The officers here failed to substantially comply with the Alaska knock and announce statute. They knocked for 20 seconds on a hotel room door, but they never announced who they were or that they had an arrest warrant. They entered with a pass key and arrested the defendant. This is not substantial compliance under Alaska case law. [Defendant waived his state constitutional argument by not raising it until the reply brief.] Hudson is not followed under Alaska statute. Berumen v. State, 182 P.3d 635 (Alas. App. 2008):

The police officers in this case violated a longstanding requirement of Alaska law that is designed to protect the privacy and dignity of this state’s citizens. On the issue of whether the police must announce their claimed authority and purpose, and on the related issue of whether the police are allowed to break into a building if they have neither sought nor been refused admittance, the statute is written in clear and unambiguous terms. The only exception to the statute’s requirements — the “exigent circumstances” exception — has been identified and analyzed in Lockwood and in various subsequent decisions issued by this Court, and the State concedes that this exception does not apply to the facts of Berumen’s case.

Under these circumstances, the words of the Supreme Court in McNabb are likewise applicable to Berumen’s case: the evidence found in the hotel room was “secured through such a flagrant disregard” of the procedure specified by the Alaska legislature that it “cannot be allowed to stand without making the courts themselves accomplices in [willful] disobedience of [the] law.”

Finally, the fourth Harker factor points toward application of the exclusionary rule. The fact that there are several Alaska appellate decisions that discuss the meaning and application of AS 12.25.100 suggests that this issue comes up more than occasionally in criminal litigation. And yet, despite this, it appears that police officers may not be paying sufficient attention to this statute. During the evidentiary hearing in this case, one of the officers could not remember that one of the reasons for the “knock and announce” statute is to protect citizens’ privacy, and a second officer testified that he had no idea why the officers failed to abide by the requirements of the statute when they entered Berumen’s hotel room. Given this history and this record, we cannot ignore the possibility that there may be widespread or repeated violations of the statute.

In sum, we conclude that all four of the factors mentioned in Harker support the application of the exclusionary rule to violations of AS 12.25.100 that are neither justified by exigent circumstances nor excused under the “substantial compliance” doctrine.

Mississippi day care centers are pervasively regulated under state law such that records inspections and visits are constitutional under New York v. Burger. The operators have no reasonable expectation of privacy in the operation. Moreover, by accepting the license, the operator has consented to the search (citing Samson). Ellis v. Miss. Dep’t of Health, 2008 U.S. Dist. LEXIS 37951 (N.D. Miss. May 8, 2008).

Search of defendant’s car glove compartment for a weapon was justified by search incident doctrine, even if he was standing outside of it when he was arrested for assault. The officers had reason to believe he was armed. Lyons v. State, 182 P.3d 649 (Alas. App. 2008).*

Officer’s view into bedroom window violated the Oregon Constitution by invading defendant’s privacy. Homeowners expect visitors to come to the door or the garage, not the bedroom window. State v. Foster, 219 Ore. App. 276, 182 P.3d 262 (2008):

The issue is whether Hardison’s observations occurred from a lawful vantage point. Initially, we note that it was lawful for the deputies to approach the front door to serve the restraining order on an occupant of the residence. In State v. Gabbard, 129 Ore. App. 122, 128, 877 P.2d 1217 (1994), we stated that “[a]n officer’s right to go to the front door of a house is based on implied consent to allow visitors to take reasonable steps to make contact with the occupant.” That consent, however, is limited. In Portrey, we explained that

“[o]ne may expect that visitors will stand on the front porch for purpose of engaging in conversation, but that does not mean that it is expected that visitors will pick up items on the front porch and examine what is not in view. By impliedly consenting to one form of intrusion, an occupant does not necessarily consent to being subjected to other forms of scrutiny as well.”

134 Ore. App. at 465.

As explained above, people have a privacy interest in the immediate area around their residence over which they exercise control. The area immediately outside defendant’s bedroom window is such an area. As a resident of the premises, defendant exercised joint control over that area and was entitled to exclude members of the public from it. Indeed, the area outside defendant’s bedroom window is not on a path to the garage, driveway, front door, or back door, and it is 20 feet away from the front door. Moreover, Hardison had to walk past the front door in order to position himself where he could see in the window.

