School district’s plan to record audio in certain classrooms during the day did not raise a Fourth Amendment claim. There is no expectation of privacy as to what is said in a classroom. Plock v. Bd. of Educ. of Freeport Sch. Dist. No. 145, 545 F. Supp. 2d 755 (N.D. Ill. 2007):

What is said and done in a public classroom is not merely liable to being overheard and repeated, but is likely to be overheard and repeated. See, e.g., Evens v. The Superior Court of Los Angeles County, 77 Cal.App.4th 320, 325 (2d Dist 1999) (finding teacher’s expectations that her communications would be confined to the classroom unreasonable, that such communications “will virtually never be confined to the classroom,” and that students “will, and usually do, discuss a teacher’s communications and activities with their parents, other students, other teachers, and administrators.”). A classroom in a public school is not the private property of any teacher. A classroom is a public space in which government employees communicate with members of the public. There is nothing private about communications which take place in such a setting. Any expectations of privacy concerning communications taking place in special education classrooms such as those subject to the proposed audio monitoring in this case are inherently unreasonable and beyond the protection of the Fourth Amendment.

Plaintiff’s cause of action for false arrest would have arisen on their arrest and not later production of a false consent form that they didn’t even rely on. Dean v. Behrend, 2007 U.S. Dist. LEXIS 93148 (N.D. Ill. December 19, 2007).*

Searches of police officer’s office telephone records was permitted under Smith v. Maryland. Searches of his office computer hard drive and his departmentally issued equipment was within the operational realities of the workplace under O’Connor v. Ortega. Ober v. Miller, 2007 U.S. Dist. LEXIS 93236 (M.D. Pa. December 18, 2007).

An appeals court can apply the inevitable discovery doctrine on its own motion. Inevitable discovery is similar to harmless error. State v. Dickinson, 2008 MT 159, 343 Mont. 301, 184 P.3d 305 (2008):

[*P20] As indicated above, the parties did not argue to the District Court or to this Court the “inevitable discovery” doctrine. And while we acknowledge that we do not traditionally address legal theories not raised by the parties, there are limited analyses in which this Court frequently engages, even if the parties have not urged us to do so. A classic example is the “harmless error” analysis, which is similar to the inevitable discovery exception. In the typical “harmless error” situation, a defendant argues that a claimed error requires reversal, and in response the State asserts that no error occurred. Even if the State fails to argue the fallback position that if error occurred, it was harmless, we will still engage in the harmless error analysis in the event we conclude that an error was made, for the simple reason that we have everything in the record we need to make that determination, and a refusal to make the analysis would unnecessarily multiply the proceedings (e.g., remand for determination of whether the error was harmless, followed by a second appeal). The situation before us is similar in that Dickinson argues the court erred in failing to suppress the evidence and the State maintains it did not.

[*P21] While we have no cases which categorically state that we will apply the “inevitable discovery” doctrine sua sponte, it appears we did so in Pearson. Pearson argued that a police officer performed an illegal search resulting in the discovery of marijuana. This gave the officer probable cause to obtain a warrant to search Pearson’s car, at which time cocaine was discovered. Pearson sought to have evidence of the cocaine suppressed on the ground that the original search was unlawful and the subsequently-discovered evidence was tainted. However, we held that other “plain view” evidence of illegal drug activity provided probable cause for a warrant under which the cocaine would have been “inevitably discovered.”

Defendant was a police officer, so he “cannot reasonably argue that he was vulnerable in any way or did not understand the rights he was giving up. He was fully aware that he could force the officers to obtain a warrant before they searched his home, but he chose not to.” The mere fact of a gun on the premises is not cause for a protective sweep because it is limited to looking for people. State v. Evans, 2008 Ohio 2032, 2008 Ohio App. LEXIS 1735 (8th Dist. May 1, 2008).

“[A] method of drug delivery described by the confidential informant” was sufficient to show a nexus to defendant’s property to support a search warrant. Commonwealth v. Pina, 71 Mass. App. Ct. 653, 885 N.E.2d 157 (2008).*

Miranda violation under Oregon law compels suppression of everything that results from it. State v. Vondehn, 219 Ore. App. 492, 184 P.3d 567 (2008):

The issue in this case is whether the analysis that the Supreme Court described in Hall applies when the police obtain voluntary consent to a search by exploiting a previous interrogation that violated Article I, section 12, because of a failure to give Miranda warnings. We conclude that it does.

The foundation of the analysis in Hall is that Article I, section 9, creates a constitutional right to be protected against unreasonable searches and seizures and that the purpose of the exclusionary rule is to vindicate that right. In the same way, Article I, section 12, creates a constitutional right not to be compelled to provide testimony or furnish evidence against oneself, a right that applies in any kind of judicial or nonjudicial procedure, including police interrogation. State v. Fish, 321 Ore. 48, 53, 893 P.2d 1023 (1995). The right by its express terms constitutes an exclusionary rule that prohibits the use of testimonial evidence acquired as a result of its violation, but it also protects a person from being compelled in the first instance to furnish evidence. State v. Soriano, 68 Ore. App. 642, 646 n 4, 684 P.2d 1220, aff’d and opinion adopted, 298 Ore. 392, 693 P.2d 26. Again, under the Oregon Constitution, the right is based not on deterring police misconduct but on preserving a person’s freedom to decide whether to speak. The Miranda warnings are an essential part of protecting that freedom of decision and thus of protecting the constitutional right. Excluding testimony that violates the Miranda rule, thus, is necessary to vindicate the constitutional right.

