An officer cannot patdown a person as a matter of course before putting that person in a police car without reasonable suspicion. State v. Brockel, 2008 ND 50, 746 N.W.2d 423 (2008):

[*P11] The State argues that even if there was no reasonable suspicion, the pat-down was justified because Brockel consented to the search. Voluntary consent is an exception to the warrant requirement. State v. DeCoteau, 1999 ND 77, P9, 592 N.W.2d 579. “The existence of consent is a question of fact to be determined from the totality of the circumstances.” State v. Graf, 2006 ND 196, P10, 721 N.W.2d 381. Mere acquiescence to police authority is not sufficient to show consent; it must be definitive. State v. Genre, 2006 ND 77, P20, 712 N.W.2d 624. “The test is whether a reasonable person would believe the person’s conduct showed consent.” Id.

[*P12] The officer testified that he requested permission before conducting the pat-down search of Brockel, and the district court did not find whether Brockel consented to the search.

[*P13] We conclude the district court erred when it concluded as a matter of law that Iverson could search Brockel before placing him in his patrol car. Either reasonable suspicion or voluntary consent needs to be present to justify a pat-down search; however, the court made no findings whether either was present in this case. On remand, the court must make findings as to whether there was reasonable suspicion or consent for the search to be justified in this case.

Defendant’s statement was not sufficiently attenuated from his unlawful arrest, and it is suppressed. State v. Wagner, 39 Kan. App. 2d 279, 179 P.3d 1149 (2008).*

Trial court erred in, although finding consent was voluntary, not considering whether the defendant’s statement was a product of an illegal search before that. Reversed. State v. Gorup, 275 Neb. 280, 745 N.W.2d 912 (2008).*

Failure to specifically identify a known DNA profile in a John Doe arrest warrant was sufficient to toll the statute of limitations in rape cases. State v. Belt, 285 Kan. 949, 179 P.3d 443 (2008):

Neither the United States Supreme Court nor this court has yet had occasion to address whether a description of DNA characteristics can fulfill a warrant particularity requirement. The parties thus direct us to cases from two of our sister jurisdictions. See People v. Robinson, 156 Cal. App. 4th 508, 67 Cal.Rptr. 3d 392 (2007), rev. granted 2008 Cal. LEXIS 1420, February 13, 2008, S158528; State v. Davis, 2005 WI App 98, 281 Wis. 2d 118, 698 N.W.2d 823 (2005); State v. Dabney, 2003 WI App 108, 264 Wis. 2d 843, 663 N.W.2d 366 (2003), rev. denied 266 Wis. 2d 63, 2003 WI 140, 671 N.W.2d 850 (2003).

These cases from California and Wisconsin support the proposition that a warrant identifying the person to be arrested for a sexual offense by description of the person’s unique DNA profile, or incorporating by reference an affidavit containing such a unique profile, can satisfy constitutional and statutory particularity requirements.

Ohio’s Fifth District Court of Appeals holds that Virginia v. Moore permits a search incident for speeding 36 in a 25 zone. A CI had given the police information that defendant would be bringing drugs when he appeared[, and the state did not have to rely on corroborating the CI]. State v. Logan, 2008 Ohio 2969, 2008 Ohio App. LEXIS 2489 (5th Dist. June 16, 2008):

[*P21] Moore was charged with possession of cocaine with the intent to distribute, in violation of Virginia law. Id. He filed a pretrial motion to suppress the evidence from the arrest search. Id. In his motion, Moore argued suppression was required by the Fourth Amendment. Id. The trial court denied the motion, and after a bench trial, found Moore guilty of the drug charge and sentenced him accordingly. Id. Virginia’s intermediate court reversed the conviction on Fourth Amendment grounds, however, the intermediate court, sitting en banc, subsequently reinstated the matter. Id. (Citation omitted). The Virginia Supreme Court reversed Moore’s conviction, reasoning since the arresting officers should have issued Moore a citation under state law, and the Fourth Amendment does not permit search incident to citation, the arrest search violated the Fourth Amendment. Id. (Citation omitted). The United States Supreme Court granted certiorari. Id. (Citation omitted). The Moore Court reversed the Virginia Supreme Court, reaffirming “against a novel challenge what we have signaled for more than half a century. When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety.” Id. at 1608.

[*P22] We find Moore to be controlling, and find once Sgt. Zehner observed Appellant commit the offense of speeding, the officer was permitted to arrest Appellant and conduct a search thereafter. Accordingly, we find the trial court did not err in overruling Appellant’s motion to suppress.

Comment: This is so wrong on so many levels, but let’s just start with the basic premise: What evidence of speeding would be found on defendant’s person under Chimel? This case is a mere application of Moore, and by extension, Atwater, which is relied on by Moore, without even thinking. How outraged would the public be if they knew that every traffic ticket was going to result in a search incident to an arrest, which would result in a custodial arrest only if something was found? Can, or should, Moore be limited to custodial arrest-type offenses?

