Search of juvenile’s purse was unjustified. Police received a 911 call from her mother who claimed that she was suicidal, and the police found her walking down the street carrying a blue purse. Officers seized the purse and searched it finding only a marijuana pipe. They searched the house with the mother’s consent finding nothing. In re Tiffany O., 217 Ariz. 370, 174 P.3d 282, 520 Ariz. Adv. Rep. 7 (2007):

P11 There is no evidence in the record that the 9-1-1 call mentioned that Appellant had or was threatening anyone with a weapon. There was no sign of a weapon when the officers arrived on the scene, and upon their arrival, they saw no domestic violence or suicide attempt taking place. Officer Stewart testified, however, that the seizure of the purse was justified because when Mother called 9-1-1 she indicated Appellant was suicidal and, therefore, he thought there might be a weapon in the purse with which Appellant might harm either herself or him. We assume, without deciding, that this justifies Officer Stewart’s seizure of Appellant’s purse.

Masschusetts has previously held that surreptitious recording by a snitch in a private home violated the state constitution. In this case, a visitor was involved, and the court held that probable cause and exigent circumstances justified it. Commonwealth v. Rodriguez, 450 Mass. 302, 877 N.E.2d 1274 (2007):

We assume, without deciding, that the defendant had a reasonable expectation of privacy in the private home in which Tirado was staying. See Commonwealth v. Blood, supra at 68. Thus, a “search” and “seizure” occurred in the constitutional sense when police secretly wiretapped the defendant’s conversation in Tirado’s wife’s home. See id. at 77 (“As to each of [the] conversations [recorded in a private home], we hold that its warrantless electronic search by surreptitious transmission and its electronic seizure by surreptitious recording were in violation of art. 14”). Even given this assumption, the interception did not violate art. 14 because it was justified by probable cause and exigent circumstances. See id. at 70 n.10 (“We do not, of course, preclude the propriety of warrantless electronic surveillance conducted on probable cause in exigent circumstances”).

The defendant contends that exigent circumstances did not exist because the police were in control of the timing of the defendant’s arrival at Tirado’s wife’s apartment and could have obtained a warrant before asking Tirado to telephone the defendant. We conclude otherwise. The police here acted reasonably throughout. A large shipment of cocaine had been addressed to and signed for by a suspect who, in the face of this incriminating evidence, denied immediately that the package was his, claiming instead that it belonged to a “friend.” The police cannot be faulted for asking Tirado to contact the defendant in an attempt to substantiate Tirado’s story promptly.

Once Tirado placed the telephone call to the defendant and the defendant indicated that he would be arriving in a taxicab, both probable cause and exigent circumstances were present. Tirado’s initially questionable story was quickly turning into reality, and there was no time to obtain a warrant. Officer Soto’s observation that a man matching Tirado’s description had entered a taxicab at the address Tirado had given, and was en route to 5 Ardmore Street, further confirmed Tirado’s story. We reemphasize that the standards for an exigency are strict, Commonwealth v. Forde, 367 Mass. 798, 800, 329 N.E.2d 717 (1975), and police cannot intentionally create exigencies to evade the warrant requirement. In this case, however, we conclude that the police acted reasonably in the course of their investigation, and, given the unexpected turn of events, had no opportunity to obtain a warrant. See id. at 802-803 (“where the police are conducting an investigation of continuing criminal activities, the exigency of circumstances which develop unexpectedly is not diminished by the fact that in hindsight it appears that there would have been time to obtain a warrant”).

Nighttime knock-and-talk was coercive, particularly when the officers were inside the house asking for consent. The defendant did not have to be handcuffed to feel coerced. United States v. Reynolds, 526 F. Supp. 2d 1330 (N.D. Ga. 2007):

Once in the living room, Mr. McCord and Mr. Reynolds were not free to leave. (Henry Tr. 76-77.) Though they were not in handcuffs, the court finds that there was coercive police presence at that point. The encounter took place at night, when the appearance of police officers on one’s doorstep tends to be more coercive than during the day. Ramirez-Chilel, 289 F.3d at 751 n.8. In contrast to Deputy Henry’s earlier request to move to the living room, Deputy Henry simply told Mr. McCord and Mr. Reynolds that he was going to look through the house for Mr. Miles. (Henry Tr. 18, 53.) That the officers did not attempt to seek permission from either occupant to search the house indicates that the defendants were not able to refuse consent. Without specifically addressing the rest of the Ramirez-Chilel factors, the totality of the circumstances indicates that Deputy Henry’s first sweep was not a consensual search, based on Deputy Henry’s acknowledgment that the men were not free to leave and the coercive way in which he informed them of, rather than requested, the search. By the time of Deputy Brown’s second sweep, both Mr. McCord and Mr. Reynolds were in handcuffs. (Id. at 22.) The court finds that the second sweep was likewise not consensual.

A refusal (here asking for an attorney which was held not to be a refusal) is not required for issuance of a search warrant for blood under the Arizona implied consent statute. State v. Stanley, 217 Ariz. 253, 172 P.3d 848 (2007):

P22 Search warrants may be authorized “[w]hen property or things to be seized … constitute any evidence which tends to show that a particular public offense has been committed, or tends to show that a particular person has committed the public offense.” A.R.S. § 13-3912(4) (2001). The blood identified by the affidavit clearly meets that standard. Additionally, the statute requires that “[n]o search warrant shall be issued except on probable cause, supported by affidavit, naming or describing the person and particularly describing the property to be seized and the place to be searched.” A.R.S. § 13-3913 (2001). The affidavit here likewise meets that requirement. A refusal to take a test, though required to administratively revoke one’s driver’s license pursuant to A.R.S. § 28-1321, is not a requirement to the issuance of a search warrant in support of aggravated DUI.

