The mere fact that drug traffickers commonly keep drugs at home was not a sufficient nexus to defendant’s house to justify its search. Defendant was a Detroit police officer accused of taking $120k in cocaine from the property room and replacing it with a non-drug substitute. The good faith exception, however, saves this search. The purpose of the good faith exception is to cause the police to seek search warrants. United States v. Crockett, 548 F. Supp. 2d 434 (E.D. Mich. 2008):

Similarly, in this case, the affidavit provides probable cause that the defendant stole narcotics and was selling the stolen cocaine. The affidavit is silent to the connection between the defendant and the defendant’s residence, except that the officer stated his “belief, based on … experience” that drugs or proceeds would be in the home. Although the affidavit is insufficient, it is not so facially defective that the agents’ reliance on it and the search warrant is rendered objectively unreasonable. As a consequence, the exception to the exclusionary rule established by United States v. Leon applies to this case.

Comments:

First, this opinion to me proves too much. The court does a complete job of demolishing the government’s argument that just stating an officer’s conclusion that drug dealers often keep drugs at home provides no nexus. So, if the law is so clear, how can the officer who obtained the warrant possibly conclude that he had a reasonable basis for a finding of probable cause?

Second, now that yet another opinion states that there is no justification for an officer’s mere assertion that drug dealers keep drugs at home, where does any court draw the line on application of the good faith exception? With this case, after the next case? Next week? Does it ever apply to this officer or this department? This has been one of my continuing complaints about the GFE since Leon. When does application of the GFE actually have application to the substantive law of the Fourth Amendment? Ever?

(This opinion took nearly three months to make it to Lexis, and it is posted on the District Court’s website.)

Officers with a search warrant could use a key seized from the defendant under a search incident to open a closet. United States v. Herrara-Contrrras, 269 Fed. Appx. 875 (11th Cir. 2008) (unpublished). (Comment: Better than the alternative: breaking in the door. Since the police had a search warrant and they were looking for drugs, breaking in the closet would have been lawful. So, how are the defendant’s rights violated by using a key they came into possession of through the search incident? It is annoying when they don’t use the key and break down the door, and that happens enough as it is–breaking into something without looking for a key that was present. If anything, defendant was protected against a greater invasion of his interest if the door had to be broken.)

Anonymous crime tip on the street that left little spatial discretion to the police was corroborating people on the street pointing at cars driving away. “While quickly departing vehicles do not, in and of themselves, suggest criminal activity, it is a suspicious circumstance to be considered as part of the universe of facts. Here it becomes more significant when coupled with a number of people pointing at the vehicles as if to say ‘that’s them.'” United States v. Sanchez, 519 F.3d 1208 (10th Cir. 2008).*

Defendant’s detention was based on reasonable suspicion that he was in the country illegally based on his being associated with others who were and his claim that he had a visa and a passport in a building nearby that he could not identify. United States v. Aragon-Ruiz, 551 F. Supp. 2d 904 (D. Minn. 2008).*

Sexually violent predator is subject to strip and body cavity searches while incarcerated under Bell v. Wolfish. Sundquist v. Philp, 2008 U.S. Dist. LEXIS 25560 (N.D. Cal. March 28, 2008).*

Mere visitor who was not spending the night who was a guest of a guest that violated the owner’s explicit instructions to not invite others over had no standing to challege a search of the apartment he was found in. United States v. Hood, 551 F. Supp. 2d 766 (W.D. Ark. 2008).

Justified patdown produced crack pipe, and that authorized a search incident of the passenger compartment of the defendant’s car. United States v. Barnum, 2008 U.S. Dist. LEXIS 25785 (S.D. Iowa March 31, 2008).*

Subscriber information provided to an Internet provider is not constitutionally protected (and no case is to the contrary). A potential violation of ECPA is not subject to suppression. United States v. Perrine, 518 F.3d 1196 (10th Cir. 2008).

