Grabbing defendant’s arm and being pulled into defendant’s motel room when defendant tried to shut the door on the officer in the officer’s effort to arrest him for a minor misdemeanor for which defendant would be cited at best was an unlawful entry because this was not hot pursuit and the situation lacked exigent circumstances when balanced against the offense. State v. Johnson, 2007 Ohio 6146, 173 Ohio App. 3d 669, 880 N.E.2d 111 (9th Dist. 2007).*

Michigan’s parole search statute requires “reasonable cause” which the court equates with Griffin‘s “reasonable suspicion” requirement. United States v. O’Connor, 2007 U.S. Dist. LEXIS 85578 (E.D. Mich. November 20, 2007).*

Officers’ observations of defendant’s activities with a known drug dealer amount to probable cause. His lawful arrest gave further probable cause for a search warrant for his residence.
United States v. Willis, 2007 U.S. Dist. LEXIS 85580 (E.D. Pa. November 20, 2007).*

State court ligitation against the city that plaintiff lost precluded a claim in federal court against the city’s employees under claim preclusion. Lyttle v. Killackey, 528 F. Supp. 2d 818 (N.D. Ill. 2007).*

Defendant’s general consent to search did not include shining a flashlight into his underwear, a place where the officer admittedly did not expect to find any contraband. State v. Stone, 362 N.C. 50, 653 S.E.2d 414 (2007):

We conclude here that a reasonable person in defendant’s circumstances would not have understood that his general consent to search included allowing the law enforcement officer to pull his pants and underwear away from his body and shine a flashlight on his genitals. See Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302. Although these events occurred at 3:30 a.m., the search occurred in the parking lot of an apartment complex, as opposed to a secluded area or police station. Both Officers Correa and Herrera were present during the search. The record does not indicate that the officers asked defendant to step behind a car door, used their bodies to screen defendant from public view, or took other action to shield defendant during the search, as the officers did in Smith. 118 N.C. App. at 109, 454 S.E.2d at 682. Nor did they ask defendant to clarify the scope of his consent. Officer Correa testified that he was “not really expecting to find anything, honestly” during his search of defendant, unlike in Smith where the officers had specific information that cocaine was hidden in the defendant’s crotch. Id. at 112-13, 454 S.E.2d at 684.

We conclude defendant’s general consent to search did not authorize the officer to employ the very intrusive measures undertaken here. In concluding otherwise and denying defendant’s motion to suppress, the trial court focused on reasonableness from the officer’s perspective, rather than on the reasonable expectations of the person in defendant’s circumstances. Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302 (“The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of ‘objective’ reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?”).

Bail bond agent’s information about defendant’s status as a fugitive could be relied upon by the police as reasonable suspicion. United States v. Bourrage, 2007 U.S. Dist. LEXIS 89926 (S.D. Iowa December 5, 2007).

Defendant was being watched as an expected drug deal went down, and he entered the drop point with a weighted bag and left with a lighter one. He showed up at the appointed time, and the police looked in his car window and saw what would have been packaging for cocaine in larger quantities. That was probable cause. United States v. Gonzalez-Calderon, 2007 U.S. Dist. LEXIS 89983 (D. Mass. December 3, 2007).*

Defendant City and officers were entitled to summary judgment for shooting plaintiff during a SWAT entry where he could not be subdued by bean bag shots or pepper spray, and he stabbed the police dog and then attacked the canine officer with a knife. Finally, he was shot. Haugh v. City of Louisville, 242 S.W.3d 683 (Ky. App. 2007).*

A guest of a motel guest had standing to challenge the search of the room. While he might have somehow violated hotel policy [something not really realistic], he had a reasonable expectation of privacy in the room, one that society would recognize as reasonable. United States v. Rollins, 2005 U.S. Dist. LEXIS 43849 (D. Utah July 18, 2005).

Assuming, without deciding, that a cotenant could not consent to a search that produced clothing identifiable by a robbery victim, it was harmless beyond a reasonable doubt when the cotenant also testified to defendant’s appearance that day. People v. Bass, 155 P.3d 547 (Colo. App. 2006):

Here, the victim described her attacker as having bushy hair and a scraggly beard, and she stated that he was wearing “dark clothing and dark blue jeans” and “[h]e had a black shirt on, that … had some sort of writing on it or picture.” Likewise, the tenant testified that, on the early morning of July 10, Bass appeared “scruffily and scraggly . . . his hair was all out of place,” he had several days growth of beard, and he was wearing a “black shirt, a camel T-shirt” and dark blue jeans.

Bass argues that the admission of the seized clothing was not harmless because it helped bridge a gap between the victim’s description of her attacker and Bass’s physical appearance. However, the tenant testified in detail regarding Bass’s appearance, and the seized clothing merely served to corroborate that description. Accordingly, we conclude the guilty verdict rendered in this case was surely unattributable to the error, see Bernal, supra, and, therefore, was harmless beyond a reasonable doubt.