Personal appearance of affiant rule in N.J. is not a constitutional requirement. While violations of the rule are not to be condoned, a violation of the rule only leads to suppression if there is prejudice to the accused. State v. Gioe, 950 A.2d 930 (N.J. Super. 2008):

Secondly, as conceded by the defendant, there is no evidence of bad faith or deliberate disregard of Rule 3:5-3(a) by Moeller. To the contrary, Moeller sought a warrant when, at least arguably, a warrant was not necessary to search defendant’s impounded automobile. See State v. Dickey, 152 N.J. 468, 483-84 (1998) (“An inventory search is the search of property lawfully seized and detained, in order to ensure that it is harmless, to secure valuable items (such as might be kept in a towed car), and to protect against false claims of loss or damage.”); State v. Sugar, 100 N.J. 214, 238 (1985) (describing the inevitable discovery exception to the exclusionary rule). Thus, applying the two-pronged Johnson [United States v. Johnson, 641 F.2d 652, 656 (9th Cir. 1980)] test, suppression of the marijuana is not appropriate.

In sum, while we do not condone the procedures utilized by the issuing judge and express no opinion as to whether, in different circumstances, the failure of an affiant to personally appear will require suppression of evidence, we are persuaded that neither the Fourth Amendment of the United States Constitution nor the provisions of Article I, Paragraph 7 of the New Jersey Constitution mandate suppression of the evidence seized from defendant’s automobile. Obviously, there were procedural irregularities in the proceedings to obtain the search warrant that issued, but the record clearly supports the Law Division’s determination that Investigator Moeller’s affidavit established sufficient probable cause to justify the issuance of the search warrant. It is equally clear the requirements of Rule 3:5-3(a) were not intentionally or deliberately disregarded. In fact, Investigator Moeller merely carried out the instructions he received from the issuing judge. Consequently, “[w]e see no threat to Fourth Amendment values,” and we find no legitimate reason to invalidate the warrant. Bisaccia, supra, 58 N.J. at 593.

Asking for consent while the defendant was still seated in the patrol car, just as paperwork was returned, was not consent. People v. Bernstein, 2008 Ill. App. LEXIS 637 (June 26, 2008), released for publication July 25, 2008:

The circumstances in the case at bar establish that Blanks began questioning Bernstein at the same time he returned Bernstein’s documents and the warning citation. The trial court determined that the traffic stop concluded when Blanks gave Bernstein back his documents and the warning citation. We disagree. We do not consider Blanks’ superficial termination of the traffic stop to have concluded it. Blanks returned the documents and immediately began posing questions to Bernstein. Blanks inserted his request to ask more questions in the “seamless transition between mandatory and ‘consensual’ interaction.” People v. LaPoint, 353 Ill. App. 3d 328, 333, 818 N.E.2d 865, 869, 288 Ill. Dec. 930 (2004). There was an insufficient passage of time or a perceivable shift in Blanks’ authoritative stance such that a reasonable person in Bernstein’s position would have recognized that the traffic stop had ended and a consensual encounter begun. …

Trial court erroneously ended the proof on the motion to suppress before all the proof was in. Both sides had an opportunity to make their cases. The trial court erroneously believed that the U.S. Marshal’s Service did not have jurisdiction to make an arrest, but it did. State v. Aikens, 950 A.2d 911 (N.J. Super. 2008).*

Defendant consented only to a patdown for weapons, and the patdown revealed a small bulge in his pocket which was obviously not a weapon, so the plain feel exception did not apply. State v. Lee, 283 Kan. 771, 156 P.3d 1284 (2007):

In this case, the initial intrusion was the pat-down search for weapons. The pat-down search for weapons was lawful because Lee voluntarily consented to the search. However, we note that Lee did not consent to a general search. The officer specifically asked for permission to conduct a pat-down search for weapons and did not ask Lee to empty his pockets. Based on this evidence, the first requirement for the application of the plain feel exception has been met–the initial intrusion was lawful.

Likewise, the second requirement for the application of the plain feel exception was met. The discovery of the methamphetamine was inadvertent because the officer did not have any reason to believe that Lee would have methamphetamine in his pocket. The officers did not question Lee about drugs, and Lee did not behave as though he were under the influence of drugs.

Under the third requirement for the plain feel exception, the officer must have probable cause to believe that the object is evidence of a crime. However, the officer testified that he did not know what the object was when he felt it. The district court found that the officer could not reasonably have believed that the small, rolled-up plastic bag was a weapon. The State does not contest this finding, and it is supported by the evidence. The officer testified that weapons typically feel hard, and the small object in Lee’s pocket just felt like a bulge. Because the officer did not have probable cause to believe that the small object in Lee’s coin pocket was a weapon or evidence of a crime, the plain feel exception does not apply.