In the Countrywide Home Loans bankruptcy case, the debtor challenged the trustee’s powers to broadly use subpoenas, invoking the Fourth Amendment. The court held that it was be watchful for potential abuse, but none apparently had occurred yet. In re Countrywide Home Loans, 384 B.R. 373 n. 18, 49 Bankr. Ct. Dec. 215 (W.D. Pa. Bankr. 2008):

The Fourth Amendment protection against unreasonable searches and seizures applies to commercial buildings and corporations as well as to individuals. See Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978). Thus, cause and concern for possible abuse if the UST were given completely free rein to proceed under Rule 2004 is justified. Courts have recognized in similar contexts, that the mere possibility of abuse cannot be used to thwart legitimate government inquiry. For instance, in United States v. Bisceglia, 420 U.S. 141 (1975) the Court found that the Internal Revenue Service had the statutory authority to issue a “John Doe” summons to a bank to discover the identity of a person engaged in bank transactions suggesting the possibility of liability for unpaid taxes. In so holding, the Court recognized that “investigations” pursued by the IRS do involve some invasion of privacy and “may be abused, as all power is subject to abuse.” However, the Court held that the solution to that possibility was not to restrict the IRS’s authority. The Court noted:

Substantial protection is afforded by the provision that an Internal Revenue Service summons can be enforced only by the courts…. Once a summons is challenged it must be scrutinized by a court to determine whether it seeks information relevant to a legitimate investigative purpose and is not meant ‘to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any further purpose reflecting on the good faith of the particular investigation.’…The cases show that the federal courts have taken seriously their obligation to apply this standard to fit particular situations, either by refusing enforcement or narrowing the scope of the summons.

420 U.S. at 146 (citations omitted). This Court is adopting the same approach with respect to Rule 2004 examinations by the UST. If the UST’s effort in that regard is challenged, as it has been here, the Court will scrutinize the effort to ensure that the UST is acting with a legitimate purpose and not abusing her power.

Offensive collateral estoppel could not be invoked by plaintiff because the underlying state case had (1) no determination of probable cause because the case was dismissed on other grounds and (2) no mutuality. White v. Pelland, 2008 U.S. Dist. LEXIS 30219 (E.D. Mich. April 14, 2008).*

Parolee’s 1983 action was dismissed against parole officials for searches of his house. After he refused a drug test they got one from him at home and used a drug dog to go through the house. Handcuffing him while inside was also permissible. Bratton v. New York State Div. of Parole, 2008 U.S. Dist. LEXIS 30250 (N.D. N.Y. April 14, 2008).*

There was valid third party consent by defendant’s wife to search the premises, and the subjective intent of the officers for the search was irrelevant since it was objectively reasonable. United States v. Wattree, 544 F. Supp. 2d 1262 (D. Kan. 2008).*

Reasonable suspicion justified defendant’s detention after his traffic stop, and the use of a flashlight to see a handgun in the car was reasonable. United States v. Lopez, 2008 U.S. Dist. LEXIS 29964 (S.D. Cal. April 8, 2008).*

Officer’s entry onto defendant’s side yard to look through the slats in the blinds in the window was a search not justified by any exigency under Brigham City. People v. Gemmill, 162 Cal. App. 4th 958, 76 Cal. Rptr. 3d 410 (3d Dist. 2008):

Defendant contends Deputy Gassaway conducted a search within the meaning of the Fourth Amendment when he walked around the perimeter of the home and looked through the side window. We agree.

After Deputy Gassaway heard no response from his knocks and yells at the front door, he walked around the right (north) side of the house, continuing to knock on the windows and announce his presence. There was no sidewalk but no fence either. It was not uncommon for people to walk by the north side of the house. People would walk to residences from the north side, and there was a “little wooded area kids play[ed] in.” A bedroom window was open. He continued to knock and announce but heard nothing. Deputy Gassaway walked around the back of the house until he came to a window on its left (south) side. The blinds were closed, but there was a five to six inch gap in the slats. He could see inside the living room, where he saw the situation that led him to enter the house without a warrant.

It is reasonable to expect privacy in the home; this includes side windows not accessed by parts of the yard to which the public is expressly or impliedly invited. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 638.) In Lorenzana, police officers received a tip that drug dealing was taking place at Lorenzana’s address and discovered evidence of drug dealing by looking through a side window without a warrant, leading to convictions of those in the house. (Id. at pp. 629-631.) The facts of Lorenzana are instructive: “The dwelling at the designated address, a single family house, was set back about 70 feet from the sidewalk. The front door to this dwelling did not face the public street on the north, but instead was on the west side of the building. A rear door opened on the south side. Officer Myers testified that access to the house was from the west. There were no doors or defined pathways on the east side of the house, and a strip of land covered with grass and dirt approximately six to ten feet in width separated the east side of the dwelling from an adjacent apartment driveway. [P] Upon arriving at the address, Sergeant Myers circled behind the apartment, walked down the adjacent driveway, crossed onto the strip of petitioner Lorenzana’s property, and positioned himself at a window on the east side of the house. The window had been fully closed. The window glass was intact. The window shade had been drawn, but a gap of about two inches had been left between the window sill and the bottom of the shade. Gaps of about one inch or so had been left on each side of the shade, but a thin curtain also hung down on the sides of the window. [P] Sergeant Myers testified that he had trespassed onto petitioner Lorenzana’s property because he could not see into the house from the adjacent driveway or from the street. In fact, he could not see into the dwelling until he was within five or six inches of the window. The officer further testified that he knew that the property onto which he trespassed was not a common-use area but belonged to the dwelling …. Sergeant Myers did not have permission to go upon the property.” (Id. at p. 630.) No substantial evidence supported an implied invitation to be on the east side of the house where the officer looked through the window. (Id. at p. 636.) The court rejected the argument that openings in the window somehow reduced the expectation of privacy, reasoning that “by drawing the window shade petitioner Lorenzana exhibited a reasonable expectation to be free from surveillance conducted from a vantage point in the surrounding property not open to public or common use.” (Ibid.) The court set aside the trial court’s denial of the petitioners’ motions to suppress. (Id. at pp. 640-641.)