Slight discrepancy between crime victim’s report of the color of a vehicle involved in a crime does not defeat reasonable suspicion. United States v. Abdus-Price, 518 F.3d 926 (D.C. Cir. 2008).*

Stop was justified by a traffic violation, and independent probable cause developed. United States v. Pineda, 2008 U.S. Dist. LEXIS 18137 (N.D. Ga. March 10, 2008).*

Fourth Amendment civil rights claim in California was timely because it was brought within one year of dismissal of state case, but plaintiff loses on the merits. Womack v. County of Amador, 551 F. Supp. 2d 1017 (E.D. Cal. 2008).*

The Ninth Circuit holds that police officer’s text messages on city rented two-way pagers were subject to a reasonable expectation of privacy for alleged personal use after the city warned the officers that it would look at messages to determine why the number of text messages was so high and expensive. The city told officers that if they paid for personal messages, there would be no audit of the message usage. Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008):

Our Internet jurisprudence is instructive. In United States v. Forrester, we held that “e-mail … users have no expectation of privacy in the to/from addresses of their messages … because they should know that this information is provided to and used by Internet service providers for the specific purpose of directing the routing of information.” United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008). Thus, we have extended the pen register and outside-of-envelope rationales to the “to/from” line of e-mails. But we have not ruled on whether persons have a reasonable expectation of privacy in the content of e-mails. Like the Supreme Court in Smith, in Forrester we explicitly noted that “e-mail to/from addresses . . . constitute addressing information and do not necessarily reveal any more about the underlying contents of communication than do phone numbers.” Id. Thus, we concluded that “[t]he privacy interests in these two forms of communication [letters and e-mails] are identical,” and that, while “[t]he contents may deserve Fourth Amendment protection … the address and size of the package do not.” Id. at 511.

We see no meaningful difference between the e-mails at issue in Forrester and the text messages at issue here. Both are sent from user to user via a service provider that stores the messages on its servers. Similarly, as in Forrester, we also see no meaningful distinction between text messages and letters. As with letters and e-mails, it is not reasonable to expect privacy in the information used to “address” a text message, such as the dialing of a phone number to send a message. However, users do have a reasonable expectation of privacy in the content of their text messages vis-a-vis the service provider. Cf. United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007) (holding that defendant had a reasonable expectation of privacy in the text messages on his cell phone, and that he consequently had standing to challenge the search). That Arch Wireless may have been able to access the contents of the messages for its own purposes is irrelevant. See United States v. Heckenkamp, 482 F.3d 1142, 1146-47 (9th Cir. 2007) (holding that a student did not lose his reasonable expectation of privacy in information stored on his computer, despite a university policy that it could access his computer in limited circumstances while connected to the university’s network); United States v. Ziegler, 474 F.3d 1184, 1189-90 (9th Cir. 2007) (holding that an employee had a reasonable expectation of privacy in a computer in a locked office despite a company policy that computer usage would be monitored). For, just as in Heckencamp, where we found persuasive that there was “no policy allowing the university actively to monitor or audit [the student’s] computer usage,” 482 F.3d at 1147, Appellants did not expect that Arch Wireless would monitor their text messages, much less turn over the messages to third parties without Appellants’ consent.

We do not endorse a monolithic view of text message users’ reasonable expectation of privacy, as this is necessarily a context-sensitive inquiry. Absent an agreement to the contrary, Trujillo, Florio, and Jerilyn Quon had no reasonable expectation that Jeff Quon would maintain the private nature of their text messages, or vice versa. See United States v. Maxwell, 45 M.J. 406, 418 (C.A.A.F. 1996) (“[T]he maker of a telephone call has a reasonable expectation that police officials will not intercept and listen to the conversation; however, the conversation itself is held with the risk that one of the participants may reveal what is said to others.” (citing Hoffa v. United States, 385 U.S. 293, 302, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966))). Had Jeff Quon voluntarily permitted the Department to review his text messages, the remaining Appellants would have no claims. Nevertheless, the OPD surreptitiously reviewed messages that all parties reasonably believed were free from third-party review. As a matter of law, Trujillo, Florio, and Jerilyn Quon had a reasonable expectation that the Department would not review their messages absent consent from either a sender or recipient of the text messages.