Lee consented to a pat-down search for weapons. However, the officer exceeded the scope of the search when he removed the plastic baggie containing methamphetamine from Lee’s coin pocket. Because the plain feel exception does not apply, the methamphetamine in Lee’s pocket was illegally seized in violation of Lee’s Fourth Amendment rights. Likewise, the discovery of the marijuana residue in Lee’s duffel bag was also illegal because it was a fruit of the illegal search of Lee’s pocket. See State v. Morris, 276 Kan. 11, 25-26, 72 P.3d 570 (2003) (suppressing evidence that was discovered after the defendant was illegally seized).

Government discusses only voluntariness of consent and fails to discuss the relation to the illegal arrest, which the court finds taints the consent. Court gives a helpful analysis of a circuit split. United States v. Henderson, 2007 U.S. Dist. LEXIS 30991 (S.D. Ohio April 25, 2007):

The issue before a court considering the validity of a consent to search following an illegal arrest is whether the consent sufficiently satisfies both the voluntariness and causal connection tests. This issue splits the circuits. The Sixth Circuit requires that a consent to search following an illegal seizure pass both the voluntariness and causal connection tests before a court may find it valid. See, e.g., United States v. Lopez-Arias, 344 F.3d 623, 629-30 (6th Cir. 2003); United States v. Caicedo, 85 F.3d 1184, 1190 (6th Cir. 1996); United States v. Bradley, 922 F.2d 1290, 1296 (6th Cir. 1991); United States v. Richardson, 949 F.2d 851, 859 (6th Cir. 1991); United States v. Buchanan, 904 F.2d 349, 356 (6th Cir. 1990). As noted in one of the circuit’s leading cases:

“Therefore, following Supreme Court precedent, we have repeatedly held that if a consent to search is given after an illegal seizure, evidence obtained pursuant to the consent to search must be suppressed, unless the consent is sufficiently attenuated from the illegal seizure such that the consent is the product of an intervening act of free will.”

Lopez-Arias, 344 F.3d at 629 (citations omitted).

In assessing causal connection, the Sixth Circuit follows Brown and requires a court to apply attenuation factors to an otherwise voluntary consent following an illegal arrest. These factors include “the length of time between the illegal seizure and the consent, the presence of intervening circumstances, the purpose and flagrancy of the official misconduct, and whether the officers read the suspect his Miranda rights before he consented.” Lopez-Arias, 344 F.3d at 630. No single factor is dispositive. Brown, 422 U.S. at 603-04. The government bears the burden of persuasion to establish attenuation. Kaupp v. Texas, 538 U.S. 626, 633 (2003).

Applying this law to the present facts, the Court first notes that, in its memorandum supporting its motion for reconsideration, the Government exclusively focuses its argument on establishing the voluntariness of Madden’s post-arrest consent to search the Wynde Tree Residence. See Doc. 122. The Government’s failure to address any causal connection between Madden’s illegal arrest and her voluntary consent negates the Government’s conclusion that Madden “validly consented” to the search of the Wynde Tree Residence. Consequently, as a matter of law, the Government’s contention that Madden’s voluntary consent validated the police’s search of the Wynde Tree Residence fails.

By failing to address the Sixth Circuit’s causal connection test, the Government cannot demonstrate clear error of law. Further, by misapplying the law, the Government fails the facts. As the Court discussed in its April 13, 2007 Opinion and Order regarding Madden, see Doc. 111, the police illegally seized Madden at the January 11, 2007 roadside stop. Without probable cause, Captain Heffernan put Madden in the back seat of his police car and then, upon orders of Special Agent Lucas and with Detective Clark, transported her to the parking lot of the Fourth District Station and, ultimately, to an interrogation room at the Justice Center. Id. Lucas testified that, throughout Madden’s stay in Heffernan’s police car and the interrogation room, she “was not free to go.” Id. No event intervened between her illegal seizure and her eventual consent to search. See, e.g., Buchanan, 904 F.2d at 356 (noting that “[d]issipation of the taint resulting from an illegal entry ordinarily involves showing that there was some significant intervening time, space, or event”) (internal quotation and citation omitted)). The police did not allow Madden to use a phone; she did not contact a lawyer. Id. Without an intervening event, the “taint” of Madden’s illegal arrest did not dissipate before the police obtained her otherwise voluntary consent to search the Wynde Tree Residence.

Furthermore, as detailed in the April 13, 2007 Opinion and Order, the illegality of Madden’s arrest was blatant. [Doc. 111.] Upon orders from Special Agent Lucas, Captain Heffernan and Detective Clark kept Madden in the back of Heffernan’s police car for nearly four hours.

Nervousness alone is not reasonable suspicion, but it is pertinent. Add evasiveness, and it is reasonable suspicion. Camp v. State, 983 So. 2d 1141 (Ala. Crim. App. 2007).*

Fact that defendant was handcuffed before the search incident did not lessen that officer’s ability to legally conduct it. Meister v. State, 864 N.E.2d 1137
(Ind. App. 2007).*

Arizona holds that any additional delay after issuing defendant two warnings and defendant was [purportedly] free to go, when consent was sought, was de minimus by constitutional standards. Waiting 100 minutes for a drug dog to arrive was not unreasonable because it was based on reasonable suspicion of drug trafficking. State v. Teagle, 217 Ariz. 17, 170 P.3d 266, 516 Ariz. Adv. Rep. 18 (2007), rev. den. 2008 Ariz. LEXIS 42 (Mar. 18, 2008):

