Defendant raised the issue of an illegal stop for the first time at the close of the state’s case during a jury trial. The failure to file a pretrial motion is a waiver, without good cause, and there was no conceivable good cause here. State v. Vaughn, 2007 Tenn. Crim. App. LEXIS 656 (August 14, 2007).* The court never says it, but it does not have to: The search was justified as an inventory after defendant’s arrest after a long police chase where the defendant and his passenger were able to elude the police because they were listening to a scanner and learned of where they had roadblocks set up. After the stop was an inventory of the car that produced a mobile meth lab.

Police were called by the operator of an RV park that the same car kept showing up and hanging around the bathroom there over a period of weeks. An officer arrived and talked with the occupants, one of whom got out to meet with the officer. The other locked the car and walked off, just as the narcs arrived. They asked the first officer “if he was done” with that person, he said no, so they went and detained her. She resisted and was handcuffed. A drug dog was called and alerted on the car. There was no exploitation of the arrest to find the drugs, and they also had probable cause. State v. Keene, Docket No. 32504, 2007 Opinion No. 56, 144 Idaho 915, 174 P.3d 885 (2007):

Here, Keene has not met her initial burden of showing a factual nexus between her detention and the discovery of drugs in her vehicle. The police did not gain any information from arresting Keene that caused them to search the vehicle, and because [*8] Keene had already walked away from the vehicle before she was seized, we see no way that the canine sniff and ensuing search resulted from an exploitation of the allegedly illegal arrest.

Ultimately, the police had justification to detain and search the vehicle that was totally independent of their contact with Keene. During the initial consensual encounter, Saldana told the officer that he had been at the R.V. park the night before. That was the night Officer Cazier had seen two people in a brown Mercury Grand Marquis leave the R.V. park and had heard the R.V. park host describe possible drug activity involving other persons visiting the Grand Marquis over a period of weeks. This individualized, specific information amounted to reasonable suspicion that Saldana was engaged in the illicit drug trade and that the car had recently been used to transport drugs.

Police had probable cause for search warrant based on various sources, including debriefing a disinterested witness who told them about guns, ammo, and drugs on the premises. [PC here was not even a close call.] The original argument was premises on a search occurring before the warrant issued, but that argument had to be abandoned at the suppression hearing when defendant conceded that he could not prove that the search occurred before the warrant issued. And, in any event, the warrant was relied upon in good faith [but stated conclusorily]. United States v. Garner, 2007 U.S. Dist. LEXIS 60346 (N.D. Ind. August 16, 2007).*

The state obtained a search warrant for alleged overpossession of marijuana by a medical marijuana licensee based on an informant saying defendant had “way over” the amount permitted. Because the statement “way over” was so vague, and a licensee has a right to possess medical marijuana, the trial court’s finding that it was too vague is affirmed. While the court on appeal might draw a different conclusion, that is not the standard of review. State v. Castilleja, 215 Ore. App. 235, 168 P.3d 1177 (2007) (en banc) (7-3).*

Defendant’s traffic stop was extended because of his markedly red eyes, and that was reasonable under the circumstances.
State v. Gomez, 144 Idaho 865, 172 P.3d 1140 (2007).*

Traffic stop led officer to see a baggie of marijuana in the ashtray, and that was probable cause. Calling a drug dog was not unreasonable. State v. Brown, 966 So. 2d 727 (La. App. 2d Cir. 2007).*

Defense counsel was not ineffective for not filing a motion to suppress that was, at best, a “toss up” when he successfully negotiated a reduction from three felonies to one misdemeanor. State v. Brown, 2007 Ohio 5002, 2007 Ohio App. LEXIS 4462 (4th Dist. September 21, 2007).*

While no individual factor may have been reasonable suspicion, the collective information developed during the traffic stop indicated that defendant’s vehicle likely contained drugs. Marquez-Guitierrez v. State, 2007 WY 155, 167 P.3d 1232 (2007).*

Admittedly and unquestionably illegal police entry was followed by requests for consent. The initial entry revealed no evidence of crime. The court found the subsequent consents to be attenuated from the illegal entry, defendant’s argument being the psychological impact of seeing the illegal entry which affected his actions thereafter, which the court rejected. State v. McBaine, 144 Idaho 130, 157 P.3d 1101 (2007)*:

Here, there were multiple entries into McBaine’s home by officers. The first occurred when Deputy Santucci entered without permission and briefly spoke with McBaine’s wife. This initial entry was unquestionably unlawful. Deputy Santucci entered without permission, and the State concedes on appeal that there is no exception to the warrant requirement that applies to this entry. The district court found that the later entries were made with McBaine’s consent. A defendant’s voluntary consent to a search relieves government agents of the warrant requirement. State v. Lafferty, 139 Idaho 336, 339, 79 P.3d 157, 160 (Ct. App. 2003); State v. Fee, 135 Idaho 857, 862, 26 P.3d 40, 45 (Ct. App. 2001). McBaine contends, however, that his oral and written consents to search the home were tainted by Deputy Santucci’s earlier illegal entry, and therefore evidence found during the consent searches must be suppressed. We conclude that the evidence presented on McBaine’s suppression motion shows no taint or causal link between Deputy Santucci’s brief illegal entry and McBaine’s subsequent consents, and therefore the unlawful intrusion does not require suppression of evidence found in the consent search.