Defendant under home detention on the back end of his prison sentence was legally the same status as a prisoner, and he had no expectation of privacy in his home. Also, he was shown a video before he joined the program that told him he was subject to a search of his house the same as a prisoner’s cell is subject to search. United States v. Smith, 526 F.3d 306, 2008 FED App. 0192P (6th Cir. 2008).*

Tribal police officers’ conduct is measured under the Fourth Amendment, the same as a police officer outside his or her jurisdiction, something not a Fourth Amendment issue. United States v. Erickson, 2008 U.S. Dist. LEXIS 40609 (D. S.D. May 8, 2008):

Like in Abbott, the reason the tribal officers’ actions are in question is the result of the law of their sovereign. There is no dispute that the Rosebud Sioux Tribe has the power to authorize tribal officers to enforce the law on their reservation. The Rosebud Sioux Tribe has the corresponding power to limit the term of its tribal officers, just like the state of Missouri has the power to limit the jurisdictional boundaries of where its officers can make arrests. These circumscriptions of power, however, are not constitutionally mandated. The tribe’s failure to renew the tribal commissions, although it may result in activity violative of tribal law by the noncommissioned officers, does not render the conduct of those officers “unreasonable” and therefore unconstitutional under the Fourth Amendment. Accordingly, the court finds that even assuming the officers involved in the arrests and searches of defendant did not possess valid RST commissions, their noncommissioned status is not relevant to the Fourth Amendment inquiry in this case.

Government interlocutory appeals: “[W]e hold that the United States Attorney’s bare certification regarding delay and materiality in accordance with the terms of § 3731 was sufficient to give us appellate jurisdiction to address the government’s objections to the district court’s orders. We therefore overrule our prior decisions to the extent that they conflict with our ruling today, including United States v. Loud Hawk, 628 F.2d 1139 (9th Cir. 1979) (en banc), and United States v. Adrian, 978 F.2d 486 (9th Cir. 1992).” United States v. Grace, 526 F.3d 499 (9th Cir. 2008).

Advancing on an officer with a box cutter in hand resulted in a shooting from two feet away when the officer was backed up against her patrol car. The officer was entitled to qualified immunity. She didn’t have to check whether the blade was extended and how far. Njang v. Montgomery County, 2008 U.S. App. LEXIS 10394 (4th Cir. May 14, 2008) (unpublished)*:

First, Appellants point out that the box cutter did not, in fact, have its blade extended at the time of the shooting. They argue that the box cutter was therefore not actually dangerous, and posed no threat to Officer Marchone. Appellants misunderstand our inquiry here. The proper test is whether a reasonable officer in Officer Marchone’s position would have perceived Njang’s actions to be threatening. See id. For example, this court has held that an officer may use deadly force in certain circumstances even when the officer has not confirmed that the suspect is armed. See McLenagan v. Karnes, 27 F.3d 1002, 1007 (4th Cir. 1994) (“[W]e do not think it wise to require a police officer, in all instances, to actually detect the presence of an object in a suspect’s hands before firing on him.”).

Here, Officer Marchone testified that the object in Njang’s hands “looked like a knife” to her. J.A. 57. One eyewitness thought that the object was a box cutter, and another confirmed that it “looked like a knife to [him].” J.A. 99. 7 Considering the “tense, uncertain, and rapidly evolving” circumstances preceding the shooting, Graham, 490 U.S. at 396, we can hardly say that Officer Marchone was unreasonable in believing that the box cutter, blade extended or not, posed a serious threat.

Officers entering plaintiff’s house could rely on information from another officer that plaintiff was there to justify the entry on an arrest warrant. Pulling a gun on plaintiff when arresting him was not unreasonable. Greene v. Knight, 2008 U.S. Dist. LEXIS 6292 (N.D. Tex. January 29, 2008)*:

With respect to Plaintiff’s argument about the reasonableness of the seizure, that is, the officers pointing their guns at him, the court finds it unavailing. “Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396 (1989).

Affidavit for search warrant for defendant’s premises showed probable cause to search by circumstantial evidence, but it was adequate for the warrant to issue. United States v. Sarraga-Solana, 263 Fed. Appx. 227 (3d Cir. 2008) (unpublished).