P28 At the time of this incident, Officer Greene had approximately four years experience in law enforcement and had attended numerous schools in addition to basic academy training, including three drug interdiction schools. Based on his specialized training and experience, the officer testified that the following indicators present at this traffic stop were, in combination with one another, consistent with the trafficking of illegal drugs or other criminal activity: (1) the nature of defendant’s travel plans, namely, that he traveled from Florida to Phoenix in only two to three days, unusually fast for someone on vacation, and that his stated purpose for driving from Florida to Las Vegas was to play pool in a bar, yet he had no specific plans or hotel reservations; (2) the mounted cellular phones, indicating both were in use; (3) the fast-food wrappers and containers of food; (4) the luggage and clothing hung in the backseat rather than the trunk; (5) defendant’s response during the first stop that he was not “aware” of anyone placing contraband in his vehicle; (6) defendant’s decision to exit his vehicle and approach the patrol car during the second stop; and (7) the stop occurred in a known drug corridor.

Under State v. Gant, 216 Ariz. 1, 162 P.3d 640 (2007), defendant was arrested too far away from his car to make it subject to search incident. However, the state wins this case based on the fact that inevitable discovery would save the search because of application of the inventory doctrine, a challenge not made below. State v. Rojers, 216 Ariz. 555, 169 P.3d 651 (2007). Comment: The court faults the defendant for not putting the trial court and the state on notice of this argument and then gleans from the record enough to show that it sort of was peripherally raised because the arguments sounded like an inventory issue. This is the perverse beauty of appellate review. In this case, the court could have just said “this wasn’t fully litigated below, so you lose,” but it chose to go into the merits without a full record to further nail the defendant by showing that “with what we have here, this search looks OK.” In this case, the defendant is faulted for not being more specific as to what he wanted to litigate because the tenor of the argument showed that he was on the right track. The bottom line is really more simple than the court allows, and it is visible to me between the lines: The defendant knew the argument and he raised it, but knew he could not win on the facts so he chose to not delve into it in detail. Been there; done that; have the lost suppression motions to prove it.

Defendant obviously felt pressure to consent, but it was [apparently] of his own making, and that did not make consent invalid. Defendant seized on one sentence in the USMJ’s R&R. United States v. Tindell, 2007 U.S. Dist. LEXIS 80418 (E.D. Tenn. October 30, 2007):

Viewed in its complete context, Judge Guyton’s statement means nothing more than Tindell probably felt pressure under the circumstances based on his outstanding warrant or based on the fact that the KPD officers appeared to have considerable information about his drug dealing. The key point in all of this, however, is that Judge Guyton ultimately concluded that police coercion did not contribute to defendant’s statements and admissions. Judge Guyton correctly concluded in effect that the totality of the circumstances indicates that any statement by Tindell was the product of free and rational choice rather than any police coercion. There is ample case law supporting Judge Guyton’s conclusion that the situation in this case falls far short of the police coercion required to render a defendant’s statement involuntary. …

Reasonable suspicion was based on defendant’s being dressed in black and looking in windows of houses at night in an area that had seen a string of burglaries. When confronted, defendant was evasive and nervous [the latter only adding to the reasonable suspicion; the former was plenty]. Baldwin v. State, 237 S.W.3d 808 (Tex. App.—Houston (14th Dist.) 2007):

Here, appellant contends the woman who reported him to Deputy Smith was not known to be credible. More specifically, appellant claims her report was no more reliable than an anonymous tipster. However, Deputy Smith did not detain appellant based on the woman’s report. Rather, he detained appellant only after a personal encounter with appellant on the street. Appellant’s nervousness, shuddering, evasiveness, refusal to identify himself to a police officer, and manner of wearing all black clothing at 10:30 p.m. in a neighborhood where there had been a recent string of burglaries, coupled with the woman’s report that she had seen appellant looking into houses, are indicative of criminal activity.

Defendant’s arrest and removal from his vehicle did not nullify the officer’s ability to conduct a search incident of a tobacco pouch in the vehicle. Officers had made an arrest of one of defendant’s drug customers, and she had an identical pouch and said she bought from him at least 100 times in the last few years. Alternatively, an inventory would have been proper. Phinizee v. State, 983 So. 2d 322 (Miss. App. 2007).*

Defendant failed to produce evidence of diminished capacity at suppression hearing to show that he could not consent, so the trial court properly denied the motion. Evans v. State, 984 So. 2d 308 (Miss. App. 2007), cert. den. 2008 Miss. LEXIS 289 (June 12, 2008).*

In an interesting twist to Brendlin on the stop of the driver being a stop of the passenger, Arizona speaks to when the passenger is free to leave, if separate from the driver. Here, the officer ordered defendant out of the car for reasons completely unrelated to the purpose of the initial stop and patted him down without regard to any claim of safety. Therefore, the patdown was suppressed. State v. Johnson, 217 Ariz. 58, 170 P.3d 667, 512 Ariz. Adv. Rep. 3 (2007), cert. gr 2008 U.S. LEXIS 5208 (June 23, 2008):

P18 We have found no case law governing when the seizure of passengers in a vehicle, incident only to a driver’s traffic violation, terminates. See Maryland v. Wilson, 519 U.S. 408, 415 n.3, 117 S. Ct. 882, 886 n.3 (1997) (declining to reach this issue). However, common sense suggests that at some point during the encounter the passengers in the vehicle must be free to leave–their fate is not entirely tied to that of the driver. Obviously, if a driver is arrested and taken to the police station, innocent passengers will not also be taken into custody or required to accompany the driver. If the passengers are told they are free to leave and do so, it is clear they are no longer seized; it is equally clear that, if they are being questioned about the reason for the stop, they remain seized. It is less clear when passengers’ seizures terminate under factual situations that lie within the extremes of these examples, but we must be guided by reasonableness. See Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 421 (1996) (“The ‘touchstone of the Fourth Amendment is reasonableness.’ Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.”), quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S. Ct. 1801, 1803 (1991).