The community caretaking function could not be applied to seizure of a defendant who fled from officers. Commonwealth v. Quezada, 67 Mass. App. Ct. 693, 856 N.E.2d 189 (November 2, 2006), aff’d 450 Mass. 1030, 879 N.E.2d 1242 (2008):

The motion judge concluded that the flight of the defendant was a nonverbal response to the officer that the defendant was not in need of assistance and that the action of the police did not come within the community caretaking function. We agree.

The community caretaking function “applies when the purpose of the police [intrusion] is not to gather evidence of criminal activity but rather, because of an emergency, to respond to an immediate need for assistance for the protection of life or property.” Commonwealth v. Bates, 28 Mass. App. Ct. 217, 219 & n.2 (1990). Even though the defendant appeared impaired and possibly injured, he was being assisted by another person. Certainly the police would have been warranted in offering aid, but in these circumstances, chasing the defendant and ordering him to stop went beyond the scope of the community caretaking function. Contrast Commonwealth v. Murdough, 428 Mass. 760, 762 (1999) (police officers acted reasonably in asking defendant to get out of vehicle because they were “concerned about his condition” and they “thought that the defendant might have been on a narcotics bender and fresh air might do him good”, quoting from Commonwealth v. Murdough, 44 Mass. App. Ct. 736, 738 [1998]). Here, the defendant was not operating a motor vehicle, which could, in his condition, have posed a potential danger to the public. Contrast Commonwealth v. Evans, 436 Mass. 369, 372-373 (2002) (police may ask whether driver of automobile parked in breakdown lane with blinker flashing needs assistance). See generally Commonwealth v. Brinson, 440 Mass. 609, 615 (2003).

Nor was this a proper exercise of police power, as the Commonwealth argues, under the protective custody statute, G. L. c. 111B, § 8, which provides, among other provisions, that the police may temporarily detain people and determine whether they are intoxicated. The authority of the police to act under c. 111B, § 8, is limited to persons incapacitated by alcohol who are “(1) unconscious, (2) in need of medical attention, (3) likely to suffer or cause physical harm or damage property, or (4) disorderly.” G. L. c. 111B, § 3, as inserted by St. 1971, c. 1076, § 2. “The reasonable suspicion standard is … appropriate to G. L. c. 111B, § 8, the protective custody statute.” Commonwealth v. McCaffery, 49 Mass. App. Ct. 713, 716 (2000). There is nothing in the record to indicate that Horan was aware of sufficient facts to support a belief that the defendant was incapacitated due to alcohol within the meaning of the statute. To the extent there may be a gap in the statute because it only pertains to incapacity due to alcohol consumption, it is for the Legislature to enact a statute that provides for protective custody of persons incapacitated from the ingestion of drugs or for other reasons.

Defendant’s overbreath challenge to a drug premises statute was rejected. On the search and seizure claim, there was nothing in the statute that mandated a search, so that challenge is rejected as well. State v. Macelman, 154 N.H. 304, 910 A.2d 1267 (2006).*

Defendants’ conduct of one hiding face behind a map during traffic stop and then both coming out of the car and walking back to the patrol car, to the officer’s great alarm, while the officer was on the radio was reasonable suspicion. People v. Leiva, 33 A.D.3d 1021, 823 N.Y.S.2d 494 (2d Dept. October 31, 2006):

In light of the suspicious conduct of the defendant’s passenger in attempting to cover his face with a map, in light of the “very very rare” conduct of the two men in later approaching the officer while she was speaking over the police radio, the defendant having given contradictory responses when asked about his destination, together with the various other circumstances revealed at the pretrial hearing, the officer at the very least had a founded suspicion that criminal activity was afoot so as to authorize her and the other officers to request the defendant’s consent to a search of the minivan.

A bottle cap folded around a plastic bag is commonly associated with containing drugs, and that is PC to believe drugs are inside when it is seen in a vehicle. State v. Stock, 209 Ore. App. 7, 146 P.3d 393 (November 1, 2006).

Exigent circumstances were not present to justify a police entry. The only exigency was police created. Commonwealth v. Dean, 2008 PA Super 3, 940 A.2d 514 (2008):

[*P16] Applying the afore-cited precepts to the present case, we hold that the entry of the police into Appellee’s hotel room was illegal. The police were not in hot pursuit of a fleeing felon, there was no danger to anyone justifying immediate entry, the offense (simple possession of marijuana) was not grave in the sense of danger or injury to anyone, there was no information that Appellee was armed, and there was no evidence that Appellee would escape if they did not enter at that moment or that evidence would be destroyed. It must be recalled that the police’s information that Appellee was using marijuana and methamphetamine in Room 211 came from her nephew, who was in custody at the exact time entry was obtained into Appellee’s hotel room. Thus, there is no reason to believe that Appellee could have received advance notice of the police’s intentions so as to flee or destroy evidence. Further, the search was of permanent premises, not of a movable vehicle. See Johnson, supra.