. . .

In McBaine’s case, before officers even knocked on his door they were informed by J.L. that there was a methamphetamine lab in the residence. No evidence of any kind was gained during Deputy Santucci’s unlawful intrusion. He did not then see, hear, smell or otherwise detect any evidence of the methamphetamine lab. Nor did this intrusion even make Santucci aware of the presence of witnesses Quinton and K.Q., both of whom were visible through the open door before he entered. From an evidentiary standpoint, his unlawful entry yielded nothing. During the brief intrusion, Deputy Santucci did not search for contraband and did not act in a threatening or overbearing manner, but merely spoke to Quinton momentarily before exiting. Santucci’s intrusion apparently had ended before consent to a search was requested of McBaine.

Even if it could be said that Santucci’s interview of K.Q. was somehow tainted or suppressible merely because Santucci was inside the home when he asked K.Q. to exit with him, there is no evidence that the officers used information from K.Q. in order to induce McBaine’s consent to a search. According to the testimony at the suppression hearing, the officers merely informed McBaine that they “had information” that there was a methamphetamine lab in his home. This was information that the officers had already received from J.L. before they interviewed K.Q. There is no evidence that Santucci’s conversation with K.Q., or with McBaine’s wife inside the residence, was somehow exploited to secure McBaine’s subsequent consent to a search.

McBaine’s appellate counsel argues that McBaine’s consent should be deemed tainted by the psychological effect of having seen an officer enter his home without permission. According to the argument, this could have led McBaine to conclude there was no point in resisting the officer’s requests that he consent to a full search. The defect in this argument is that it bears no support in the evidence. To the contrary, the evidence shows that McBaine resisted the initial requests for access to his bedroom where the incriminating evidence was ultimately found. It was only after Detective Bustos arrived and told McBaine that the officers would attempt to obtain a search warrant if he would not give them access to the bedroom that he ultimately consented. Moreover, McBaine’s own testimony at the suppression hearing contradicts his counsel’s argument, for McBaine testified that he never consented at all to a search of his home. He claimed that it was his understanding when he signed the consent form that he was agreeing only to a search of his vehicle. There is thus an absence of any evidence to support the theory on appeal that McBaine’s consent was a direct or indirect fruit of Deputy Santucci’s initial brief, but illegal, intrusion.

An officer near the University of North Dakota saw a couple arguing, so he stopped to see what was the problem, in case it was a domestic situation getting out of hand. He talked with the couple, smelled alcohol on their breath and determined they were under 21, so they were arrested for consumption by a minor. The initial stop was justified by the community caretaking function. State v. Olson, 2007 ND 40, 2007 N.D. LEXIS 39 (March 22, 2007).*

Asking defendant if he “had a moment” after he was walking back to his car at the end of the stop made the continuation of the stop consensual. United States v. Lopez-Rojo, 2008 U.S. Dist. LEXIS 42679 (D. Nev. May 29, 2008)*:

The uncontroverted facts developed at this court’s suppression hearings revealed that Lewis told Defendant he was receiving a warning, gave Defendant his driving documents, said goodbye, and shook Defendant’s hand. Defendant then started walking back to his vehicle, but before he entered the vehicle, Lewis asked Defendant if he had a moment. In response, Defendant walked back to Lewis. Lewis asked Defendant whether he had illegal drugs or a large amount of cash in his vehicle. Defendant responded that he did not have any drugs in his vehicle, but he did have about $ 1000 cash. Lewis then asked Defendant if the officers could search his vehicle. Defendant nodded, said yes, and thereafter signed a written consent to search.

Smell of a small quantity of marijuana is still probable cause to believe that more may be present. State v. Ortega, 749 N.W.2d 851 (Minn. App. 2008):

[E]ven a petty-misdemeanor amount of marijuana provides probable cause to issue a warrant to search for more marijuana. … The probable-cause standard is merely a test to determine objective constitutional reasonableness, and regardless of the quantity of marijuana observed, the presence of any amount logically suggests that there may be more.

Strong odor of marijuana was probable cause to search a vehicle. State v. Stone, 2008 Ohio 2615, 2008 Ohio App. LEXIS 2189 (11th Dist. May 30, 2008).*

Idaho rejects a per se rule of no standing in an overdue rental car being driven by an unauthorized driver, instead opting for the totality standard of the Sixth Circuit in United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001)). Under the facts here, the defendant’s connection to the vehicle was attenuated, and he had no standing on the totality. State v. Cutler, 144 Idaho 272, 159 P.3d 909 (2007):

The first approach, espoused by the Fourth, Fifth, and Tenth Circuit Courts, is a bright-line rule looking solely to the rental agreement. These circuit courts have determined that one driving or occupying a rental vehicle who is not the renter and is not authorized by the rental company to drive the vehicle, even if he or she has permission from a person who is an authorized driver, has no reasonable expectation of privacy in the vehicle and consequently lacks standing to complain of the vehicle’s subjection to an allegedly unlawful search. See e.g., United States v. Jones, 44 F.3d 860, 871 (10th Cir. 1995); United States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994); United States v. Boruff, 909 F.2d 111, 117 (5th Cir. 1990). See also State v. Pabillore, 133 Idaho 650, 653, 991 P.2d 375, 378 (Ct. App. 1999) (recognizing the district court’s determination that the defendant did not have standing because he was not the renter or authorized driver of a rental vehicle was supported by numerous authorities). The circuit courts adopting this approach reason that because an unauthorized driver does not have a property or possessory interest in the car, the driver does not have an expectation of privacy in that car.