Our reasoning in Jackson helps to inform the analysis. In Jackson, an informant told deputies that he had seen marijuana plants growing in pots behind the defendant’s residence. 71 Ore. App. at 78. The deputies, after concluding that they lacked probable cause to obtain a warrant, drove to the defendant’s house intending to request his consent to search. Id. After knocking on the defendant’s front door and receiving no answer, a deputy walked around the corner of the house and saw a marijuana plant. Id. at 78-79. We concluded that the officer’s vantage point exceeded the scope of implied consent and was unlawful:

“We do not agree that the deputy saw the marijuana from a legal vantage point. The trial court did not rule that the plant in the side yard was visible from the porch, driveway or road, nor does the state contend that the plant was visible from any point less private than the southwest corner of defendant’s house. Although in State v. Ohling, [70 Ore. App. 249, 688 P.2d 1384 (1984),] the officers had to walk around to the back of the house to see the marijuana plants, the rationale of that decision is that, in so doing, they left the area in which consent to the presence of strangers is implied. There was no implied consent in this case to the deputy’s leaving the front porch and walking to the corner of the house next to the side yard.”

Id. at 79 (emphasis added).

Appellant claimed that her airman husband deserted to Canada, and the Air Force Office of Special Investigations opened an investigation into possible desertion. They found nobody who would back up her claim that he was thinking about deserting. She had the authority to drive her car onto the base, so they got permission from a higher command authority to put a GPS transmitter on her car, and they found she drove to a pond in an isolated area, which they searched. She worked at a veterinary clinic, and her browser history on a computer she used showed “internet searches on the subjects of polygraphs and ‘decomposition of a body in water.'” She admitted to moving the body to protect whoever killed him. She was convicted of murder and tampering with evidence. AFOSI had a legitimate reason to investigate, so there was no violation of the Posse Comitatus Act, 18 U.S.C. § 1385. Even if there was, it would not support suppression of evidence under state law. Finally, installation of the GPS transmitter violated no right of hers. Davidson v. State, 249 S.W.3d 709 (Tex. App. — Austin 2008).

Officer had reasonable suspicion for a stop based on a 911 call from a convenience store clerk who had been robbed, and he saw a vehicle in the vicinity matching the description within two minutes of the call. State v. Martinez, 2008 UT App 90, 182 P.3d 405 (2008).*

State’s argument failed that an emergency well-being check or exigent circumstances justified the officer looking into defendant’s trunk which was left open after defendant was told to back away from it. This was a criminal investigatory search, so these grounds did not apply. Commonwealth v. Knowles, 451 Mass. 91, 883 N.E.2d 941 (2008):

There is no objective basis present here for believing that the defendant’s well-being or the safety of the public was in immediate jeopardy. Any objective view of the actions of the officer leads to the conclusion that he was in fact conducting a criminal investigation. After arriving at the scene, he quickly seized Knowles, made no inquiry about his well-being, and as soon as other officers arrived and took charge of Knowles, he proceeded to examine the contents of the open trunk for evidence of criminal activity. Indeed, the officer himself never justified [*10] his seizure of the defendant on the ground that he was acting in his community caretaking capacity.

Similarly, there is no objective basis for believing that the officer was confronted with an emergency situation. “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Mincey v. Arizona, 437 U.S. 385, 392, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978), quoting Wayne v. United States, 115 U.S. App. D.C. 234, 318 F.2d 205, 212 (D.C. Cir.), cert. denied, 375 U.S. 860, 84 S. Ct. 125, 11 L. Ed. 2d 86 (1963) (opinion of Burger, J.). …

Defendant’s parole search was valid under Samson, despite the fact that it was a home visit and without reasonable suspicion. United States v. Justiniano, 2008 U.S. Dist. LEXIS 27709 (W.D. N.Y. March 20, 2008).*