We now turn to Jeff Quon’s reasonable expectation of privacy, which turns on the Department’s policies regarding privacy in his text messages. We agree with the district court that the Department’s informal policy that the text messages would not be audited if he paid the overages rendered Quon’s expectation of privacy in those messages reasonable.

Unlawful entry into defendant’s hotel room and getting him out of the shower at gunpoint did not make his consent voluntary. Snider v. State, 108 Conn. App. 533 (June 24, 2008):

When a consent to search follows an illegal entry, we examine the totality of the circumstances to determine whether the consent was voluntary because it was obtained by means sufficiently attenuated or distinguishable from the illegality to be purged of any taint, or whether the consent was invalid because it was the product of and tainted by the illegality. … Here, the officers illegally entered the hotel room, ordered Snider out of the shower at gunpoint, and immediately obtained his consent to search his clothes as he stood before the officers wrapped in a towel. Under these circumstances, we find that Snider’s consent to search the clothes was invalid because it was the product of and tainted by the illegal entry. … Snider’s subsequent consent to the search of his luggage, given immediately after the first consent search and after he was placed under arrest, was also invalid for the same reasons.

Search incident is proper under Belton even when defendant is handcuffed and in the backseat of a police car. State v. Garcia, 108 Conn. App. 533, 949 A.2d 499 (2008).*

Plaintiff’s claim arose with his arrest under Wallace v. Kato and was not barred by Heck v. Humphrey. Wallace applies even though all the facts occurred before it was decided. (The court also discusses the tension between Wallace and Heck.) Kamar v. Krolczyk, 2008 U.S. Dist. LEXIS 55975 (E.D. Cal. July 16, 2008):

The court finds that the recent Supreme Court case of Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L. Ed. 2d 973 (2007), has effectively overruled Harvey [v. Waldron, 210 F.3d 1008 (9th Cir. 2000)]. In Wallace, the plaintiff contended that any civil rights action that would impugn his anticipated future conviction could not be brought until that conviction occurs and is set aside. Wallace, 127 S.Ct. at 1098. The Supreme Court refused to embrace what the Supreme Court entitled a “bizarre extension of Heck.” Id. In Wallace, the Supreme Court overruled those circuits that had applied the Heck to bar Section 1983 claims when criminal charges were only pending. The “Heck rule for deferred accrual is called into play only when there exists ‘a conviction or sentence that has not been … invalidated,’ that is to say, an ‘outstanding criminal judgment.”‘ Id. at 1097-98 (quoting Heck, 512 U.S. at 486-87). To avoid a concurrent Section 1983 action and criminal action, the Supreme Court held that if a plaintiff files a false arrest claim or any other claim related to rulings that will likely be made in a pending or anticipated criminal trial, “it is within the power of the district court, and in accord with common practice, to stay the civil action until the criminal case or the likelihood of a criminal case is ended.” Wallace, 127 S.Ct. at 1098.

The Supreme Court directly addressed the collision that would occur in some civil rights cases between the statute of limitations, the Heck bar, and a potential Heck bar. The Supreme Court recognized that some civil rights actions accrue “before the setting aside of-indeed, even before the existence of-the related criminal conviction.” Wallace, 127 S.Ct. at 1098. This fact pattern “raises the question whether, assuming that the Heck bar takes effect when the later conviction is obtained, the statute of limitations on the once valid cause of action is tolled as long as the Heck bar subsists.” Id. The Supreme Court declined to adopt such a federal tolling rule. …

Plaintiff’s claim that he was hit in the face with handcuffs while already handcuffed stated a claim for excessive force. Torres-Caraballo v. Municipality of Yauco, 2008 U.S. Dist. LEXIS 56166 (D. P.R. July 23, 2008)* (Plaintiff here did not even respond to the defendant’s motion to dismiss, and the motion was still denied.).