. . .

P20 When we examine whether Trevizo’s encounter with Johnson evolved into a consensual encounter, we note that Trevizo’s interaction with Johnson and her questions to him were wholly unrelated to the purpose of the traffic stop. Trevizo testified that she and her team “were not investigating gang activity as part of the traffic stop,” stating she spoke with Johnson solely because she “wanted to gather intelligence about the gang he might be in,” “a choice [she] made to further [the] mission of [her] task force.”

P21 Had Trevizo wanted to order Johnson out of the car after it had been stopped, she could have done so. See Wilson, 519 U.S. at 415, 117 S. Ct. at 886 (“[A]n officer making a traffic stop may order passengers to get out of the car pending completion of the stop.”). However, Trevizo did not do so. As we already noted, Trevizo conceded that, as far as she was concerned, Johnson “certainly” “could have refused” her request to get out of the car.

. . .

P23 And, most importantly, neither Trevizo nor the other officers ordered all the occupants to get out of the vehicle during the traffic stop for officer safety reasons. Indeed, the front seat passenger remained in the car throughout the encounter. This fact lends further support to the conclusion that Trevizo’s questioning of Johnson was wholly unrelated to the stop and constituted a separate, and consensual, encounter.

. . .

P27 We find that Trevizo’s initial lawful seizure of Johnson incident to the traffic stop of the driver evolved into a separate, consensual encounter stemming from an unrelated investigation by Trevizo of Johnson’s possible gang affiliation and that, under the circumstances of this case, a reasonable person in Johnson’s position would have felt free to remain in the vehicle. The state has admitted the officers had no reason to believe Johnson was involved in criminal activity when Trevizo searched him. Trevizo’s request that Johnson step out of the car to discuss gang activity, and not for officer safety purposes, was part of a consensual encounter. Accordingly, she had no right to pat him down for weapons, even if she had reason to suspect he was armed and dangerous. See Ilono H., 210 Ariz. 473, P11, 113 P.3d at 699. Accordingly, the trial court erred in denying Johnson’s motion to suppress the evidence found. See Moody, 208 Ariz. 424, P62, 94 P.3d at 1140.

Brendlin was cited and briefly discussed, and it was decided after submission of the case. The court concluded that Brendlin did nothing to answer the question there.

Defendant has already been held to lack standing to contest the search of the motel room he was in. His second motion to reconsider does no better because claiming it was an invalid probation search misses the mark. United States v. Molsbarger, 2007 U.S. Dist. LEXIS 66448 (D. N.D. September 6, 2007).*

Defendant’s continued detention was based on [really thin] reasonable suspicion. Consent thereafter was valid. Lane v. State, 287 Ga. App. 503, 651 S.E.2d 798 (2007).*

Drug dog took two minutes to appear, and it was within the time needed to ask basic questions and run the driver’s license through NCIC and the state computer. Therefore, the stop was not too long for Terry. Ellis v. Commonwealth, 52 Va. App. 220, 662 S.E.2d 640 (2008).*

Failure to raise search claim in trial court and on appeal is a res judicata bar. State v. Dudas, 2008 Ohio 3260, 2008 Ohio App. LEXIS 2798 (11th Dist. June 27, 2008);* State v. Dudas, 2008 Ohio 3261, 2008 Ohio App. LEXIS 2799 (11th Dist. June 27, 2008).* His post-conviction claim alleging IAC was properly denied without a hearing. State v. Dudas, 2008 Ohio 3262, 2008 Ohio App. LEXIS 2808 (11th Dist. June 27, 2008).*

Defendant’s stop for speeding resulted in observations that defendant was likely under the influence, so there was a factual basis for requiring a field sobriety test. State v. Hill, 2008 Ohio 3249, 2008 Ohio App. LEXIS 2707 (7th Dist. June 25, 2008).*

Indiana trash searches conducted before Litchfield was decided in 2005 are governed by pre-Litchfield case law unless defendant made the motion before it was decided. Belvedere v. State, 889 N.E.2d 286 (Ind. 2008)*; Membres v. State, 889 N.E.2d 265 (Ind. 2008).*

Statements against penal interest for informants distinguish true statements about crimes the police know nothing about that are potentially reliable and those designed to curry favor with the police who caught the informant. This informant’s statement were the former. Robinson v. State, 888 N.E.2d 1267 (Ind. App. 2008).*

Police tailed a drug mule who had already been busted on I-70 in Indiana. He had instructions to drive to Richmond, Indiana and make a call. An officer rode with him, and he made the call and was told to go to a muffler shop and park in a service bay. When he arrived, the defendant showed up. The vehicle was taken into the service bay and money was removed while officers were listening by a planted wireless device. Defendant was arrested. Based on the affidavit’s assertions that those involved in substantial drug movement likely would have drug records at home, the search warrant affidavit showed probable cause for a search warrant of defendant’s house. Eaton v. State, 889 N.E.2d 297 (Ind. 2008):