Computer search warrant’s self-imposed condition of forensic examination of the computer by a certain date did not prohibit the police from seeking a new warrant as the time expired. People v. Strauss, 180 P.3d 1027 (Colo. 2008).*

The driver was arrested for driving without a driver’s license and the passenger asked to assume control of the car. The passenger’s license was then run through NCIC and a warrant came up, and a search incident of passenger produced drugs in his shoe. The search was valid and the stop was not unduly prolonged by running the name through NCIC. State v. Sloane, 193 N.J. 423, 939 A.2d 796 (2008).

Officer had a face to face meeting with anonymous CI and the information was later corroborated, and that gave reasonable suspicion. State v. Micelotti, 979 So. 2d 573 (La. App. 5th Cir. 2008), released for publication May 9, 2008.*

Firemen and officers obviously entered under exigent circumstances when they responded to a call about a fire on the premises. Commonwealth v. Ringgard, 71 Mass. App. Ct. 197, 880 N.E.2d 814 (2008).*

Pretrial detainee had no expectation of privacy in her outgoing mail because of the reduced expectation of privacy of inmates. Hawkins v. State, 2008 Ind. App. LEXIS 949 (April 29, 2008).

Both defendants’ statements they had permission to use the car searched was sufficient to confer standing. The state did not counter that testimony. Campos v. State, 885 N.E.2d 590 (Ind. 2008).*

The Indiana statute on announcement does not always prohibit a no knock entry. Under the facts of this case, the police had reasonable suspicion that announcement would frustrate their purpose or potentially lead to violence, so they did not have to announce here. Beer v. State, 885 N.E.2d 33 (Ind. App. 2008).*

Police had reasonable suspicion that was developing into probable cause. They found on him a keyless remote to a car, and they took it to check which car was his. The temporary seizure of the remote, and thus the car, was not unreasonable under Place (a suitcase). The car was not even entered until an arrest warrant was found. People v. Tallent, 174 P.3d 310 (Colo. 2008):

Based on the criteria set out in Ortega, we find that the temporary detention of Tallent’s car by using the keyless remote and staying with the running car was not unreasonable. We come to this conclusion based on the following facts. First, Leslie used the keyless remote to determine if the car was in the immediate vicinity. Then, an officer merely stayed with the car while Leslie and others sought an explanation to why Tallent evaded police. Further, while Leslie did start the engine and unlock the doors by use of the keyless remote, officers did not enter or move the car until the investigation uncovered the warrant for Tallent’s arrest, as well as the stolen goods in the garage matching those in the car. Finally, the car was parked on a public street, in plain view of the officers. It was not forcibly removed from Tallent, nor was he ordered to exit the car so that officers could take possession of it.

In light of these facts, we find that officers possessed knowledge sufficient to induce a prudent officer to reasonably suspect that Tallent’s car was involved in criminal activity when it was temporarily seized for the limited purpose of securing the area for the brief period of time necessary to continue an ongoing investigation. Given its limited purpose and duration, the initial seizure was not unreasonable.

Trial court’s finding that marijuana was in plain view is neither confirmed nor disputed by the videotape, so the trial court’s finding is supported by the evidence. United States v. Phillips, 261 Fed. Appx. 740 (5th Cir. 2008)* (unpublished).

Seizure of an extra notepad from defendant’s jail cell in pretrial detention did not violate Fourth Amendment. United States v. Terron, 262 Fed. Appx. 157 (11th Cir. 2008)* (unpublished).

Apparent authority is just that: it is what it seems to be, and there is no duty on the police to confirm apparent authority. United States v. Pender, 261 Fed. Appx. 576 (4th Cir. 2008) (unpublished).

Knock and talk about a grow operation brought officers to defendant’s house and a consent to enter was granted. Once inside, they saw evidence of the grow operation and wires leading into a closet, which suggested evidence of the grow or other drug activity. Instead, obvious evidence of credit card fraud (multiple credit card blanks and a machine for making numbers and names) was found. The search was within the consent granted. United States v. Susini, 261 Fed. Appx. 270 (11th Cir. 2008)* (unpublished).

