Preliminary injunction against future alleged unconstitutional acts has to be denied because the chances of recurrence are slim. Dingler v. City of Southaven, 2008 U.S. Dist. LEXIS 53544 (N.D. Miss. June 11, 2008):

The plaintiff has not identified a single example of a substantial threat of irreparable injury if the injunction he seeks does not issue. Indeed, the only relief the plaintiff seeks in the instant motion is for the defendants to stop committing “further unconstitutional acts.” In other words, he seeks an order from the court requiring the defendants to abide by the law. Citizens are already required to obey the law; as such, the extraordinary remedy of a preliminary injunction would be superfluous. For these reasons, the plaintiff has not alleged facts to support two of the four elements required to obtain relief. His claims do not have a substantial likelihood of success on the merits, and he does not face a substantial threat of irreparable injury if the injunction does not issue.

As such, the instant motion for a preliminary injunction shall be denied. A judgment consistent with this memorandum opinion shall issue today.

State agriculture inspector entered upon defendant’s property by consent to investigate whether dirty water was being injected into the ground to hide it. Defendant gave consent to the inspector to inspect the wells, so the search was within the scope of consent. United States v. King, 2008 U.S. Dist. LEXIS 54090 (D. Idaho July 11, 2008).*

Officer’s ruse to get consent was not sufficiently false or coercive to nullify defendant’s consent. United States v. Trower, 2008 U.S. App. LEXIS 15287 (8th Cir. July 18, 2008) (unpublished):

The deception, if indeed it was that, consisted of the officers’ failure to tell Trower what Vernon Jones had told them about the marijuana and the gun. Accordingly, Trower’s consent was not given in acquiescence to any claim of authority. Trower actively solicited law enforcement’s assistance in finding Aguilar, and he had already showed Rorebeck around his home before Griswold and the other deputy arrived. The officers testified that part of their purpose in entering the house was to locate the note and help resolve the situation. Thus, there are no other circumstances that warrant a finding that Trower was coerced into inviting the officers into his home.

The NY Times has an article today on the exclusionary rule, by Adam Liptak, U.S. Is Alone in Rejecting All Evidence if Police Err. Is Mr. Liptak forecasting Hudson fanning out throughout Fourth Amendment jurisprudence?

The United States is the only country to take the position that some police misconduct must automatically result in the suppression of physical evidence. The rule applies whether the misconduct is slight or serious, and without regard to the gravity of the crime or the power of the evidence.

“Foreign countries have flatly rejected our approach,” said Craig M. Bradley, an expert in comparative criminal law at Indiana University. “In every other country, it’s up to the trial judge to decide whether police misconduct has risen to the level of requiring the exclusion of evidence.”

But there are signs that some justices on the United States Supreme Court may be ready to reconsider the American version of the exclusionary rule. Writing for the majority two years ago, Justice Antonin Scalia said that at least some unconstitutional conduct ought not require “resort to the massive remedy of suppressing evidence of guilt.”

The court will soon have an opportunity to clarify matters. The justices will hear arguments on Oct. 7 about whether methamphetamines and a gun belonging to Bennie Dean Herring, of Brundidge, Ala., should be suppressed because the officers who conducted the search mistakenly believed he was subject to an outstanding arrest warrant as a result of careless record-keeping by another police department.

One must take issue with his comment about automatically excluding the evidence. Hardly. U.S. courts already find every way they can to avoid excluding the evidence, and flagrance of the violation factors in already.

In a move dangerous in both its Fourth and Sixth Amendment implications, a Collin County Texas district judge issued a search warrant for a criminal defense lawyer’s office when the lawyer resisted a subpoena. The prosecutor apparently seeks to disqualify defense counsel from the case so he can testify as a witness. For a news article see Detectives Seize Documents From Murder-For-Hire Suspect’s Attorney from Channel 5 in Dallas/Ft. Worth.

Blogs are Collin County Observer (with background), Grits for Breakfast, and Simple Justice.