The defendant’s argument is that these facts fail to establish probable cause for the issuance of the warrant authorizing police to search his residence. We disagree. The facts presented in the affidavit and the reasonable inferences therefrom show that the defendant was involved in the receipt and unloading of a substantial quantity of illegal drugs, and that incriminating records commonly maintained by persons engaged in drug trafficking were likely to be found at the defendant’s residence. Evaluating the totality of the circumstances, we conclude that the facts set forth in the affidavit established a fair probability, that is, a substantial chance, that evidence of drug trafficking would be found at the defendant’s residence. We are convinced that the issuing magistrate had a ‘substantial basis for… conclud[ing]’ that probable cause existed.” Gates, 462 U.S. at 238-39.

Defendant consented to talk to the officers because the circumstances indicated he was free to leave. A second officer involved in the stop was heading back to his car when the first officer asked about consent. United States v. Collins, 2008 U.S. Dist. LEXIS 50344 (M.D. Ala. July 1, 2008).*

Defendant was not entitled to CI’s identity that led to issuance of the search warrant. The charge was based on the surveillance of defendant after the warrant was issued, and the CI had nothing to do with that. State v. Messam, 108 Conn. App. 744, 949 A.2d 1246 (2008).*

No Fourth Amendment claim lies for a traffic stop for talking on a cellphone without a handsfree device. There is no dispute that plaintiff was violating the ordinance, and the officers were entitled to qualified immunity at the minimum. Schor v. Daley, 2008 U.S. Dist. LEXIS 50602 (N.D. Ill. June 30, 2008).*

Defendant signed a consent form for search of his residence without duress or acquiescence to police authority. United States v. Duncan, 2008 U.S. Dist. LEXIS 50811 (S.D. Fla. July 2, 2008).*

There is no reasonable expectation of privacy in IP addresses and browser history discoverable by subpoena to an ISP. Also, the Stored Communications Act does not provide suppression as a remedy. United States v. Li, 2008 U.S. Dist. LEXIS 22283 (S.D. Cal. March 20, 2008):

In United States v. Smith, 155 F.3d 1051 (9th Cir. 1998), the Ninth Circuit concluded that, in light of the express remedies provided for by the SCA, see 18 U.S.C. §§ 2701 (criminal penalties), 2707 (civil damages), and the SCA’s exclusivity of remedies provision, see id. § 2708, the SCA “expressly rules out exclusion as a remedy.” Smith, 155 F.3d at 1056 (“If the voicemail message at issue is subject to the strictures of the Stored Communications Act, then suppression is not an available remedy.”); see also United States v. Ferguson, 508 F. Supp. 2d 7, 10 (D.D.C. 2007) (“Even if Defendant was correct that the Government did not comply with the SCA, the statute does not provide for a suppression remedy.”) (citations omitted); Bansal v. Russ, 513 F. Supp. 2d 264, 282 (E.D. Pa. 2007) (purpose of § 2708 is “to establish that the exclusionary rule is not a remedy provided for by the [SCA]”). Defendant seeks to distinguish Smith and Ferguson on the grounds that Smith concerned suppression pursuant to the Wiretap Act, and Ferguson involved a magistrate-issued warrant and somehow failed to distinguish Smith properly. (See Reply at 4-5.) The court finds these alleged distinctions unpersuasive and, based on the authorities discussed above, agrees with the government’s contention that suppression is not available.

. . .

The SCA does not support the distinction Defendant wishes to draw. As noted above, § 2703(c)(2) specifically states that, when a governmental entity presents an authorized administrative subpoena, an electronic communication service provider must disclose information including, most pertinently, “records of session times and durations,” § 2703(c)(2)(C), and “subscriber number or identity, including any temporarily assigned network address,” § 2703(c)(2)(E), of a subscriber or customer. Thus, even if the SCA does create a privacy interest in some aspects of electronic communications, it clearly does not communicate to subscribers or customers that they have a reasonable expectation of privacy in their IP addresses and log-in histories. This interpretation is consistent with the holding in Forrester and reflects the important distinction between the privacy concerns implicated by disclosure of the contents of electronic communications and those implicated by disclosure of address and access data related to internet use. See Forrester, 512 F.3d at 509-11. Accordingly, the court concludes that Defendant had no reasonable expectation of privacy in her IP log-in histories and IP addressing information.

In a drug search, a weapon found is seizable under the plain view doctrine because weapons are often related to drugs. United States v. Brown, 551 F. Supp. 2d 947 (D. Ariz. 2008).*

Killing of plaintiff’s dog was a “seizure” for Fourth Amendment purposes, but it was reasonable under the circumstances. After having fatally shot the dog, the officers put it out of its misery. Viilo v. City of Milwaukee, 552 F. Supp. 2d 826 (E.D. Wis. 2008):

In Siebert v. Severino, the Seventh Circuit held that “[t]he removal of an animal constitutes a ‘seizure’ for purposes of the Fourth Amendment, and thus such a seizure must meet that Amendment’s constitutional requirements.” 256 F.3d 648, 656 (7th Cir. 2001). Although the court was considering the seizure of horses rather than dogs, its use of the general word “animal,” citation to the Lesher case, and failure to note any constraint based on Pfeil suggest that the Seventh Circuit would rule no differently in a case involving a dog. Finally, in Ellis v. City of Chicago, which predated Pfeil by a few years, the Seventh Circuit did not note any problems with a Fourth Amendment claim for the killing of a dog inside the plaintiffs’ house. 667 F.2d 606, 610 (7th Cir. 1981).