Frisk was by consent. “The district court found that Miles consented to the search when, upon being asked whether he had any weapons, he answered, ‘No, you can check me,’ and put his hands in the air.” United States v. Miles, 263 Fed. Appx. 77 (2d Cir. 2008) (unpublished).*

Officers had probable cause to believe that plaintiff was suicidal when he was taken in for psychiatric evaluation, so they had qualified immunity. Simon v. Cook, 261 Fed. Appx. 873, 2008 FED App. 0086N (6th Cir. 2008) (unpublished).*

There is no military version of Bivens action for a Franks claim. Flowers v. United States, 80 Fed. Cl. 201 (Ct. Fed. Claims. 2008):

The court cannot adjudicate plaintiff’s allegations that his Fourth Amendment rights were violated by the Army’s alleged “concealing and omitting evidence from the military judge” in order to obtain a search warrant. 11 Am. Compl. PP 47-48, 50; Pl.’s Resp. 4. The Fourth Amendment provides no right to money damages for its breach. U.S. Const. amend. IV; LaChance v. United States, 15 Cl. Ct. 127, 130 (1988) (“[T]he fourth amendment does not mandate the payment of money by the United States.” (citing Shaw v. United States, 8 Cl. Ct. 796, 800 (1985))). Therefore, the court lacks jurisdiction over plaintiff’s search and seizure claims.

Hospital security officers were at the emergency room assisting with a gunshot victim brought to the hospital in a car. One asked about whether there was a gun in the car, and the driver said there was. He asked the driver to get out of and step away from the car. He searched the car and located a gun. This search was not state action. State v. Buford, 2008 Ohio 2231, 2008 Ohio App. LEXIS 1918 (2d Dist. May 9, 2008).*

When drugs were found during an inventory of defendant’s car, a further search of the car was justified under the automobile exception. There is no “special exigency” or “separate exigency” requirement for the automobile exception. State v. Allensworth, 748 N.W.2d 789 n.4 (Iowa 2008):

We use the term “special exigency” to refer to some circumstance beyond the inherent mobility of the vehicle that makes it impossible or impractical for the police to obtain a search warrant prior to the vehicle being moved away. United States v. Graham, 275 F.3d 490, 509-10 (6th Cir. 2001) (noting the Supreme Court “has emphasized that no special exigency is required to conduct a warrantless search of an automobile when the car is mobile and the searching officer has probable cause to believe that fruits of a crime may be present in the automobile”). The Supreme Court has alternatively used the phrase “separate exigency” to refer to the same concept. See Maryland v. Dyson, 527 U.S. 465, 467, 119 S. Ct. 2013, 2014, 144 L. Ed. 2d 442, 445 (1999) (“[T]he ‘automobile exception’ has no separate exigency requirement.”).

Ten minute traffic stop was not unreasonable while questions about travel were asked. Defendant validly consented. United States v. Carvajal-Mora, 2008 U.S. Dist. LEXIS 37455 (N.D. Okla. May 7, 2008):

An officer conducting a traffic stop may request a driver’s license, vehicle registration, run a computer check, and issue a citation. … An officer may also “ask questions about the motorist’s travel plans and authority to operate the vehicle” in addition to obtaining the relevant documentation. … According to Turner, the traffic stop lasted approximately ten minutes from the time of the stop to defendant’s arrest and Crivello’s testimony suggests it may have been shorter. Crivello asked defendant to produce his license and the vehicle’s registration and return with Crivello to his patrol car. He also asked defendant questions about his travel plans and criminal history. Defendant consented to a search of the vehicle and, even if the search exceeded the scope of the initial traffic stop, defendant’s consent permitted them to extend the length of the detention without violating the Fourth Amendment.

Defendant’s use of “no trespassing” signs indicated that the police had no business going any further. “The State argues because the door was partially open, the officer’s decision to enter the home was reasonable. While an open door may ‘invite the gaze of curious passers-by and lessen the reasonable anticipation of privacy in the home,’ it does not alone justify an officer’s entry into the home.” The question of “reasonable expectation of privacy” is reviewed de novo. State v. Kochel, 2008 ND 28, 744 N.W.2d 771 (2008).

So called “acting landlord” of the property had apparent authority to consent to search of property from which the defendant had been evicted. His eviction ended his reasonable expectation of privacy. State v. Fischer, 2008 ND 32, 744 N.W.2d 760 (2008).

A drug dog was used during defendant’s license check after a speeding stop, and it was not illegal. The trial court erred in granting the motion to suppress. State v. White, 2008 Ohio 657, 175 Ohio App. 3d 302, 886 N.E.2d 904 (9th Dist. 2008).*

Officer’s testimony that he saw defendant illegally pass a school bus was evidence enough to justify the stop. City of Youngstown v. Jones, 2008 Ohio 710, 2008 Ohio App. LEXIS 614 (7th Dist. February 13, 2008).*

Defendant pulled up next to a police car and asked a question. The officer could smell burnt marijuana. That led to questioning and whether the officer could search his car and house, and defendant permitted it. Under United States v. Patane (2004), the search after the statement would not be suppressed. The Vermont Supreme Court determines that the Vermont Constitution required suppression of the evidence. State v. Peterson, 2007 VT 24, 181 Vt. 436, 923 A.2d 585 (2007):