This is almost Kafkaesque. Don’t like the defense lawyer? Search his office and disqualify him to make him a witness to your case. Except that it isn’t supposed to work that way in the United States. The law recognizes this predicament already; assuming the evidence gets in at all. Except maybe in Texas where anything is possible, operating under the bizarro world of the Texas Court of Criminal Appeals, a court so reactionary and procedural that SCOTUS reverses it as much or more as the purportedly liberal Ninth Circuit.

As the Talking Heads say, more on this as it develops.

A Vermont librarian risked arrest for insisting on a search warrant when police demanded access to a library open Internet terminal in late June. See AP story today: Library Confrontation Points Up Privacy Dilemma, which is on news websites throughout the nation. The police just assumed they could take the computer without a search warrant.

Children’s librarian Judith Flint was getting ready for the monthly book discussion group for 8- and 9-year-olds on “Love That Dog” when police showed up.

They weren’t kidding around: Five state police detectives wanted to seize Kimball Public Library’s public access computers as they frantically searched for a 12-year-old girl, acting on a tip that she sometimes used the terminals.

Flint demanded a search warrant, touching off a confrontation that pitted the privacy rights of library patrons against the rights of police on official business.

“It’s one of the most difficult situations a library can face,” said Deborah Caldwell-Stone, deputy director of intellectual freedom issues for the American Library Association.

Investigators did obtain a warrant about eight hours later, but the June 26 standoff in the 105-year-old, red brick library on Main Street frustrated police and had fellow librarians cheering Flint.

Before this search even took place, Vermont librarians were already big into privacy.

Based on all the facts before the issuing magistrate, it was reasonable to conclude that the items sought would be found in the place to be searched because nexus was shown. “Based on the totality of the circumstances, Deputy Wallace’s affidavit was not so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Because it was objectively reasonable for Deputy Wallace to rely in good faith on the warrant, we conclude that the Leon exception to the exclusionary rule applies.” United States v. Perry, 2008 U.S. App. LEXIS 14493 (8th Cir. July 8, 2008).*

D. Minn. concludes that the good faith exception applies without saying why [presumably because the affidavit was not so lacking in PC that it could not be relied upon]. Defendant also made a Franks challenge, but the information was not false, and excluding it still left the affidavit with PC. United States v. Liu, 2008 U.S. Dist. LEXIS 51607 (D. Minn. April 7, 2008).*

Defendant’s own testimony was that he was not asked for consent, so Randolph did not apply. United States v. Ramnath, 2008 U.S. Dist. LEXIS 52228 (D. Me. July 8, 2008).*

(There are more, but I’ve got court today.)

Saying “no objection” when evidence the subject of a lost suppression motion is offered at trial is a waiver of the suppression motion. Thus, the issue had to be viewed under clear error. United States v. Comstock, 2008 U.S. App. LEXIS 14489 (8th Cir. July 8, 2008):

At trial, each time the Government moved to admit evidence that Defendant’s pretrial motion sought to suppress (namely, the firearms and ammunition seized from Defendant’s home), defense counsel stated “no objection.” “Normally the denial of a pretrial motion to suppress evidence preserves the objection for appeal and defense counsel need not renew the objection at trial.” United States v. Johnson, 906 F.2d 1285, 1290 (8th Cir. 1990); accord Lawn v. United States, 355 U.S. 339, 353 (1958) (denial of suppression motion by the trial court generally “preserves the point and renders it unnecessary again to object when such evidence is offered at trial”). Yet, this Court has “found pretrial objections waived when an appellant’s counsel affirmatively stated ‘no objection’ at trial to the admission of evidence previously sought to be suppressed.” United States v. Gonzalez-Rodriguez, 239 F.3d 948, 951 (8th Cir. 2001) (emphasis added); Johnson, 906 F.2d at 1290. This is precisely what occurred here. As such, we hold Defendant “consciously and intentionally waived any objection” to the district court’s receipt of the evidence at issue in his pretrial suppression motion. United States v. Wedelstedt, 589 F.2d 339, 345-46 (8th Cir. 1978).