There was probable cause to believe that evidence would be found, so plaintiff’s civil rights case fails on the merits. Owen v. County of Kitsap, 2008 U.S. Dist. LEXIS 56059 (W.D. Wash. July 23, 2008).*

Plaintiff’s deposition testimony that he did not live in the place to be searched and he lacked authority to consent to a search of the premises showed that he lacked a reasonable expectation of privacy in it. Hindbaugh v. Bd. of County Comm’rs, 2008 U.S. Dist. LEXIS 56151 (W.D. Okla July 24, 2008).*

Dog sniff conducted by second officer who immediately arrived at a traffic stop and took only a minute was valid. State v. Barbee, 2008 Ohio 3587, 2008 Ohio App. LEXIS 3039 (9th Dist. July 21, 2008):

[*P14] This Court has determined that the traffic stop in this case was justified by the trooper’s reasonable suspicion that Mr. Barbee had committed two traffic violations. Trooper Menges testified at the suppression hearing that he was writing the warning citations for those violations when Trooper Farabaugh arrived with the drug-sniffing dog. Furthermore, the videotape revealed that the dog sniff lasted approximately one minute. As Trooper Menges had not yet completed the citations for the traffic violations, he did not need any additional suspicion or probable cause to justify the canine sniff of the vehicle. See White, 175 Ohio App. 3d 302, 2008 Ohio 657, at P15, 886 N.E.2d 904 (citing Carlson, 102 Ohio App. 3d at 594; State v. Shook, 9th Dist. No. 93CA005716, 1994 Ohio App. LEXIS 2631, 1994 WL 263194, at *4 (June 15, 1994)).

IAC on a search claim was raised in defendant’s first PCR, so it could not be decided in a second. Allen v. State, 2008 Iowa App. LEXIS 502 (May 29, 2008).*

Deferring a child porn determination to the police or NCMEC violates the Fourth Amendment under Shadwick. United States v. Diyn, 2008 U.S. Dist. LEXIS 54910 (W.D. Pa. July 18, 2008):

It cannot be disputed that a magistrate or similar judicial authority, not NCMEC or a police officer, must determine the presence of probable cause in an application for a search warrant. See Shadwick v. City of Tampa, 407 U.S. 345, 348-350, 92 S.Ct. 2119, 2121-2123, 32 L.Ed.2d 783, 787-789 (1972) (probable cause determinations must be made by those individuals not involved with law enforcement). Therefore, in light of Shadwick, the conclusions of NCMEC that the two images in question were “both confirmed child pornography” certainly does not establish probable cause. Furthermore, it is unknown from the affidavit of probable cause that NCMEC made its evaluation of the images in conformity with what is outlawed by the Pennsylvania statute.

Plaintiff’s civil case failed because the “frisk” of the car for weapons and then seizure and inventory of the car for no inspection sticker were all valid. Gomez v. Markley, 2008 U.S. Dist. LEXIS 54908 (W.D. Pa. July 18, 2008).*

Motel clerk asked for police assistance in making sure that suspicious occupants were no longer in the room. The clerk opened the door with the police in tow, and that qualified for plain view of what was seen. Johnson v. State, 2008 Ga. App. LEXIS 857 (July 16, 2008) (over a dissent)*:

On appeal, Johnson argues that the search of the room was unlawful because the officers did not have authority to enter the motel room when they had no search warrant, no consent to enter, or exigent circumstances that justified their warrantless intrusion. Although the United States Supreme Court has held that the consent of a motel employee to the search of a motel room does not validate the search, there is no Georgia precedent or binding federal precedent which makes it unlawful for the police to enter a motel room upon the request of motel employees to ensure the safety of the employees. In the case at bar, the motel general manager called the police to investigate suspicious activity. The officer entered the motel room at the explicit request of the motel desk clerk while she was attempting to evict the room’s occupants. She was concerned for her safety. As Officer Ford testified, “She asked me pointedly to check the room to make sure nobody was in it.” Assisting motel owners and employees in this manner should be a normal and lawful aspect of police work. This is not a case in which the room was occupied and the occupants refused to allow the police to enter, and the police entered the room despite the lack of consent.