Taking a modified view of the bright-line approach are the Eighth and Ninth Circuit Courts which generally do not allow standing unless an unauthorized driver can show he had permission from the authorized driver to use the vehicle. See e.g., United States v. Thomas, 447 F.3d 1191, 1199 (9th Cir. 2006); United States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998); United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995). As the Ninth Circuit Court recognized in Thomas, this approach essentially equates an unauthorized driver of a rental car with the non-owner driver of a privately owned car. Thomas, 447 F.3d at 1197 (comparing the rental scenario to United States v. Portillo, 633 F.2d 1313, 1317 (9th Cir. 1980), which held that a non-owner has standing to challenge a search where he has “permission to use his friend’s automobile and the keys to the ignition and the trunk, with which he could exclude all others, save his friend, the owner”).

Finally, the Sixth Circuit Court rejected a bright-line approach in favor of a totality of the circumstances inquiry. United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001). While the court recognized a presumption that unauthorized drivers do not have standing to challenge a search, it determined that a “rigid test is inappropriate, given that we must determine whether [a defendant] had a legitimate expectation of privacy which was reasonable in light of all the surrounding circumstances.” Id. (citing Rakas, 439 U.S. at 152 (Powell, J., concurring)). In lieu of sole reference to the rental agreement, the court considered several factors, including: (1) whether the defendant had a driver’s license; (2) the relationship between the unauthorized driver and the lessee; (3) the driver’s ability to present rental documents; (4) whether the driver had the lessee’s permission to use the car; and (5) the driver’s relationship with the rental company.

Given the increasingly common utilization of rental vehicles for a myriad of purposes and our view that a bright line rule fails to address the ensuing complexities, we are convinced the Sixth Circuit Court’s totality of the circumstances approach best addresses the issue. In Smith, the Court confronted a scenario where an officer had pulled over a rental vehicle driven by Smith. The only authorized driver listed on the rental agreement, which Smith provided to the officer, was Smith’s wife who was not present. After a subsequent search uncovered drugs, the government contested Smith’s standing to challenge the legitimacy of the search given his status as an unauthorized driver. The Sixth Circuit Court began its analysis by acknowledging that as a general rule, an unauthorized driver of a rental vehicle does not have a legitimate expectation of privacy in a vehicle. However, the Court declined to be constrained by an absolute maxim and instead proceeded with a totality of the circumstances inquiry to determine whether the circumstances surrounding Smith’s occupation of the vehicle warranted finding, in essence, an exception.

…

In contrast, the instant case presents considerably more attenuated relationships among Cutler, the authorized driver, and the rental company, such that there are insufficient facts to overcome the general presumption that unauthorized drivers lack standing. There was no evidence presented regarding the relationship between Cutler and Hernandez, the only authorized driver–including whether they even knew each other. Accordingly, there was no evidence that Cutler even had permission from the only authorized driver to operate the vehicle. And while Hernandez had given Stewart permission to use the car, there was no indication regarding the scope of that permission–most importantly, there was no evidence as to whether Hernandez’s permission to Stewart encompassed consent for Stewart himself to lend the vehicle. In addition to not having a relationship with the authorized renter of the car, Cutler also did not have a relationship with Budget (quite unlike the Smith’s de facto renter status). Furthermore, not only was Cutler’s name absent from the rental agreement, but the agreement had expired, making even Hernandez’s possession of the car in contravention of the contract. It is the totality of these factors that preclude us from deviating, in this case, from the general rule that unauthorized drivers of rental vehicles do not enjoy a legitimate expectation of privacy in such vehicles. Thus, Cutler may not challenge the subsequent search of the vehicle.

Officer validly stopped defendant’s vehicle for traffic offense, and photos in the record supported the plain view of marijuana. United States v. Garcia, 2006 U.S. Dist. LEXIS 95251 (D. Ariz. December 15, 2006).*

Maryland holds that stop of defendant that was arguably illegal, and conceded to be such for the purposes of the appeal, based on the officer’s suspicion that the defendant loosely fit the description of a wanted man, did not require suppression of the finding of an another arrest warrant for that person. The court applied Brown v. Illinois. Cox v. State, 397 Md. 200, 916 A.2d 311 (2007):