In any event, reviewing the district court’s factual determinations for clear error and its legal conclusions de novo, Defendant’s position is unavailing.

Defendant was arrested by ATF on a warrant, and a consent to search the house was signed. A safe was found, and it was not within the consent. When asked about the safe, everybody inside disavowed it. Defendant was asked three separate times. Therefore, the safe was abandoned property, and it could be opened. United States v. Anderson, 2008 U.S. App. LEXIS 14465 (3d Cir. July 3, 2008) (unpublished).*

The Department of Homeland Security is seriously considering use of stun and GPS bracelets on airline passengers. See Update: Dept. of Homeland Security weighs forcing passengers to wear stun gun bracelets on airplanes:

Back in March, Gadling blogged about a firearm training system, Lamperd, which had patented a bracelet that worked like a stun gun when activated.

At the time, Lamperd was lobbying the Transportation Security Administration to make it mandatory for all airline passengers to wear one, with the thinking that it was the best way to thwart a terrorist.

Well, here’s an update.

The Department of Homeland Security, ever the shepherds watching over their flocks, appears to be seriously weighing making this bracelet mandatory and has sent a letter to Lamperd encouraging the company to draft a formal proposal for integrating its bracelet into flight security.

. . .

Here is a promotional video for the bracelet that piqued DHS’s interest.

The Washington Times today quotes a letter from DHS’s Paul S. Ruwaldt, of the Science and Technology Directorate, in which he writes to Lamperd saying, “To make it clear, we are interested in…the immobilizing security bracelet and look forward to receiving a written proposal.”

The Times link is to Want some torture with your peanuts?

From the Times article:

This bracelet would:

• take the place of an airline boarding pass

• contain personal information about the traveler

• be able to monitor the whereabouts of each passenger and his/her luggage

• shock the wearer on command, completely immobilizing him/her for several minutes

The Electronic ID Bracelet, as it’s referred to, would be worn by every traveler “until they disembark the flight at their destination.” Yes, you read that correctly. Every airline passenger would be tracked by a government-funded GPS, containing personal, private and confidential information, and would shock the customer worse than an electronic dog collar if the passenger got out of line.

Is TSA insane? If aviation security is reduced to this, then the terrorists really have won.

“Although the evidence or contraband seized during a search cannot justify, ex post facto, the legality of the search, see State v. Sierra, 754 P.2d 972, 977 (Utah App. 1988), it does inform the question of credibility. The items found incident to the search support Officer Bairett’s testimony that he smelled the odor of raw marijuana emanating from the vehicle. Based on Officer Bairett’s testimony and the corroborating evidence, the Court finds that Officer Bairett had probable cause to search Defendants’ vehicle.” [The problem is that this is subject to post hoc rationalization.] United States v. Ellis, 2008 U.S. Dist. LEXIS 51529 (D. Utah July 3, 2008).*

Seatbelt violation justified a stop that revealed an extended clip extending from the butt of a gun in plain view. Defendant’s conduct was also furtive where the gun was seen. United States v. Lewis, 2008 U.S. Dist. LEXIS 51291 (D. V.I. July 2, 2008).*

Probable cause and exigent circumstances existed for a search of the house because of drug sales going on around it by people residing there and because of the arrest of one of them outside. That led to a search warrant of the house which was also supported by independent information as to what was inside. United States v. Handberry, 2008 U.S. Dist. LEXIS 51372 (E.D. N.C. July 7, 2008):

Turning now to the second prong of the argument, namely, where probable cause to believe that illegal activity was afoot at the Bonner Street residence, whether exigent circumstances justified the warrantless entry. “It is well established that even when officers have probable cause to believe that contraband is present in a home, a warrantless search of the home is unlawful unless exigent circumstances exist at the time of entry.” United States v. Mowatt, 513 F.3d 395, 400 (4th Cir. 2008). The Fourth Circuit has enumerated five factors that district courts should consider in determining whether an exigency existed at the time a search commenced:

(1) the degree of urgency involved and the amount of time necessary to obtain a warrant; (2) the officers’ reasonable belief that the contraband is about to be removed or destroyed; (3) the possibility of danger to police guarding the site; (4) information indicating the possessors of the contraband are aware that police are on their trail; and (5) the ready destructibility of the contraband.