The Pennsylvania Supreme Court, in a wildlife case, holds that its state constitution does not create greater protection in open fields than the federal constitution, after a sensitive analysis of whether it should. State v. Russo, 594 Pa. 119, 934 A.2d 1199 (2007) (a case under submission for a year and a half):

The citizens of this Commonwealth throughout our history have shown a keen interest in protecting and preserving as an asset the diverse wildlife that find refuge in the fields and forests within our borders. This interest is so strong that it is enshrined by a separate provision of the Pennsylvania Constitution:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

PA. CONST. art. 1, § 27. The legislative and executive branches, in turn, have enacted and executed a plethora of statutes and regulations designed to enforce the people’s right to the preservation of our wildlife. Thus, our Constitution and enacted statutes–as well as the agencies created to enforce them–all confirm that, in Pennsylvania, any subjective expectation of privacy against governmental intrusion in open fields is not an expectation that our society has ever been willing to recognize as reasonable. In short, the baseline protections of the Fourth Amendment, in this particular area, are compatible with Pennsylvania policy considerations insofar as they may be identified. More importantly, there is nothing in the unique Pennsylvania experience to suggest that we should innovate a departure from common law and from federal law and reject the open fields doctrine.

In light of the foregoing, we hold that the guarantees of Article I, Section 8 of the Pennsylvania Constitution do not extend to open fields; federal and state law, in this area, are coextensive. Therefore, we affirm the Commonwealth Court’s determination that Officers Wasserman and Pierce did not violate appellant’s right to be free from unreasonable searches and seizures.

“The officer testified appellant’s vehicle did not come to a full stop until the front wheels crossed the [stop] line. This observation provided the officer with an objectively reasonable ground for a stop.” There was a basis for the stop, so pretext was not an issue under Whren. People v. Binkowski, 157 Cal. App. 4th Supp. 1, 68 Cal. Rptr. 3d 741 (2007).*

Police arrived at a domestic disturbance which had defendant arguing with his girlfriend about a videotape she had in her hand. He was trying to “snatch it back” from her. Finally, he consented to the police viewing the tape because “there was nothing on it.” The police saw him masturbating in front of two minor females, and he was arrested. The viewing of the videotape was consensual. Mitchell v. State, 289 Ga. App. 55, 656 S.E.2d 145 (2007).*

Handwritten consent form was valid, and it broadly granted permission to search. “The form read in part: ‘I specifically give my consent and authorize these persons to inspect and remove any items of evidence which maybe related, directly or indirectly, to the investigations of the circumstances and/or the cause of the fire.’ (Emphasis added).” Clothing was written in, and it was valid. State v. Marshall, 2007 Ohio 6298, 2007 Ohio App. LEXIS 5528 (4th Dist. November 16, 2007)*:

[*P33] Appellant claims that even if his consent was voluntary the scope of the search was limited due to Fire Marshall Lawless writing “for clothing” on the bottom of the form. As previously noted, Lawless testified that he wrote those words only to ensure Appellant’s clothes were retrieved. He testified they had no bearing on the scope of the search. Both Lawless and Officer Wilson of the Ironton Police Department testified that the words “for clothing” were added after Appellant had already signed the consent form. Further, Wilson and Lawless testified that Appellant in no way asked to limit the scope of the search.

[*P34] “The standard for measuring the scope of consent under the Fourth Amendment is objective reasonableness, i.e., what a typical reasonable person would have understood by the exchange between the officer and the suspect.” Felder at 17. In the case at hand, a reasonable person would not have concluded the scope of search was to be limited to clothes only. The text of the consent to search form, which was read aloud to Appellant, stated “any items of evidence” potentially related to the fire could be removed and the evidence shows Appellant signed the form with this understanding. The hand-written words “for clothing” were not written at the request, or under the direction, of Appellant, but were written simply to ensure that his clothes were collected in addition to any other relevant evidence.

Knock and talk about drug activity produced a babysitter who refused to consent, and the police implored her to consent, and she still refused. They decided to enter anyway under a community caretaking function claim because the house was dirty and in disarray. The court rejected a statutory argument posed by the state because the state’s argument was clearly [to me, anyway] a pretext for a drug search. State v. Goodall, 219 Ore. App. 325, 183 P.3d 199 (2008):

Additionally, when applying the emergency aid doctrine, the court focuses on the officer’s conduct at each step, viz., initial entry and then subsequent entry. See, e.g., State v. Weaver, 214 Ore. App. 633, 639-44, 168 P.3d 273, rev den, 343 Ore. 691, 174 P.3d 1017 (2007) (examining separately the officer’s initial entry, whereby he put his foot in the door, and the subsequent entry to search after the defendant was handcuffed and in the police vehicle); Burdick, 209 Ore. App. at 582-83 (the first entry caused by the officer opening a window and pulling aside curtains and the subsequent entry through the front door); State v. Will, 131 Ore. App. 498, 501, 885 P.2d 715 (1994) (initial entry to investigate report of domestic disturbance and subsequent entry after parties involved had left the premises). That approach requires the court to inquire about the officer’s subjective belief at each step and whether that subjective belief was reasonable at that time.

The step-by-step approach here reveals the difficulty in justifying the search of the residence. The detectives did not need to search the residence to find the child. The child, the only individual who may have needed protection, was in Waight’s arms while she was talking with the detectives in the entryway. Assuming a true emergency existed, that true emergency could have been alleviated by taking the child into protective custody, while waiting for a protective service worker from the Department of Human Services to arrive.