Patdown and look at cellphone might have violated Terry, but the entire matter was valid under inevitable discovery because, since defendant was an illegal, he would have been fully searched anyway. That fact was discovered shortly thereafter. United States v. Pineda-Areola, 2008 U.S. Dist. LEXIS 2161 (S.D. Ind. January 10, 2008).*

Conviction on a traffic charge is collateral estoppel to the question of whether there was cause for the stop in a federal criminal prosecution arising from the stop. Also, the officer could put defendant in the patrol car, and this defendant had no standing in the pockets of his codefendant. United States v. Delano, 543 F. Supp. 2d 791 (N.D. Ohio 2008):

In this case, Defendant Delano was a party to the traffic ticket judgment, there is a final judgment on the merits of that ticket, the probable cause was decided, was necessary to the judgment, and it is identical to the question here. As such, the Court finds that Defendant Delano is collaterally estopped from claiming that Deputy Cleveland did not have probable cause to detain him for a traffic violation.

Eleven month old information in a child porn investigation is not stale. [This is generally true of all the cases.] United States v. McGan, 2008 U.S. Dist. LEXIS 18307 (W.D. Ky. March 6, 2008)*:

The second factor in the analysis considers whether the alleged criminal is “nomadic” or “entrenched.” Id. In the present case, the affidavit states that internet service has been provided to the Defendant at the same address since March 14, 2001. According to his drivers license and the United States Postal Service, that address is the home address of the Defendant. Furthermore, child pornography crimes are typically “tied to a place of privacy, seclusion, and high-speed Internet connectivity.” Wagers, 452 F.3d at 540. It is clear that the Defendant in this case is not “nomadic,” suggesting the information was not stale.

The third factor addresses whether the nature of the alleged evidence is “perishable,” “easily transferable,” or “of enduring utility to its holder.” Abboud, 438 F.3d at 573. When staleness is viewed in context with child pornography, courts have recognized that people suspected of viewing or possessing child pornography commonly retain the illegal material. United States v. Riccardi, 405 F.3d 852, 861 (10th Cir. 2005); United States v. Irving, 432 F.3d 401, 416 (2nd Cir. 2005) (“images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes”). The overwhelming case law supporting the hoarding tendencies of those who view child pornography, along with the technical ability to retrieve data from computers, further supports that the eleven month time frame did not render the information stale.

Officers’ warrantless entry into defendant’s chicken barn for a meth lab was based on probable cause and exigent circumstances. The information that he was regularly cooking meth there was three months old, but observations at the scene confirmed them: the distinct odor of a meth lab, his red van parked outside, the air conditioner running despite it being cool outside, and seeing him through the window cooking something up that was not food. State v. Bilynsky, 2007 ME 107, 932 A.2d 1169 (2007).

Defendant was found to have been illegally detained under state law after a 911 call and his relationship to it was minimal or nonexistent. However, he apparently abandoned a cracker box by tossing it under his car during the stop and meth was found in the cracker box. Because the trial court’s ruling could not be determined to be “right result/wrong reason,” the case was remanded to the trial court for fact findings on the question of abandonment of his privacy interest and the connection to the prior illegality. State v. Caprar, 214 Ore. App. 434, 166 P.3d 567 (2007).*

Officers entered defendant’s house by consent looking for a fugitive. The occupants said that he was not there, but they consented in writing to a search of the premises for the person and any contraband, and marijuana was found. The consent was found valid. State v. St. Germaine, 2007 WI App 214, 305 Wis. 2d 511, 740 N.W.2d 148 (2007).*

The Heck bar applies to Fifth Amendment claims. Plummer v. Victoria County, 2007 U.S. Dist. LEXIS 59553 (S.D. Tex. August 14, 2007).*

The Heck bar requires summary dismissal when it applies. Gattis v. Fuller, 2006 U.S. Dist. LEXIS 96628 (D. S.C. October 10, 2006).*