Georgia statute that states that a speeding ticket shall not be issued by local officers unless the vehicle is going ten miles per hour over the speed limit does not apply to state troopers, so the officer had a basis for the stop. Hayes v. State, 2008 Ga. App. LEXIS 853 (July 15, 2008).*

Defendant’s coming out of the shadows and getting into a vehicle is indicative of no crime, so his stop was invalid. Leroy v. State, 982 So. 2d 1250 (Fla. App. 1 Dist. 2008):

The State is unable to meet its burden. No reasonable suspicion of trespass arose from Appellant’s mere presence on the property. There was no BOLO with his description, nor was he observed to have an equipment or moving violation. Officer Hayes did not recognize Appellant as someone who had previously trespassed. Appellant was lawfully sitting in his vehicle and, although he was in a high crime area, standing alone, that was insufficient to establish reasonable suspicion.

Request for consent came after reasonable suspicion for a continued stop was required and was absent. State v. Luconios, 254 S.W.3d 267 (Mo. App. 2008):

Here, however, as in Granado, the search request came well after completion of the traffic stop. Therefore, Mr. Ross’s nervousness and the conflicting accounts cannot provide the factual predicate for reasonable suspicion that criminal activity is afoot to justify detention and further questioning of Mr. Ross beyond the completion of a traffic stop. State v. Dickerson, 172 S.W.3d 818, 820 (Mo.App. E.D. 2005). Corporal Seaton himself admitted that at the time he told Mr. Ross he was free to go, he did not have probable cause to detain Mr. Ross and search the car. While he had a feeling that criminal activity was afoot, he believed there was nothing else he could do at that point to further detain Mr. Ross for additional questioning. Therefore, he told Mr. Ross that he was free to go.

The “fruit of the poisonous tree” doctrine does not apply in § 1983 claims. Cannon v. Christopher, 2007 U.S. Dist. LEXIS 66146 (N.D. Ind. September 6, 2007):

Defendants contend that probable cause existed from the events occurring after the stop even if the initial stop was lacking reasonable suspicion and/or probable cause as found by the state court. To this end, Defendants cite Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999) wherein the Second Circuit concluded that the exclusionary rule and the related doctrine of fruit of the poisonous tree did not apply to a civil rights action brought under § 1983. As is the case here, the plaintiff in Townes was allegedly subjected to an illegal search and seizure that led to the discovery of handguns which, in turn, led to the plaintiff’s arrest, incarceration, and subsequent conviction. On appeal, the conviction was reversed and the appellate court determined that the officers lacked probable cause to stop and search him. The plaintiff then sought damages for injuries “derivative” of the search and seizure including his arrest and incarceration.

According to the Townes court, the plaintiff could not state a claim for false arrest because although the defendants lacked probable cause to stop and search him, they “certainly had probable cause to arrest him upon discovery of the handguns.” Id. at 149. The Second Circuit explained that, “a § 1983 action, like its tort analogs, employs the principle of proximate causation,” and that adopting the fruit of the poisonous tree doctrine in a § 1983 action would, “impermissibly recast the relevant proximate cause injury to one of taint and attenuation” and serve to “elongate the chain of causation.” Id. at 141. Thus, the court concluded that “the lack of probable cause to stop and search does not vitiate the probable cause to arrest.” Id. at 149.

Defense counsel was not ineffective for not more aggressively pursuing probable cause issue because it would not have changed the outcome. Mathurin v. United States, 2007 U.S. Dist. LEXIS 66055 (S.D. N.Y. September 4, 2007).*

Informant privilege prevailed because the informant was not the source of information for the search. Indeed, the informant never mentioned the defendant. Kennard v. State, 933 A.2d 1250 (Del. 2007).*

Defendant subjected to a customs search en route from Atlanta to St. Thomas showed his intent to leave the customs zone. United States v. Mark, 2007 U.S. Dist. LEXIS 66165 (D. V.I. September 5, 2007). (So the Virgin Islands is foreign territory?)