[*P17] On the contrary, the dangers that did arise and the circumstances that did become exigent did not occur until the police announced their presence and identity, which was followed immediately by entry into Appellee’s hotel room. In other words, the actions of the police created the exigency here. The police could have secured a search warrant prior to Appellee realizing that an investigation was under way. See Johnson, supra. The probable cause to arrest Appellee was based in part on what was observed in the hotel room. And, because the police were not in a position where they were entitled to be when they observed the content of the premises (drugs and money), the “plain view” doctrine does not come into play to sanitize their illegal entry into Appellee’s hotel room. See McCree, supra; see also Commonwealth v. Swenda, 2006 Pa. Dist. & Cnty. Dec. LEXIS 282 (filed December 8, 2006).

[*P18] We conclude that entry into Appellee’s hotel room was not supported by an exigency justifying the warrantless intrusion. If there were any exigencies, they were the by-product of the police’s decision to make a warrantless entry rather than secure a search warrant. Accordingly, we find that the search and seizure of evidence was unconstitutional and the fruits of the search and seizure are suppressible, which includes Appellee’s statement and her consent form.

Under Randolph, the police are not required to ask the defendant for consent just because he is nearby. The third party with apparent authority was asked, and she consented. Prophet v. State, 970 So. 2d 942 (Fla. 4DCA 2008).*

From the Phoenix New Times: Border Patrol checkpoints near Yuma nab hordes of pot users headed back from the beach.

Officers were permitted into defendant’s house, but defendant revoked consent after the officers had developed probable cause. The officers refused to leave because they feared destruction of documentary evidence. They stayed until a search warrant arrived, and this was reasonable under McArthur. State v. Bass, 2008 Tenn. Crim. App. LEXIS 185 (February 28, 2008).

Petitioner showed good cause to get access to records for his habeas claim that included a Fourth Amendment claim. [Note that the court did not dismiss the claim out of hand that it was barred under Stone. He at least gets to try to develop his claim, which likely will fail.] Daniels v. Jones, 2008 U.S. Dist. LEXIS 19689 (W.D. Mich. March 13, 2008).*

Defendant handed a towel with cocaine in it to a person on the parking lot of a pool hall saying that he was coming back. She opened it, realized it was drugs, and she called the police. This provided cause for defendant’s stop. State v. Sain, 2008 Tenn. Crim. App. LEXIS 184 (March 6, 2008).*

Under the 2006 amendments to F.R.C.P. 34(a), it is now possible in a civil case for a litigant to get access to an opponent’s computer or a computer network to conduct their own search for electronic evidence if certain standards are met. See Nolan M. Goldberg, Is Your Data Wide Open to Your Opponent?, in the NLJ.

This is an interesting article, and it discusses case law and protective measures to insure that the computer search does not go too far or that protected or irrelevant information is not disclosed. One thing not mentioned that maybe should have been is whether a court authorized search of a computer should be governed by the Fourth Amendment. It is a private search if a private litigant is involved, but, if court approval for such a search is sought, is not the Fourth Amendment implicated because an arm of the government authorized it?

The standards mentioned in the case law would appear to satisfy at least an administrative search-type probable cause standard:

While the amendment to Fed. R. Civ. P. 34(a) was “not meant to create a routine right of direct access to a party’s electronic information system” such access “might be justified in some circumstances.” Fed. R. Civ. P. 34(a) Advisory Committee Note. The factors courts use to determine appropriate circumstances are:

• The specificity of the discovery request;

• The quantity of information available from other and more easily accessed sources;
• The failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources;
• The likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources;
• Predictions as to the importance and usefulness of the information;
• The importance of the issues at stake in the litigation.
• The parties’ resources.

Ameriwood Indus. Inc. v. Liberman, No. 4:06CV524-DJS, 2006 WL 3825291, at *4 (E.D. Mo. Dec. 27, 2006), citing Fed. R. Civ. P. 26(b)(2) Advisory Committee Note.

In practice, these factors have been found to favor an inspection when there was a showing of discovery irregularities, such as document deletion. See, e.g., Ameriwood, Id. at *5 (finding “specific evidence establishing that the defendants had not produced all responsive documents from their computers”). …

An adult sexually oriented business, here a strip club, was not entitled to a preliminary injunction against inspections of the premises because of a lack of likelihood of success on the merits because of multiple district court cases in the circuit against them. Whether it is a “pervasively regulated industry” is discussed but it does not have to be decided. Platinum Sports v. City of Detroit, 2008 U.S. Dist. LEXIS 17181 (E.D. Mich. March 6, 2008):

Section 5-2-6 provides that members of the Police Department or any City department authorized by the ACO, “may enter the premises at reasonable times to inspect, subject to constitutional restrictions on unreasonable searches and seizures.” Plaintiffs argue that section 5-2-6 gives the City’s agents the right to enter and inspect the premises without a warrant and without any limitations on the scope of the inspection or the places where the inspection may be conducted, in violation of the Fourth Amendment.