We reject Petitioner’s contention as to this point and again agree with the State. As we stated supra, even if the police officer’s initial encounter with Petitioner was illegal, that fact would not be dispositive at this stage in our analysis. In Myers v. State, we analyzed the impact of an outstanding arrest warrant on an arguably unlawful stop by police officers and the application of the three factors under Brown for determining whether the causal connection had been sufficiently attenuated to dissipate the taint of the illegal conduct. In Myers, a case factually similar to the case, sub judice, we held that, assuming arguendo, the initial stop by the police of Myers’s vehicle was illegal, the officer’s discovery of the outstanding warrant and arrest of Myers pursuant to that warrant was sufficient to remove the taint of the initial stop such that the subsequent search of Myers and his vehicle were lawful. In addition, we acknowledged that some of the evidence was seized almost immediately after the arrest, whereas some was seized some time later after the officer obtained the additional warrants. We reasoned, however, as the State asserts, in the instant case, that “the question of timing is not dispositive on the issue of taint, especially because there was an outstanding arrest warrant discovered between the initial stop and the subsequent search incident to the arrest, even though some of the evidence was discovered shortly after the illegal stop.” Further, we explained that the discovery of the warrant for Myers’s arrest constituted an intervening circumstance or cause that attenuated the taint of the illegal stop. Ultimately, we looked to the purpose and flagrancy of the officer’s conduct and determined that the purpose of the stop “was not to effectuate the arrest of Myers on an outstanding warrant or to search his vehicle. Merely because Officer Weikert’s stop of Myers was determined to be invalid does not mean that his conduct was flagrant.” Myers, 395 Md. at 293, 909 A.2d at 1067. Instead, we concluded that the officer stopped Myers because of what he thought was suspicious activity — speeding. Once he discovered an outstanding warrant, the officer “gained an independent and intervening reason to arrest and search Myers.” Therefore, we held that the lawful arrest and search of Myers attenuated the taint of the illegal stop and the evidence was admissible.

Broken headlight stop was valid, and reasonable suspicion existed that the occupants were involved in an arson. Because they had reasonable suspicion, the fact the stop lasted 34 minutes did not make it unreasonable. State v. Luers, 211 Ore. App. 34, 153
P.3d 688 (2007).*

Mere possession of a handrolled cigarette does not give probable cause to believe that the defendant is in possession of marijuana. The state’s justification of alleged intoxication was too nebulous to support probable cause. Buhrman v. Commonwealth, 275 Va. 501, 659 S.E.2d 325 (2008).*

Merely being a passenger in a car does not justify a patdown. The justification here was contact with the passenger on a prior occasion, but nothing about this stop gave reasonable suspicion as to the passenger. McCain v. Commonwealth, 275 Va. 546, 659 S.E.2d 512 (2008).*

Merely being a passenger in a stolen car does not justify a Terry frisk. The officer still has to give an articulable basis for a frisk, such as an indication that the passenger knew he was in a stolen car. State v. Adams, 144 Wn. App. 100, 181 P.3d 37 (2008).*

When a probation search occurs, there must be reasonable suspicion to search a bystander on the premises with the probationer. If Summers requires that for a search warrant, it has to apply here as well. In this case, the bystander was outside at the time, and he posed no threat to the probation officers. State v. Reynolds, 143 Idaho 911, 155 P.3d 712 (2007).

Defendant’s consent was shown to be voluntary on the totality after having evaluated his testimony and his criminal history. United States v. Simpson, 2007 U.S. Dist. LEXIS 16729 (M.D. Tenn. March 8, 2007):

Defendant is twenty-six years old and, while his educational background is unknown, he understands the English language and was articulate during the evidentiary hearing. He has an extensive criminal record, including convictions for being a felon in possession of a firearm and possession of cocaine. Based on his extensive encounters with law enforcement, there is little doubt he knew about his right to refuse to consent. This is further evidenced by the fact that he initially did not give consent to search.

Further, at the time of the consent, Defendant was not in handcuffs and there was no coercive conduct by the police. Defendant was not physically restrained or even touched prior to the consent, nor was Defendant verbally threatened in any way. The officers did not have their weapons drawn when they approached the Defendant, and the whole encounter until the time consent was given was only a couple of minutes.

While Defendant claims he did not consent to search, the Court does not credit his testimony. If Detective Stokes was making up the story about consent being given, it would be easier to have simply testified that Defendant consented as soon as he was asked, instead of testifying that Defendant initially questioned the propriety of a search since he “had done nothing wrong.”

Since this Court credits the testimony of Detective Stokes and rejects the testimony of the Defendant, the Government has shown, by clear and convincing evidence, that Defendant knowingly and voluntarily consented to a search. Accordingly, Defendant’s Motion to Suppress Evidence will be denied.

Defendant did not object to consent search at trial. On review for plain error, his argument that the officers failed to warn him of his right to refuse is foreclosed by Schneckloth. On the totality of circumstances, consent was voluntary. As to defendant’s argument of alleged “baseless threats” to get a warrant if the defendant did not consent, they were hardly “baseless”–there was plenty of probable cause. United States v. Gutierrez, 221 Fed. Appx. 446 (7th Cir. 2007).*

Arkansas requires that a state’s interlocutory appeal from a grant of a suppression motion be in the interest of the uniform application of the law, and a fact-based determination does not apply. State v. Jones, 369 Ark. 195, 242 S.W.3d 119 (2007):

As a matter of practice, this court has only taken appeals which are narrow in scope and involve the interpretation of law. See State v. Pittman, 360 Ark. 273, 200 S.W.3d 893 (2005). We do not permit State appeals merely to demonstrate the fact that the trial court erred. See id. Thus, where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. See id. Similarly, where the resolution of the issue on appeal turns on the facts unique to the case or involves a mixed question of law and fact, the appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appealable by the State. See id. Finally, where an appeal raises an issue of the application, not interpretation, of a criminal rule or statutory provision, it does not involve the correct and uniform administration of the criminal law and is not appealable by the State under Rule 3. See id.

