Running a publicly displayed license plate which comes back as expired, even though erroneous, justifies a stop. United States v. Crooks, 2008 U.S. Dist. LEXIS 35189 (D. Del. April 29, 2008):

31. That the information Officer Breslin obtained from the computer system tag check was later proven to be inaccurate does not render the stop illegal. As the Third Circuit has recognized:

an officer need not be factually accurate in her belief that a traffic law had been violated but instead, need only produce facts establishing that she reasonably believed that a violation had taken place. Consequently, a reasonable mistake of fact “does not violate the Fourth Amendment.”

United States v. Delfin-Colina, 464 F.3d 392, 396 (3d Cir. 2006) (quoting United States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003)).

32. Based on the CJIS information, the Court concludes that Officer Breslin initiated a lawful traffic stop for expired tags. Once legally stopped, Officer Breslin was then permitted to obtain Mr. Crooks’ driver’s license. See e.g., United States v. Roberts, 77 Fed. Appx. 561, 562 (3d Cir. 2003). Because a check of Mr. Crooks’ driver’s license revealed that the license was suspended and Mr. Crooks was wanted on three outstanding capiases, the Court further concludes that Officer Breslin had sufficient probable cause to justify the arrest of Mr. Crooks.

Seizure and search of the contents of a cellphone, despite its high expectation of privacy, can be proper under the automobile exception. United States v. James, 2008 U.S. Dist. LEXIS 34864 (E.D. Mo. April 29, 2008):

Judge Noce correctly held that Meador had a reasonable expectation of privacy in the data contained in the cell phone. Meador had a possessory interest in the cell phone and it is reasonable for a person to expect the information contained in a cell phone — especially information such as that contained in the address book, which is not available even to the service provider — will be “free from intrusion from both the government and the general public.” United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007). As one court has noted, “cell phones are capable of storing immense amounts of highly personal information.” United States v. Park, 2007 WL 1521573 (N. D. Cal. May 23, 2007). Because of this reasonable expectation of privacy, law enforcement officers must obtain a search warrant before viewing the contents of a cell phone, unless one of the exceptions to the warrant requirement exist.

Judge Noce also correctly concluded that the automobile exception to the warrant requirement, as recognized in Chambers v. Maroney, 399 U.S. 42 (1970) and refined in California v. Acevedo, 500 U.S. 565 (1991) applies here. Because probable cause existed to believe that evidence of a crime would be found in the cell phone call records and address book, the automobile exception allows the search of the cell phone just as it allows a search of other closed containers found in vehicles. I agree with Judge Noce’s conclusion, and note that at least one district court has recently reached the same conclusion under very similar facts. See United States v. Fierros-Alvarez, 2008 WL 1826188 (D. Kan. April 23, 2008) (automobile exception justified search of cell phone found in vehicle).

Officers reasonably believed that the defendant consented to an entry, but could not reasonably believe he consented to a search of the premises and admitted that they believed he was too intoxicated to consent. If one cannot consent expressly, he cannot consent impliedly. United States v. Castellanos, 518 F.3d 965 (8th Cir. 2008):

Keeping in mind “[t]he precise question is not whether [Castellanos] consented, but whether his conduct would have caused a reasonable person to believe that he consented,” United States v. Jones, 254 F.3d 692, 695 (8th Cir. 2001) (citation omitted), we agree with the government that the record indicates the officers reasonably believed Castellanos did not object to the officers following him into the living room. Under the totality of the circumstances, the officers’ entry into the residence’s living room was reasonable. However, allowing an officer to enter one’s home and allowing the officer to search the home are two very different matters. When a person permits an officer to enter the person’s home, the officer does not have free reign to wander around the home and search any area of the house, without further consent. Indeed, Castellanos expressly refused consent to search his residence.

Consent to search can be inferred from gestures and other conduct. See Jones, 254 F.3d at 695. However, in this case, the officers admittedly believed Castellanos, who was not under arrest, “was too intoxicated to consent to a search of his residence.” The record shows Detective Ortiz requested a search warrant for the residence because Castellanos was too inebriated to consent. Detective Ortiz’s testimony as to Castellanos’s condition is not internally inconsistent and was not contradicted by objective evidence. If Castellanos’s intoxication was such that the officers believed Castellanos was incapable of giving consent to a search, it must follow that Castellanos did not possess the capacity to give implied consent. Under the facts of this case, it is simply not reasonable for the officers to infer Castellanos impliedly consented to their entry into his bedroom when Castellanos “kind of flipped his hand” in that direction.

Prevailing plaintiff on a preliminary injunction against a city ordinance that permitted warrantless inspections of rental property was a “prevailing party” for attorneys fees purposes under 42 U.S.C. § 1988. Dearmore v. City of Garland, 519 F.3d 517 (5th Cir. 2008).*

A Riverside/Gerstein violation does not require exclusion. Here, defendant’s confession was a product of free will. Lawhorn v. Allen, 519 F.3d 1272 (11th Cir. 2008). In footnote 25:

25. The exclusionary rule is not contained in the Fourth Amendment and, because a Fourth Amendment violation occurs when there is an unlawful search or seizure, there is not a separate Fourth Amendment violation for the use of the fruits of that search or seizure. Arizona v. Evans, 514 U.S. 1, 10, 115 S. Ct. 1185, 1191 (1995).