“Consent to search” includes a suitcase in a car. United States v. Lopez, 2007 U.S. Dist. LEXIS 59686 (D. Kan. August 14, 2007).*

Seatbelt violation led to officer requesting and getting what was found to be valid consent. State v. Triplet, 962 So. 2d 506 (La. App. 2d Cir. 2007).*

Merely using a car to get to the scene of a drug sale is sufficient for the government to invoke the automobile exception to search it. United States v. Abulaban, 2008 U.S. Dist. LEXIS 44563 (E.D. Va. June 6, 2008):

Defendant distinguishes the facts before the Court from the cases allowing warrantless searches of cars that are instrumentalities of crime. He argues that, rather than probable cause to believe the car was used in the crime, “there was no reason to believe that there was anything in that car.” Def.’s Reply to Pros.’s Response to Def.’s Mot. to Suppress at 4. There was no informant who told officers that there were drugs in the car, as in Maryland [v. Dyson], 527 U.S. at 465, and in United States v. Ross, 456 US 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). However, like the car in Dickey-Bey, the BMW was used to transport Defendant to the place where drugs were to be procured, with the intention that the cocaine would be removed from the location in the vehicle. In addition, the car was also used for transportation to meetings where the conspiracy was planned, and transported Defendant to the purchase site, along with those he supposed to be co-conspirators and the money to be used to purchase the drugs. There is also reason to believe that Defendant intended to use the BMW to transport the cocaine and further proceeds away from the transaction at its conclusion. The Court concludes that the officers had probable cause to search the BMW, as it was an instrumentality of the drug conspiracy and thereby falls within the vehicle exception to the warrant requirement.

Officers approached a parked Suburban because the vehicle matched the description of one that was stolen. As they approached, there was no license plate and a fake temporary tag. One occupant saw them coming, got out, and started to walk away. They stopped him and handcuffed him. Inside, the defendant was hiding something. In plain view inside were sandwich bags and money scattered on the floor. The information collectively made reasonable suspicion to call a drug dog which alerted, and this was probable cause. United States v. West, 2008 U.S. App. LEXIS 12311 (8th Cir. June 9, 2008).*

Park Ranger’s stop of defendant off park property with probable cause was not a Fourth Amendment violation under Moore v. Virginia. United States v. Strasnick, 2008 U.S. Dist. LEXIS 45353 (D. Mass. June 10, 2008)*:

While it is quite perspicuous that Ranger LaMere lacked the statutory authority necessary to lawfully arrest Strasnick off of federal property, it is not necessary for this Court to decide whether Strasnick’s initial Terry detention and subsequent transfer amounted to a de facto arrest. In accordance with Jones, Ranger LaMere’s lack of statutory authority to arrest Strasnick is not a per se violation of her Fourth Amendment rights. See Jones, 428 F. Supp. 2d at 502. The Fourth Amendment protects against “unreasonable searches and seizures.” U.S. CONST. amend. IV. In determining what is reasonable under the Fourth Amendment, the Supreme Court has held that “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.” Virginia v. Moore, 128 S.Ct. 1598, 1608, 170 L. Ed. 2d 559 (2008). So long as the arrest is based on probable cause, it is constitutionally permissible and the Fourth Amendment does not require exclusion of the evidence recovered from the arrest or the search incident to that arrest. See id. at 1607-1608.

Defendant consented to talk to officers and he consented to a patdown for officer safety under Drayton. United States v. Hill, 2008 U.S. Dist. LEXIS 45399 (W.D. Pa. June 6, 2008).*

With great reluctance, inviting the district court to rule otherwise, a USMJ rules that the lack of inventory policy was not fatal to an inventory search, but perhaps it should be. United States v. Biernat, 2008 U.S. Dist. LEXIS 45143 (W.D. Wis. June 4, 2008):

The government opposes the motion, claiming that even if the traffic stop was unlawful, there is sufficient attenuation to avoid suppression. For the reasons stated below, I am recommending this court deny Biernat’s motion to suppress. It is, however, a close question because of the Hurley Police Department’s inexplicable failure to enact and enforce a policy governing vehicle inventory searches. Indeed, the court might decide that the challenged search was simply too unstructured for this court to countenance.