Here, the State claims that the circuit court “applied a flawed interpretation of the law to suppress evidence seized pursuant to a search warrant.” We hold that the resolution of the issues presented would necessarily require an intensive factual discussion. Therefore, this appeal is not one requiring interpretation of our criminal rules; instead, it raises issues involving the application of our rules to the facts of the case. Moreover, it is clear that the circuit court’s determination necessarily turned on the circuit court’s assessment of the witnesses’ credibility. We have never wavered on our longstanding rule that it is in the province of the circuit court, not this court, to determine the credibility of witnesses. See State v. Nichols, supra. Nor would a review of this appeal have widespread ramifications on the interpretation of our criminal law. Accordingly, we hold that it does not involve the correct and uniform administration of the criminal law and does not fall within the confines of Ark. R. App. P.–Crim. 3. We, therefore, dismiss the appeal.

There is no reason for a different standard between inventories where the police take possession or a private towing company does at the request of the police. State v. Whealton, 108 Conn. App. 172, 947 A.2d 965 (2008):

Here, the court credited Redd’s testimony that the officers conducted the inventory search pursuant to standard procedure when the vehicle was going to be impounded. The defendant has not provided this court with any legal basis for distinguishing between a situation in which the police take a vehicle into police custody or turn it over to a private towing company for impounding. In both cases, the protective reasons for an inventory search pertain.

Worker’s compensation investigation by USPS of an employee working in his yard hardly violated any Fourth Amendment right. Gaber v. Henderson, 2008 U.S. Dist. LEXIS 43018 (E.D. Va. June 2, 2008).*

In a third party consent case, the fact the third party was not involved in any illegal activities is a reason for their consent to be voluntary. United States v. Wahl, 2008 U.S. Dist. LEXIS 43138 (N.D. Fla. May 30, 2008).*

A cellphone can be searched incident to an arrest. Disclaimer of ownership of a cellphone after it was searched is not an abandonment. United States v. Curry, 2008 U.S. Dist. LEXIS 5438 (D. Me. January 23, 2008).

Defendant did not have standing to challenge the search of the car of a friend of his when it was stopped and he was a passenger. United States v. Watson, 2008 U.S. Dist. LEXIS 5345 (W.D. Wis. January 22, 2008).*

“Martin’s statement to the police officer that ‘we’ need to go into the house to recover the rifle that Martin had fired was sufficient to ground an inference of consent.” United States v. Martin, 264 Fed. Appx. 612 (9th Cir. 2008) (unpublished).*

Exclusionary rule in Ohio does not apply to civil cases. Slough v. Lucas County Sheriff, 2008 Ohio 243, 174 Ohio App. 3d 488, 882 N.E.2d 952 (6th Dist. 2008).

For Heck bar to apply for a motion to dismiss, it must appear on the face of the record that the search claim collaterally attacks the conviction. Since this did not, it was improper to dismiss without discovery and further development of the claims. Johnson v. Fla. Dep’t of Law Enforcement, 264 Fed. Appx. 785 (11th Cir. 2008) (unpublished).*

Stone v. Powell bar applies in capital case. Brown v. Sirmons, 515 F.3d 1072 (10th Cir. 2008)* (“[H]e pointlessly seeks a ruling that Stone does not apply to capital cases, although we have previously applied it in such cases. See, e.g., Cannon v. Gibson, 259 F.3d 1253, 1260-62 (10th Cir. 1999); ….”).

Since this court found that the officer did not lie during the suppression hearing, the 2255 on the same issue fails. Also, evidence of guilt was overwhelming even without the challenged evidence so there is no prejudice. Gomez v. United States, 2008 U.S. Dist. LEXIS 8237 (M.D. Fla. February 5, 2008).*

Placing a police video camera on a telephone pole across from defendant’s property invaded no privacy interest because the police could have stood there and recorded the comings and goings, too. United States v. Aguilera, 2008 U.S. Dist. LEXIS 10103 (E.D. Wis. February 11, 2008):

The police could have stood on the street outside defendant’s house and observed the comings and goings from his driveway; substitution of a camera for in-person surveillance does not offend the Fourth Amendment; and the camera did not record activities within defendant’s home or its curtilage obscured from public view. 3 See, e.g., United States v. Jackson, 213 F.3d 1269, 1281 (10th Cir.), vacated and remanded on other grounds, 531 U.S. 1033, 121 S. Ct. 621, 148 L. Ed. 2d 531 (2000) (holding that the defendant’s Fourth Amendment rights were not implicated by installation of video cameras on telephone poles, which were incapable of viewing inside houses and were capable of observing only what any passerby would easily have been able to observe); see also Allender v. Huesman, No. IP01-1718, 2003 U.S. Dist. LEXIS 27585, 2003 WL 23142184, at *6 (S.D. Ind. Apr. 14, 2003) (holding that video surveillance of a driveway did not amount to a search). Therefore, for these reasons and those stated by the magistrate judge, the motion must be denied.