Once defendant was handcuffed, a more intensive search of his pockets to search a tupperware container for a purported weapon was unjustified. The defendant was stopped in the vicinity of a burglar alarm call, but he had nothing in his hands or about him that would indicate that he was involved in the burglary. Questioning led to a handcuffing, and then the intrusive search for a possible weapon. State v. Rudder, 219 Ore. App. 430, 183 P.3d 212 (2008).

Asking for consent while holding defendant’s identification on a stop because he might have been frequenting a drug house was unreasonable. State conceded error. State v. Bales, 219 Ore. App. 487 (2008).*

Defendant was accused of e-mailing death threats to administrators at an Upstate New York college he was fired from for making threats. The FBI sought a search warrant for his computer in Indianapolis. They obtained his address both from the unemployment office as where they were sending unemployment checks and from a public records search on LexisNexis that produced the same address. That was a sufficient basis to conclude that was where he would be found. United States v. Li, 2008 U.S. Dist. LEXIS 33792 (N.D. N.Y. March 19, 2008).*

Police were justified in dispensing with announcement into a warehouse because dogs and a metal door would have blown their cover and the object of the search would be destroyed. The state’s claim that weapons were present was not advanced below so it would not be considered on appeal. Commonwealth v. Kane, 2007 PA Super 408, 940 A.2d 483 (2007).*

Plain view did not justify an entry where the defendant was called out into the hall to discuss something with the officer and arrested him but a cup was visible from outside the room that the officer entered the room to seize. A warrantless seizure cannot be justified by plain view alone because the officer had no right to enter. Commonwealth v. Newton, 2007 PA Super 409, 943 A.2d 278 (2007).*

Pennsylvania juvenile probation search required reasonable suspicion. In re J.E., 594
Pa. 528, 937 A.2d 421 (2007).*

Citizen informant’s details were sufficiently corroborated to justify a stop of the defendant. State v. Prows, 2007 UT App 409, 178 P.3d 908, 594 Utah Adv. Rep. 21 (2007):

[*P14] Sheriff Larsen asked Officer Greenwell to intercept Defendant’s vehicle based, in part, on information he received from Polumbo, a citizen informant. “[A]n informant’s tip constitutes reasonable suspicion to justify a detention or seizure of a vehicle and its driver if the information [(1)] is reliable, [(2)] provides sufficient detail of criminal activity, and [(3)] is confirmed by the investigating officer.” Id. at 169. Based on these factors, we conclude that Sheriff Larsen had reasonable articulable suspicion to effectuate a level two stop, and further, based on the fellow officer rule and the totality of the circumstances, so did Officer Greenwell.

The defendant’s car was parked on an off ramp, and an officer stopped behind him putting on his “hazard [not emergency] lights” and then saw what he perceived was a furtive movement that could involve weapons. He talked to the defendant who said that his wife was sick, and he ordered the defendant out of the car, thereby effecting a stop. There was no indication of any criminality. Asble v. Commonwealth, 50 Va. App. 643, 653 S.E.2d 285 (2007):

Davis assumed that Asble’s movement was a furtive gesture responsive to the approach of a policeman. However, the record does not disclose that Asble knew he was being so approached. The police car did not have its emergency lights on. No evidence disclosed that Davis was in uniform. No evidence disclosed that Asble knew Davis was a policeman or even that he was aware of his approach. The evidence disclosed only a motion that was not inherently culpable and that coincided with bringing to a stop a car that according to Davis’s acknowledged prior testimony was rolling backwards.

Davis identified no criminal activity of which he suspected Asble. He noted only that “sometimes” when movement such as he saw occurs, weapons and/or narcotics are present. This was, at best, a mere hunch, not a particularized suspicion flowing reasonably from articulable facts. Thus Davis lacked justification to remove Asble from the car and to search the car.

Consent was valid because defendant was told he could refuse and he had prior experience in the criminal justice system to know he could refuse. State v. Settles, 2007 Tenn. Crim. App. LEXIS 883 (November 26, 2007):

Likewise, the record does not demonstrate that there was any hostility at all between the policemen and the Defendant or that weapons were displayed; rather, the record demonstrates that the Defendant was cooperative from the start. The police did initiate contact and request the Defendant’s consent, but the record reflects that he gave it without hesitation (and with knowledge that he had the right to refuse) by signing two separate forms. In addition, the Defendant has a record of prior arrests and therefore has some experience interacting with law enforcement personnel.

Defendant’s bizarre and erratic behavior justified law enforcement following him into a building he entered without a key after an encounter on the street. McDermott v. State, 877 N.E.2d 467 (Ind. App. 2007).*

Police claim of exigency fails, so the entry was illegal, but the affidavit for the search warrant had enough independent information in it to justify issuance of the search warrant. Commonwealth v. Hernandez, 594 Pa. 319, 935 A.2d 1275 (2007).*

A state law claim tied to § 1983 without a constitutional allegation does not confer federal jurisdiction over the state law claim. Hensley v. City of San Buenaventura, 2008 U.S. Dist. LEXIS 22171 (S.D. Cal. March 17, 2008):

In this case, Plaintiffs do not present a federal question. Plaintiffs never state a federal law which is necessary to the decision of their state claim, and their claim is entirely premised on state law. Jurisdictionally, Plaintiffs only mention 28 U.S.C. § 1331, which simply allows for federal question jurisdiction and nothing more. Although Plaintiffs cite 42 U.S.C. § 1983, Plaintiffs fail to state how Freeman violated their civil rights, and simply stating the code section is not enough to state a claim. Because Plaintiffs fail to articulate any real basis for relief under the Constitution or laws of the United States, the Court finds that Plaintiffs fail to present a federal question to support jurisdiction.