. . .

We have reached question (3): Was the subsequent search of the car a proper inventory search? The short answer is “It’s a wobbler.” Inventory searches are an exception to the warrant and probable cause requirements of the Fourth Amendment and are lawful if they are conducted pursuant to standard police procedures aimed at protecting the owner’s property and protecting the police from the owner accusing them of having stolen, lost or damaged his property. United States v. Cherry, 436 F.3d 769, 772 (7th Cir. 2006). The policy should be in writing but standardized criteria and a well-honed department routine may be sufficient. United States v. Duguay, 93 F.3d 346, 351 (7th Cir. 1996). Although it is important for a court to determine if police followed standard procedure while conducting an inventory search, the lynchpin question remains the reasonableness of the inventory search and subsequent seizure of evidence. Cherry, 436 F.3d at 772-73. See also id. at 776-77 (Posner, J., dissenting):

An inventory search might not be authorized by a policy, but if the search conducted by the police was in fact a reasonable inventory search–maybe they searched the car because they feared being accused of stealing the owner’s property–there would be no basis for a constitutional objection.

After all, as the dissent points out in Cherry, “compliance with established procedures is merely a ruse antidote.” Id. at 777. The point of the inquiry is to ensure that the police do not employ inventory searches as a mechanism by which they may intentionally evade the requirement that they obtain a warrant or establish probable cause before searching an impounded vehicle.

Defendant ran past his car in flight from officers and they had probable case. This was an exigent circumstance justifying a search of vehicle lest he get back to the vehicle and leave. State v. Neville, 2008 La. App. LEXIS 903 (4th Cir. June 4, 2008):

In this case, the police officer was informed by the witness that the defendant was in route to the vehicle. Once the defendant realized Mr. Aubert was chasing him he ran past the vehicle and escaped on foot. It is clear that the defendant was aware that he was being pursued and abandoned his vehicle in the course of his escape. Had the vehicle not been searched at that time, the defendant surely could have had the vehicle picked up and driven away from the scene of the crime. Under the specific facts and circumstances of this case, it was reasonable for the police officers to believe that the vehicle may contain evidence of the burglaries, and that if they did not seize the vehicle, the evidence may be lost. We cannot find that the trial court abused its discretion in denying the defendant’s motion to suppress.

Comment: The trial court held abandonment, and, in the previous paragraph, the court of appeals discussed other authorities and abandonment. This case does not clearly state whether abandonment is decided or not. In my view, the mere act of running past one’s vehicle suggests nothing of abandonment, particularly if the suspect is trying to keep the officers from arresting him in the vehicle.

Probation search condition that permitted search of work place computer was not unreasonable and furthered the purposes of probation. United States v. Proctor, 2008 U.S. App. LEXIS 11789 (3d Cir. June 2, 2008) (unpublished). Curiously, in a warrantless search case, the court implicitly puts the burden on the defense to show that the search was unreasonable rather than the government to show it was reasonable. But, at bottom, it ulimately isn’t that simple because the search was found valid before the court said he cannot show it was not:

Proctor cites no case holding that it is unreasonable to require a supervised releasee to submit to a warrantless search of his workplace. Indeed, imposing this condition on Proctor, who used computer software to share images depicting child pornography with others over the internet, is reasonably related to the § 3553(a) factors of deterrence, protection, and rehabilitation. See Loy, 237 F.3d at 256. The fact that this may affect Proctor’s employer is of no moment because Proctor lacks standing to object that this condition would violate the Fourth Amendment rights of a prospective employer or co-worker. See Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978) (a third party has standing to challenge the constitutionality of a search only when one has a “legitimate expectation of privacy” in the premises or items searched).