United States v. Turner, 650 F.2d 526, 528 (4th Cir. 1981). In Turner, the court found that exigent circumstances, the arrest of an individual in close proximity to an apartment where drug operations were taking place, allowed for warrantless entry into the apartment. Id. Finding that “circumstances beyond their [the officers’] control made it impractical for them to do so before entering the apartment” and finding that there was “a rational basis for their belief that” an individual in the apartment could have viewed the arrest and might destroy the “readily destructible” evidence, the district court’s finding that warrantless entry was justified was “amply supported by the evidence.” Id. at 528-29.

Here, due to the practice of drug dealers communicating with each other concerning arrests in the vicinity, the officers reasonably believed that the occupants of the Bonner Street residence would be alerted to the fact of Pierre’s arrest prior to issuance of the search warrant and any contraband would be destroyed or removed. Therefore, exigent circumstances justified the Sheriff’s Departments’ entry and search into the Bonner Street residence. Accordingly, defendant’s argument that the search violated the Fourth Amendment to the U.S. Constitution fails.

Comment: The court makes no mention of police created exigency by the fact of the arrest of one of the alleged conspirators. The officers had to know that. But, the independent source finding essentially resolved this without it having to be discussed.

Description of the search warrant was clear as to the property to be searched, identified by location and colors. Moreover, the officer was shown in the affidavit to have surveilled that property in the 72 hours before issuance of the warrant, so he knew where it was. United States v. Bailey, 2008 U.S. Dist. LEXIS 51384 (N.D. Okla. May 16, 2008).*

Search warrant’s descriptive phrase “representing the possible exploitation of children” was unconstitutionally overbroad. Also, the good faith exception will not save this warrant. United States v. Tracey, 2008 U.S. Dist. LEXIS 49741 (M.D. Pa. June 30, 2008):

Chief Holler did use language of incorporation but, as noted by Defendant, he incorporated the vague language of the warrant description, describing items to be seized as those “representing the possible exploitation of children,” into the affidavit, rather than incorporating into the warrant the possibly limiting language of the affidavit, which referred to the statutory section that was allegedly violated. This was not some clerical error. The point of incorporation by reference is that the warrant becomes limited by incorporation into it of the affidavit’s language. That does not happen when the vague language of the warrant is incorporated into the affidavit instead.

We therefore agree with Defendant that we deal here with a general warrant. A warrant that authorizes a search for items “representing the possible exploitation of children” is one that allows a general “rummaging” through the belongings of the defendant, Christine, supra, 687 F.2d at 752, and hence any evidence seized pursuant to that warrant must be suppressed. Id. at 758.

The government argues that the good faith exception to the exclusionary rule allows admission of the evidence seized under the authority of the warrant. In support, it contends that any error Chief Holler made was because of the way the one-page form was drafted. The Chief simply complied with the form, checking the boxes where indicated. Thus, any error in failing to incorporate the affidavit into the warrant would have been the result of the form, which the government characterizes as a clerical one that can be ignored.

We disagree. The Fourth Amendment requires a particular description of the items to be seized. In any event, the form itself instructs the drafting officer “to be as specific as possible” in describing the items, so the form cannot be the cause of the drafting error. In addition, Chief Holler was aware that he was not confined by the options supplied by the form. He actually used incorporation language, albeit opposite the way he should have.