Shots fired call brought officers to a known drug house. They approached men parked in a car across the street from the house which was the subject of the call to inquire what they knew about the shots. They asked one for ID and he reached into his pocket and out fell a crack pipe, which was lawfully seized. United States v. Wheeler, 2008 U.S. Dist. LEXIS 21881 (D. Neb. March 19, 2008).*

The record supports the trial court’s finding that the third party consent was valid. Appellant’s lack of consent was irrelevant. Figueroa v. State, 250 S.W.3d 490 (Tex. App. — Austin 2008).*

Defense counsel was not ineffective at suppression hearing for failures of proof that were related to defendant’s own refusal to testify. Dasher v. United States, 2008 U.S. Dist. LEXIS 22188 (M.D. Fla. March 20, 2008).*

Five month old information was not stale in a large records search where the probable cause dealt with an ongoing claim of fraud. United States v. Gonzales, 2008 U.S. Dist. LEXIS 9997 (N.D. Miss. January 15, 2008).*

Police officers lacked probable cause and exigent circumstances for entry into defendant’s hotel room. United States v. Mitchell, 2008 U.S. Dist. LEXIS 10071 (N.D. Ohio January 29, 2008):

Nor was there evidence of an exigent circumstance justifying entry into Room 127 without a search warrant. Officer Monigold testified he saw the children from the open hotel door, either sleeping or laying on the couch. There is no evidence they were in any danger at that time. Furthermore, the Officers did not smell any methamphetamine precursors when Defendant opened the door. Finally, Defendant informed the officers his girlfriend was in the bathroom. However, Officer Monigold expressly testified, “we weren’t entering the hotel room to look for a wanted person at that time. We were trying to get identity so he could prove who he was.” (TR p. 71). This Court is unaware of any authority permitting officers to enter, absent a warrant or consent, an occupied hotel room with a Fourth Amendment expectation of privacy, to get identification of an occupant. In short, there was neither evidence of criminal activity occurring in Room 127, nor was there an exigent circumstance allowing the warrantless entry in to Room 127. Therefore, the Court finds the officers illegally entered Room 127 on April 2, 2007.

Defendant’s frisk was invalid, but officer’s finding a warrant on him was separate. State v. Barnes, 979 So. 2d 991 (Fla. App. 4DCA 2008):

Although he appeared nervous and attempted to place his hands in his pockets as the officer approached, Barnes’s actions were insufficient to give rise to a reasonable suspicion that he was armed. The officer did not observe a bulge in Barnes’s pocket, nor did Barnes engage in any violent behavior that could give rise to a reasonable belief that a weapon might be present. Accordingly, the trial court properly concluded that the frisk was illegal.

Stop exceeded the time necessary to effect its purposes, so the stop became unreasonable unless there is reasonable suspicion. State v. Rodgers, 219 Ore. App. 366, 182 P.3d 209 (2008):

The foregoing authorities stand for the proposition that, although an officer is free to question a motorist about matters unrelated to the traffic infraction during an unavoidable lull in the investigation, such as while awaiting the results of a records check, that officer is not similarly free to question the motorist about unrelated matters as an alternative to going forward with the next step in processing the infraction, such as the writing or issuing of a citation. When an officer has all of the information necessary to issue a citation but instead delays in processing it or in telling the motorist that he or she is free to go, the stop is no longer lawful unless the officer has reasonable suspicion of further criminal activity.

Florida statute that requires that warrants be served by the person named in the directions to search was violated here and required suppression. The statute has always been strictly construed. State v. Hill, 2008 Fla. App. LEXIS 5518 (4th DCA April 16, 2008).

Shots fired from an apartment justified the police entry, and appellant and others were patted down for weapons. Appellant later voluntarily consented to a search of the person. Watson v. State, 979 So. 2d 1148 (Fla. App. 1st DCA 2008).*

Ten month old information in child porn search warrant affidavit was not too stale because child porn tends to be kept and has enduring value to the acquirer. It is not transient like small quantities of drugs, where staleness is more easily found. Mehring v. State, 884 N.E.2d 371 (Ind. App. 2008).*

Drug dog’s arrival in 3-5 minutes did not unduly prolong the stop. Also, even though the officer quickly determined that the driver was not guilty of a traffic offense, he could still ask for the driver’s license and run it. Hart v. State, 235 S.W.3d 858 (Tex. App. – Eastland 2007):

It appears from our record that Officer Bryan’s initial conversation with Hart did not last much more than a minute. Her computer check of Hart, conducted after she learned that he was driving with an expired driver’s license, lasted less than three minutes. While Officer Bryan was in the process of writing Hart a citation for driving with an expired license, the canine unit she requested arrived in three to five minutes. We hold that all of Officer Bryan’s conduct was reasonable under the circumstances and did not unduly prolong Hart’s detention.