Three district court cases from the Sixth Circuit, as well as one appellate case, support the conclusion that in order for a warrantless inspection clause to pass constitutional muster, it must be limited to inspections at reasonable times, referring to regular business hours, and must be restricted to areas of the premises which are open to the public. See, Deja Vu II, 411 F.3d at 796; Ellwest Stereo Theater, Inc. v. Boner, 718 F. Supp. 1553, 1577 (M.D. Tenn. 1989); J.L. Spoons, Inc. v. City of Brunswick, 49 F.Supp.2d 1032, 1039-41 (N.D. Ohio 1999); Kentucky Restaurant Concepts, Inc. v. City of Louisville, 209 F. Supp. 2d 672, 691 (W.D. Ky. 2002). The City directs the Court to cases which hold that sexually oriented businesses are pervasively regulated businesses, such that the owners have a reduced expectation of privacy. Against this backdrop, various courts from other circuits have held that inspections of sexually-oriented businesses without a warrant are constitutional if they are limited to times when the premises are occupied or open for business. These cases permit searches of areas not open to the public. See, FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298, 1306 (5th Cir. 1988). In light of the court’s treatment of the issue in Deja Vu II, it is not likely that the Sixth Circuit will follow the Fifth Circuit’s approach.

The section at issue limits searches without a warrant to “reasonable times”, and “subject to constitutional restrictions on unreasonable searches and seizures.” The section is likely to be interpreted in this Circuit as being limited to inspections during regular business hours, and of public areas only. The general limiting language of the Ordinance probably saves this provision from plaintiffs’ facial challenge; thus, no injunctive relief will be granted at this juncture.

The collective knowledge doctrine should be extended to include 911 operators. Surveying the case law, this view seems better to the court, but the officers had reasonable suspicion in any event. People v. Ewing, 377 Ill. App. 3d 585, 880 N.E.2d 587 (4th Dist. 2007):

The Illinois courts have yet to address whether information known to a civilian 9-1-1 dispatcher may be imputed to the police officers. Several federal circuits have extended the collective-knowledge doctrine to situations involving a dispatch by a civilian 9-1-1 operator as opposed to another police officer. See United States v. Fernandez-Castillo, 324 F.3d 1114, 1118 (9th Cir. 2003); United States v. Kaplansky, 42 F.3d 320, 327 (6th Cir. 1994); United States v. Cutchin, 956 F.2d 1216, 1217-18 (D.C. Cir. 1992).

The Second Circuit, however, has disagreed, finding that whether the knowledge may be imputed depends upon whether the 9-1-1 operator had sufficient training to assess the information in terms of reasonable suspicion. See United States v. Colon, 250 F.3d 130, 138 (2d Cir. 2001) (holding that the police officer had insufficient information from which to conclude that a stop and frisk was appropriate wherein the civilian 9-1-1 operator lacked the training to assess the information in terms of reasonable suspicion and failed to convey sufficient information to the police officer); see also United States v. Wehrle, No. CR406-333, slip op. at 4 (February 14, 2007), ___ F.3d ____, ____, 2007 WL 521882 (S.D. Ga. 2007) (holding that information known to the civilian 9-1-1 dispatcher could be imputed to the police officer where the dispatcher had specialized law-enforcement training).

We conclude that the cases that hold the imputed-knowledge doctrine includes information contained in calls to 9-1-1 operators are more persuasive than those holding to the contrary. However, even if we were not so persuaded, we would still conclude that the information communicated to the police officers provided them with sufficient information to form reasonable suspicion. …

Officer candidly did not know what was in defendant’s pocket; he knew it was not a weapon, and he had a hunch it was a crack pipe. That was not plain feel. State v. Daugherty, 2007 Ohio 6822, 2007 Ohio App. LEXIS 5961 (8th Dist. December 20, 2007):

[*P19] In the present case, because Detective Vanverty did not immediately identify the object as contraband, we therefore conclude that his seizure of the contraband went beyond the limits of Terry as propounded in Dickerson, supra, and Evans, supra.

[*P20] Detective Vanverth clearly stated in his testimony at the suppression hearing that the object he felt in Daugherty’s pocket was “small *** probably the size of a pen, or maybe a pencil.” The trial court later confirmed from the parties that the object was approximately two inches long with the diameter of a pen or a pencil. While the detective stated that he had a hunch that the object was a crack cocaine pipe, he testified numerous times that he was not sure what the object was. The limits of Evans, supra, and Dickerson, supra were clearly exceeded by Detective Vanverth’s search and seizure.

A probationer’s roommate has a reduced expectation of privacy in his own premises because the roommate is subject to probation searches. Here, the probation search of defendant’s roommate led to evidence against defendant, and the judgment was affirmed. State v. Hurt, 2007 ND 192, 743 N.W.2d 102 (2007):