The confidential informant had a good track record with the officer, and he had every incentive to be truthful to the officer because he had a case pending of his own that would be adversely affected by a lie. Fleming v. United States, 923 A.2d 830 (D.C. App. 2007):

Here, not only was the unpaid informant known to Officer Wooden, but on two prior occasions his information had resulted in arrests. Moreover, the informant spoke from personal knowledge and direct observations, referring to the defendant by the name “Tray,” specifying the precise place where he could be found, providing a detailed description, including type of clothes and shoes worn, racial identity, and describing his haircut. The informant was not paid and hence had no reason to lie to gain monetary payment. See Rutledge v. United States, 392 A.2d 1062, 1066 (D.C. 1978). Nor did he or she have incentive to lie to obtain drugs, because the informant did not use drugs. And, he or she understood that if false information were given to Officer Wooden, that could have an impact on his own sentencing in a pending criminal matter. Under these circumstances, we agree with the trial judge that the informant was reliable and the information he gave to Officer Wooden was sufficiently detailed to provide the police with reasonable articulable suspicion that criminal activity was unfolding, thus justifying an investigatory stop of Mr. Fleming under Terry v. Ohio, 392 U.S. 1 (1968); see also Wilson v. United States, 802 A.2d 367, 369 (D.C. 2002); Gomez v. United States, 597 A.2d 884, 888 (D.C. 1991).

Good track record of the informant was probable cause. McTaggart v. State, 285 Ga. App. 178, 645 S.E.2d 658 (2007):

McTaggart also claims the affidavit supporting the warrant contained insufficient facts to establish the reliability of the informant. However, the affidavit attached to the search warrant does set forth sufficient facts to establish the reliability of the informant. The affidavit states that the confidential informant “has given information in the past that has lead to at least 5 search warrants” and seven or eight arrests. Further, it states the informant “has been an informant for more than 10 years and has provided numerous amounts of intelligence information that has proven reliable in the past.” These statements were sufficient to establish the reliability of the informant.

Flight from officers in a high crime area where there were apparent drug sales going on was reasonable suspicion. United States v. Adderly, 2007 U.S. Dist. LEXIS 30430 (E.D. Pa. April 24, 2007).*

Defense counsel’s failure to assert a futile Fourth Amendment claim did not prejudice the defendant. Garvey v. State, 925 A.2d 503 (Del. 2007).*

Defendant was stopped and vehicle had several guns visible in it. After a search for officer safety, the defendant said something that made the officer believe that there was yet another gun, and that permitted a further search. State v. McManemy, 2007 Iowa App. LEXIS 518 (January 31, 2007):

Officer Woodley’s initial observations while riding in his patrol car gave him reason to believe McManemy was violating weapons laws and posed a risk to public safety. After stopping his patrol vehicle to investigate, Woodley determined McManemy was carrying a loaded weapon. He took the weapon from the defendant and unloaded it. Woodley then observed a number of cased guns in the vehicle. He also observed an uncased weapon in the vehicle and cited both McManemy and Callan for violating weapons laws. After McManemy mentioned something about a pistol, the officer became concerned there might still be a handgun in the vehicle McManemy had exited. Officer Woodley was reasonably concerned for his safety. We conclude the facts just mentioned gave Officer Woodley probable cause to search the Suburban for further weapons.

McManemy claims the court erred in relying in part on his bizarre behavior of diving into the ditch with the green bag to justify overruling his motion to suppress. We find this contention is irrelevant to our consideration of the legality of the search. The probable cause requirement was satisfied by Officer Woodley’s observation of an uncased weapon inside the vehicle and statements made by the defendant indicating another weapon might be found in the vehicle. These facts gave Officer Woodley probable cause to search the vehicle before the defendant dove into the snow bank in an attempt to hide his drugs.

The operator of a Florida assisted living facility was the subject of three unannounced inspections by Florida regulators. The first inspection gave them cause to come back. An assisted living center under Florida law is a regulated industry subject to such inspections. He sued pro se and lost. Grier v. Florida, 2005 U.S. Dist. LEXIS 45354 (M.D. Fla. November 1, 2005):

Curiously, Plaintiff concedes in bold print in his complaint that “[a]t all time relevant hereto regulatory scheme right of entry and inspection, was and is an adequate substitution for a warrant as required by the Fourth Amendment of the United States Constitution.” (Complaint at P 7). His concession is both correct and fatal to his claim as the investigations conducted at his Facility are expressly excepted from the Fourth Amendment’s warrant requirement.