[*P17] In examining whether we should follow Patane under the Vermont Constitution, we start with the context of our decision. The right against self-incrimination is guaranteed in the Fifth Amendment to the United States Constitution, which prohibits compelling a criminal defendant to “be a witness against himself.” U.S. Const. amend. V. Equivalently, Article 10 of the Vermont Constitution prohibits compelling a person “to give evidence against oneself.” Vt. Const. ch.1, art. 10. We have held, with respect to adults, that “the Article 10 privilege against self-incrimination and that contained in the Fifth Amendment are synonymous.” State v. Rheaume, 2004 VT 35, P18, 176 Vt. 413, 853 A.2d 1259; see State v. Ely, 167 Vt. 323, 330-31, 708 A.2d 1332, 1336 (1997) (declining to find significance in textual distinction between the two provisions). Consistent with this view, we have held that evidence gathered in violation of the prophylactic rules established in Miranda is also a violation of Article 10. State v. Brunelle, 148 Vt. 347, 355 n.11, 534 A.2d 198, 204 n.11 (1987); see also Rheaume, 2004 VT 35, P15. We have not, however, gone beyond Miranda and found a violation of the principles of that decision where the United States Supreme Court has not done so. Rheaume, 2004 VT 35, P15.

[*P18] If this case involved the substance of Miranda, for example, the nature of the warnings or the circumstances under which that must be given, the State would have a strong argument that our precedents require that we not go beyond the limits in the decisions of the United States Supreme Court. This, however, is a case in which the district court found a violation of Miranda under accepted principles and defendant made a confession to an additional crime under custodial interrogation, a confession that is inadmissible under Miranda. The issue is the scope of the remedy for the Miranda violation, and on this point our precedents take a different view from that of the United States Supreme Court. See State v. Oakes, 157 Vt. 171, 174-75, 598 A.2d 119, 121-22 (1991) (noting that the United States Supreme Court describes the federal exclusionary rule for Fourth Amendment violations as “a judicially created remedy rather than a constitutional right”).

. . .

[*P24] We would have to make a fundamental departure from our exclusionary rule jurisprudence in order not to apply an exclusionary rule here. In fact, we would have to overrule Badger or substantially narrow it. The approach of Patane, on the other hand, would create an incentive to violate Miranda. We see no justification for such a retrenchment in these circumstances. In addition, because the Miranda rule is intended to protect the right to counsel, as well as the right against self-incrimination, we would have to ignore the holding in Bean and like cases which use an exclusionary rule to protect the right to counsel.

[*P25] We note that the three state supreme courts that have analyzed Patane under their state constitutions have concluded that they cannot adopt it because it undercuts the enforcement of Miranda. In Commonwealth v. Martin, 444 Mass. 213, 827 N.E.2d 198 (Mass. 2005), the Massachusetts Supreme Judicial Court refused to follow Patane in enforcing Miranda rights through Article 12 of the Declaration of Rights of the Massachusetts Constitution. The court agreed with the observation of Justice Souter, dissenting in Patane, that the decision added “‘an important inducement for interrogators to ignore the [Miranda] rule'” and created “‘an unjustifiable invitation to law enforcement officers to flout Miranda when there may be physical evidence to be gained.'” Id. at 203 (quoting Patane, 524 U.S. at 647 (Souter, J., dissenting)). It concluded: “To apply the Patane analysis to the broader rights embodied in art. 12 would have a corrosive effect on them, undermine the respect we have accorded them, and demean their importance to a system of justice chosen by the citizens of Massachusetts in 1780.” Id. Thus, it followed earlier decisions in which it had rejected United States Supreme Court rulings weakening the applicability of Miranda. Id. at 206.
[The other two cases are State v. Knapp, 2005 WI 127, 700 N.W.2d 899 (Wis. 2005), and State v. Farris, 109 Ohio St. 3d 519, 849 N.E.2d 985 (Ohio 2006).]

. . .

[*P28] For the above reasons, we conclude that we will not follow United States v. Patane under Article 10 of the Vermont Constitution and our exclusionary rule. Physical evidence gained from statements obtained under circumstances that violate Miranda is inadmissible in criminal proceedings as fruit of the poisonous tree. Since it is undisputed that the marijuana plants were such fruit in this case, the district court erred in failing to suppress them.

Vermont rejects Belton and holds that a defendant who had been arrested and was handcuffed in the backseat of a police car was no longer capable of reaching his backpack in his car, so it could not be subjected to a search incident. The automobile exception was also rejected. State v. Bauder, 2007 VT 16, 181 Vt. 392, 924 A.2d 38 (2007):

Neither requirement was satisfied here. Despite the officer’s suspicion that the car might have been stolen, he did not arrest defendant on that basis and identified no ground, much less probable cause, to believe that proof of ownership might be discovered behind or underneath the driver’s seat, where the parking meter and glass jar containing marijuana were found. Even if it were assumed, however-as the dissent urges-that the inadequate proof of ownership established probable cause to believe that the car was stolen, the circumstances did not establish that element of urgency essential to the execution of a warrantless search. The officer readily acknowledged that he had no concerns about the possibility of evidence inside the vehicle being removed or destroyed. Indeed, prior to the search, the officers had not observed any evidence of a crime in the vehicle, let alone evidence that might conceivably be lost or destroyed.