Other courts have held that wrongfully seized evidence may result in exclusion of the evidence. United States v. Davis, 174 F.3d 941, 942, 946 n.8 (8th Cir. 1999) (affirming the suppression of a statement because it was obtained in violation of the Fourth Amendment, but declining to decide whether suppression was “necessarily the appropriate remedy” for such a violation as it was not addressed before the district court). See also United States v. Fullerton, 187 F.3d 587, 592 (6th Cir. 1999) (denying suppression where, despite an unreasonable delay, another remedy was available); United States v. Sholola, 124 F.3d 803, 821 (7th Cir. 1997) (reserving the issue of suppression as an appropriate remedy issue for another day where the defendant had failed to establish a Riverside violation).

When activity appears to be suspicious, officers do not have to take at face value the detainee’s denials or explanations such that reasonable suspicion does not evaporate just because of the defendant’s denial. United States v. Kinsella, 2008 U.S. Dist. LEXIS 23544 (D. Me. March 19, 2008).*

Informant was shown to be reliable by corroboration. United States v. Taylor, 519 F.3d 832 (8th Cir. 2008).*

Stop of defendant’s truck was valid because the officers were looking for defendant’s brother for whom they had a warrant and who could have been in the truck. That supported a plain view in the truck. United States v. Shields, 519 F.3d 836 (8th Cir. 2008).*

Civil case for knock and announce violation was not subject to summary judgment for qualified immunity because there were sufficient facts to go to trial on the failure of the officers to have exigent circumstances. Greathouse v. Couch, 2008 U.S. Dist. LEXIS 23725 (E.D. Ky. March 25, 2008).*

Defendant’s mother found an incriminating letter and called the police. They sent her back inside to retrieve it. Because she acted independently when she called the police, there was no agency relationship with the police when they asked her go get the letter. State v. Betts, 286 Conn. 88, 942 A.2d 364 (2008).

Brendlin governs standing to challenge a stop while Rakas still governs standing to challenge a vehicle search. The detention after the stop is governed by Terry. United States v. Martinez, 537 F. Supp. 2d 1153 (D. Kan. 2008).*

Under Brendlin, defendant had standing to challenge his stop and the length of his own detention. Here it was reasonable. United States v. Tavarez-Rojas, 2008 U.S. Dist. LEXIS 20888 (W.D. N.C. February 21, 2008).*

Defendant’s remaining silent while present and observing co-tenant consent to a police search is hardly an objection under Randolph. Commonwealth v. Ocasio, 71 Mass. App. Ct. 304, 882 N.E.2d 341 (2008):

He argues on appeal that “his refusal of consent [was] obvious from the facts that he knew the police desired to enter the apartment …, but [he] never signified assent to that action.” This approach would extend the holding in Georgia v. Randolph to require active participation by a potential defendant to legitimize the consent granted by a cotenant, an extension directly contradicted by the “fine line,” on one side of which a potential objector “not invited to take part in the threshold colloquy, loses out.” Ibid.

Plaintiff’s claim he was unnecessarily Tasered was not Heck-barred by his guilty plea to resisting arrest. Neel v. Abrahamson, 2008 U.S. Dist. LEXIS 15350 (D. Or. February 27, 2008).*

Weaving and crossing both the centerline and the fog line justified defendant’s stop. State v. Page, 2008 Tenn. Crim. App. LEXIS 139 (February 13, 2008).*

Defense counsel was not ineffective for not filing a motion to suppress that defendant learned might have been successful from other inmates in prison because the motion would have been frivolous. Officers had reasonable suspicion by the time they saw the defendant and when he was told to put his hands on the wall, he made a sudden movement toward his pocket, and that was enough for the officer to look in the pocket. Giddens v. State, 2008 Tenn. Crim. App. LEXIS 148 (January 29, 2008).*

Defendant came in to be arrested and brought a backpack, and inside was a Blackberry, which the officers searched and seized the “contacts” list. The court required further briefing of the issue of access to the Blackberry. The USMJ denied the motion to suppress the contents of the Blackberry, but the USDJ wants further briefing. United States v. Carroll, 537 F. Supp. 2d 1290 (N.D. Ga. 2008):

As Carroll and the Government identify, this and other courts have reached varying conclusions on whether searches of an arrestee’s mobile phone is a lawful search incident to arrest, and if so, how far that lawful search may extend. Among the questions courts have considered are whether a mobile phone fits within the category of property intimately associated with an arrestee’s person, United States v. Park, No. CR 05-375 SI, 2007 U.S. Dist. LEXIS 40596, 2007 WL 1521573, at *7-8 (N.D. Cal. May 23, 2007), how contemporaneous the search must be relative to the arrest, United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1277 (D. Kan. 2007), and whether the search is limited to a phone’s dynamic memory. United States v. Zamora, No. 1:05-CR-250-WSD, 2006 U.S. Dist. LEXIS 8196, 2006 WL 418390, at *4-5 (N.D. Ga. Feb. 21, 2006). The Court notes also that in this case, Carroll voluntarily surrendered himself for arrest and voluntarily brought his backpack, containing the Blackberry, to law enforcement offices at the time of his surrender. Unlike the situations considered in Zamora, Ortiz, and Park, Carroll had the opportunity to make a conscious choice about which of his effects were available to law enforcement at the time of his arrest. Neither Carroll nor the Government has developed this issue factually, nor has the issue been briefed. The Court will defer ruling on the motion to suppress the information resident in the Blackberry until an evidentiary hearing is conducted and the parties further brief this issue.