[*P19] We find no authority that would create an exception for third-party co-occupant consent derived from probation clauses. See State v. Yule, 905 So. 2d 251, 264 (Fla. App. 2d 2005) (Canady, J., concurring) (“The fact that a probationer shares a residence with another does not nullify the authority of probation and law enforcement officers to conduct a properly justified warrantless search of the probationer’s shared residence. A person choosing to live in the same home with another who is subject as a probationer to warrantless searches has a corresponding diminished expectation of privacy.”); People v. Pleasant, 19 Cal. Rptr. 3d 796, 798 (Cal. App. 4th 2004) (“Persons who live with probationers cannot reasonably expect privacy in areas of a residence that they share with probationers. … Since [co-occupant] gave a search waiver as a condition of probation, law enforcement authorities could, without a warrant or probable cause, search areas used exclusively by [the probationer], areas within ‘common authority'[] of the probationer and fellow occupants and areas which she ‘normally had access.'”); United States v. Crew, 345 F. Supp. 2d 1264, 1266 (D. Utah 2004) (“When the parolee, as a cohabitant of premises, gives consent to enter and to search, that consent is valid as to his personal space and all common space.”); State v. West, 517 N.W.2d 482, 491 (Wis. 1994) (stating that a “parole search may extend to all parts of the premises to which the probationer or parolee has common authority, just as if it were a consent search”); State v. Johnson, 748 P.2d 1069, 1073 (Utah 1987), abrogated on other grounds by State v. Doporto, 935 P.2d 484 (Utah 1997) (“A warrantless search of a parolee may result in an invasion of privacy, at least to some extent, for those living with the parolee.”). Those who voluntarily choose to live with probationers, like any other voluntary co-occupant living arrangement, assume the risk they will have diminished their Fourth Amendment rights. See, e.g., Randolph, 547 U.S. at 110 (quoting Matlock, 415 at 171, n.7) (“[T]hird-party consent … rests [] on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.”); Yule, 905 So. 2d at 264 (Canady, J., concurring) (“A person choosing to live in the same home with another who is subject as a probationer to warrantless searches has a corresponding diminished expectation of privacy.”).

[*P20] Hurt voluntarily chose to live with Bickler. We see no reason to treat Bickler’s consent, albeit in the form of a probation term, differently from the verbal consent that could be given by any other co-occupant. The co-occupant consent-to-search exception to the warrant requirement applies in this case, and as such, the district court properly found the search of the common areas of Hurt’s apartment was not unconstitutional.

Officer who did not conduct defendant’s patdown did not testify at the suppression hearing, so the state failed in its burden of proof in showing it was justified. Commonwealth v. Thompson, 2007 PA Super 372, 939 A.2d 371 (2007).

Defendant was stopped for a traffic offense, and he put his car in reverse to try to get away. That, coupled with furtive movements, was reasonable suspicion for more. United States v. Thornton, 2007 U.S. Dist. LEXIS 90327 (D. Conn. December 10, 2007).*

Arizona Contractors Assn. might have standing to sue on behalf of its membership for being forced to comply with verifying the alienage of workers the members employ, although they sued the wrong defendant, but not as to all elements of the statute, so the action is dismissed. They proved they were subject to prosecution, but an Art. III “case or controversy” was lacking. Arizona Contractors Ass’n v. Napolitano, 526 F. Supp. 2d 968 (D. Ariz. 2007).*

Grand jury subpoenas were not used for mere fishing expeditions, and the defense was free to re-raise the issue at trial and did not. Subpoena power was not abused. United States v. Edelmann, 2007 U.S. Dist. LEXIS 90355 (E.D. Ark. December 6, 2007).*

Plaintiff is incorrect that the officer who stopped her needed probable cause; it was only reasonable suspicion. The contradictory allegations of the complaint need to be corrected, if plaintiff can, by amendment. Harrell v. Cal. Highway Patrol, 2007 U.S. Dist. LEXIS 90436 (E.D. Cal. November 29, 2007).*

Trial court erred in finding that defendant did not waive his expectation of privacy in the child porn on the video files on his computer when he took it to Circuit City for installation of a new DVD drive. Installers always check to see if the video files will load after installation, and that was how it was discovered. Commonwealth v. Sodomsky, 2007 PA Super 369, 939 A.2d 363 (2007).*

Plaintiffs fail to show an equal protection claim that they were profiled, but they do survive summary judgment on the driver’s claim that he was manhandled during a frisk that was unjustified. Llanes v. Barton, 2007 U.S. Dist. LEXIS 89245 (D. Neb. December 4, 2007).*

Affidavit for search warrant was so deficient that the defendant officer could not get summary judgment over the civil claim over the search. Lopez v. County of Kauai, 2007 U.S. Dist. LEXIS 89242 (D. Haw. December 4, 2007).*

Suit for injunctive relief against ICE was dismissed because the plaintiffs’ claims they would be subjected to future harassment and searches was speculative. Mancha v. Immigration and Customs Enforcement, 2007 U.S. Dist. LEXIS 89414 (N.D. Ga. December 3, 2007).*

“In sum, defendant’s right to be free from unreasonable searches did not grant him the constitutional right to refuse a breath test or a field sobriety test, when requiring those tests would have been supported by probable cause and the officer was faced with exigent circumstances occasioned by the dissipation of the alcohol content in defendant’s blood. Nor was the state obliged to obtain a warrant before introducing evidence of defendant’s refusals to submit to those tests.” State v. Greenough, 216 Ore. App. 426, 173 P.3d 1227 (2007).*

Dog sniff after handing driver a warning ticket was based on reasonable suspicion. State v. Euceda-Valle, 182 N.C. App. 268, 641 S.E.2d 858 (2007):