Furthermore, defendant was under arrest, the car was not on a public highway but safely parked in a commercial lot, and the police had determined that it would be grounded, i.e, locked and kept there until they determined its ownership. Hence, there was no exigency compelling an immediate search rather than a subsequent warrant application. In Trudeau, the principal case on which the dissent relies, the police had observed evidence in plain view within the vehicle that related directly to the offense for which defendant was arrested. Indeed, we analyzed Trudeau as a plain-view case, not an automobile-exception case, emphasizing that the officers violated no privacy rights of the defendant when they observed an open beer can in plain view on the floor of the defendant’s car before arresting him for DUI. 165 Vt. at 358, 683 A.2d at 727-28. Here, in contrast, the officers had no indication that defendant’s vehicle contained any contraband or evidence of a crime. Furthermore, the record in Trudeau revealed the presence of two additional passengers in the vehicle who also appeared to be intoxicated and who had remained near the vehicle during the police encounter, although they had not been arrested. This was sufficient to suggest that they might have had not only the opportunity, but the incentive, to seek access to the vehicle to remove the evidence the police had observed therein, and thus established the exigency necessary to forgo a warrant. Trudeau, 165 Vt. at 357, 361, 683 A.2d at 726, 729. Neither circumstance was present here. The police had not observed any evidence of a crime in the vehicle, and there was nothing to indicate that the passenger, who had been questioned by the police and had departed, would have any reason to return to the vehicle or ability to remove its contents. Accordingly, we are not persuaded that the automobile exception provides a viable basis to uphold the trial court decision.

Knife seen on car console during a traffic stop justified a frisk of the car. United States v. Robinson, 222 Fed. Appx. 534 (8th Cir. 2007)* (unpublished).

District court’s finding of voluntary consent was not clearly erroneous. United States v. Lyons, 220 Fed. Appx. 917 (11th Cir. 2007)* (unpublished).

Fact dispute on whether probable cause existed for arrest precluded summary judgment for defendants. Freeman v. Taghon, 2007 U.S. Dist. LEXIS 18537 (N.D. Ill. March 14, 2007).*

Nexus of probable cause to believe weapons or ammunition would be found in defendant’s house was established by the fact he was stopped just leaving the house and had ammunition on him. The search warrant for the premises was for drugs, weapons, currency, and documents. Seizure of documents unrelated to the former was without probable cause and was ordered suppressed. United States v. Ferguson, 2007 U.S. Dist. LEXIS 7560 (W.D. Ky. February 1, 2007):

The searching officials knew of the federal arrest warrant stemming from Ferguson’s indictment on drug trafficking charges and also knew of his two prior felony convictions for drug trafficking. Detective Sutter testified that it is common knowledge within law enforcement that firearms generally are associated with drug trafficking. Special Agent David Hayes testified that the cameras that were hooked up to the JVC television constituted a security system that police officers most typically see associated with drug traffickers. Thus, the police had probable cause to associate the cameras and the JVC television with criminal activity, namely drug trafficking. Large quantities of cash are often associated with drug trafficking. See United States v. Thomas, No. 88-6341, 1989 WL 72926 at *1 (6th Cir. July 5, 1989). Similarly, individuals involved in drug trafficking often use safe deposit boxes to store currency, controlled substances, and other materials related to their illegal activity. See, e.g., United States v. $174,206.00 in United States Currency, 320 F.3d 658, 659 (6th Cir. 2003); Thomas, 1989 WL 72926 at *1. Therefore, the officers had probable cause to associate the $5011 in United States currency and the safe deposit key with criminal drug trafficking activity. However, the Court finds that the police did not have probable cause to associate the documents unrelated to firearms with criminal activity.

Therefore, this Court finds that the documents seized unrelated to firearms should be suppressed.

Because separate sovereigns are involved, two connected criminal cases, one in federal court and one in state court, for different crimes arising from the same facts, the state court need not await a federal court ruling on the merits of a search before the state proceeds. Here, the state had an arrest warrant and conducted a search incident which led to this case. Then, the state got a search warrant, and the product of that went federal. Also, the defendant did not put the search warrants in the record, so there is nothing to rule on even if the court wanted to. State v. Proell, 2007 ND 17, 726 N.W.2d 591 (February 1, 2007).

Defendants were detained with probable cause while the police sought a search warrant for their luggage. The record supports the conclusion they consented to a search of the luggage. United States v. Gilles, 220 Fed. Appx. 540 (9th Cir. 2007)* (unpublished).