Nor does the warrantless search of Proctor’s place of business infringe on his personal liberties more than is reasonably necessary. Although this condition might well impair Proctor’s ability to find a job, we find that it is necessary to meet the goals of 18 U.S.C. § 3583(d)(2) in light of Proctor’s offenses. Therefore, the District Court did not abuse its discretion in requiring Proctor to submit to warrantless searches at his place of business.

The trial court properly granted the motion to suppress because the CI never could complete a sale from the defendant and there was no way to corroborate that the defendant was the person the CI was talking to on the telephone. Moreover, the good faith exception did not save the search. State v. Alexander, 2008 Ohio 2665, 2008 Ohio App. LEXIS 2244 (8th Dist. June 2, 2008):

[*P27] Here, contrary to the State’s assertion, the trial court determined whether the police had reasonable suspicion in their initial approach of Alexander, and found “that the police lacked reasonable suspicion or cause to arrest [Alexander] on November 6, 2006, or seize any property.” Upon review, we find that under the facts of this case, the trial court’s finding of lack of reasonable suspicion was proper.

[*P28] In particular, the CI, with whom Detective Jones had never worked, was unable to complete any purchases from Alexander over a two-month period (including on November 6). Further, as already discussed, there was a lack of identification that Alexander was the person with whom the CI spoke on the phone.

Allegation of strip search on probation violation booking for a failure to report sufficiently stated a claim for relief to go forward. Martinez v. Warner, 2008 U.S. Dist. LEXIS 44395 (E.D. Pa. June 5, 2008).*

Officer had reasonable suspicion after traffic stop based on defendant’s extreme nervousness and seeing drug paraphernalia all of which indicated she likely was under the influence at the time of the stop. State v. Wilson, 2008 Ohio 2742, 2008 Ohio App. LEXIS 2300 (3d Dist. June 9, 2008).*

SCOTUS decided only one search and seizure case this Term: Virginia v. Moore (06-1082), 128 S. Ct. 1598, 170 L. Ed. 2d 559 (April 23, 2008), posted here.

Three other cert grants are carried over to the next Term with argument dates:
• Arizona v. Gant (07-542), October 7th.
• Herring v. United States (07-513), October 7th
• Pearson v. Callahan (07-751), October 14th

I obviously missed the first story on this: Microsoft has created a USB based device for forensic searching of computers at the scene where they are found to copy information from them. It is called COFEE for Computer Online Forensic Evidence Extractor, and it is provided to law enforcement agencies for free. [And how long before police officers use it for personal investigations?] See Seattle-Times: Microsoft device helps police pluck evidence from cyberscene of crime:

Microsoft has developed a small plug-in device that investigators can use to quickly extract forensic data from computers that may have been used in crimes.

The COFEE, which stands for Computer Online Forensic Evidence Extractor, is a USB “thumb drive” that was quietly distributed to a handful of law-enforcement agencies last June. Microsoft General Counsel Brad Smith described its use to the 350 law-enforcement experts attending a company conference Monday.

The device contains 150 commands that can dramatically cut the time it takes to gather digital evidence, which is becoming more important in real-world crime, as well as cybercrime. It can decrypt passwords and analyze a computer’s Internet activity, as well as data stored in the computer.

It also eliminates the need to seize a computer itself, which typically involves disconnecting from a network, turning off the power and potentially losing data. Instead, the investigator can scan for evidence on site.

It has been around since last June.

Officer’s trespass on the curtilage led to observations that made it into a search warrant application. The trial court erred in not granting the motion to suppress. This started as a knock and talk, but the officer strayed from the front door. State v. Peterson, 2007 Ohio 5667, 173 Ohio App. 3d 575, 879 N.E.2d 806 (2d Dist. 2007):

[*P26] It is important to note that the police were at Peterson’s residence initially to execute a “knock and advise” and not to execute a search warrant. The purpose of the knock and advise program, as stated in the General Order of the Dayton Police Department, is to notify the resident or residents of the structure that a complaint has been received alleging drug activity at the premises. (See Def. Ex. C.) This, of course, can be accomplished by going to the front door of the residence and knocking and advising the resident of the purpose of the visit. In executing a search warrant, the warrant normally authorizes officers to enter the residence, the surrounding curtilage, and any detached garage or outbuildings listed in the warrant.