Because the canine sniff occurred after defendant was handed the warning ticket, we analyze this case in accordance with McClendon. We hold that the trial court’s findings of fact support its legal conclusion that law enforcement had a reasonable suspicion necessary to conduct the exterior canine sniff of the vehicle. Defendant was extremely nervous and refused to make eye contact with the officer. In addition, there was smell of air freshener coming from the vehicle, and the vehicle was not registered to the occupants. And there was disagreement between defendant and the passenger about the trip to Virginia. We conclude that these facts support a basis for a reasonable and cautious law enforcement officer to suspect that criminal activity is afoot. See McClendon, 350 N.C. at 637, 517 S.E.2d at 133 (initial confusion as to owner of the vehicle, extreme nervousness, refusal to make eye contact and other circumstances supported reasonable suspicion); see also Hernandez, 170 N.C. App. at 309, 612 S.E.2d at 426-27 (reasonable suspicion supported by nervousness and strong odor or air freshener in vehicle). This assignment of error is overruled.

Officers had probable cause to search defendant’s car. The fact a drug dog did not alert did not dissipate the probable cause. United States v. Figueroa, 2007 U.S. Dist. LEXIS 19377 (D. Kan. March 1, 2007).

Protective sweep was justified because of reasonable suspicion to believe another person and a weapon were present, and those were sufficient exigent circumstances. Williams v. Commonwealth, 49 Va. App. 439, 642 S.E.2d 295 (2007) (citing Treatise).

Search warrant in a securities fraud investigation fairly authorized a search of defendant’s office for records within a business. State v. LaCount, 2007 WI App 116, 301 Wis. 2d 472, 732 N.W.2d 29 (2007).*

A police command to open one’s door is a search. This case is similar to Johnson v. United States (1948) that the officer smelling marijuana needed a warrant to enter. They just could not bang on the door and create an exigency. United States v. Mowatt, 513 F.3d 395 (4th Cir. 2008):

The government’s first argument, that the officers’ requiring Mowatt to open his door so that they could see him did not constitute a search, is easily resolved. It is well established that a search occurs for Fourth Amendment purposes “when officers gain visual or physical access to a … room after an occupant opens the door not voluntarily, but in response to a demand under color of authority.” United States v. Conner, 127 F.3d 663, 666 (8th Cir. 1997). Under such circumstances, the fact that “the officers gained visual access to the interior of a dwelling without physically entering it is irrelevant to the question [of] whether a search was effected.” United States v. Winsor, 846 F.2d 1569, 1572 (9th Cir. 1988) (en banc).

. . .

Johnson v. United States, 333 U.S. 10 (1948), governs our decision. In Johnson, police officers obtained information from an informant that people were smoking opium in a hotel. When the officers went to the hotel to investigate, they immediately recognized the smell of opium, and then traced the odor to a particular room. Not knowing who occupied the room, the officers knocked and identified themselves as police. After a slight delay, there was “some shuffling or noise” in the room and then the defendant opened the door. Id. at 12 (internal quotation marks omitted). The lead officer told the defendant that he wanted to talk to her about the opium smell, and the defendant let the officers into the room. The officers proceeded to arrest the person who opened the door and searched the room, uncovering incriminating opium and smoking apparatus. A district court refused to suppress the evidence, and the Ninth Circuit affirmed.

The Supreme Court reversed. The Court concluded that the officers’ entry into the room had been “demanded under color of office” and was therefore not by the defendant’s consent. Id. at 13. It also determined that “[a]t the time entry was demanded the officers were possessed of evidence which a magistrate might have found to be probable cause for issuing a search warrant.” Id. The Court thus held that the warrantless search was unconstitutional, noting that “[n]o reason is offered for not obtaining a search warrant except the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate. These are never very convincing reasons.” Id. at 15. The Court further added that, at the time the officers announced themselves and demanded entry, there was no exigency justifying dispensing with the warrant requirement. See id. In particular, the Court noted: “No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time would disappear. But they were not capable at any time of being reduced to possession for presentation to court.” Id.

We see no basis for distinguishing Johnson from the case at bar. The officers here likewise offered no justification for not seeking a warrant prior to knocking on the door, other than the slight delay or inconvenience that obtaining a warrant might have caused, reasons Johnson held were not sufficient. See id. Thus, although the officers had every right to knock on Mowatt’s door to try to talk to him about the complaint, see United States v. Cephas, 254 F.3d 488, 494 (4th Cir. 2001), without a warrant, they could not require him to open it. See Conner, 127 F.3d at 666.