Thus, a dog is an effect or personal property that can be seized. Andrews v. City of W. Branch, Iowa, 454 F.3d 914, 918 (8th Cir. 2006); Altman, 330 F.3d at 203; Brown, 269 F.3d at 210; Fuller, 36 F.3d at 68; see Lesher, 12 F.3d at 150-51; see Siebert, 256 F.3d at 655-56; Rabideau v. City of Racine, 2001 WI 57, P 5, 243 Wis. 2d 486, 627 N.W.2d 795. And, the killing of a dog “is a destruction recognized as a seizure under the Fourth Amendment.” Fuller, 36 F.3d at 68; accord Altman, 330 F.3d at 205; Brown, 269 F.3d at 210.

Plaintiff was removed from a Greyhound bus for not having a ticket, and he fell as he was getting out of the bus. He was arrested for “disorderly conduct at a bus station,” but the charge was dismissed when it was discovered that plaintiff needed to go to the hospital [apparently so they wouldn’t have to be responsible for the medical bills]. Any use of force by the officer was appropriate to the resistence, and plaintiff’s falling off the bus was not of the officer’s doing. Kagan v. Mosley, 2008 U.S. Dist. LEXIS 10830 (E.D. N.C. February 11, 2008).*

Handcuffing the disorderly plaintiff was necessary and de minimus, all things considered. Secondo v. Campbell, 2008 U.S. Dist. LEXIS 27593 (N.D. Fla. April 4, 2008):

Applying this standard against the facts presented by Plaintiff, this Court finds that Officer Folsom did not use excessive force. The crime of disorderly conduct is relatively minor. However, even though he was not resisting arrest, based on Plaintiff’s affidavit and depositions, Plaintiff did appear to pose a threat to the safety of the officers and the tenants. Additionally, the time that Plaintiff was subjected to the pain and discomfort was very limited. According to both Plaintiff and Defendants’ accounts, Plaintiff was handcuffed with his arms behind him for only a few minutes. Officer Folsom re-handcuffed Plaintiff after Plaintiff complained of pain. It is clear that as is often the case in arrests, Plaintiff’s handcuffing involved de minimus force. “The typical arrest involves some force and injury.” Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002). Furthermore, the Eleventh Circuit has stated that “painful handcuffing, without more, is not excessive force in cases where the resulting injuries are minimal” as was the case here. Id.

Defendant’s encounter with a forest ranger at first led the officer to believe that defendant was hunting based on his orange vest, but defendant said he was just camping. A storm was approaching, and the officer asked about where his campsite was because he was concerned about defendant’s safety in the storm. The defendant produced a map, but the map was not in the area. The officer was concerned that the defendant was under the influence of alcohol or drugs or both. Then the officer walked around defendant’s truck and saw a hunting rifle leaning up against it, and then he admitted he was hunting. One thing led to another and defendant was arrested. United States v. Vance, 553 F. Supp. 2d 1308 (D. Utah 2008).*

Lack of a Miranda warning did not make defendant’s consent involuntary. United States v. Mason, 2008 U.S. Dist. LEXIS 27760 (E.D. Pa. April 4, 2008).*

Previously deported alien has no Fourth Amendment rights. United States v. Gutierrez-Casada, 553 F. Supp. 2d 1259 (D. Kan. 2008):

Just as an escaped prisoner is wrongfully present anywhere but in the penitentiary, the deported felonious alien is wrongfully present anywhere in the United States. Just as an escaped prisoner enjoys no greater Fourth Amendment rights when outside the prison walls than he does when within them, a deported felonious alien obtains no greater Fourth Amendment rights by reentering the United States than he would have had if he had remained outside the United States. Had this defendant remained outside the United States, he would have had no Fourth Amendment rights because that Amendment has no extraterritorial application. See Ross v. McIntyre, 140 U.S. 453, 464 (1891) (finding “the constitution can have no operation in another country.”); Verdugo-Urquidez, 494 U.S. at 274-75, 110 S.Ct. 1056 (holding the Fourth Amendment does not protect nonresident aliens against unreasonable searches or seizures conducted outside the sovereign territory of the United States); Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (finding it “well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders.”) See generally, Atamirzayeva v. U.S., ___ F.3d ___, 2008 WL 1959519 (Fed. Cir.2008) (reviewing cases finding that the Constitution is subject to territorial limitations).

Defendant’s Fourth Amendment position at the time of the search is also comparable to that of a trespasser who has entered on another’s land without the landowner’s consent. “Trespassers have not been granted Fourth Amendment rights because they do not have a reasonable expectation of privacy in the property.” State v. Cruz, 15 Kan. App. 2d 476, 481, 809 P.2d 1233, 1237 (Kan. App. 1991).

