Defendant was stopped for a traffic offense, and extra five minutes taken to inspect the exterior of the car that ultimately had been altered plus being on a common drug route was reasonable suspicion, and it was not an unreasonable extra detention. United States v. Sanchez, 507 F.3d 877 (5th Cir. 2007).*

During a routine traffic stop, the officer developed reasonable suspicion from travel plans that did not make sense and defendant’s shaking hands, so he asked for and got a valid consent. Two minutes after his search started, a drug dog showed up. United States v. Vazquez, 253 Fed. Appx. 365 (5th Cir. 2007)* (unpublished).

Affidavit for search warrant: In this case “the affidavit arguably does not establish a sufficient basis to connect Hendon with either the drugs or the places to be searched and, therefore, could be found lacking to establish a sufficient basis for a finding of probable cause. Nevertheless, we need not address whether there was sufficient probable cause to justify the search of the apartment at 408 North Brazier Drive because the district court did not err in finding that the evidence seized was not subject to exclusion because of the good faith exception to the warrant requirement, as explained below.” Officer’s reliance on his findings that he believed were probable cause was not objective unreasonable. United States v. Hendon, 253 Fed. Appx. 809 (11th Cir. 2007).*

Plaintiff filed a § 1983 claim within about 90 days of being informed by the local DA that he could file a civil action over a seizure of his property that happened nearly four years earlier. The “discovery rule” for starting the statute of limitations runs from when one, by reasonable diligence, would know of the facts of a possible claim, not from when the DA mentioned that he could file a civil claim. This claim was barred by the state’s two year limitations statute. Palmer v. City of Harrisburg, 2007 U.S. Dist. LEXIS 82978 (M.D. Pa. November 8, 2007)*:

Plaintiff’s argument is without merit. The alleged injuries stem from events that occurred during the course of the criminal proceedings, which took place between March 13, 2002, and November 25, 2003, as discussed above. The alleged injuries and the cause thereof were immediately ascertainable. While it may be true that Plaintiff lacked the knowledge that he could file a civil complaint during the statute of limitations period, his lack of knowledge is irrelevant. See Rendenz, 520 A.2d at 886. Moreover, even if Plaintiff was represented by counsel, his alleged reliance on counsel does not toll the statute of limitations.

Two federal appellate cases where defense counsel was obliged to raise frivolous search issues (issues that I would have personally refused to bring because counsel does not have to do so just because the client insists (but some clients compel appealing issues as a CYA)):

Probable cause was shown by defendant’s neighbor’s affidavit that the defendant had moved rifles from a truck to his house. The police confirmed he was a felon. Issuing state court judge did not abuse discretion in permitting a nighttime search. United States v. Spellicy, 253 Fed. Appx. 147 (2d Cir. 2007)*(unpublished).

Reasonable suspicion for a patdown was present where the officer saw defendant put a gun in his waistband. [The court went on to explain that the defendant was also nervous when confronted, but that is hardly required if the officer actually saw a gun.] United States v. Harris, 253 Fed. Appx. 171 (3d Cir. 2007)* (unpublished).

There was no apparent authority to consent to search of the other half of a mobile home that was divided by a wall with a separate door. There was no common authority, and that was what was apparent. State v. Kuhnhausen, 289 Ga. App. 489, 657 S.E.2d 592 (2008).*

The officers reasonably believed in apparent authority of occupants to consent to a search of a separate bedroom on the premises. The trial court found the situation “confusing” as to who had what authority and the officers could not rely on it. The appellate court disagreed because everybody was in the living room, and they agreed that consent would be given to search the bedroom, so the officers acted reasonably in believing there was apparent authority. State v. Boland, 2008 Ohio 353, 2008 Ohio App. LEXIS 292 (12th Dist. February 4, 2008).

Comment: This court noted, not completely incorrectly, that this exception is a form of “good faith exception” for a warrantless search:

[*P16] Even if a third party does not possess actual common authority over the area that was searched, the Fourth Amendment is not violated if the police relied in good faith on a third party’s apparent authority to consent to the search. [Rodriguez]. at 188-189. Apparent authority is judged by an objective standard. Id. In Illinois v. Rodriguez, the United States Supreme Court held that a warrantless search based on consent was permissible if “the facts available to the officer at the moment [would] warrant a man of reasonable caution in the belief that the consenting party had authority over the premises.” Id. at 188.