Taking the facts most favorably to the defendant who prevailed on his suppression motion, the officer had reasonable suspicion for the defendant’s stop in a grocery store parking lot known for hand to hand drug sales. The activity observed here was unmistakable. United States v. McCoy, 513 F.3d 405 (4th Cir. 2008).*

Hawai’i decides a case on reasonable suspicion from where the officer had reason based on the timing of defendant’s reappearence on the streets after a prior arrest for driving without a license. The court provides an insightful look into how the timing of the second sighting can provide reasonable suspicion. There was a dissenting opinion, too. State v. Spillner, 116 Haw. 351, 173 P.3d 498 (2007):

Spillner challenges this conclusion as applied to the instant matter. He contends that, regardless of how close in time prior criminal activity is with current activity of a similar nature, the prior activity cannot be a factor in the analysis of reasonable suspicion and that an officer’s prior knowledge of past violations, standing alone, can never, as a matter of law, authorize a traffic stop predicated solely upon the officer’s suspicion that a driver is committing the offenses of driving without a license or driving without adequate insurance.

This absolutist proposition is demonstrably flawed. Let us posit that, late one evening, an officer effects a valid traffic stop of a vehicle after witnessing an uncontested violation of the traffic or vehicle safety codes and, incidental to that valid stop, the officer discovers that the driver is not merely without his or her license but is, in fact, unlicensed to drive in the jurisdiction. Upon encountering the same individual later the same evening, once again driving — at a time during which the license-issuing authority has not yet reopened — the officer would have more than reasonable suspicion to effect a second brief traffic stop of the driver to investigate whether he or she is driving without a license. Reasonable suspicion can, therefore, be established that the defendant has fixedly refused to cease prior criminal behavior, personally observed by the officer, absent other observed violations of the traffic or safety codes.

Even in light of a more protracted interval, however, during which the individual could have corrected the former criminal behavior, a police officer may nevertheless have reasonable suspicion that the person has, in fact, failed to amend his or her behavior. To extend the hypothetical, if the second encounter occurs after the licensing authority has reopened, it would then be conceivable for the defendant to have renewed his or her license in the interim — the realistic likelihood of the defendant doing so increasing with the passage of time — but, depending on the particular facts informing the officer’s decision, reasonable suspicion could still warrant effecting a traffic stop of the driver, despite the possibility of innocence, because “[a] determination that reasonable suspicion exists … need not rule out the possibility of innocent conduct,” Arvizu, 534 U.S. at 277; see also United States v. Cortez-Galaviz, 495 F.3d 1203, 1208 (10th Cir. 2007) (“Reasonable suspicion requires a dose of reasonableness and simply does not require an officer to rule out every possible lawful explanation for suspicious circumstances before effecting a brief stop to investigate further.”) (concluding that reliance on twenty-day old information that the driver did not have insurance did not render the investigatory stop unreasonable); Decoteau, 681 N.W.2d at 806 (explaining that “[t]he reasonable suspicion standard does not require an officer to rule out every possible innocent excuse … before stopping a vehicle for investigation,” and, insofar as “[p]robabilities, not hard certainties, are used in determining reasonable suspicion,” concluding that “[t]he officer’s suspicion is not rendered unreasonable merely because the driver’s license may have been reinstated in the intervening week”).

Owner of rental units’ nephew had apparent authority to consent to entry of his uncle’s cabin he was caring for that he thought had intruders in it. This right was superior to the person inside who had an oral sublease never conveyed to the landlord. People v. Dean, 2007 NY Slip Op 10417, 46 A.D.3d 1229, 848 N.Y.S.2d 736 (3d Dist. 2007):

Here, “based upon an objective view of the circumstances present” (People v Adams, supra), the trooper’s belief that the nephew, as the caretaker of the property, had authority to consent to the search of a rental unit that was supposed to be vacant was reasonable (see id.; …). Stated otherwise, it was reasonable to conclude that the nephew had authority to permit the trooper to enter a rental unit that he, as well as Rolleri, believed to be empty to investigate the complaint of intruders inside (see People v McMahon, supra). While defendant apparently believed he had a right to live in the cabin based on an alleged oral sublease with the departing tenant, this arrangement was never conveyed to Rolleri or the nephew; thus, their rights, as property owner and caretaker, respectively, to permit access inside the cabin remained intact (compare People v Ponto, 103 AD2d 573 [1984]).

Defendant never specifically addressed the issue he appealed on in the motion or the hearing so he can’t complain that the trial court did not rule on it. State v. Atchley, 2007 Ohio 7009, 2007 Ohio App. LEXIS 6141 (10th Dist. December 27, 2007).*

While flight alone under Wardlow is not reasonable suspicion, it is when the flight occurs from the scene of a crime. The police arrived at the scene of a call about a bar fight, and defendant was the only person in a group to flee from the police. State v. Easley, 2007 Iowa App. LEXIS 1288 (December 12, 2007):

A suspect’s flight, in addition to his presence at the scene of a recently committed crime, provides the type of specific, articulable facts allowed under Terry to justify a brief detention by officers to resolve any ambiguity. See Terry, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906; see also Wardlow, 528 U.S. at 125, 120 S. Ct. at 677, 145 L. Ed. 2d at 577 (noting how Terry recognized that officers could detain individuals to resolve the ambiguity between acts that may either be innocent or criminal). Based on Easley’s behavior after seeing the officer arrive, we conclude Wertz had the reasonable suspicion necessary to justify the detention of Easley. Accordingly, we find the district court did not err in denying Easley’s motion to suppress because his constitutional rights under the Fourth Amendment were not violated.