Defendant was arrested, not summoned, by Virginia authorities. The violation of Virginia law was irrelevant, and a search incident was permitted. United States v. Gordon, 264 Fed. Appx. 274 (4th Cir. 2008)* (unpublished).

Entry under judicial order of sale was tantamount to a search warrant and was protected by the good faith exception. United States v. Maassen, 2008 U.S. Dist. LEXIS 11093 (N.D. Iowa February 14, 2008).

Officers were entitled to qualified immunity for plaintiff’s decedent’s shooting death because it appeared justified. Ingle v. Yelton, 264 Fed. Appx. 336 (4th Cir. 2008)* (unpublished).

In a deadly force case, there was a dispute as to whether plaintiff’s vehicle was driving at or away from the officer when fired at, so summary judgment denied. Lytle v. Bexar County, 543 F. Supp. 2d 656 (W.D. Tex. 2008).*

If plaintiff’s complaint is read to mean that he should not have been handcuffed when transported from a mental health facility to a jail, he loses. Carmony v. County of Sacramento, 2008 U.S. Dist. LEXIS 11137 (E.D. Cal. February 13, 2008).*

Standard plea colloquy undercut the defendant’s claim of prejudice for an IAC claim that defense counsel missed a Fourth Amendment claim. Travis v. United States, 2008 U.S. Dist. LEXIS 11347 (E.D. Mo. February 14, 2008):

THE COURT: Now, Miss Travis, are you satisfied with the representation you have received from Mr. Winston?

THE DEFENDANT: Yes.

THE COURT: Do you have any complaints whatsoever about his representation of you?

THE DEFENDANT: No, Your Honor.

(Comment: This doesn’t do a thing for the complaining defendant who only discovered defense counsel missed a Fourth Amendment claim after in the joint.)

Reasonable suspicion certainly doesn’t take much, particularly when knowledge of the defendants include their families’ histories of violence, too. United States v. Headen, 264 Fed. Appx. 244 (3d Cir. 2008)* (unpublished):

The District Court also correctly held that under the totality of the circumstances, the officers had reasonable suspicion to frisk Headen. Because of their participation in the Violent Crime Impact team in the neighborhood in which the stop occurred, Wescoe and McDermott both had specialized knowledge of the geographic area, the criminal activity in that area, and the individuals involved in that criminal activity. Despite Headen’s argument that the District Court erred in finding that Headen had been involved in gang activity, Wescoe and McDermott had previously investigated shootings in the area involving Headen and Mark Lawrence and the families and acquaintances of each. Furthermore, the officers were aware of Headen’s involvement in violent activity.

The nature of a computer as a repository of personal data and technological changes did not change the rationale that a computer can be searched under a warrant that identifies it and shows probable cause for its search. United States v. Giberson, 527 F.3d 882 (9th Cir. 2008):

Giberson does not deny that it was reasonable in this case for the agents to believe that the documents specified in the warrant might be found on his computer. Rather, he argues that the analogy between a computer and other “containers” is not appropriate because computers are somehow entitled to heightened protection, and are searchable only when specified in the warrant. We observe at the outset that Fourth Amendment exceptions and distinctions based solely on a type of technology are “unwise[ ] and inconsistent with the Fourth Amendment.” See Kyllo v. United States, 533 U.S. 27, 41 (2001) (Stevens, J., dissenting). Technology changes. To be acceptable, Giberson’s argument must be based on a principle that is not technology-specific. Though Giberson offers several rationales for treating computers differently from storage mediums such as filing cabinets and briefcases, none is persuasive.

Giberson’s principal argument is that computers are able to store “massive quantities of intangible, digitally stored information,” distinguishing them from ordinary storage containers. But neither the quantity of information, nor the form in which it is stored, is legally relevant in the Fourth Amendment context. While it is true that computers can store a large amount of material, there is no reason why officers should be permitted to search a room full of filing cabinets or even a person’s library for documents listed in a warrant but should not be able to search a computer. Giberson’s purported exception would also create problems in analyzing devices with similar storage capacities. If we permit cassette tapes to be searched, then do we permit CDs, even though they hold more information? If we do not permit computers to be searched, what about a USB flash drive or other external storage device? Giberson’s purported exception provides no answers to these questions.

Similarly, attempting to limit Fourth Amendment searches based on the format of stored information would be arbitrary. We have already held that microcassettes, which store data differently from traditional paper, are seizable in a search for “records.” See Gomez-Soto, 723 F.2d at 652. There is no reason why material stored digitally on a computer should not also be searchable. Once again, Giberson’s purported exception generates more questions than answers: If we permit a person’s Day-Timer to be searched, what about one’s Black-Berry? The format of a record or document should not be dispositive to a Fourth Amendment inquiry.