The officer exceeded the scope of a proper Terry frisk when the defendant’s shoes were searched, too, without any reasonable suspicion. State v. Morton, 2008 Iowa App. LEXIS 44 (January 30, 2008):

Sergeant Skaff’s search went beyond a patdown of Morton’s outer clothing. Skaff first patted down Morton’s outer clothing and checked Morton’s waist band for sharp objects. This part of the search is permitted by Terry and is reasonably related to ensuring Morton was not armed and dangerous. Skaff then asked Morton to take his cap off and kick his shoes off. Removing a suspect’s shoes without a reasonable belief that a weapon is being hidden in the shoes has been held to exceed the proper scope of a protective search. [citations omitted]

Defendant’s claim of standing even under Massachusetts’ automatic standing rule failed. Commonwealth v. Duncan, 71 Mass. App. Ct. 150, 879 N.E.2d 1253 (2008):

Thus, it was the defendant’s burden to prove both that he had a subjective expectation of privacy in the trash can and that society would recognize this expectation as reasonable. See Commonwealth v. Montanez, 410 Mass. 290, 301 (1991); Commonwealth v. Nattoo, 70 Mass. App. Ct. 625, 630 (2007). The defendant carried neither of these burdens. There was no evidence that Duncan (or the others) had any possessory interest in the trash can or in the property where it was situated. See Commonwealth v. Sespedes, 58 Mass. App. Ct. 907, 909 n.3 (2003). To the contrary, the evidence indicated that the defendants chose to abandon or hide the guns in a place over which they did not control access. See Commonwealth v. Straw, 422 Mass. 756, 761-762 (1996) (citing cases). Thus, for constitutional purposes, no search of the trash can took place, and the motion to suppress was properly denied.

Plaintiff stated a claim for relief under § 1983 for police entry onto his property to seize vehicles without any kind of warrant or other judicial authorization. Hardy v. County of El Dorado, 2008 U.S. Dist. LEXIS 6417 (E.D. Cal. January 28, 2008).*

“[A]t 5 A.M. on January 1, 2005, an unidentified ‘very hysterical sounding’ male called the Fort Hall Police Department. The caller screamed something to the effect of ‘[g]et the cops here now’ or ‘[g]et the cops now’ to the residence of Dennis Snipe, Sonny’s father.” The call was disconnected. The police arrived, knocked on the door, and it swung open. They stepped inside and saw drugs and a firearm in plain view. That was the basis for a search warrant, and Brigham City made the entry lawful. United States v. Snipe, 515 F.3d 947 (9th Cir. 2008).

Defendant’s assertions that defense counsel failed to properly present standing in the face of a Carter claim by the government that the presence on the premises was for a criminal enterprise is belied by the record because counsel continually argued standing. No ineffective assistance. Hayden v. United States, 2008 U.S. Dist. LEXIS 5452 (E.D. Mich. January 25, 2008).*

There was abundant probable cause for the search of defendant’s car here[, the defendant essentially quibbling also over whether the window tint of his car was such that the officer could see inside]. United States v. Faison, 2008 U.S. Dist. LEXIS 5515 (E.D. Pa. January 25, 2008).*

Officers had cause for stopping defendant because of his speeding and weaving, and his BAC test was justified under Georgia’s implied consent law which was not unconstitutional. Cornwell v. State, 2008 Ga. LEXIS 27 (January 28, 2008).*

Officers were excused from complying with the knock and announce requirement because it was a useless gesture here: Defendant saw them coming and he came out before they knocked. State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008).

The Sixth Circuit, in an unpublished opinion, holds that a fugitive had no reasonable expectation of privacy in a motel room that he was hiding in. The opinion was unpublished because of application of harmless error, as well. United States v. Stuckey, 253 Fed. Appx. 468, 2007 FED App. 0738N (6th Cir. 2007) (unpublished):

But Knights did hold that probation status did reduce the expectation of privacy, and it was otherwise a close question whether Stuckey’s temporary fugitive stay in the apartment in question gave him a reasonable expectation of privacy. “Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled.” Knights, 534 U.S. at 119 (internal quotations omitted). Supervised release, like probation, is a form of criminal sanction and limits an individual’s freedom. Although Stuckey’s supervised release conditions did not authorize the search, the fact that Stuckey was subject to supervised release itself lessened Stuckey’s expectation of privacy. Like the defendant in Carter, Stuckey was temporarily using an apartment other than his own. Although nothing in the record suggests that Stuckey was purely a business guest, Stuckey was using the apartment for the purpose of evading capture by the police, and so neither was Stuckey purely an overnight guest, like the defendant in Minnesota v. Olson. In Olson, the Supreme Court emphasized the “everyday expectations of privacy that we all share” and the “longstanding social custom [of being an overnight guest] that serves functions recognized valuable by society.” 495 U.S. at 98. Sleeping at another’s apartment in order to evade capture by police does not comport with our everyday expectations of privacy and is not a longstanding social custom. Thus, taking together the fact that the apartment was not Stuckey’s and the fact that Stuckey was on supervised release, reasonable suspicion may have been enough to justify the search. Thus the reasoning of Carter and Knights together might warrant the conclusion that Stuckey lacked a reasonable expectation of privacy in the apartment in question in the circumstances of this case. We need not rule definitively on the question, however, because even if there was a Fourth Amendment violation that Stuckey could complain of, the error was harmless, as explained below.