The officer could conclude that the consent to search bags in the back of a pickup truck was limited to only the driver’s bags, but the defendant did not show standing in the other bags. In any event, there was probable cause for search of the whole vehicle after the driver and passenger were found in possession on their persons. United States v. Grey, 2008 U.S. Dist. LEXIS 39316 (E.D. Ark. May 14, 2008).*

ICE officers had exigent circumstances for an entry for undocumented aliens because of the likelihood that they would have moved before the officers got back with a warrant. United States v. Flore-Castaneda, 2008 U.S. Dist. LEXIS 39226 (S.D. Tex. May 14, 2008).*

Defendant waived on appeal his search issue by changing the issue, and it is important that trial courts get to rule on these issues first. To avoid an ineffective assistance claim, the court goes to the merits. Defendant’s computer was lawfully seized under a search warrant for evidence of a homicide because it might have had evidence on it, even thought it was not listed in the search warrant and it was portable and found in defendant’s car. A second search warrant was issued for the computer. People v. Varghese, 162 Cal. App. 4th 1084, 76 Cal. Rptr. 3d 449 (4th Dist. 2008).*

Officer had probable cause to believe defendant was selling drugs at the time of the arrest. It mattered not what drug the defendant was selling, just that he was selling drugs. Duncan v. State, 2008 Alas. App. LEXIS 47 (March 14, 2008).*

Initial entry into a car for an open beer bottle as “contraband” for violation of a local open container law was valid. Oldfield v. State, 291 Ga. App. 432, 662 S.E.2d 243 (2008).*

There was probable cause for defendant’s arrest in his car, so the search was proper under the automobile exception. United States v. Noble, 2008 U.S. Dist. LEXIS 37184 (S.D. N.Y. May 7, 2008).*

Defendant allegedly used her home computer to access an Internet website belonging to a supplier for her employer’s business. While on the supplier’s website, she allegedly changed her employer’s password and shipping address to a non-existent address. The supplier reported the changes to the business owner. A computer specialist captured the user’s IP address, and a subpoena duces tecum issued by a municipal court was served on the user’s ISP, which released personal information pertaining to the IP address. Under N.J. Const. art. I, ¶ 7, the court held that citizens had a reasonable expectation of privacy in the subscriber information they provided to ISPs. Accordingly, the motion to suppress by defendant was properly granted because the police used a deficient municipal subpoena. Law enforcement officials could obtain subscriber information by serving a grand jury subpoena on an ISP without notice to the subscriber. The indictment could thus be dismissed, a grand jury subpoena served, and the case start over again. State v. Reid, 194 N.J. 386, 945 A.2d 26 (2008).

Private shipping facility was enlisted by the police to help track packages that the police suspected contained drugs. This did not make the employee a government agent. Hitchcock v. State, 291 Ga. App. 455, 662 S.E.2d 155 (2008):

Hitchcock argues that the UPS employee was acting on behalf of governmental authorities since his initial suspicions as to this addressee of UPS packages arose when law enforcement officials had asked for his assistance in an earlier investigation that involved a shipper who (the UPS employee later determined) was sending numerous packages to Hitchcock at his rented mailbox. This argument fails.

“The test is whether the private individual, in light of all the circumstances of the case, must be regarded as having acted as an ‘instrument’ or agent of the government when he produced the evidence.” (Punctuation omitted.) Marks v. State. The trial court should focus on whether the package at issue was “opened through the intervention or direction of law enforcement officers,” or whether instead “law enforcement agencies became involved only after the corporate employee[] discovered the contraband and called” police. Hyatt, supra, 210 Ga. App. at 425 (1). Where the private employee engages in a search “on his own volition, clearly outside of the behest of any governmental agent[, his actions are] based solely on his own suspicions” and are outside the reach of the Fourth Amendment. Morton, supra, 181 Ga. App. at 783-784(2). “The additional invasion of the privacy of the defendant’s package by the government agent is permissible as long as it does not exceed the scope of the private search. …” Marks, supra, 174 Ga. App. at 715 (1).

General consent to search a vehicle includes consent to search a locked toolbox the same as a trunk. Also relevant to consent is the defendant’s failure to object. State v. Rathjen, 16 Neb. App. 799, 751 N.W.2d 668 (2008).*

Officers blocked the defendant’s path with their car, and that was a stop. The CI in this case provided information to the police for a year which had proved reliable, and the defendant was to deliver to the CI. The CI was proved sufficiently reliable by observation. State v. Abernathy, 2008 Ohio 2949, 2008 Ohio App. LEXIS 2453 (4th Dist. June 6, 2008).*

Blue lights alone is not a seizure, although it is usually indicative of one. It could be for an emergency or other reason when the officer is on the side of the road. Here, it was not a seizure. State v. Schlueter, 2008 Tenn. Crim. App. LEXIS 417 (May 23, 2008).*

Appellant did not show that the patdown in this case was after the search of his car. The evidence justified the finding that it occurred before and was based on reasonable suspicion. State v. Adams, 2008 Tenn. Crim. App. LEXIS 416 (May 22, 2008).*

Public employees retained a reasonable expection of privacy in their work computers where they were not precluded from using the computers for personal things and the use of the computer was not inherently unlawful (e.g., child porn). Here, a spreadsheet was found and that led to a search warrant for the computers. People v. Wilkinson, 2008 NY Slip Op 28192, 20 Misc. 3d 414, 859 N.Y.S.2d 356 (Onondaga Co. Ct. 2008).*