Under the good faith exception to the exclusionary rule, “suppression of evidence ‘is inappropriate when an officer executes a search in objectively reasonable reliance on a warrant’s authority.'” Ninety-two Thousand, supra, 307 F.3d at 145 (quoting United States v. Williams, 3 F.3d 69, 74 (3d Cir. 1993)). The test is “‘whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.'” Id. at 145-46 (quoted case omitted). The warrant here, as it relies on a description of items involving the “exploitation of children,” fails this test. This language is so facially defective that no reasonable police officer should have relied on it. Id. at 146 (among other situations in which the good faith exception does not apply is when the warrant “was so facially deficient that it failed to particularize the place to be searched or the things to be seized”) (quoted case omitted).

The N.D. Cal. held Wednesday (see NYTimes.com) that FISA is the exclusive means for wiretapping Americans, and the President has no plenary authority over spying on Americans in the name of national security. In Re: National Security Agency Telecommunications Records Litigation (Al-Haramain Islamic Foundation, Inc v. Bush), MDL Docket No 06-1791 (N.D. Cal. July 2, 2008):

For the reasons stated herein, the court has determined that: (1) FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes and would appear to displace the state secrets privilege for purposes of plaintiffs’ claims; and (2) FISA nonetheless does not appear to provide plaintiffs a viable remedy unless they can show that they are “aggrieved persons” within the meaning of FISA. The lack of precedents interpreting the remedial provisions of FISA, the failure of the parties to consider the import of FISA preemption and the undeveloped factual record in this case warrant allowing plaintiffs to attempt to make that showing and, therefore, support dismissal of the FISA claim with leave to amend.

. . .

In the case of FISA, Congress attempted not only to put a stop to warrantless wiretapping by the executive branch but also to establish checks and balances involving other branches of government in anticipation of efforts by future administrations to undertake warrantless surveillance in some other manner:

In the past several years, abuses of domestic national security surveillances have been disclosed. This evidence alone should demonstrate the inappropriateness of relying solely on executive branch discretion to safeguard civil liberties. This committee is well aware of the substantial safeguards respecting foreign intelligence electronic surveillance currently embodied in classified Attorney General procedures, but this committee is also aware that over the past thirty years there have been significant changes in internal executive branch procedures, and there is ample precedent for later administrations or even the same administration loosening previous standards.

H R Rep No 95-1283(I) at 21. Given the possibility that the executive branch might again engage in warrantless surveillance and then assert national security secrecy in order to mask its conduct, Congress intended for the executive branch to relinquish its near total control over whether the fact of unlawful surveillance could be protected as a secret.

Reynolds itself, holding that the state secrets privilege is part of the federal common law, leaves little room for defendants’ argument that the state secrets privilege is actually rooted in the constitution. Reynolds stated that the state secrets privilege was “well-established in the law of evidence.” 345 US at 6-7. At the time, Congress had not yet approved the Federal Rules of Evidence, and therefore the only “law of evidence” to apply in federal court was an amalgam of common law, local practice a statutory provisions with indefinite contours. John Henry Wigmore (revised by Peter Tillers), I Evidence §6.1 at 384-85 (Little, Brown & Co 1983). The Court declined to address the constitutional question whether Congress could limit executive branch authority to withhold sensitive documents, but merely interpreted and applied federal common law. See Reynolds, 345 US at 6 & n9.

Defendants’ attempt to establish a strict dichotomy between federal common law and constitutional interpretation is, moreover, misconceived because all rules of federal common law have some grounding in the Constitution. “Federal common law implements the federal Constitution and statutes, and is conditioned by them. Within these limits, federal courts are free to apply the traditional common-law technique of decision and to draw upon all the sources of the common law in cases such as the present.” D’Oench, Duhme & Co v FDIC, 315 US 447, 472 (1942) (Jackson concurring). …

In the specific context of the state secrets privilege, it would be unremarkable for the privilege to have a constitutional “core” or constitutional “overtones.” See Robert M Chesney, State Secrets and the Limits of National Security Litigation, 75 George Wash L Rev 1249, 1309-10 (2007). Article II might be nothing more than the source of federal policy that courts look to when applying the common law state secrets privilege. But constitutionally inspired deference to the executive branch is not the same as constitutional law.