[*P27] The State argues that we have held that police officers are privileged to be on private property while in the performance of their official duties, citing State v. McClain (2003) Mont. App. 19710, 2003 Ohio 5329. In that case, however, the observations of the police officer were made through the passenger window of a car parked in a front driveway accessible to the public.

[*P28] In this matter, Detective House testified at the suppression hearing that the window he looked through was on the side of the appellant’s residence, which he accessed by walking on the lawn. (Tr. 82.) Further, House testified that there was no driveway or sidewalk by the window and that he was standing a few feet from the side of the house. (Tr. 83, 128.) Similar to the officer in Lorenzana, House made his observations while standing on land not expressly open to the public.

[*P29] Citizens have an objectively reasonable expectation that police will not enter onto the side yards of their homes in the night time and peer into their basement windows. We agree with the appellant that Detective House’s observations were made while he was trespassing on the curtilage of Peterson’s property. As such, the evidence recovered by the police during the warrantless and warrant searches was the product of the initial unlawful police conduct. The evidence was the “fruit of the poison tree” and must be suppressed. Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

Specific items listed in the particularity clause followed by a catch all phrase does not make the warrant impermissibly overbroad. In addition, a plain view may properly occur that is separate from the overbreadth issue. State v. Juwan, 2007 Ohio 5651, 173 Ohio App. 3d 373, 878 N.E.2d 694 (2d Dist. 2007).

Knock-and-announce requirement was not violated, but, if it was, Hudson would apply and the evidence would still not be excluded. A violation of state law, as opposed to the state constitution, does not mandate exclusion. State v. Lam, 2007 Ohio 5664, 2007 Ohio App. LEXIS 4984 (2d Dist. October 19, 2007).*

Defendant’s alibi affidavits from himself and two witnesses that he was not home and could not have sold drugs to the CI was sufficient to require a Franks hearing and the evidence at the hearing supported the trial court’s suppression order under Franks. People v. Caro, 2008 Ill. App. LEXIS 294 (1st Dist. April 3, 2008), released for publication May 27, 2008:

Similarly, in the present case, defendant filed an affidavit stating that he was at work on the day the informant stated he made the purchase and that when he came home he ate dinner and watched television and went to bed. He denied selling or using any illegal drugs on the day in question. Defendant’s two roommates also filed affidavits in support, stating that when defendant arrived home from work no one other than he and his roommates were present. Both roommates denied seeing defendant selling illegal drugs at the apartment on the day in question.

As in Lucente, defendant’s showing was essentially an alibi, and he corroborated that alibi with two affidavits besides his own. All three affidavits are sufficiently detailed so as to subject the affiants to the penalties of perjury if they are untrue. Taken together, the affidavits constitute a substantial preliminary showing that a false statement implicating defendant in the drug transaction was knowingly, intentionally, or recklessly included by the officer in the warrant affidavit, and that the allegedly false statement was necessary to the finding of probable cause. Based on these affidavits, the trial court did not abuse its discretion in determining that a Franks hearing was warranted.

The State contends that defendant’s alibi is unavailing and did not warrant a Franks hearing, because his roommates could not account for defendant’s whereabouts from 6:45 a.m. until 2 p.m., or from 8 p.m. onward. The State’s argument would have merit if the informant had stated that the drug transaction had occurred during those time periods. However, the informant here merely stated that he had purchased drugs from defendant on December 21, 2004, but he never provided a time of day when the transaction occurred. In response, defendant filed an affidavit stating that he was at work all day on December 21, then went home, ate, and went to bed; his roommates provided affidavits confirming that when they returned home from work in the afternoon, defendant was not there, and that defendant came home near bed time and that they saw no drug transactions. The trial court could conclude from all these affidavits that an evidentiary Franks hearing was warranted. We find no abuse of discretion in the granting of the hearing.