (“it is a long leap from the proposition that following regular procedures is some evidence of lack of pretext to the proposition that failure to follow regular procedures proves (or is an operational substitute for) pretext.”). Similarly, under Article 1, Section 11 of the Indiana Constitution, we conclude that the actions of the police in conducting the inventory, when viewed in light of the totality of the circumstances, were reasonable despite the failure to fully follow the police policy.

Comment: Even when one loses in the Indiana Court of Appeals, the quality of their opinions is always such that at least one should think that it was a fairly determined result. This is far more than I can say about some other state courts, and this is based on reading all search and seizure cases decided in the U.S. over the last five and a half years.

A traffic stop is probable cause for the stop, but reasonable suspicion of being under the influence is required for a field sobriety test. State v. Royer, 276 Neb. 173, 753 N.W.2d 333 (2008):

[F]ield sobriety tests may be justified by a police officer’s reasonable suspicion based upon specific articulable facts that the driver is under the influence of alcohol or drugs. In determining the reasonableness of a search for purposes of the Fourth Amendment, the court balances the intrusion upon an individual’s privacy with the need to promote governmental interests. See State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007). State v. McKinney, supra, set out the balancing test for determining the reasonableness of a search, and other courts have applied a similar test to determine the reasonableness of a field sobriety test.

Defendant’s wearing a down jacket with a hole in it that could have concealed a gun when the jacket was inappropriate for the weather was a strong factor in reasonable suspicion. State v. DelValle, 109 Conn. App. 143, 950 A.2d 603 (2008).*

Affidavit of child abuse that came from the attorney for the victim and the victim was sufficiently detailed to show probable cause. They were also citizen informants. State v. Scholes, 2008 ND 146, 753 N.W.2d 377 (2008).*

The affidavit for the search warrant here was so lacking in probable cause that official reliance on it was not reasonable under Leon. It was tenous, conclusory, and stale, all at the same time. (Yet again, the court does not have to decide whether the state constitution should provide more protection.) State v. Lunde, 2008 ND 142, 2008 N.D. LEXIS 146 (July 21, 2008).*

The taint of an illegal stop was purged by the fact that defendant was told he was not under arrest and could refuse consent to searches. State v. Torkelsen, 2008 ND 141, 2008 N.D. LEXIS 148 (July 21, 2008):

Torkelsen had been read his Miranda rights, was told he was not under arrest, was informed he could refuse to consent to the searches, had been transported to a different location from where the unlawful police conduct occurred, was questioned by a different officer, and was relaxed, cooperative and complied with the officer’s requests. We conclude these facts constitute sufficient intervening circumstances.