A classic case of a bogus inventory as a general search without impoundment is State v. Griffin, 2008 La. App. LEXIS 242 (1st Cir. February 8, 2008), reversing a life sentence:

The facts and circumstances of this case indicate that the “inventory search” of the defendant’s vehicle was actually a pretext to search for illegal drugs. Although the officers recorded information about the contents of the vehicle, they made absolutely no attempt to determine whether an inventory search could have been avoided. There is no indication in the record that the vehicle could not have remained safely at the place where it was stopped. The purported “inventory search” was conducted on location immediately upon the defendant’s arrest. It is not clear whether a tow truck was called before the search commenced or whether one was ever called at all. There is no evidence that the defendant was asked if he consented to the search, if the vehicle contained valuables or if he would consent to the agency’s failure to afford him the protection of an inventory search.

If the defendant could have easily made arrangements for the vehicle other than having it impounded, or if he had been willing to waive his rights against the law enforcement agency for failure to guard against loss of his valuables, a justification for the inventory search would not have existed. See Killcrease, 379 So.2d at 739. Because the officers failed to make efforts to determine whether the impoundment of the vehicle could have been avoided, it is clear that the motivation for the search was not to protect the defendant’s loss of property or to protect the agency against a claim for failure to guard against such a loss. In this case, the conduct of the police indicates that the officers did not conduct a true inventory search of the defendant’s car. Instead, under pretext of an inventory, the officers set out on a warrantless search of the vehicle without probable cause. Thus, the State has not borne its heavy burden of proving there legitimately existed, in this instance, an inventory search exception to the warrant requirement. See Carey, 499 So.2d at 288.

Search warrant was based on probable cause of risk of injury to a child. Conviction for sexual assault is affirmed. State v. Kaminski, 106 Conn. App. 114, 940 A.2d 844 (2008).*

State court’s determination that plaintiff’s car’s impoundment was constitutional and justified precluded federal litigation of the same issue. McDonald v. Kirkpatrick, 2008 U.S. Dist. LEXIS 14545 (W.D. Wash. February 27, 2008).*

“No certain knowledge” of others present needed for protective sweep. United States v. Thang Dinh Ngo, 2008 U.S. Dist. LEXIS 4711 (S.D. Tex. January 22, 2008)*:

Depending on the circumstances, a protective sweep may be permissible even when law enforcement agents have no certain knowledge that other individuals are in the house. See, e.g., Watson, 273 F.3d 599; United States v. Howard, 106 F.3d 70 (5th Cir. 1997); United States v. Mendoza-Burciaga, 981 F.2d 192 (5th Cir. 1992). In United States v. Watson, officers arrested a suspect on the front porch of his house. Subsequently, the arresting officer performed a protective sweep of the house to look for dangerous persons. The law enforcement agents were concerned that illegal drugs inside the home would be destroyed if the agents waited to obtain a search warrant. Also, the “officers believed that there was a possibility that [the suspect] might have additional accomplices who were still inside the house and could pose a threat to the officers’ safety.” Watson, 273 F.3d at 603. The arresting officer testified that “he lacked specific reason to believe other individuals were in the house but that the possibility always exists.” Id. at 601. The Fifth Circuit upheld the validity of the protective sweep despite “the factual basis for [the officers’] concerns [being] disputable.” Id. at 603.

Improper release from custody did not require a new warrant to retake the inmate. Jenkins v. Currier, 514 F.3d 1030 (10th Cir. 2008):

Here, state officials took Appellant into custody in order for him to serve his previously imposed sentences. This action was not improper. His erroneous release from federal custody onto the street did not destroy Oklahoma’s claim to legal custody over him. Because he was subject to an unfinished sentence, Appellant, like a parole violator or an escaped convict, was not entitled to the full protections of the Fourth Amendment. The state authorities evidently had reason to believe that Appellant had not completed serving his state sentences. We hold that this was a sufficient basis for his seizure and that no warrant was necessary to take him into physical custody.

Report of a gun being present was reasonable suspicion for a parole search. Portentoso v. Kern, 532 F. Supp. 2d 920 (N.D. Ohio 2008).*

Defendant’s car parked in his driveway could not be searched because there was no probable cause, citing, inter alia, Coolidge. United States v. Smith, 533 F. Supp. 2d 227 (D. Mass. 2008):

At least five Circuit Courts have held that the motor vehicle exception applies even when a car is parked on a private driveway. See, e.g., United States v. Hines, 449 F.3d 808 (7th Cir. 2006); United States v. Brookins, 345 F.3d 231 (4th Cir. 2003); United States v. Fladten, 230 F.3d 1083 (8th Cir. 2000); United States v. Markham, 844 F.2d 366, 368 (6th Cir. 1988); United States v. Hamilton, 792 F.2d 837, 843 (9th Cir. 1986). The Fourth Circuit has suggested, however, that “heightened privacy interests may be triggered when a vehicle is encountered on private property”, Brookins, 345 F.3d at 237 n.8, and the Fifth Circuit has stated that the motor vehicle exception “may not apply when a vehicle is parked at the residence of the criminal defendant challenging the constitutionality of the search.” United States v. Fields, 456 F.3d 519, 525 (5th Cir. 2006).