Comment: See the post here on search incident of an iPhone, posted two days ago. Here is a real chance for a court to give a reasoned approach to search incident of a cellphone.

Validity of arrest warrant was irrelevant here because the officers had probable cause, too. “The photographs of Jennings brandishing a handgun which was clearly loaded gave Lambert ample basis to believe that Jennings had violated the conditions of his supervision. Second, Washington police officers possess statutory authority to make warrantless public arrests for felonies.” United States v. Jennings, 515 F.3d 980 (9th Cir. 2008).*

On a stop and arrest with probable cause for odor of marijuana, officer had informant information that contraband would be hidden in the dashboard. This justified the officer looking into the air conditioning vent with a flashlight. Then, a hidden compartment in the dash was found with a gun hidden there. The entire search was justified under the automobile exception. United States v. Luna-Ilarraza, 2007 U.S. Dist. LEXIS 86955 (D. P.R. November 27, 2007):

However, Officer Berrios’ additional reason for looking into the air conditioning vent, that a confidential informant had stated that there was a compartment in the dashboard which contained contraband, combined with her own knowledge and under the totality of the circumstances, also supplied probable cause for the search. The confidential informant described the vehicle in make and color, gave its licence plate number and location, and specified that there was marijuana in the trunk and contraband in the dashboard area. Having stopped the car described by the informant after spotting it at the identified location, verified that the licence plate matched the one given by the informant and discovered marijuana in the trunk, just as the informant had asserted, those portions of the information were corroborated as accurate. “In testing the sufficiency of probable cause for an officer’s action even without a warrant, we have held that he may rely upon information received through an informant, rather than upon his direct observations, so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge.” Jones v. U.S., 362 U.S. 257, 269 (1960) (overruled on other grounds by U.S. v. Salvucci, 448 U.S. 83 (1980)). Even if the officers did not know the identity of the informant, under the totality of the circumstances, including the corroboration of virtually every aspect of the tip, it was reasonable for them to believe that contraband was being housed within the air conditioning vents and gauge cluster in the passenger area of the vehicle. See U.S. v. Sandoval-Espana, 459 F.Supp.2d 121 (D.R.I. 2006). In sum, the totality of the circumstances of this case establish the probable cause necessary to sustain the warrantless search of both the trunk and the gauge cluster of defendant’s car under the automobile exception.

Lastly, the fact that the weapon was within a compartment does not invalidate the search. It has been clearly established by the Supreme Court that the privacy interest in closed containers within a car yields to the broad scope of an automobile search. California v. Acevedo, 500 U.S. 565, 574 (1991). “[T]he law recognizes that a vehicle search under this exception may encompass all areas of the vehicle in which the suspected contraband is likely to be found.” U.S. v. Staula, 80 F.3d 596, 602 (1st Cir. 1996) (citing United States v. Maguire, 918 F.2d 254, 260 (1st Cir.1990), cert. denied, 499 U.S. 950 (1991)).

“An officer’s observation of a vehicle straying out of its lane multiple times over a short distance creates reasonable suspicion that the driver violated [the state statute] so long as the strays could not be explained by adverse physical conditions such as the state of the road, the weather, or the conduct of law enforcement.” United States v. Egan, 256 Fed. Appx. 191 (10th Cir. 2007)* (unpublished).

Even a bad seizure of cash can still lead to a forfeiture if the government can find untainted evidence to prove it. United States v. $172,760.00 in United States Funds, 2007 U.S. Dist. LEXIS 86974 (M.D. Ga. November 27, 2007):

Evidence obtained in the course of a search that violates the Fourth Amendment is inadmissible in a civil forfeiture proceeding. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702 (1965). However, it is well-established that an illegally seized asset can still be the subject of a civil forfeiture proceeding if the Government can meet its burden of proof with untainted evidence. See, e.g., United States v. Monkey, 725 F.2d 1007, 1012 (5th Cir. 1984); ….

Search warrant for property did not need to specifically name the target. “The Fourth Amendment does not require that a search warrant name the owners or residents of the property to be searched.” Martin v. Indiana State Police, 537 F. Supp. 2d 974 (S.D. Ind. 2008).*

Claim raised on direct appeal may not be relitigated in a § 2255, and it would appear that SCOTUS would not permit a search claim to be raised in a § 2255 anyway. Evans v. United States, 2008 U.S. Dist. LEXIS 6704 (D. R.I. January 29, 2008).*

Owner of camper who allowed the defendant, a probationer, to stay in the camper for a night after defendant had an argument with his wife had apparent authority to consent to a search of the camper after the defendant’s arrest. United States v. Robare, 2008 U.S. Dist. LEXIS 6491 (N.D. N.Y. January 29, 2008).*

Habeas petitioner’s claim that defense counsel failed to put on sufficient evidence to properly present the search claim was decided by the state court that the missing evidence would not have altered the outcome, and that was binding on habeas. Smith v. Kemna, 2008 U.S. Dist. LEXIS 6513 (W.D. Mo. January 29, 2008).*

Utah requires that subpoenas for privileged information be issued on notice under its Civil Rule 45(b) which applies in criminal cases. Here, the prosecutor made a showing of probable cause for judicial authorization of the subpoena, but even that violated the rule because of lack of notice to the person whose privileged records were subpoenaed. State v. Yount, 2008 UT App 102, 2008 Utah App. LEXIS 111 (March 27, 2008).