Heck bar did not apply to an administrative search determination that favored the plaintiff and was not even attacking a conviction. Elkins v. District of Columbia, 527 F. Supp. 2d 36 (D. D.C. 2007).*

Defendant drove through headlights of patrol car parked perpendicular to road, and it was obvious that the window tint was too dark. This was cause for a stop, and the officer smelled marijuana when the window was rolled down, and that was probable cause. United States v. Ushery, 526 F. Supp. 2d 497 (M.D. Pa. 2007).*

Defendant argued that her cellphone text messages were seized without a search warrant, but the court finds consent to the seizure. United States v. Jones, 2007 U.S. Dist. LEXIS 91187 (M.D. Pa. December 12, 2007).*

Stop was based on the defendant’s car being unsafe, and the officer quickly developed probable cause, and a search incident was proper. United States v. Tolle, 2007 U.S. Dist. LEXIS 91308 (D. Or. December 6, 2007).*

State satisfied burden of proving consent in a knock and talk of a motel room. Bryant v. State, 288 Ga. App. 863, 655 S.E.2d 707 (2007).*

Defendant who ran through the house of a friend evading the police did not show that he had standing. His blanket assertion he was a “guest” was not enough. State v. Gulley, 2008 Ohio 887, 2008 Ohio App. LEXIS 740 (9th Dist. March 3, 2008):

[*P25] There is no indication that Thomas Walker gave Gulley permission to enter his home or that either of the Walkers even knew when Gulley came to the house. In fact, Danielle was not even home when Gulley ran to the house to evade Officer Overdorf. Gulley ran straight into the enclosed and unlocked porch. Additionally, Gulley makes no attempt to distinguish his privacy expectation in the Walker home from the privacy expectations of the other ten to twelve different individuals who came into the home each day. Although social guests enjoy Fourth Amendment protection in certain instances, privacy does not attach per se upon a person’s blanket assertion that they are a guest in another’s home. See Olson, 495 U.S. at 98-99 (explaining that an overnight guest may have an expectation of privacy if their expectation is legitimate and consistent with “longstanding social custom”). Gulley fails to set forth any evidence beyond this blanket assertion.

Comment: This does not mean that the defendant has to call the putative host as a witness, although that is the best course. Standing could be proved by other things on the premises that show standing. Even “things” are not required to be shown, where, for example, the defendant is a close relative and has coming and going privileges as to the premises, but there better be evidence to prove it. The defendant can always testify as to standing, e.g.: “This is my aunt’s house, and I am there every afternoon with my cousins. I don’t even have a key but I don’t need one because the door is unlocked or there is somebody home who lets me in.” That is standing.

While defendant admitted he consented to a search of his premises after his arrest, he believed that the search was limited to drugs. Even so, in plain view was obvious evidence of money laundering. Money laundering activities had been heard on wiretaps. United States v. Oruche, 2008 U.S. Dist. LEXIS 16701 (S.D. N.Y. March 5, 2008):

The Government had sufficient reason to believe that the MoneyGram terminal, computers, and documents seized were connected to the criminal activities, including money laundering, that the Government was investigating. See United States v. O’Brien, 498 F. Supp. 2d 520, 543-44 (N.D. N.Y. 2007) (seizure of computer was justified by plain view doctrine because officer had reason to believe that the computer would contain child pornography). Accordingly, Oruche’s motion to suppress items seized from [his business] is denied.

On NYTimes.com today: The FBI Inspector General claims that the FBI has curtailed the use and abuse of National Security Letters and developed better standards for their use. Critics disagree. F.B.I. Says Records Demands Are Curbed.

Directing plaintiffs to leave during execution of a search warrant was not a seizure of them at all. Streater v. Cox, 2008 U.S. Dist. LEXIS 14907 (E.D. Mich. February 28, 2008):

Plaintiffs claim they are entitled to damages against defendants George Harris and Michael Williams in their individual capacities because the two executed a search warrant at Plaintiffs’ place of employment March 16, 2005. They claim they were forced to leave work for six hours while Harris and Williams executed the warrant. Plaintiffs’ Fourth Amendment claim seems to implicate an unreasonable seizure–that by being forced to leave their place of employment, their movement was restricted, resulting in a form of seizure. However, the Supreme Court has held that “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981). In this case the plaintiffs were not “seized” in any way. They were, in fact, allowed to leave the work premises while a search was conducted pursuant to a valid search warrant.

There was ample probable cause shown in the affidavit for the search warrant, including a huge number of wiretaps. It would also be supported by the good faith exception. Other evidence found during the execution of the search warrant was in plain view. United States v. Martin, 2008 U.S. Dist. LEXIS 14898 (E.D. Tenn. February 26, 2008)* (Pro se motion to suppress; not even a close call on PC.).

Defendant alleged that he found a search and seizure issue after he got to prison, but it was held waived. It was not a part of his IAC claim against his counsel. Griffith v. United States, 2008 U.S. Dist. LEXIS 14845 (W.D. N.C. February 26, 2008).*