Hart correctly notes that many jurisdictions have held that, once an officer has ascertained that the motorist is not guilty of the violation for which he or she was originally stopped, the officer must release the motorist at that time and may not ask to see the motorist’s driver’s license. …

However, as previously noted, the Texas Court of Criminal Appeals has held that, in applying the general rule, an investigative stop can last no longer than necessary to effect the purpose of the stop; it should be remembered that a check for driver’s license and warrants is an additional component to a routine traffic stop. Kothe, 152 S.W.3d at 63. The court appeared to discount the suggestion that a license check is unreasonable if it is conducted after the officer has determined that the motorist is not guilty of the violation for which he or she was originally stopped. Id. at 66. It noted that the order of events, while relevant to the legal determination of reasonableness, is not determinative. Id. The courts of other states have also held that it is not unnecessarily unreasonable for a police officer who has made a valid traffic stop to ask the motorist for his or her driver’s license, even though the officer knows that the motorist is not guilty of the violation that served as the initial basis for the stop. … We choose to follow Kothe and this line of cases in holding that, where the initial traffic stop is valid, a license check of the driver, even if conducted after the officer has determined that the motorist is not guilty of the violation for which he or she was originally stopped, is not unreasonable so long as it does not unduly prolong the motorist’s detention. Inasmuch as the license check in the case at bar did not unduly prolong Hart’s detention, we hold that it was not unreasonable.

Failure to file motion to suppress did not affect defendant’s guilty plea that was otherwise voluntary. State v. Carroll, 2007 Iowa App. LEXIS 1006 (September 19, 2007).*

Where the search warrant affidavit showed probable cause for child pornography and firearms in the house, the search warrant properly included computers, storage devices, and magazines with child porn and firearms. State v. Hinahara, 2007 NMCA 116, 142 N.M. 475, 166 P.3d 1129 (2007), certiorari denied 166
P.3d 1089 (N.M. 2007).*

Cracked windshield did not lead to reasonable suspicion that drugs were in defendant’s vehicle to justify his detention for a drug dog. The court makes it clear that it is not engaging in any form of “divide and conquer analysis” of reasonable suspicion rejected in Arvizu, but the factors asserted by the state just do not add up to reasonable suspicion, including refusing to consent to a search. Defendant’s alleged consent was tainted by the unlawful duration of stop. Also, when review under the Fourth Amendment affords defendant the relief he seeks, the state constitutional claim does not need to be reached. State v. Neal, 2007 NMSC 43, 142 N.M. 176, 164 P.3d 57 (2007):

[*22] It is undisputed that Officer LaSalle’s traffic stop of Defendant for a cracked windshield was valid. Thus, Officer LaSalle had the authority to investigate the cracked windshield and seek identification, registration, and insurance from Defendant, which he did. The core issue with which we are then confronted is whether Officer LaSalle had individual, particularized reasonable suspicion with respect to Defendant to detain the vehicle further to await a drug dog sniff. That is, did Officer LaSalle have reasonable suspicion that drugs would be found in the truck?

. . .

[*28] As the Court of Appeals stated in Prince, “Officers may not use a lawful stop to fish for evidence of other crimes where there is insufficient reason to detain a defendant, beyond the purpose of the initial detention.” 2004 NMCA 127, P 19. Likewise, Officer LaSalle could not use his valid traffic stop of Defendant for a cracked windshield to detain the truck longer than necessary in order to fish for evidence of a drug transaction. We acknowledge that reasonable suspicion “‘can arise from wholly lawful conduct.'” Robbs, 2006 NMCA 61, P 26 (quoting Urioste, 2002 NMSC 23, P 10). In addition, we recognize that our reasonable suspicion determination requires us to assess the totality of the circumstances and “precludes … [a] divide-and-conquer analysis” in which we view each individual factor or circumstance in a vacuum. See Arvizu, 534 U.S. at 274. However, we are still compelled to address the factors upon which Officer LaSalle based his assessment of reasonable suspicion that drugs would be found in the truck: Defendant’s stopping in front of a house under investigation; talking to Horton, a convicted felon; becoming nervous when stopped by the police; wishing to leave; and denying consent to search the truck.

[*29] We have never adopted “‘a rule equating simple nervousness with reasonable suspicion.'” Vandenberg, 2003 NMSC 30, P 31 (quoted authority omitted). Indeed, “‘[i]t is common knowledge that most citizens … whether innocent or guilty, when confronted by a law enforcement officer who asks them potentially incriminating questions are likely to exhibit some signs of nervousness.'” Id. (quoting United States v. Millan-Diaz, 975 F.2d 720, 722 (10th Cir. 1992)). Thus, viewed in the context of Officer LaSalle’s other observations, Defendant’s fidgety and nervous demeanor and desire to leave did not suffice to create reasonable suspicion. See id. (noting that nervousness is to be expected when confronted with law enforcement and that it does not alone create reasonable suspicion); State v. Van Dang, 2005 NMSC 33, P 16, 138 N.M. 408, 120 P.3d 830 (holding reasonable suspicion existed to expand valid traffic stop where defendant, driving a rental van, was not named in the rental contract, had a story inconsistent with passenger regarding their travel plans and defendant’s alleged permissive use of the van, and defendant’s nervousness).

Computer check revealed no insurance, so the officer had reason to stop the defendant. While it was possible that there could have been insurance on the vehicle despite the computer record, that did not eliminate the basis for the stop. State v. Biggs, 2007 UT App 261, 167 P.3d 544, 583 Utah Adv. Rep. 11 (2007).*

Visual body inspection permissible on probable cause in a drug case, but a warrant is required for a body cavity search. People v. Hall, 2008 NY Slip Op 2676, 10 N.Y.3d 303, 886 N.E.2d 162 (2008):

In this case, we must consider whether it is constitutionally permissible for police to subject a person arrested for a drug sale to a visual body inspection followed by a body cavity search without first obtaining a warrant. We conclude that a visual body inspection may be conducted if the police have a factual basis supporting a reasonable suspicion that the arrestee has evidence concealed inside a body cavity and the search is conducted in a reasonable manner. If the visual inspection reveals the presence of a suspicious object, the police must obtain a warrant authorizing the object’s removal unless there are exigent circumstances.