W.D.Tex. declines to follow bass-ackwards Fifth Circuit rule of good faith first, probable cause second, instead determining probable cause first. In this case, the government had information that defendant was a subscriber to a U.S. based server of a child porn provider and not just for a brief period of time, and that was probable cause. United States v. Winkler, 2008 U.S. Dist. LEXIS 24960 (W.D. Tex. March 28, 2008).*

15-20 seconds is sufficient wait time for knock and announce entry. State v. Rodriguez, 399 N.J. Super. 192, 943 A.2d 901 (2008):

We conclude that the police complied with the “reasonable wait time” standard set forth in United States v. Banks, 540 U.S. 31, 41, 124 S. Ct. 521, 528, 157 L. Ed. 2d 343, 355 (2003), when they waited fifteen to twenty seconds after announcing their presence before entering the premises. As a result, we need not resolve the State’s argument that Hudson v. Michigan, 547 U.S. 586, 126 S. Ct. 2159, 2163, 165 L. Ed. 2d 56, 63 (2006), which holds that the Fourth Amendment does not authorize application of the exclusionary rule for a knock and announce violation, should be followed in determining the appropriate remedy for a knock and announce violation of our state constitution.

Knock and talk resulted in officers hearing people scurrying around inside, and they feared destruction of evidence or they were arming themselves, so the officers entered. The entry was unlawful because there was no probable cause to begin with. State v. Scallion, 976 So. 2d 822 (La. App. 3d Cir. 2008):

In the instant case, Trooper Turnage could not see into the Scallion residence because of the texture of the glass. The officers could only see the forms of individuals moving back and forth in what was described as panicked movements. Based on the totality of the actual information available to them at that time, we do not find that law enforcement officers could reasonably conclude that the reason for the movement was the destruction of evidence or arming of the occupants. Because we find the officers lacked probable cause to believe the destruction of evidence was imminent, or their safety was at risk, we find there were no exigent circumstances that justified the forced entry into the Scallion residence. Any evidence discovered by law enforcement as a result of the warrantless entry, therefore, cannot be considered in determining whether there was probable cause for a search warrant to be issued and cannot be admitted into evidence under the ‘plain view’ doctrine.

Comment: This is a classic “police created exigency,” but the court did not call it that. The entire premise of a knock and talk is lack of PC; otherwise they would have gotten a search warrant. So, they go to the house and hope the schmuck inside will consent to an entry or the door will open and they will smell dope or a meth lab. Here, though, they hear noises from inside that indicated that the occupants were not coming right to the door, which is the occupants’ right. They don’t have to come to the door, and they can yell through the door, as profanely as they want, that the officers can go away, and there is nothing that the officers can do about it. If this search were sustained, knock and talk would be turned into but one of the exceptions to the knock and announce requirement, but significantly without the warrant or the PC that caused it to issue in the first place.

The police did not violate defendant’s reasonable expectation of privacy in lifting the cloth car cover on his car in an apartment complex parking lot, and the trial court erred in suppressing the observation. The officer was looking for a vehicle involved in a hit and run, and he traveled through the parking lot, and saw the defendant’s partially covered car, stopped, and lifted the car cover seeing damage. State v. Allen, 216 Ariz. 320, 166 P.3d 111 (2007):

P15 However, the fact that Allen sought to hide the damage to his vehicle by using a car cover does not determine whether he had an objectively legitimate expectation of privacy in the exterior appearance of his car. “The test of legitimacy is not whether the individual chooses to conceal assertedly ‘private’ activity,” but instead “whether the government[al] intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” Oliver v. United States, 466 U.S. 170, 182-83, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984); see also New York v. Class, 475 U.S. 106, 114, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986) (“We have recently emphasized that efforts to restrict access to an area do not generate a reasonable expectation of privacy where none would otherwise exist.”). Whether a particular expectation of privacy is recognized by society as objectively reasonable is a matter of constitutional law that we consider de novo. State v. Adams, 197 Ariz. 569, 572, P16, 5 P.3d 903, 906 (App. 2000).