Giberson’s purported rule creates a brightline exception to the Fourth Amendment that provides no principles by which to evaluate whether a search is reasonable. The Supreme Court has consistently eschewed such brightline rules. See Ohio v. Robinette, 519 U.S. 33, 39 (1996). Here, the only principle upon which we can anchor this analysis is the one already articulated by this court: that to search a container, it must be reasonable to expect that the items enumerated in the search warrant could be found therein. If it is reasonable to believe that a computer contains items enumerated in the warrant, officers may search it. Here, numerous documents related to the production of fake I.D.s were found in and around Giberson’s computer and were arguably created on and printed from it. It was therefore reasonable for officers to believe that the items they were authorized to seize would be found in the computer, and they acted within the scope of the warrant when they secured the computer.

Officer’s mistake of fact in transposing numbers on a license plate when submitting them to be run created a Fourth Amendment violation when the defendant’s stop occurred. McDonald v. State, 947 A.2d 1073 (Del. 2008).*

Plain feel did not apply to a folded dollar bill that was touched and moved past in a search. Going back to it violated Dickerson. Perkins v. State, 979 So. 2d 409 (Ill. 1 DCA 2008).*

Detaining a “person of interest” without probable cause two days after a homicide that led to a search producing a gun was unreasonable. The seriousness of the crime under investigation did not matter. Buckley v. State, 2008 Ind. App. LEXIS 958 (May 1, 2008):

In the instant case, the State essentially argues that its actions were reasonable because Buckley was a prime suspect in a recent homicide. While we certainly understand the seriousness of the crime being investigated, such does not in and of itself constitute an exigent circumstance or any other exception to the warrant requirement. A review of the totality of the circumstances reveals that the police acted too hastily in seizing Buckley and Buckley’s vehicle before any warrants had been issued.

Comment: The sliding scale of exigency often (but not constitutionally) favors a finding of exigency when the crime is more serious. Here it did not.

Factual disputes remain in question of excessive force in a tear gassing in going in for a barricaded suspect. Whether tear gassing was even required in this situation was questionable because negotiations were going on. Also, defendant was seized by surrounding his house. Estate of Rudy Escobedo v. City of Fort Wayne, 2008 U.S. Dist. LEXIS 36852 (N.D. Ind. May 5, 2008).*

Recognizing the presumption of unreasonableness of a search of a home, the officer here had defendant’s consent to enter in a DUI case. Twp. of Bainbridge v. Kaseda, 2008 Ohio 2136, 2008 Ohio App. LEXIS 1843 (11th Cir. May 2, 2008).*

Computer check that produced an outstanding warrant on the owner is reasonable suspicion for a stop. State v. Dickson, 252 S.W.3d 216 (Mo. App. 2008).*

Suspicionless parole search of defendant’s house after a traffic stop and a search of her car that produced nothing was invalid. Samson applies California law which is different than Tennessee law. State v. Turner, 2008 Tenn. Crim. App. LEXIS 321 (April 29, 2008). Comment: This case falls squarely under the “parole search for the hell of it” doctrine, and it is invalid.

“Stop, I need to talk to you” is a seizure. State v. Gatewood, 163 Wn.2d 534, 182 P.3d 426 (2008):

The State concedes that when Longley said “‘Stop, I need to talk to you,'” it was a seizure. Resp’t’s Br. at 13 n.7 (citing State v. Friederick, 34 Wn. App. 537, 541, 663 P.2d 122 (1983)); see State v. O’Neill, 148 Wn.2d 564, 577, 62 P.3d 489 (2003) (holding that commanding a person to stop is a seizure). Thus, we only need to analyze the facts known to the officers up to this point: (1) Gatewood’s widened eyes upon seeing the patrol car, (2) his twist to the left like he was trying to hide something, (3) his departure from the bus shelter, and (4) his crossing the street mid-block.

These facts are insufficient for a Terry stop. Startled reactions to seeing the police do not amount to reasonable suspicion. State v. Henry, 80 Wn. App. 544, 552, 910 P.2d 1290 (1995) (nervousness is not sufficient for Terry stop). Although Gatewood twisted to the side, Longley did not see what, if anything, Gatewood was hiding. Flight from police officers may be considered along with other factors in determining whether officers had a reasonable suspicion of criminal activity, State v. Little, 116 Wn.2d 488, 496, 806 P.2d 749 (1991), but Gatewood did not flee from the police.

Uncorroborated details left affidavit based on informant hearsay wanting, and probable cause was lacking. State v. Whittington, 2008 Tenn. Crim. App. LEXIS 320 (April 29, 2008)*:

In the instant case, the informant was a member of the criminal milieu. Therefore, in order for the information to be credible, the factors of Aguilar–Spinelli must be satisfied. The “basis of knowledge” prong is satisfied by the informant’s representation that he was present at 56 Mount Pinson Road and saw large bags of marijuana at the residence. This information is listed in the search warrant affidavit; however, there is no information as to the credibility of the informant contained in the search warrant.

. . .

Identification of the presence of the three vehicles located at a house where three people reside is a “non-suspect” event. While an outstanding summons for the violation of the bad check law indicates at least probable cause of a misdemeanor theft related offense, it has little, if any, corroborative value as to corroborating the possession of marijuana. It is also “non-suspect” behavior for it to be established that a person has been in jail for an unspecified offense.