Student search of car was based on information that defendant was dealing drugs at school. He produced his wallet and it was full of money which he said was pay from work. He consented to a search of his car which produced cigarettes which was a violation of school policy. The search was not unreasonable because they were justified at their inception. Mayeux v. Bd. of Educ., 2008 Ohio 1335, 2008 Ohio App. LEXIS 1179 (11th Dist. March 21, 2008).*

Defendant was told he could refuse consent and that helped show it was voluntary. State v. Adams, 2008 S.C. App. LEXIS 56 (March 20, 2008).

Protective sweep was unjustified and happened prior to arrest or any circumstances that could justify it, and, frankly, was only “half-heartedly” argued by the state. State v. Trudelle, 2007 NMCA 66, 142 N.M. 18, 162 P.3d 173 (2007), cert. granted 141 N.M. 763, 161
P.3d 260 (2007), cert. granted 2007 N.M. LEXIS 661 (2007), cert. quashed 2008 N.M. LEXIS 79 (2008):

[*22] The State half-heartedly asserts that the arrest of Mrs. Trudelle “could arguably support a protective sweep of the premises.” This argument fails for three reasons. First, the record appears to show that the officers conducted the protective sweep prior to arresting Mrs. Trudelle. We have previously held that a protective sweep is “uncalled for” where the sweep takes place before the police decide to place a suspect under arrest. Id. Second, the fact that the officers left Defendants unrestrained and allowed Mrs. Trudelle to re-enter the house unaccompanied suggests that the officers did not fear for their safety, at least with respect to Defendants or others who may have remained inside of the house. See id. at 440-41, 806 P.2d at 580-81 (finding that officers did not reasonably fear danger where suspect was left unrestrained and was allowed to re-enter house). Finally, the officers arrested Mrs. Trudelle pursuant to an unrelated, outstanding warrant that the officers happened to discover during or following the protective sweep. Therefore, the arrest of Mrs. Trudelle bears no relation to the protective sweep and cannot be used to justify it.

. . .

[*25] Nevertheless, the State argues that the evidence suggesting the existence of a meth lab on the property, combined with Mrs. Trudelle’s arrest and Mr. Trudelle’s desire to retrieve his dog from the house, justified the protective sweep. This argument is without merit. First, as we have previously stated, Mrs. Trudelle’s arrest was of no consequence with regard to the protective sweep. Second, the record shows that Mr. Trudelle decided to retrieve his dog only after the officers told him that they were going to conduct the sweep with or without his consent. Even if we were to assume that Mr. Trudelle’s entry constituted some type of exigency, that exigency would have been of the officers’ own making and thus cannot be used to justify the sweep. See State v. Wagoner, 1998 NMCA 124, P 13, 126 N.M. 9, 966 P.2d 176 [hereinafter Wagoner I] (“[T]he exigency should not be one improperly created by law enforcement officers.”), overruled on other grounds by Wagoner II, 2001 NMCA 14, P 40.

Probation search walk through did not require reasonable suspicion, and they are not limited to interpersonal contact with the probationer. United States v. LeBlanc, 490 F.3d 361 (5th Cir. 2007).

Police responded to a domestic dispute including a beating that was called in by a neighbor, and it could not be determined whether the person being beaten and screaming on the other end was a woman or a child. Exigent circumstances were apparent from the call. Richards v. State, 286 Ga. App. 580, 649 S.E.2d 747 (2007).*

30 second delay of sitting at a light that changed is reasonable suspicion to stop. The court had previously held that 8-10 seconds was not, but this was considerably longer. State v. Barnard, 2007 N.C. App. LEXIS 1307 (June 19, 2007).*

Arrest of the wrong man with the same name but at different address as the person named in an arrest warrant was without probable cause where there were no identifiers like the arrestee’s social security or driver’s license number which were available but not provided. Lucas v. Galloway Township Police Department, 2007 U.S. Dist. LEXIS 44616 (D. N.J. June 20, 2007):

Instead, Officer Welsh took affirmative steps to change the object of the warrant to Jason J. Lucas, and that act is something considerably more than simply executing a judicially authorized warrant. The Supreme Court has stated that [*23] “if officers of reasonable competence could disagree on [probable cause], immunity should be recognized.” Schneider, A.2d at 360 (quoting Malley, 475 U.S. at 341). However, our Constitution does not permit an officer to serve a warrant providing nothing more than a name and address on anyone matching that name; such is beyond the bounds of reasonable belief and is impermissible. See Marron v. United States, 275 U.S. 192, 196 (1927) (holding particularity requirement of Fourth Amendment “makes general searches under [warrants] impossible and prevents the seizure of one thing under a warrant describing another. As to what [or who] is to be taken, nothing is left to the discretion of the officer executing the warrant.” (emphasis added)). No undue burden is placed on New Jersey’s municipal police departments in requiring that officers executing warrants be left with no discretion on whom to serve them. While mistakes will invariably happen, the Fourth Amendment guarantees that mistakes will only be made after proper diligence and regard for our notions of liberty and justice is accorded. Thus, taking the facts in a light most favorable to the Plaintiff, the facts alleged make out a constitutional violation.