P16 The United States Supreme Court has never held that there is a reasonable expectation of privacy in the exterior of a vehicle. To the contrary, in Cardwell v. Lewis, 417 U.S. 583, 94 S. Ct. 2464, 41 L. Ed. 2d 325 (1974), a plurality of the Court, after noting that “insofar as Fourth Amendment protection extends to a motor vehicle, it is the right to privacy that is the touchstone of our inquiry[,]” id. at 591, held that “the examination of [a] tire … and the taking of paint scrapings from the exterior of [a] vehicle” do not implicate any cognizable Fourth Amendment privacy interest. Id. The plurality reasoned that no reasonable expectation existed in the exterior of an automobile because an automobile “seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and contents are in plain sight.” Id. at 590. In concluding that no Fourth Amendment violation occurred, the plurality stated:

In the present case, nothing from the interior of the car and no personal effects, which the Fourth Amendment traditionally has been deemed to protect, were searched or seized and introduced in evidence. With the “search” limited to the examination of the tire on the wheel and the taking of paint scrapings from the exterior of the vehicle left in the public parking lot, we fail to comprehend what expectation of privacy was infringed. Stated simply, the invasion of privacy, “if it can be said to exist, is abstract and theoretical.”

Id. at 591-92 (citation and footnotes omitted).

P17 Twelve years later, in New York v. Class, a majority of the Court expressly endorsed the Cardwell plurality’s conclusion that an examination of the exterior of a vehicle “does not constitute a [Fourth Amendment] ‘search'” because the exterior of a vehicle “is thrust into the public eye.” 475 U.S. at 114. In explaining that a motorist stopped for traffic violations does not have a constitutionally protected privacy interest in a VIN located in the interior of the vehicle on the dashboard but obscured from view by papers, the Court observed that the “VIN’s mandated visibility makes it more similar to the exterior of the car than to the trunk or glove compartment.” Id. Thus, the court concluded, it was only when an officer actually reached into the interior of the vehicle to move papers that obstructed the VIN that a search under the Fourth Amendment occurred. Id. at 114-15. The Court went on to find that the search was not “unreasonable” under the Fourth Amendment because it was “no more intrusive than necessary” to fulfill the lawful objective of viewing the VIN. Id. at 118-19.

Arizona held July 25th in State v. Gant, 216 Ariz. 1, 162 P.3d 640 (2007), that arresting the defendant, handcuffing him, and putting him in the back seat of a police car removed him and his vehicle from the scope of search incident under Belton, relying on Justice Scalia’s concurrence in Thornton. The defendant did not argue the state constitution, so this was based on the Fourth Amendment. Also, the automobile exception apparently was not implicated.

P11 The sole question before the Court in Belton was the “constitutionally permissible scope” of an otherwise lawful search of an automobile incident to arrest, given the exigencies of the arrest situation. Id. at 455, 457; see also Thornton v. United States, 541 U.S. 615, 619 (2004) (describing Belton as deciding “the constitutionally permissible scope of a search” incident to arrest). Noting the lack of consistency among courts in deciding how much of the automobile the police could search incident to arrest and the desirability of a bright-line rule to guide police officers in the conduct of their duties, the Supreme Court held that the area within an arrestee’s immediate control encompassed not only “the passenger compartment of an automobile” that the arrestee recently occupied, but also containers within the passenger compartment. Belton, 453 U.S. at 458-60.

P12 The State and our dissenting colleagues seek to bring Gant’s case within the Belton rule. Unlike Belton, however, this case deals not with the permissible scope of the search of an automobile, but with the threshold question whether the police may conduct a search incident to arrest at all once the scene is secure. Because Belton does not purport to address this question, we must determine whether officer safety or the preservation of evidence, the rationales that excuse the warrant requirement for searches incident to arrest, justified the warrantless search of Gant’s car. Cf. Dean, 206 Ariz. at 166, PP 32-34, 76 P.3d at 437 (relying on Chimel rationales in holding that arrestee was not a recent occupant of vehicle).

P13 Neither rationale supports the search here. At the time of the search, Gant was handcuffed, seated in the back of a locked patrol car, and under the supervision of a police officer. The other two arrestees at the scene were also handcuffed and detained in the back of patrol cars, and the record reflects no unsecured civilians in the vicinity. At least four officers were on the scene. At that point, the police had no reason to believe that anyone at the scene could have gained access to Gant’s vehicle or that the officers’ safety was at risk. Indeed, one of the officers who searched Gant’s car acknowledged at the evidentiary hearing that the scene was secure at the time of the search. Therefore neither a concern for officer safety nor the preservation of evidence justified the warrantless search of Gant’s car. Absent either of these Chimel rationales, the search cannot be upheld as a lawful search incident to arrest.fn2

fn2. We agree with Justice Scalia’s statement that applying the Belton doctrine to justify a search of the car of a person handcuffed and confined in a police car “stretches [the doctrine] beyond its breaking point.” Thornton, 541 U.S. at 625 (Scalia, J., concurring in the judgment).

. . .

P15 It is possible to read Belton, as the State and the Dissent do, as holding that because the interior of a car is generally within the reach of a recent occupant, the Belton bright-line rule eliminates the requirement that the police assess the exigencies of the situation. But, if no exigency must justify the warrantless search, it would seem to follow that a warrantless search incident to an arrest could be conducted hours after the arrest and at a time when the arrestee had already been transported to the police station. Yet the Court was careful in Belton to distinguish United States v. Chadwick, 433 U.S. 1, 15 (1977), overruled on other grounds by California v. Acevedo, 500 U.S. 565 (1991), in which it had rejected an argument that a search of a footlocker more than an hour after the defendants’ arrests could be justified as incidental to the arrest. In doing so, the Court noted that the search occurred “after federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody; the search therefore cannot be viewed as incidental to the arrest or as justified by any other exigency.” Belton, 453 U.S. at 462 (quoting Chadwick, 433 U.S. at 15). Such a distinction would be wholly unnecessary under the State’s interpretation of Belton.