In a consumer protection case brought by the State of Vermont, the defendant did not raise the issue of whether civil discovery amounted to an unreasonable search in the trial court, so the issue could not be raised on appeal. State v. Lee, 2007 VT 7, 181 Vt. 605, 924 A.2d 81 (2007).*

Illinois holds that a warrant check of the passengers in a validly stopped car is not unreasonable, even under its more expansive interpretation of state law. People v. Harris, 228 Ill. 2d 222 (2008):

As noted above, a warrant is a matter of public record. An individual has no reasonable expectation of privacy in the fact that a court has entered a written order commanding his arrest. 725 ILCS 5/107-1 (West 2002). A warrant check does not implicate legitimate privacy interests because, like a dog sniff, it does not reveal any legitimately private activity or information, or result in any physical contact with the individual or his property. See Caballes, 543 U.S. at 409-10, 160 L. Ed. 2d at 848, 125 S. Ct. at 838.

We, therefore, conclude that this court’s treatment of the warrant-check issue in Harris I is inconsistent with the Supreme Court’s analysis in Caballes. We hold that a warrant check on the occupants of a lawfully stopped vehicle does not violate fourth amendment rights, so long as the duration of the stop is not unnecessarily prolonged for the purpose of conducting the check and the stop is “otherwise executed in a reasonable manner” (Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837).

Applying this rule to the facts of the present case, we find, first, that the seizure of defendant was initially lawful; second, the seizure was of reasonable duration; and, third, the warrant check did not infringe upon a constitutionally protected privacy interest. Thus, the warrant check did not violate defendant’s right under the fourth amendment to be free from unreasonable search and seizure. Therefore, unless the officer’s request for identification was improper, the evidence discovered as a result of the warrant check and subsequent arrest was properly admitted at trial.

Four officers at the door in a knock-and-talk was not inherently coercive, particularly when they were outside the gate of his property. The fact that this was at 9 p.m. in late July did not add to possible coerciveness. State v. Triana, 979 So. 2d 1039 (Fla. App. 3d DCA 2008).* (Comment: Some states would hold that a nighttime knock-and-talk of a home would be subjected to a more stringent analysis, but this was at a gate and not the door to the house.)

An officer looking through a crack in a business garage door at night violated no expectation of privacy. The defendant and another were packaging marijuana. State v. James, 980 So. 2d 769 (4th Cir. 2008).*

Defendant’s denial of ownership in a shower bag disclaimed his expectation of privacy in it. Under state law, even as a passenger, he would have had expectation of privacy in his own property contained in the car, but he denied ownership. State v. Breese, 250 S.W.3d 413 (Mo. App. 2008).*

Record supported conclusion that defendant was not too intoxicated to make a statement about his DUI arrest. State v. Vanhoose, 2008 Ohio 1122, 2008 Ohio App. LEXIS 976 (4th Dist. March 5, 2008).*

Two contrary cases on the same issue:

There was no evidence that defendant was a trespasser when he was approached by NOLA police on the parking lot of a housing project. His flight from the police was not itself reasonable suspicion because there was no justification for approaching him in the first place. No articulable reason was given for the stop and frisk. State v. James, 980 So. 2d 750 (4th Cir. 2008) released for publication May 8, 2008:

However, even if this Court were to concede the existence of reasonable suspicion of criminal activity as a means of supporting an investigatory stop, this without more does not give the police the right to frisk the appellant under the circumstance herein. Rather, in addition to the reasonable suspicion supporting the investigatory stop, there must be some basis for a fear of safety or a fear the suspect is armed.

Ohio’s Fourth District, however, holds just the opposite in State v. Travis, 2008 Ohio 1042, 2008 Ohio App. LEXIS 902 (4th Dist. March 3, 2008), finding that defendant’s quickening pace was reasonable suspicion. The officer there did not recognize the defendant as being a resident of the housing project, either.

Violation of state strip search statute did not warrant suppression because the search was valid under the Fourth Amendment. Rumore v. State, 969 So. 2d 551 (Fla. 2d DCA 2007):

Furthermore, we hold that the subsequent strip search of Mr. Rumore’s person was reasonable under the Fourth Amendment but unlawful under Crawford v. State, 980 So. 2d 521 (Fla. 2d DCA 2007).*

A search warrant was not invalid for not mentioning that defendants lived there. United States v. Xiong, 2007 U.S. Dist. LEXIS 87085 (E.D. Wis. November 26, 2007):

An accurate street address is by itself sufficient to allow a reasonable person to “ascertain and identify the place intended.” Id. Here, the warrant included in addition to an accurate street address, a physical description of the premises. Defendants have offered no explanation of why this was not sufficient.