Defendant’s arrest in his residence driveway for DUI did not violate the Fourth Amendment because it was not curtilage. His “No Trespassing” sign did not make it curtilage. State v. Kolb, 2008 Ohio 3265, 2008 Ohio App. LEXIS 2766 (6th Dist. June 30, 2008).*

The police could search sweatpants handed to them to give to an arrested person when he was arrested outside his house. [Here it was treated as an abandonment, but it is a demonstrable showing of no reasonable expectation of privacy.] People v. Henry, 2008 N.Y. Misc. LEXIS 3741, 239 N.Y.L.J. 116 (Nassau Co. April 25, 2008).*

Informants provided detailed information about the defendants’ taping drugs to their genitals for transport, and the defendants consented to a search of their car and a strip search that produced them. State v. Hillman, 2008 Ohio 3204, 2008 Ohio App. LEXIS 2739 (9th Dist. June 30, 2008).*

Commentary: How dare they rip the Fourth Amendment?, by Joseph L. Galloway in McClatchy Newspapers, on the coming FISA bill:

Early next week the U.S. Senate will vote on an extension of the Foreign Intelligence Surveillance Act, with a few small amendments intended to immunize telecommunications corporations that assisted our government in the warrantless and illegal wiretapping it has grown to love.

That such a gutting of the Fourth Amendment to the Constitution even made it out of committee is yet another stain on the gutless and seemingly powerless Democratic majority in both houses of Congress.

That a majority on both sides of the aisle — not least of them the presumptive nominees for president of both political parties — intend to vote for such a violation of Americans’ right to privacy and of the sanctity of their personal communications is a stunning surrender to those who want us to live in fear forever.

We are living in a time when the right of habeas corpus — which simply put is your right to be brought before a proper court of law where the government is made to prove that there is good and legal reason to detain you — recently survived by a margin of only one vote at the U.S. Supreme Court.

Now these bad actors are prepared to set aside your right to privacy — written into the Constitution as a key part of our Bill of Rights — with hardly a nod in the direction of the true patriots who rebelled against an English king and his army to guarantee those rights.

That they will do this while the last empty phrases of the political windbags at the Fourth of July celebrations are still echoing across a thousand city parks and the bright red, white and blue bunting and blizzard of American flags still flap in the breeze is little short of breath-taking.

How dare they?

This is just the first fourth of the article.

This article was posted on Switched.com today: US Government May Be Tracking You With Your Cell Phone, by Terrence O’Brien:

It was disturbing enough when the government was just listening in. Now privacy advocates are afraid the government may be tracking our every move through our cell phones. In November of 2007, the American Civil Liberties Union (ACLU) filed a Freedom of Information Act request with the Department of Justice (DOJ) to find out how widespread such tracking is. The DOJ didn’t hand over the data, so now the ACLU and the Electronic Frontier Foundation (EFF) are taking the DOJ to court to force it to comply with the request.

The ACLU was spurred into action following a blog post in The New York Times in which some courts expressed discomfort with the government’s use of cell phone tracking data without probable cause.

The link is to a December 10, 2005 NY Times article: “Live Tracking of Mobile Phones Prompts Court Fights on Privacy.”

In a replevin action, plaintiff was not entitled to recover property seized under a warrant where the police investigation remains open. This is “rightful possession” and replevin will not lie. Hicks v. City of Barberton Police, 2008 Ohio 2958, 2008 Ohio App. LEXIS 2485 (9th Dist. June 18, 2008).

Plain feel of what was probably crack cocaine was felt during patdown of defendant in his butt crack, so the seizure was valid. State v. Pullen, 2008 Ohio 2894; 2008 Ohio App. LEXIS 2421 (2d Dist. June 13, 2008).