That leaves two facts uncovered by independent police investigation and submitted to establish that the informant’s information in this particular case is reliable. First, one resident was arrested in 2001 for a narcotics offense, and, secondly, another resident was arrested in 2002 and again in 2004 for the sale and delivery of cocaine. This knowledge alone does not constitute probable cause. If there had been other factors corroborated by the police outside of the “non-suspect” behavior, the discovery of the prior arrests could have provided a basis for probable cause in addition to the other factors. See State v. Hennings, 975 S.W.2d 290, 295 (Tenn. 1998). In this instant case, however, that did not occur. While everything the informant told the police was found to be true, it was information that anyone could have obtained and did not pertain to any criminal activity. The only specific information provided by the informant and corroborated by the police was presence of the cars in the driveway and the residents of the home. This is all non-suspect activity and is, therefore, insufficient to negate the deficiency in the search warrant. Because there is no information given in the search warrant as to the credibility of the informant and because of the lack of police corroboration to establish the reliability of the informant’s information of criminal activity, the search warrant did not meet the standards of Aguilar/Spinelli. Accordingly, the judgment of the circuit court is reversed and the indictment against Defendant is dismissed.

The four corners of the affidavit for the search warrant showed probable cause for issuance of the warrant. Commonwealth v. Otterson, 2008 PA Super 85, 947 A.2d 1239 (2008).*

Officer had reasonable suspicion that defendant’s vehicle was the one driving the wrong way on an interstate highway when he found a vehicle parked on a lot with flashers on that matched the description of the vehicle in the radio call. State v. Hanning, 2008 Tenn. Crim. App. LEXIS 319 (April 29, 2008).*

Collateral estoppel in criminal cases requires mutuality of parties. Here, the codefendant’s win of his suppression hearing that the state did not appeal does not preclude the prosecution from attempting to use the evidence against the defendant. While Massachusetts cases do suggest that mutuality is not required, the Supreme Judicial Court concludes that those cases do not apply to suppression hearings. One purpose of collateral estoppel, conserving judicial resources, is not served by nonmutuality because it would force the state to appeal every adverse ruling in multidefendant cases. On the merits, the stop and subsequent search incident were valid because of probable cause. The defendant had loose cash and baggies in his lap. Commonwealth v. Stephens, 451 Mass. 370, 885 N.E.2d 785 (2008):

Mutuality of parties in criminal cases is required for another reason: to permit the Commonwealth to decide, depending on the import of each case and the resources available, whether to take an interlocutory appeal from a suppression order. See Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996), and G. L. c. 278, § 28E. A single justice “rarely” refuses to grant a Commonwealth application when its case depends on the evidence that has been suppressed. Commonwealth v. Williams, 431 Mass. 71, 76 (2000). But a decision by the Commonwealth not to pursue an interlocutory appeal may be based on considerations independent of the merits of any appeal. The Commonwealth may elect to nol pros an indictment rather than appeal from an order suppressing evidence when a charge does not justify the cost of appeal. Or, if evidence is suppressed, the Commonwealth may decide to proceed without the evidence rather than seek an appeal. See 6 W.R. LaFave, Search and Seizure § 11.2(g), at 103 & n.313 (4th ed. 2004) (prosecutor may elect not to take appeal from order suppressing evidence if “the objects suppressed are not an important part of the proof”). Here, the codefendant was charged with possession and distribution of cocaine, first offense. The Commonwealth, in its discretion, may have concluded that the charge did not justify the cost of appeal, or may have exercised its discretion not to appeal for other reasons. Abandoning a requirement of mutuality would compel the Commonwealth to pursue an interlocutory appeal from an order suppressing evidence in every case where a codefendant or coindictee did not participate in the suppression hearing. The resulting burden on all parties and the courts is obvious. See 6 W.R. LaFave, Search and Seizure, supra at § 11.2(g), at 103, quoting Restatement (Second) of Judgments § 28 comment i (1980) (if it were necessary “to appeal solely for the purpose of avoiding the application of the rule of issue preclusion, then the rule might be responsible for increasing the burdens of litigation on the parties and the courts rather than lightening those burdens”).

[The issue between defendants may also be different; such as when standing issues are different.]

Written proof of an inventory policy is not required for the state to sustain its burden of proving an inventory valid. State v. Chatman, 2008 La. App. LEXIS 619 (2d Cir. April 30, 2008) (Also, this specific issue was not addressed to the trial court, so it was waived.) Comment: I have never been able to agree with this rationale, at all. Everybody has computers, and all police agencies have SOPs. If they have no written inventory policy, they should be held to have no policy. Official policy should be in writing, not part of an oral history. Subpoena the inventory policy and see if it complies with Florida v. Wells.

Defendant’s girlfriend had sufficient common authority, without regard to whether she was the actual lessee, to consent to a search. State v. Thomas, 981 So. 2d 850 (La. App. 2d Cir. 2008).*

The defendant was arrested at a homeless shelter for an aggravated sexual assault, and his bags were seized with him because others could have appropriated them or gotten into them in the shelter. They were properly searched two days later with a search warrant. State v. Drewry, 2008 ME 76, 946 A.2d 981 (2008).*