The First Circuit Court of Appeals has had at least one occasion to decide whether to apply the motor vehicle exception to an automobile parked in a private driveway. In United States v. Moscatiello, 771 F.2d 589 (1st Cir. 1985), the First Circuit upheld the search of an automobile parked in a private driveway, stating that, although it was parked on private property, it was not parked on the defendant’s property and furthermore that the police had pursued the automobile into the driveway (rather than it having been parked there indefinitely). Id. at 599-600, vacated on other grounds by Murray v. United States, 487 U.S. 533, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988). In this case, it is unclear whether 227 Washington Street served as Smith’s residence although he declared in an affidavit that it was not. This Court need not decide the scope of the motor vehicle exception or whether the Mazda was parked at Smith’s residence because, notwithstanding those contingencies, there was no probable cause to search the vehicle.

Officers were summoned to a complaint of underage drinking, and, when they approached the premises, two youths outside fled, and the officers chased them onto the curtilage. One was on the curtilage already and fled to the backyard where he was caught. He had alcohol on his breath, and the officer took him to the back door of the house and knocked. The defendant let them in. Inside, the officer observed alcohol and empty cans, so he administered a PBT and found 13 had consumed alcohol, including defendant’s daughter. She was charged with contributing to the delinquency of a minor. The entry into the backyard was justified, and the entry into the house was by consent. Rush v. State, 881 N.E.2d 46 (Ind. App. 2008):

As noted above, the police officers responded to a report that an underage drinking party was occurring at Rush’s residence. Tr. p. 53. When the officers walked toward Rush’s house, an individual–suspected to be underage–saw the officers and began to run away. Id. at 55. Once the suspected juvenile stopped in front of Rush’s home, he told the officers that an underage drinking party was occurring inside. Id. at 36, 47. Shortly after that encounter, Trooper Teusch questioned another teenager, who had been leaning against a vehicle in Rush’s driveway. Trooper Teusch testified that the youth smelled of alcohol. Id. at 71, 77.

Notwithstanding Rush’s claim that the officers lacked the authority to enter her property, we note that Indiana Code section 7.1-5-7-7 defines a minor in possession of alcohol as a class C misdemeanor. After receiving the dispatch regarding the suspected drinking party, the officers reasonably believed that the teens were running from them because they had been drinking at Rush’s house. Additionally, Trooper Hotchkiss entered Rush’s yard to intercept the juveniles who were running from the house because he thought they may have been drinking at the party. Tr. p. 57-58.

When Trooper Teusch heard a commotion in Rush’s backyard, he saw a juvenile climbing out of Rush’s basement window. Id. at 71-72. When apprehending that individual, the officers looked in the basement window and noticed several juveniles, “open beer cans, beer containers,” and a portable bar with several liquor bottles on it. Id. at 58, 60, 74.

In light of these circumstances, the trial court reasonably concluded that the police officers were lawfully on Rush’s premises to investigate the suspected underage drinking party. As a result, neither the police officers’ warrantless entry into Rush’s yard or their subsequent observation of the beer and liquor containers through the basement window violated Rush’s Fourth Amendment rights. Thus, we reject Rush’s argument that the police officers’ actions were improper.

Officers were unjustified in sticking foot in door to prevent plaintiff from closing the door when she decided to end their conversation, and the officers’ motion for summary judgment for illegal entry is denied. Hanie v. City of Woodstock, 2008 U.S. Dist. LEXIS 12247 (N.D. Ga. February 19, 2008).*

Defendant showed that he was at least an overnight guest with standing to challenge the entry of the house because he had a key and there were his clothes and some toiletries there. United States v. Huang, 2008 U.S. Dist. LEXIS 12192 (N.D. Cal. February 8, 2008).*

A possessory interest is sufficient in New Jersey to challenge a search of a duffle bag that defendant was packing but admitted was not his. State v. Johnson, 193
N.J. 528, 940 A.2d 1185 (2008). Lexis overview:

Police had a warrant to arrest a man for threatening his girlfriend with a gun. The man’s father let them into his home; police arrested the suspect. They looked without success for the gun. Defendant, who was living there, put items in a duffel bag; an officer asked him if the items and bag were his; he said they were not. The officer opened the bag, found a handgun, and arrested defendant. The high court held that defendant had standing under New Jersey law to challenge the warrantless search of the bag and the fruits of the search had to be suppressed for failure to comply with the warrant requirements of N.J. Const. art. I, para. 7. He had standing because he had a possessory or participatory interest in the place searched and the property seized. It rejected the State’s claim that his abandonment of the bag stripped him of standing because (1) the bag was not truly abandoned, as the police could have easily determined which of the residents was its owner; and (2) mere denial of ownership was not proof of an intent to abandon. Finally, police had possession of the bag, and exigent circumstances did not prevent them from obtaining a telephonic search warrant under R. 3:5-3.