To the extent Plaintiff argues that the Florida Statute itself runs afoul of the Fourth Amendment by permitting warrantless searches, his claim also fails. It is well established that, while the Fourth Amendment is applicable to searches of commercial property, the “expectation of privacy in commercial premises…is different from, and indeed less than, a similar expectation in an individual’s home.” New York v. Burger, 482 U.S. 691, 699-700 (1987). Indeed, “certain industries have such a history of oversight that no reasonable expectation of privacy exists.” Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (1978); ….

[Nursing homes are a regulated industry. Blue v. Koren, 72 F.3d 1075, 1081 (2d Cir. 1995).]

Officer’s interaction with the defendant for credit card fraud was voluntary, but it was still based on reasonable suspicion from a call from the store security. The court credits that the defendant offered to have his pockets searched. Finding a credit card on him in the name of another was probable cause to arrest. United States v. Santiago, 2007 U.S. Dist. LEXIS 52094 (E.D. Mo. July 18, 2007).*

Officer showed probable cause for search warrant for contents of safe deposit box which led to a forfeiture action. Claimant’s motion for summary judgment denied. United States v. $55,000.00 in United States Currency from Safe Deposit Box 74 at Ridgedale State Bank, 2007 U.S. Dist. LEXIS 52030 (D. Minn. July 17, 2007.*

State court’s denial of discretionary review of a search claim is still a decision on the merits and not denial of a full and fair opportunity to litigate it for habeas purposes. Carter v. Wengler, 2007 U.S. Dist. LEXIS 52019 (D. Minn. July 16, 2007).*

Ineffective assistance claim rejected on the merits without a hearing based on defense counsel’s affidavit that there was no reasonable basis for filing a motion to suppress defendant’s search because it was based on probable cause. Brown v. State, 931 A.2d 436 (Del. 2007).*

The Western District of Texas at El Paso rejected a conclusory motion to suppress without granting a hearing. No facts were alleged on which a Fourth Amendment violation could be based. United States v. Alvarez, 542 F. Supp. 2d 597 (W.D. Tex. 2008)*:

The Court finds that Defendant fails to allege facts sufficient to justify an evidentiary hearing. He only offers conclusory allegations that the law enforcement officers’ actions were illegal and violated his Fourth Amendment rights. Defendant does not provide any facts to support his allegations, and certainly does not set forth specific or detailed factual allegations warranting an evidentiary hearing. See, e.g., United States v. Dean, 100 F.3d 19, 21 (5th Cir. 1996) (affirming denial of evidentiary hearing on motion for return of seized funds where the defendant alleged that funds were improperly seized, but provided no facts to support the claim); United States v. Cannon, No. CRIM.A. 03-119, 2003 WL 21406180, at *1 (E.D. La. June 16, 2003) (denying request for evidentiary hearing where the defendant offered only conclusory allegations that the Government violated his Fourth Amendment rights, but failed to support the claims with facts or law justifying relief). Accordingly, Defendant’s request for an evidentiary hearing is denied.

Officer had probable cause for a traffic stop, and the few minutes it took for a drug dog to arrive after defendant refused to consent was not unreasonable. United States v. Hassler, 2008 U.S. Dist. LEXIS 31527 (E.D. Tenn. April 15, 2008).*

Colorado follows Greenwood under the state constitution and holds that there is no expectation of privacy in trash at the curb side for collection. State v. Laurent, 186 P.3d 118 (Colo. App. 2008).*

The destruction of an interior wall under a search warrant for drugs in “the entire premises” was not an unreasonable search. United States v. Whisnant, 545 F. Supp. 2d 713 (E.D. Tenn. 2008):

The scope of a lawful search is defined by the object of the search and the places in which there is probable cause to believe that the item or items in question may be found. United States v. Ross, 456 U.S. 798, 827, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). Accordingly, the determination as to whether a search is constitutionally reasonable depends on all of the circumstances surrounding the search or seizure, as well as the nature of the search or seizure itself.