Comment: I smell a cert. petition. Let me be blunt: Belton was a case limited to its unique facts of four vehicle occupants standing on the side of the New York Thruway, under arrest, with one lone officer. Belton has been bastardized by many courts way beyond its facts, and SCOTUS hasn’t helped much to clear things up. (“By your silence, then, I take it you agree with the proposition.”) Then, Thornton was a half-assed attempt to deal with Belton that dealt with the “recent occupant” being arrested. Then cases went all over the map as to whatever that phrase meant. Is being 50′ away a “recent occupant”? Was a guy in custody in a police car still a “recent occupant”? And, as Gant asks, what about two hours later? Is that still “recent occupant” under Thornton or Belton? There is no guidance, except common sense. I urge all, no matter which side of the courtroom you sit, to read this case (the name is a link to the state court opinion). This case, I submit, correctly applies the search incident doctrine as Chimel, Robinson, et al. originally intended because it makes sense–a suspect handcuffed and away from the car is not capable of reaching in and grabbing a weapon or destroying evidence. That, and that alone, should be the relevant question under search incident. SCOTUS botched search incident in Belton and Thornton by not giving adequate guidance. But, watch what you ask for. Watch out for this case going up because anything in SCOTUS can change.

Consent to search a closet for identification was not limited to looking in pockets. Officers looked in a plastic bag and found contraband. United States v. Romero, 247 Fed. Appx. 955 (10th Cir. 2007) (unpublished):

In this case, a reasonable person would have understood the exchange between Sgt. Espinoza and Mr. Romero to mean that Mr. Romero was granting permission to search anywhere in the closet for identification. The plastic shopping bag discovered by Sgt. Espinoza in the closet reasonably could have contained a receipt or other identifying information. Mr. Romero disputes that one could reasonably believe that identifying information could be found where Sgt. Espinoza discovered the bag — that is, among folded (possibly clean) clothes. But we do not share Mr. Romero’s doubt.

“At the time that the computer checks on Flores were completed, Livingston was aware that (1) Flores initially told an implausible story of his itinerary, and subsequently changed his story; (2) Flores had lied about his arrest record; (3) Flores had lied about his time of entry into the United States; and (4) Flores had recently crossed the border from Mexico, a common origin of illicit drugs. These circumstances are sufficient to create reasonable suspicion of drug trafficking.” United States v. Rodriguez-Flores, 249 Fed. Appx. 317 (5th Cir. 2007)*(unpublished).

Plain view of 1700 pounds of marijuana in the back of a pickup truck near the Mexican border was all that was needed for a seizure. United States v. Anaya-Sanchez, 242 Fed. Appx. 215 (5th Cir. 2007)* (unpublished).

Plain view through a window of a store room supported Customs seizure of counterfeit goods. Its incriminating nature was immediately apparent to the Customs officer. United States v. Alim, 256 Fed. Appx. 236 (11th Cir. 2007)* (unpublished).

The detention incidental to execution of arrest warrant against another was not a Fourth Amendment violation. United States v. Smith, 2007 U.S. Dist. LEXIS 86368 (E.D. Wis. November 19, 2007):

Similarly, a person who is detained during the execution of a search warrant is ordinarily not in custody for Miranda purposes. United States v. Saadeh, 61 F.3d 510, 520 (7th Cir. 1995); United States v. Burns, 37 F.3d 276, 281 (7th Cir. 1994). The Seventh Circuit noted that

[m]ost detentions that occur during the execution of a search warrant, like most Terry stops, are comparatively nonthreatening. They are often short in duration. … Furthermore, detention in a person’s own residence or hotel room could only add minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with a compelled visit to the police station.

Burns, 37 F.3d at 281 (internal quotations omitted).

In Burns, the defendant sought suppression of certain statements she made during the execution of a search warrant at her hotel room. Id. at 278. The defendant asked to leave the hotel room numerous times, but she was detained and told to sit on the bed as two law enforcement officers searched the hotel room. Id. During the search, an officer asked Burns what she was doing in Milwaukee, to which she responded that she was visiting friends. However, later she said she did not have any friends in Milwaukee when the officer asked her who her friends were. Id. When an officer discovered a kilogram of cocaine in a dresser drawer wrapped in a hotel towel, the defendant disavowed ownership of the item. Id.

The Seventh Circuit held that the defendant was not in custody while she was detained during the execution of the search warrant, and therefore the Miranda warnings were not required. Id. at 281. The court explained its decision by stating that the defendant

was detained for less than ten minutes prior to her arrest. She was not handcuffed or physically restrained in any way until she was formally placed under arrest. Only two law enforcement officers conducted the search, and they did not brandish weapons. Finally, the officer’s questioning was limited in scope and duration.

Id.

. . .