Defendant was arrested outside his house and claimed he was not the man wanted. He protested that his ID was inside and would prove it. His son looked and could not find it, so he consented to an entry by the police to look for it, and they found a weapon and ammunition. United States v. Amaya, 2008 U.S. Dist. LEXIS 13665 (N.D. Ind. January 23, 2008).*

While church officials could enter the pastor’s office under church rules, they did not have apparent authority to invite the police in. State v. Young, 974 So. 2d 601 (Fla. App. 1st DCA 2008).

Exigent circumstances here were police created, but it was a result of reasonable investigative methods and not to manipulate the situation. Therefore, exigent circumstances justified the entry. State v. Laboo, 396 N.J. Super. 109, 933 A.2d 4 (2007):

In State v. Stanton, 265 N.J. Super. 383, 388, 627 A.2d 674 (App. Div. 1993), we determined that a police-created exigency, similar to the present case, was prompted by reasonable investigative tactics. In that case, the police received a tip from an anonymous informant that the defendant was selling narcotics from his motel room where he also kept several guns. Id. at 384-85, 627 A.2d 674. Approximately twelve hours later, four police officers went to the motel and one officer knocked on the defendant’s motel room door, identifying himself as a police officer. Id. at 385, 627 A.2d 674. When one of the room’s occupants pulled back the drapes to the window, another officer observed a plastic bag containing cocaine in plain view. Ibid. The officers immediately entered the room without a warrant and seized the drugs, as well as two handguns, a box of ammunition, and a knife. Ibid.

Although the exigent circumstances justifying entry into the motel room were “police-created,” we concluded that “they arose as a result of reasonable police investigative conduct.” Id. at 386, 627 A.2d 674.

We discern nothing constitutionally offensive in the decision of the police to proceed to the scene and investigate. Indeed, the officers would have been derelict in their duty had they failed to do so. We also perceive nothing unreasonable in the officers’ decision to knock on the motel room door and identify themselves. Whether or not this conduct was intended to detect criminal activity, it was not unreasonable or inconsistent with Fourth Amendment principles. We assume that the police routinely respond to complaints of criminal conduct by proceeding to the scene, announcing their presence and making reasonable inquiries. That is their job. We know of no constitutional prohibition barring such conduct.

[Ibid.]

Noting that the officers “could have taken other investigative action” such as conducting a surveillance, we recognized that “[t]he point to be stressed … is that [the officers] were not constitutionally compelled to pursue these options, and the course they chose was not unreasonable.” Ibid.

Here, we are equally convinced that, although the exigent circumstances that justified entry into the apartment may have been “police-created,” they arose as a result of reasonable police investigative conduct. Hutchins, supra, 116 N.J. at 460, 561 A.2d 1142; Stanton, supra, 265 N.J. Super. at 386, 627 A.2d 674. We also disagree with the judge’s analysis that the exigent circumstances lacked spontaneity or urgency.

The district court found that the stop was “over” and defendant was told he was free to go. He then asked where the next exit was, and conversation ensued that led to consent. The finding of voluntariness and consent was supported by the evidence. United States v. Munoz-Villalba, 251 Fed. Appx. 90 (3d Cir. 2007)* (unpublished).

Plaintiff’s 13 hour detention before release was based on probable cause and was not unreasonable. Lee v. O’Malley, 533 F. Supp. 2d 548 (D. Md. 2007).*

A protective search of the interior of defendant’s vehicle was justified under the facts even though he was handcuffed because of the possibility he would not be arrested, unhandcuffed, and get back into the car. United States v. Hill, 252 Fed. Appx. 532 (4th Cir. 2007) (unpublished):

Here, the police officers had a reasonable belief Hill was dangerous because they had reason to believe he had removed items from a house containing numerous weapons. The officers also knew that at least one of the items taken from the house appeared to be a gun. Moreover, when they approached the car, both officers involved in stopping Hill’s car observed a gun in the back seat. As was the case in Holmes, although Hill was out of the car and restrained when the officer searched the passenger compartment, the officer was entitled to conduct a protective search of that area because of the possibility that Hill would have access to any weapons located there. See Holmes, 376 F.3d at 280 (protective search of passenger compartment warranted when suspect was handcuffed in the back of police cruiser, because if not arrested, the suspect would be permitted to return to the vehicle).