The state’s use of double hearsay concerning an alleged private search in Denver before the package arrived in New Mexico violated the defendant’s right to cross-examine his accusers. This was no mere hearsay as a “basis for acting”; it went to the heart of the suppression issue. This court has previously held that double hearsay about apparent authority to consent to a search was a denial of confrontation in State v. Hensel, 106 N.M. 8, 738 P.2d 126 (Ct. App. 1987). State v. Rivera, 2007 NMCA 104, 142 N.M. 427, 166 P.3d 488 (2007), certiorari granted, No. 30,542, August 8, 2007:

[*16] We see no reason to distinguish Hensel from the facts of this case. The question in Hensel, whether the mother had authority to consent to the search, was no more fundamental than the question in this case, whether the package was opened by private parties in Denver. We agree with Defendant that the State had the burden to show, by means of competent evidence, that the package was opened by private parties with no state action in Denver.

[*17] Ordinarily, the defendant has the burden of showing a reasonable expectation of privacy that was breached by state action. … Because the question of whether the package was opened by private parties in Denver implicates the reasonableness of Defendant’s expectation of privacy, it would typically be Defendant’s burden to show that the package was not opened by private parties, or that the package had been opened with state involvement. See Jacobsen, 466 U.S. at 119 (“[I]t hardly infringed respondents’ privacy for the agents to reexamine the contents of the open package.”).

[*18] But we believe that in this case the burden shifted to the State when it refused to provide the names of the bus station employees who were involved. When the state “has unique access to the pertinent information,” and the state has refused to share its access with the defendant, principles of fairness dictate that the burden be shifted to the state. State v. Pennington, 115 N.M. 372, 379, 851 P.2d 494, 501 (Ct. App. 1993); see also Campbell v. United States, 365 U.S. 85, 96 (1961) (“[T]he ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary.”); cf. Boone v. Lightner, 319 U.S. 561, 570 (1943) (“[A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other side to have contradicted.”) (internal quotation marks and citation omitted). In this case, Defendant requested that the State disclose the names of the employees who opened the package, and the State refused. With the State failing to share its access to the relevant information, it became the State’s burden to show that a prior search by private parties with no state involvement had taken place. Because the State had the burden to prove this key issue in the suppression hearing, and because the only evidence presented was in the form of double hearsay, we conclude that the result in Hensel must also prevail in this case.

Defendant had no standing to question whether officers investigating a hit and run by defendant’s brother’s vehicle exceeded the scope of consent when they took parts off the truck. It was not his truck, although his brother consented, and the question at trial was whether defendant was driving at that time of the hit and run. State v. Moore, 377 S.C. 299, 659 S.E.2d 256 (2008).*

Defendant’s detention was justified by a warrant and thus could not have tainted abandonment of a knapsack. Because none of the bar patrons claimed ownership of the knapsack, the police reasonably could have assumed it belonged to the bartender, who was being investigated. Thus, once defendant denied ownership of the knapsack, he effectively abandoned it, giving the officers the right to search it without a warrant. State v. Duplessis, 974 So. 2d 65 (4th Cir. December 19, 2007), released for publication February 22, 2008.*

A juvenile was acting suspiciously, remarkably like in Terry, casing a store, and furtively going to his sock like a weapon might be concealed there. Following the juvenile into the store was not a seizure. There was reasonable suspicion for a later detention. Commonwealth v. Isaiah I., 450 Mass. 818, 882 N.E.2d 328 (2008).*

Alaska holds that state constitution provides more protection to motorists in traffic stops such that a request for consent without any factual basis for requesting it was unreasonable. Brown v. State, 182 P.3d 624 (Alas. App. 2008):

For the reasons explained in this opinion, we join the state courts that have decided that their state constitutions require greater restrictions on police authority in this situation than the restrictions imposed by the Fourth Amendment to the United States Constitution.

We reject the notion that, as long as a police officer’s questions do not extend the expected temporal duration of a traffic stop, the legal nature of the stop remains unaltered even when an officer questions a motorist about other potential crimes and seeks permission to search the motorist and/or the vehicle. As shown by the facts of the present case, and as shown by the experiences of other states, motorists who have been stopped for traffic infractions do not act from a position of psychological independence when they decide how to respond to a police officer’s request for search.

Because of the psychological pressures inherent in the stop, and often because of the motorist’s ignorance of their rights, large numbers of motorists — guilty and innocent alike — accede to these requests.

Moreover, because traffic regulations are so numerous and detailed, most motorists will violate these regulations from time to time. In the present case, for instance, the defendant was stopped because the light illuminating her rear license plate was dirty.

Because the violation of traffic regulations is so frequent, and because motorists who are stopped for traffic infractions often accede to a police officer’s request for permission to search, the Fourth Amendment rules governing traffic stops create the potential risk that law enforcement officers will compromise the privacy of many citizens. These Fourth Amendment rules potentially allow Alaska law enforcement officers to search dozens, and perhaps hundreds, of people and vehicles each day even though the officers lack any grounds to justify these searches.

For these reasons, we hold that the Alaska Constitution imposes greater restrictions on a police officer’s authority to request a motorist’s permission to conduct a search during a routine traffic stop. We conclude that an officer’s questions about other potential crimes, and an officer’s requests for permission to conduct a search, are significant events under the search and seizure provision of the Alaska Constitution, Article I, Section 14. More specifically, we conclude that, under the circumstances presented in this case, the officer conducting the traffic stop was prohibited from requesting Brown’s permission to conduct a search that was (1) unrelated to the basis for the stop and (2) not otherwise supported by a reasonable suspicion of criminality.

Comment: Finally, a court that recognizes the realities of traffic stops and police-citizen encounters. Any court that doesn’t recognize these realities is reading and writing fiction.