Although the present case involves an arrest warrant rather than a search warrant, the distinction is inconsequential for present purposes. The rule the Supreme Court has enunciated in Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981), that a search warrant “implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted,” applies equally to instances where officers enter a residence pursuant to a valid arrest warrant. See Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). Whether entering pursuant to a search warrant or an arrest warrant, officers may reasonably fear that the buildings’ occupants may obtain weapons which may be used against them or destroy evidence.

Search warrant for defendant’s child porn was valid at least by the good faith exception, without even considering the probable cause question. United States v. Watson, 255 Fed. Appx. 876 (5th Cir. 2007)* (unpublished).

Being compelled by the state to return one’s teaching certificate is not a Fourth Amendment seizure. Smith v. California Comm’n on Teacher Credentialing, 2007 U.S. Dist. LEXIS 86251 (E.D. Cal. November 21, 2007).*

Plaintiff’s car was suspected of being at the scene of several burglaries in 2002, and the police decided, after consultation with supervisors, to plant a GPS with a cellphone transmitter on the car. Plaintiff’s Fourth Amendment claim failed under Knotts. Morton v. Nassau County Police Dep’t, 2007 U.S. Dist. LEXIS 87559 (E.D. N.Y. November 27, 2007):

“A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” United States v. Knotts, 460 U.S. 276, 281 (1983). The use of the GPS Device did not permit the discovery of any information that could not have obtained by following an automobile traveling on public roads, either physically or through visual surveillance (e.g. through the use of cameras or from a helicopter), conduct that neither requires a warrant nor implicates Fourth Amendment rights. “Nothing in the Fourth Amendment prohibit[s] the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afford[s] them.” Id. at 282.

In Knotts, law enforcement officials placed a tracking device, or “beeper,” inside a barrel of chloroform which was sold to an individual suspected of manufacturing illegal drugs. After the suspect loaded the barrel containing the beeper into his vehicle, the police were able to track his movements. The Court in Knotts held that the law enforcement officials’ use of the beeper did not violate the suspect’s Fourth Amendment rights, because there is no reasonable expectation of privacy in the movements of an automobile on public roadways, and that the placement of the device did not constitute an unreasonable seizure. Id. Accord United States v. Garcia, 474 F.3d 994, 996 (7th Cir. 2007); United States v. Gbemisola, 225 F.3d 753, 758-759 (D.C. Cir. 2000); … Alexandre v. N.Y. City Taxi & Limousine Comm’n, 2007 U.S. Dist. LEXIS 73642 (S.D.N.Y. September 28, 2007); ….

Plaintiff attempts to distinguish the instant case from Knotts on the basis that the beeper in Knotts was not actually attached to the suspect’s car, but rather loaded by the suspect into his own car, whereas here, the GPS Device was attached to Plaintiff’s car by the Defendants. This minor distinction is not sufficient to remove the instant case from the ambit of Knotts.

Thus, the use of the GPS Device was not an unreasonable search or seizure in violation of the Fourth Amendment, and Plaintiff’s claims pursuant to the Fourth Amendment are dismissed.

Dog alert during a stop was sufficient to justify prolonging the detention. United States v. Aispuro-Medina, 256 Fed. Appx. 215 (10th Cir. 2007) (unpublished).*

Plaintiff’s mental health seizure was justified by probable cause to believe she was a danger to herself. Morrison v. Bd. of Trs. of Green Twp., 2007 U.S. Dist. LEXIS 87817 (S.D. Ohio November 29, 2007).*

“There is no reasonable expectation of privacy in a license plate number which is displayed in plain view, and it is not illegal for a police officer to use license plate information to conduct a check on the vehicle’s ownership and registration.” The vehicle came back unregistered. United States v. King, 2007 U.S. Dist. LEXIS 87629 (D. Del. November 29, 2007).*

“After careful consideration of Detective Boos’ testimony and a careful review of the application for a search warrant, I am convinced that the affidavit contained no false or misleading information, and that Detective Boos did not knowingly or intentionally or with reckless disregard for the truth include any false statements or omit any necessary or material information in the application for the search warrant. Franks v. Delaware, 438 U.S. at 171-72. Thus, I will deny the motion to suppress.” United States v. Charles, 2007 U.S. Dist. LEXIS 87647 (E.D. Pa. November 29, 2007).*

Exclusionary rule does not apply to driver’s license revocation proceedings under the Fourth Amendment or the Kansas Constitution. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 176 P.3d 938 (2008).