Bare suspicion did not support defendant’s stop. “The officers in this case had not observed Smith engage in any criminal activity or violate any traffic offenses at the time of the encounter. While there had been prior tips that Smith was engaged in drug activity, those tips had not been corroborated by independent police investigation and there is no evidence in the record which otherwise reflects the reliability of those tips. Thus, those tips afforded no basis for Smith’s detention.” Conviction reversed. Smith v. State, 288 Ga. App. 87, 653 S.E.2d 510 (2007).*

Motion to suppress had not been filed, and the search was, for all apparent reasons (see fn. 2), conducted for failure to consent to a search; a drug dog was called after he refused to consent. The issue was waived for appellate review. Smith v. State, 243 S.W.3d 722 (Tex. App. — Texarkana 2007).*

Judge who previously represented defendant’s husband more than a decade earlier who issued search warrant for her property was not shown to be not neutral and detached. United States v. Barry-Scott, 251 Fed. Appx. 983, 2007 FED App. 0758N (6th Cir. 2007) (unpublished):

Barry-Scott also appeals the district court’s denial of her motion to suppress the search of her residence, arguing that the judge who issued the warrant was not neutral and detached because he previously represented her and her husband around 1994-95 and was aware of their drug activities. The Government argues that the judge was sufficiently neutral and detached and, in any event, the good faith exception would apply even if the warrant were lacking.

. . .

In this case, the evidence seized is admissible because the record does not establish that the judge was not neutral and detached and, even if he were not, the warrant was sufficiently grounded in probable cause for the officers to reasonably rely upon it. Barry-Scott has not shown that the judge had any specific personal knowledge of her or her husband that was detrimental to her or that had any impact on his issuance of the warrant. Neither has Barry-Scott shown that the judge had a personal, pecuniary or substantial interest in the outcome of the search or that he was too closely tied to the functions of law enforcement. Without such evidence, there is nothing to suggest that the judge abandoned his role as a neutral and detached judicial officer. Thus, the decision of the district court based upon these same factors was not clearly erroneous.

However, even if it were shown that the judge was not neutral and detached, the good faith exception to the exclusionary rule would apply. The warrant was based upon a three-month investigation that included controlled buys, which were recorded and some of which were witnessed by the officer requesting the warrant. The warrant on its face, to a reasonable officer, was sufficient to support a finding of probable cause.

During appellant’s four minute traffic stop, during which the computer check was completed, the defendant validly consented to a search of his vehicle which produced cash. United States v. Huerta, 252 Fed. Appx. 694 (5th Cir. 2007)* (unpublished).

Reasonable suspicion was based on excessive nervousness plus driving a rental car 1200 miles to see her family and return in one day. United States v. Contreras, 506 F.3d 1031 (10th Cir. 2007).*

Protective sweep of apartment occurred while the police were obtaining a warrant, and the product of the protective sweep did make it into the affidavit for the warrant, so the search would not be suppressed. Commonwealth v. Avellar, 70 Mass. App. Ct. 608, 875 N.E.2d 539 (2007).*

“[O]nce law enforcement lawfully obtained Scott’s blood sample and DNA evidence, no privacy interest persisted in this evidence. Scott’s DNA profile could be used in the investigation of other crimes for identification purposes.” Therefore, defense counsel was not ineffective for not challenging this use. Scott v. Werholtz, 38 Kan. App. 2d 667, 171 P.3d 646 (2007).* (Note: This case cites no authority in support, but that is the law.)

Plaintiff’s complaint of excessive force for alleged unnecessary Tasering survived summary judgment because of a fact dispute. Pearson v. Byrd, 2007 U.S. Dist. LEXIS 86041 (M.D. Ala. November 20, 2007):

Pearson alleges that a police officer shoved him onto a patrol car and shocked him with a Taser gun and that two other officers handcuffed and shackled him. Pearson further alleges that, although he did not resist, one of the officers continued to use the Taser gun on him. He maintains that these officers then threw him into the back of the police vehicle, and that one of the officers choked and punched him while another officer shocked him with the Taser gun. Consequently, Pearson has alleged the deprivation of a constitutional right. See Saucier v. Katz, supra.

The defendants admit that they used some force against Pearson. The defendants, however, assert that the use of force was necessary because Pearson was a danger to the officers and nearby citizens. Specifically, the defendants allege that Pearson acted aggressively toward them, that he did not heed their warnings that he would be “tased” if he continued to resist, and that he repeatedly refused to comply with their orders. (Corkran’s Affid.; Reardon’s Affid.; Harrison’s Affid.) Thus, there is a factual dispute concerning whether there was a need to use force and whether the force used was excessive under the circumstances.

Comment: We might as well face it: “tase” is now a transitive verb, as in “Don’t tase me, bro!” and as shown on YouTube. Taser is a product and a company name. “Tase” as a verb does not appear on Merriam.com‘s online dictionary, but it does appear in its open dictionary as first submitted in 2005. The first use of “tase” as a verb in a judicial opinion on Lexis is Maiorano v. Santiago, 2005 U.S. Dist. LEXIS 40879, *18 (M.D. Fla. May 19, 2005), where “taser” is uncapitalized throughout and: “Finally, there is no allegation that Santiago ordered Plaintiff to desist or warned Plaintiff that he would tase her.”