In United States v. Becker, 929 F.2d 442 (9th Cir. 1991), when officers executed a search warrant on a residence and adjacent shop, they noticed what appeared to be a newly-poured concrete pad near the shop. The officers used a jackhammer to remove portions of the concrete slab. Underneath the concrete, officers found and seized evidence of methamphetamine. The Becker court found no constitutional violation, saying that the concrete slab was located within the area of the search warrant and, thus, “searching beneath it was clearly within the scope of the warrant.” Id. at 446. Moreover, although the officers had time to obtain an additional warrant for the area under the slab, the court held that it was “unnecessary for them to do so as they already had a warrant to search the premises for precisely the type of evidence found under the slab.” Id.

Finally, the Becker court stated that while destruction of property in carrying out a search is “not favored,” reasonable destruction of property does not violate the Fourth Amendment, citing Dalia v. United States, 441 U.S. 238, 258, 99 S. Ct. 1682, 60 L. Ed. 2d 177 (1979) (“[o]fficers executing search warrants on occasion must damage property in order to perform their duty”). Id.

The case law on this issue is in general accord. Reasonable destruction of property to effectuate a search pursuant to a valid search warrant does not violate the Fourth Amendment. What is reasonable depends on the context within which the search takes place. United States v. Weinbender, 109 F.3d 1327, 1330 (8th Cir. 1997) (officer could remove dry wall to expose a hiding spot); United States v. Pugh, No. CR. 302CR69, 2003 U.S. Dist. LEXIS 8673, 2003 WL 21220333 (D. Conn. May 21, 2003) (officer could remove covering and search inside of air conditioning unit).

After examining the facts and circumstances of the present case, the Court must conclude that the manner and scope of the search, specifically, the entry into the interior wall, did not render the search, and subsequent seizure of items, unreasonable. The broadly worded search warrant authorized the officers to search “the residence and property … of Douglas V. Whisnant.” The search warrant went on to add, “the search is to include the entire premises … the residence …”.

Defendant was arrested for DWI. Immediately prior to the stop, there were possible furtive movements, but the officer told the defendant on the first encounter that he was not afraid of him (defendant put his hands outside the window). Defendant was arrested and detained, and his girlfriend showed up to take the car. The officer searched the car before she could leave, and the search was without basis since there was no evidence to be derived from the search supporting the DWI. State v. Parham, 875 N.E.2d 377 (Ind. App. 2007).

On an Anders brief, defendant did not show that the search issue in his case was plain error. He contended that the search started at 6 a.m., but the warrant was not issued until 11:25 a.m. Pettigrew v. State, 937 A.2d 140 (Del. 2007).*

Defendant lacked standing and an expectation of privacy to contest the admission of the all-terrain vehicle on his father-in-law’s property. Also, there was no evidence that the magistrate who issued the search warrant for the washer and dryer seized from defendant’s home was not neutral and detached. English v. State, 288 Ga. App. 436, 654 S.E.2d 150 (2007).*

Odor masking in car and driver’s nervousness and body language and discrepancies in the driver’s and passenger’s stories can make reasonable suspicion. Flood v. State, 2007 WY 167, 169 P.3d 538 (2007).

Officer’s entry on to the curtilage in the backyard to see marijuana plants growing in straw next to the house violated the curtilage, and the motion to suppress was properly granted. While the officer could see the plants from off the property, there was no exigency at all justifying the entry. State v. Mell, 39 Kan. App.
2d 471, 182 P.3d 1 (2008).*

N.D. holds that a trash search did not give probable cause to get a warrant for defendant’s house. State v. Kieper, 2008 ND 65, 747 N.W.2d 497 (2008):

[*P13] When all of the evidence presented to the issuing magistrate is considered as a whole, the information may have been sufficient to raise a suspicion that criminal activity was taking place, which may warrant further investigation, but it was not sufficient to establish probable cause to issue a search warrant. We conclude Leingang’s testimony in support of the application for a search warrant does not provide a substantial basis for the magistrate’s conclusion that there was probable cause to issue a search warrant for Kieper’s residence. The search of Kieper’s residence was illegal under the federal and state constitutions, and the evidence seized during the search must be suppressed.