Inevitable discovery supported seizure of 10,000 pounds of marijuana from defendant’s house which they could smell after the door was opened. They did a “protective sweep” and sent for a warrant. The inevitable discovery doctrine supported the seizure. Herrera-Fernandez v. State, 2007 Fla. App. LEXIS 18729 (Fla. 4th DCA November 28, 2007).*

Statistic evidence is admissible to show profiling, but here the evidence did not prove it. The officer has a presumption of regularity attending his actions. Commonwealth v. Lora, 451 Mass. 425, 886 N.E.2d 688 (2008):

An assessment of the evidence admitted at the rehearing on Lora’s motion to suppress leads us to the inescapable conclusion that the use of census benchmarking to compare the demographics of a small community with citation ratios on a major interstate highway, which happens to pass through it, is unreliable and not accepted in the scientific community. Such benchmarking data do not provide an adequate basis for assessing the racial composition of the drivers encountered by Shugrue on Route 290 and is inadequate to establish that similarly situated drivers of different races were treated differently. Indeed, Lora’s own evidence disproves his premise of comparability: of the fifty-two motorists that Shugrue ticketed on Route 290 in Auburn, ninety per cent were not residents of Auburn. Lora therefore failed to present sufficient credible evidence of discriminatory effect. The judge’s determination to the contrary was clearly erroneous, and the motion to suppress should not have been granted.

Actions can show consent to enter. United States v. Peck, 2008 U.S. Dist. LEXIS 40188 (D. Utah May 19, 2008):

Officer Koval testified, and Defendant does not dispute, that after he asked to speak to the male occupants of the house, Ms. Flores “opened the door, turned around, and started walking into the house.” She also stated, “That’s fine.” Though she did not specifically invite the officers in, her non-verbal communication indicated to Officer Koval that he was free to enter because she opened the door further after Officer Koval asked to speak to the male occupants, and she did not protest when he followed her in. Therefore, Officer Koval’s initial entry into the home was lawful.

In a § 1983 case too, what was found does not justify an unlawful search. Grayson v. Witt, 2008 U.S. Dist. LEXIS 40041 (E.D. Ky. May 16, 2008).*

An ABF employee was suspicious of cardboard boxes that were too heavy for their purported contents, and he cut a hole in the box, saw another hard box inside, and smelled fabric softener. The police were called and brought a drug dog which alerted on the box. The defendant was called, and he came and picked up the box. When he did he was arrested. The box was shipped to an alias. Because defendant did not show that he was the alias, he had no expectation of privacy in the box. State v. Kalphat, 285 Conn. 367, 2008 Conn. LEXIS 26 (February 5, 2008).*

The passenger in a stopped car was arrested for an outstanding warrant, and a search incident to a CD case found right next to him revealed ecstasy. A search of the driver found more ecstasy pills. The search of the CD case was proper under search incident under Washington law since nobody claimed control over it. The search of the driver was valid, too. State v. Bello, 142 Wn. App. 930, 176 P.3d 554 (2008). (Note: Lopez was the appellant, so what is the case name? It is on the court’s website as Lopez but on Lexis as Bello.)

Eviction from a hotel room for excessive noise also brought the police who searched the room after defendant left and guns and drugs were found. He lacked an expectation of privacy because of the eviction. United States v. Banks, 262 Fed. Appx. 900 (10th Cir. 2008), cert. denied 2008 U.S. LEXIS 4563 (June 2, 2008) (unpublished).

Being under the influence of marijuana is not enough to invalidate consent. Here, the police received a 911 report of sniper fire in midday, and they rushed to the area, and spread out. They came upon defendant’s place and the door was open, and they came on to the porch and smell burning marijuana. That led to a request for consent which was found valid. United States v. Walton, 2008 U.S. Dist. LEXIS 7900 (S.D. Fla. February 4, 2008).* Comment: From what I’ve heard from my lawyer friends who regularly partake, this holding is not hard to accept. (I may be on the NORML Legal Committee, but do not assume anything from that. Some prosecutors cross-examining me as an expert witness have, to their chagrin.)

Defendant’s plea to a traffic charge is not collateral estoppel to bar him from contesting the stop in a federal criminal case. The § 1983 case law, including Heck, does not apply in a criminal case. United States v. Delano, 543 F. Supp. 2d 791 (N.D. Ohio 2008):

In its initial ruling, this Court collaterally estopped Defendant Delano from asserting that he did not commit the traffic violations. The prosecution’s brief asserts that this was proper, and Bies v. Bagley‘s ruling on collateral estoppel does not govern this case. In Bies, the Sixth Circuit found that “collateral estoppel may only be used by the accused.” Bies, 2008 WL 507818 at *13. The United States argues that the Bies decision cited cases that had ruled that collateral estoppel could not be used against a defendant when it would estop a defendant from contesting an element of the defense. Thus, it argues that the prosecution can use traffic violations to collaterally estop a defendant in the context of a motion to suppress. The Court finds this unpersuasive. Bies stated that the prosecution could not collaterally estop a defendant “[b]ecause of a criminal defendant’s ‘interest of transcending value’ in vindicating his rights in a criminal case.” Id. Defendant Delano’s rights under the Fourth Amendment are at issue in this motion to suppress. As such, the Court finds that Bies‘s holding applies in this contest.