Defendant’s car was impounded because of his driver’s license, and he asked if he could get some things out of the car before it was towed. The officer decided to search for weapons for officer protection, but instead did a complete search of the car, including searching in a dayplanner and the trunk. The search was excessive and violated the Fourth Amendment. State v. Warren,38 Kan. App. 2d 697, 171 P.3d 656 (2007).

A search incident under Kansas law is statutorily the same as Belton and Thornton by a change in statute from the search being for “the crime” to “a crime.” Here, the defendant had just gotten out of the car when he was arrested, so a search incident was proper. State v. Henning, 38 Kan. App. 2d 706, 171 P.3d 660 (2007).

Stop was based on reasonable suspicion from a tipster that was corroborated and involved hiding a black bag under the hood. Once the defendant was stopped and admitted having marijuana on him, a search incident was proper. State v. Cheickne, 2007 Ohio 6334, 2007 Ohio App. LEXIS 5567 (1st Dist. November 30, 2007).*

Defendant was stopped for driving on a road closed to all but residents, but the officer had no idea whether defendant was a resident. The stop was unreasonable. State v. Hoard, 2007 Wisc. App. LEXIS 1041 (November 29, 2007):

P20 We note that the circuit court stated that if Hoard had not lived within the closed area, he could not challenge the stop. We disagree. The analysis of the lawfulness of a traffic stop does not depend on what the officer learns after the stop but on whether, at the time of the stop, the officer had reasonable suspicion for making the stop. Thus, whether Hoard was or was not lawfully driving in the closed area, the analysis of the lawfulness of the stop is the same.

Warrantless taking of blood in a DUI with serious bodily injury case was reasonable because time was running, and the officer feared complete dissipation of alcohol in the blood, and the officer had plenty of probable cause to believe defendant was under the influence because he failed field sobriety tests and refused a breath test. The blood was taken at a hospital. This was reasonable under Schmerber and state law. State v. Johnson, 744 N.W.2d 340 (Iowa Sup. 2008):

In all, more than two and a half hours passed between the time of the accident and the time Johnson’s blood was drawn. During this time, his blood-alcohol concentration was continually diminishing due to the natural dissipation of alcohol. The traffic officer testified that he believed evidence of Johnson’s blood-alcohol concentration would be destroyed if he waited to draw blood until after a search warrant was obtained. We conclude that the officers complied with section 321J.10A, which requires only a reasonable belief that the delay necessary to obtain a warrant would threaten the destruction of the evidence.

Defendant was seized because he was blocked into his parking space, and he got out of the car and was ordered back into it. He was sitting in a car in an apartment complex that was known to be a high crime area, but that was just not enough for reasonable suspicion. Stone v. Commonwealth, 2008 Ky. App. LEXIS 32 (February 8, 2008).*

When the defendant invokes his right to silence and counsel under Miranda, the officers cannot continue to ask for consent. Officers executed a warrant, arrested defendant, and then found nothing, so they asked for consent to search his truck then an outbuilding not mentioned in the warrant. Defendant’s consents here violated Miranda. United States v. Oquendo-Cedeno, 531 F. Supp. 2d 224 (D. P.R. 2008):

There is no justification for the post-Miranda questioning of defendant and resulting search of his property. Upon failing to find anything other than a magazine and bullets in defendant’s residence and vehicle, the agents were required to obtain a further search warrant to search the shack, given the Miranda invocation. It is evident that the sole purpose of the agents in focusing on the property was to continue looking for evidence which implicated defendant in criminal activity. More so, the question posed by the agents to defendant was not routine gathering of information for background or booking purposes, which is excepted from Miranda. See United States v. McLean, 409 F.3d 492, 498 (1st. Cir. 2005). Here, the question about the shack was “reasonably likely to elicit an incriminating response”. United States v. Downing, 665 F.2d 404, 407 (1st Cir. 1981) (defendant’s statement of ownership of airplane and fruits of search thereof suppressed where defendant had invoked Miranda and airplane was not within searched property).

Issuing magistrate does not have to see the pictures to find probable cause in a child pornography investigation. United States v. Gatherum, 2008 U.S. Dist. LEXIS 5268 (S.D. W.Va. January 23, 2008):

Although copies of the pictures which Trooper Eldridge observed were not attached to the warrant application, a judge may properly issue a warrant based on factual descriptions of an image. See New York v. P.J. Video, Inc., 475 U.S. 868, 874 n. 5 (1986) (“[W]e have never held that a magistrate must personally view allegedly obscene films prior to issuing a warrant authorizing their seizure. On the contrary, we think that a reasonably specific affidavit describing the content of a film generally provides an adequate basis for the magistrate to determine whether there is probable cause ….”); ….