Defense counsel was not ineffective for not filing a motion to suppress which would have failed because of his live-in girlfriend’s consent. State v. Owens, 2008 Ohio 2961, 2008 Ohio App. LEXIS 2486 (9th Dist. June 18, 2008).*

The Second Amendment case, D.C. v. Heller, 2008 U.S. LEXIS 5268 (U.S. June 26, 2008), held today that the Second Amendment protects the personal right to possess arms in the home, with a few exceptions. There are these paragraphs of interest to interpreting the Fourth Amendment:

What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):

“‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. … [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”

. . .

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

. . .

c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.

Defendant was a robbery and assault victim and he was questioned by the police. His status evolved from victim to marijuana possession suspect, and the officer’s questioning of him was reasonable. State v. Mitchell, 143 Wn. App. 1024, 2008 Wash. App. LEXIS 553 (March 3, 2008), ordered published June 17, 2008:

¶11 The police officers waited while Mitchell was receiving emergency medical care and treatment for his injuries before interviewing him. They then detained him only long enough to interview him, transport him to attend a show up identification and provide a written statement, and return him to the scene of the assault. These types of arrangements are ordinarily reasonable and constitutionally permissible.

It is very difficult to investigate or prosecute a crime without witnesses. Missing witnesses have been the bane of more than one prosecution. Identifying the witnesses and obtaining their stories is thus an essential part of police work, and is best done as quickly as possible. HN5A Terry stop of a … witness is therefore the essence of good police work.

¶12 Other relevant factors to be considered include the seriousness of the crime being investigated, a reason to believe the person detained had knowledge of material aid in the investigation of such crime, and the need for prompt action.

¶13 Mitchell contends that he was seized when the deputy told him he had to remain at the scene of the robbery. Under the circumstances, this remark by the deputy did not transform an otherwise consensual police interaction into a constitutionally impermissible detention. By that time, Mitchell was viewed both as a victim and a suspect in the criminal investigation. Mitchell acknowledges that the deputy had observed a green leafy substance resembling marijuana in his car, and that Mitchell’s girlfriend admitted to police that they had arranged to purchase marijuana from one of the robbery suspects. Given these facts and Mitchell’s own inconsistent statements about what happened, the police had a reasonably articulable suspicion of specific criminal activity. An investigatory stop was warranted under Terry.

Nervousness with reaching under seat alone were not sufficient for reasonable suspicion. The court analyzed at length the purported justification of the license plate light being out, which the court noted was working in the video of the stop, but still did not second guess it. [Instead, it appears that the court was trying to find a way to suppress the search for an alternative reason rather than call the officer a liar.] United States v. Blair, 2008 U.S. App. LEXIS 13216, 2008 FED App. 0171P (6th Cir. May 2, 2008):

We are left with Officer Holmes’s testimony that Blair was unusually nervous and was reaching under the seats. As we previously have noted, nervousness is “an unreliable indicator, especially in the context of a traffic stop. Many citizens become nervous during a traffic stop, even when they have nothing to hide or fear.” United States v. Richardson, 385 F.3d 625, 630-31 (6th Cir. 2004) (citing United States v. Saperstein, 723 F.2d 1221, 1228 (6th Cir. 1983)). And while evasive behavior is a pertinent factor in determining reasonable suspicion, Wardlow, 528 U.S. at 124, Blair’s act of reaching under the seats, without more, does not justify a Terry stop.

Based on the totality of the circumstances, therefore, we hold that Officer Holmes did not possess the reasonable, articulable suspicion of criminal activity necessary to extend the scope and duration of the stop. As a result, Officer Holmes’s prolonged detention of Blair was not justified at its inception and therefore was not a valid Terry stop. Accordingly, the stop violated the Fourth Amendment, and all evidence seized as a result of the stop must be suppressed as “fruits of the poisonous tree.” Hill, 195 F.3d at 264.

SCOTUS granted cert today in Arizona v. Johnson, 07-1122. Issue: Whether, in the context of a vehicular stop for a minor traffic infraction, an officer may conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but had no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense.

Opinion below is State v. Johnson, 512 Ariz. Adv. Rep. 3, 170 P.3d 667 (Ariz. App. 2007), posted here. The Petitioner’s brief here.