A habeas action under 28 U.S.C. § 2241 does not lie to adjudicate a Fourth Amendment claim or any other of the merits of a state criminal case before the state case is disposed of. Barlow v. Mississippi, 2008 U.S. Dist. LEXIS 6892 (S.D. Miss. January 30, 2008):

Notwithstanding the petitioner’s failure to exhaust his available state remedies and his argument that this court should not require him to do so, “federal habeas corpus does not lie, absent ‘special circumstances’, to adjudicate the merits of an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court.” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 489, 93 S. Ct. 1123, 35 L. Ed. 2d 443 (1973). The United States Supreme Court made a distinction between a petitioner seeking to “abort a state proceeding or to disrupt the orderly functioning of state judicial processes,” id. at 490, and “one who seeks only to enforce the state’s obligation to bring him promptly to trial.” Id. (citing Smith v. Hooey, 393 U.S. 374, 89 S. Ct. 575, 21 L. Ed. 2d 607 (1969)). The United States Court of Appeals for the Fifth Circuit in Brown v. Estelle, 530 F.2d 1280, 1282-83 (5th Cir. 1976), held that the distinction is based on the type of relief requested by the petitioner. If the petitioner is attempting to prevent the prosecution of the case, then he is seeking to “abort a state proceeding or to disrupt the orderly functioning of state judicial processes.” Id. If the petitioner is attempting to “force the state to go to trial,” then he is merely seeking to force the state to fulfill its obligation to provide petitioner with a prompt trial. Id. It appears from the petitioner’s assertions that his Fourth Amendment rights have been violated is an attempt to assert “an affirmative defense to a state criminal charge prior to a judgment of conviction by a state court.” Braden, 410 U.S. at 508-09. Furthermore, the petitioner’s request that the criminal charges against him be dismissed is found by this court to be an attempt to “abort a state proceeding or to disrupt the orderly functioning of state judicial processes.” Therefore, habeas corpus is not an available remedy.

A Texas ADA shot himself in the head as a SWAT team surrounded his house for the benefit of “To Catch a Predator” to avoid the humiliation of arrest. Many of the Estate’s claims fail, but the case will proceed on a claim that the police acted unreasonably under the Fourth Amendment and precipitated the suicide. Conradt v. NBC Universal, 536 F. Supp. 2d 380 (S.D. N.Y. 2008):

Although many of plaintiff’s claims will be dismissed, the principal claims survive, for if the allegations of the amended complaint are proven, a reasonable jury could find that NBC crossed the line from responsible journalism to irresponsible and reckless intrusion into law enforcement. Rather than merely report on law enforcement’s efforts to combat crime, NBC purportedly instigated and then placed itself squarely in the middle of a police operation, pushing the police to engage in tactics that were unnecessary and unwise, solely to generate more dramatic footage for a television show. On the facts alleged in the amended complaint, for example, a reasonable jury could find that there was no legitimate law enforcement need for a heavily armed SWAT team to extract a 56-year old prosecutor from his home when he was not accused of any actual violence and was not believed to have a gun, and that this was done solely “to sensationalize and enhance the entertainment value” of the arrest. A reasonable jury could find that by doing so, NBC created a substantial risk of suicide or other harm, and that it engaged in conduct so outrageous and extreme that no civilized society should tolerate it.

Trash seizure that was premised on an unconstitutional statement was suppressed. Vergara v. State, 2008 Ga. LEXIS 202 (February 25, 2008).*

Officers had reasonable suspicion to stop and detain appellant who was with a wanted person and in a high crime area. State v. Carlisle, 2008 Ohio 744, 2008 Ohio App. LEXIS 640 (4th Dist. February 19, 2008):

[*P13] In the case at bar, considering the totality of the circumstances, we find the police officers were justified in making an investigative stop. The encounter with Appellant occurred in a high crime area, known as a center of drug trafficking. Appellant was in the company of Tyrone Black, who was wanted for drug activity from the previous night and for whom the police were actively searching. Further, the officers knew of Appellant’s criminal history, including his involvement in illegal drugs. Additionally, and most obviously, the stop was justified because Appellant was carrying an open container of alcohol.

Can Randolph be defeated merely by removing the defendant refusing to consent? In the Eighth Circuit, yes. The Eighth Circuit en banc held (8-3) that an owner of a computer who refused consent did not prevent the officers from asking his wife for consent under Randolph because the defendant was not present, what it found to be a critical distinction. United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008) (en banc) (8-3):

Second, unlike Randolph, the officers in the present case were not confronted with a “social custom” dilemma, where two physically present co-tenants have contemporaneous competing interests and one consents to a search, while the other objects. Instead, when Cpl. Nash asked for Mrs. Hudspeth’s consent, Hudspeth was not present because he had been lawfully arrested and jailed based on evidence obtained wholly apart from the evidence sought on the home computer. Thus, this rationale for the narrow holding of Randolph, which repeatedly referenced the defendant’s physical presence and immediate objection, is inapplicable here.

Third, the Fourth Amendment’s reasonableness requirement did not demand that the officers inform Mrs. Hudspeth of her husband’s refusal. This conclusion is supported by Matlock and Rodriguez, where law enforcement officers bypassed the defendants against whom the evidence was sought, although the defendants were present and available to participate in the consent colloquy. The officers instead sought the consent of an authorized co-tenant. See Rodriguez, 497 U.S. at 180; Matlock, 415 U.S. at 166.

Comment: Whether the objecting defendant is actually present is, to me, a distinction without a difference, and this is a question that the Supremes should take up. The person with an expectation of privacy said “no,” so the police take him away and then ask his wife under the threat of seizing or freezing the house pending getting a search warrant [which here was inevitable]. Therefore, in the Eighth Circuit, all the police have to do is arrest and remove the objecting defendant and ask somebody else for consent who does not know that the defendant already objected.

This is the Eighth Circuit, which is not far behind the Fourth.