Moreover, the United States argues, that if this Court were to find that Defendant Delano had not committed the traffic violations, it would undermine the principles of comity as stated in Heck v. Humphrey and the Full Faith and Credit statute. 512 U.S. 477, 484 (1994); 28 U.S.C. § 1738. Heck v. Humphrey, however, emphasized that a criminal defendant should not be allowed to collaterally attack his state-court conviction in federal court via a civil suit. This case, by contrast, is not a civil § 1983 action, but a criminal action against the Defendant. For these reasons, the Court determines that it must amend its past order and not apply collateral estoppel to Defendant Delano.

Defendant was stopped on suspicion of attempting to urinate in public, but the officer really didn’t see anything. Defendant’s unlawful detention does not require suppression the finding of a separate warrant for the defendant’s arrest because the official misconduct was not flagrant. A dispute in the state’s case is resolved, but there is no bright line rule. State v. Martin, 285 Kan. 994, 179 P.3d 457 (2008):

We perceive that Damm and Jones are reconciled by recognizing that neither case establishes a bright line rule. The discovery of an outstanding arrest warrant does not always automatically wipe the slate clean for an officer unlawfully detaining the subject of the warrant. On the other hand, an unlawful detention that begets knowledge of an outstanding arrest warrant does not always automatically immunize the fugitive from prosecution for crimes discovered during the warrant arrest. In that regard, we note that the exclusionary rule is not absolute.

“‘We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Maguire, Evidence of Guilt, 22 (1959).” [Wong Sun v. United States,] 371 U.S. at 487-88.'” State v. Hodges, 252 Kan. 989, 1006, 851 P.2d 352 (1993).

Under the attenuation doctrine, courts have found that the poisonous taint of an unlawful search or seizure dissipates when the connection between the unlawful police conduct and the challenged evidence becomes attenuated. Nardone v. United States, 308 U.S. 338, 84 L. Ed. 307, 60 S. Ct. 266 (1939). Although the Jones opinion did not explicitly apply the attenuation doctrine, that doctrine appears to be the only way to explain its reference to officer bad faith and to reconcile it with the holding in Damm.

The Green, Murray, and Hill cases relied upon by Jones cite to Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975), which applied three factors to determine whether the causal chain has been sufficiently attenuated, so as to dissipate the taint of illegal conduct. Those factors are (1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. Brown, 422 U.S. at 603-04. Presumably, Jones’ holding of an absence of officer bad faith referred to the third factor. However, all of the factors appear to be germane to the important determination of whether the State can avoid the exclusionary rule for its agents’ unlawful conduct.

. . .

The first factor weighs heavily against the State. Indeed, at oral argument, the State emphasized the short amount of time which elapsed between the initial encounter and the arrest with accompanying search. The law enforcement officers’ actions were continuous; there was no temporal break in the causal chain between illegality and evidence acquisition. However, Brown instructed that “[n]o single fact is dispositive” in determining whether the evidence should be suppressed. Brown, 422 U.S. at 603; see Green, 111 F.3d at 521.

The second factor, the presence of intervening circumstances, brings the outstanding arrest warrant into play. Under that circumstance, the law enforcement officer was put on notice that a court had determined there was probable cause to believe that Martin had committed a crime and that the court had issued an order for law enforcement to take Martin into custody. The warrant arrest of Martin was a lawful, perhaps mandatory, act. Thereupon, K.S.A. 22-2501 permitted, and officer safety recommended, that the officer search Martin’s person. Thus, the lawful warrant arrest for a prior crime, and ensuing lawful search incident to arrest, represent a potential break in the causal chain between the unlawful conduct of illegally detaining Martin and the retrieval of the challenged evidence.

The third factor, the purpose and flagrancy of the official misconduct, dovetails with the second factor in this case. The determination of whether the intervening circumstance of discovering an outstanding warrant should attenuate the taint of a preceding unlawful detention, should be influenced by the officers’ reasons for detaining the subject and the flagrancy of the invasion on the subject’s privacy. In other words, did the officer exploit the unlawful conduct to get to the contraband. Cf. United States v. Melendez-Garcia, 28 F.3d 1046, 1055 (10th Cir. 1994) (“[T]he ‘purpose and flagrancy’ prong of the Brown test can only be aimed at exploring whether the police have exploited their illegal search.”).

While the circumstances might suggest that the officers’ purpose in requesting identification to run a warrant check was a fishing expedition, we do not perceive the conduct to be flagrant. The officers were drawn to the particular location because they observed a man who admitted to urinating or attempting to urinate in public. There is nothing to suggest that the officers’ ultimate goal in making contact with Martin, who was in the immediate vicinity of the urinator, was to search his person for drugs. Indeed, that suggestion is belied by the officers’ treatment of the lawbreaker, who was simply sent on his way after admitting to his transgression. Further, the intrusion upon Martin’s privacy involved a brief conversation in which Martin cooperatively engaged. But cf. State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 (1985) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 95 S. Ct. 2574 [1975]) (even a brief detention is a seizure implicating Fourth Amendment).

Accordingly, we find that, considering the minimal nature and extent of the official misconduct, the outstanding arrest warrant was an intervening circumstance which sufficiently attenuated the taint of the unlawful detention so as to permit the admission of the fruits of the search incident to arrest.