A state court action in probate had preclusive effect in a federal § 1983 case where the issue there shoud have been raised in the state proceeding. Kawecki v. County of Macomb, 2008 U.S. Dist. LEXIS 5142 (E.D. Mich. January 24, 2008).*

Defendant challenged his stop and arrest based on what appeared to be a hand to hand transaction. The alleged transaction alone was not enough to stop defendant in a high crime area, but there was a basis for a traffic stop, and that led to a request for consent. A drug dog was also lawfully used. Thomas v. State, 289 Ga. App. 161, 657 S.E.2d 247 (2008).*

Defendant’s stop was justified by reasonable suspicion, and defendant filed an Anders brief on the merits. State v. Brocksmith, 2008 Ohio 31, 2008 Ohio App. LEXIS 21 (5th Dist. January 7, 2008).*

Defendant argued that “similar transaction” evidence was inadmissible because it was unlawfully obtained [apparently not arguing that it was inadmissible as 404(b) evidence or more prejudicial than relevant], but it was lawfully obtained, so it comes in. Sherrer v. State, 289 Ga. App. 156, 656 S.E.2d 258 (2008).*

The Seventh Circuit holds that Ornelas‘s de novo review is limited to warrantless searches. While the question is not free from doubt, it is resolved here, on a 2-1 vote, only for consistency with Gates. United States v. McIntire, 516 F.3d 576 (7th Cir. 2008) (per Easterbrook):

Ornelas thus distinguished searches conducted without a warrant, where appellate review of the justification is non-deferential, from searches authorized by a warrant, where appellate courts must afford “great deference” to the decision of the judge who issued the warrant.

This produces a complex standard of appellate review. A district court’s findings of historical fact are reviewed for clear error, whether or not a warrant issued. Ornelas, 517 U.S. at 699. A district judge’s legal conclusions are reviewed without deference. And on the mixed question whether the facts add up to “probable cause” under the right legal standard, we give no weight to the district judge’s decision–for the right inquiry is whether the judge who issued the warrant (rarely the same as the judge who ruled on the motion to suppress) acted on the basis of probable cause. On that issue we must afford “great deference” to the issuing judge’s conclusion.

One could question this as an initial matter: why defer to the issuing judge, who acts ex parte and without time for reflection, but not to a district judge who has the benefit of adversarial presentations? But that’s what Gates and Ornelas tell us to do. Justice Scalia, who dissented in Ornelas, thought that the majority’s entire discussion of de novo review in no-warrant cases was internally contradictory, because after articulating it the majority also told appellate courts to give “due weight to inferences drawn from [the] facts by resident judges and local law enforcement officers.” See 517 U.S. at 705 (referring to the majority’s statements, 517 U.S. at 699, immediately following the passage in the block quotation). Who is a “resident judge,” and what does “due weight” mean? That complicates our task and may account for the inconsistent treatment of the subject found in our post-Ornelas cases; still, the formula given here represents our best understanding of what the Court requires when dealing with a search supported by a warrant.

Many decisions of this court after Ornelas announce a simple “de novo appellate consideration” approach without distinguishing between warrant cases and no-warrant cases. Others announce that appellate review in warrant cases is deferential but do not distinguish between our role vis-a-vis the judge presiding in the criminal prosecution (non-deferential, except with respect to findings of fact) and our role vis-a-vis the judge who issued the warrant (“great deference”). Yet others do distinguish between the district judge and the judge who issued the warrant. These decisions do not cite each other, perhaps because counsel cited only one of the lines of decisions in their briefs. We therefore think it best to start over, restoring circuit precedent to the approach required by Gates and Ornelas. This opinion has been circulated to all active judges under Circuit Rule 40(e). A majority did not favor a hearing en banc on the question whether to adhere to the standard of review articulated above.

For what it is worth, we have checked how other circuits handle this question and found ample variability. For just a few examples, compare United States v. Grant, 490 F.3d 627, 631-32 (8th Cir. 2007) (explicitly distinguishing between the “great deference” due to the judge who issues a warrant and the non-deferential review of the federal district judge’s decision granting or denying a motion to suppress), and United States v. Jackson, 470 F.3d 299, 306-07 (6th Cir. 2006) (same), with United States v. Irving, 452 F.3d 110, 125 (2d Cir. 2006) (“[w]e review de novo the determination that there was probable cause to issue the warrant”), and United States v. Hammoud, 381 F.3d 316, 332 (4th Cir. 2004) (de novo review of the decision of the judge who issued the warrant). Several circuits are internally conflicted, as this circuit has been. It is unnecessary to give the full lineup. Nothing we can do will either create or eliminate a conflict, but we can and do bring this circuit’s law into line with Gates and Ornelas.