Four short questions at the conclusion of a traffic stop after issuance of a warning did not unduly extend the stop. People v. Roa, 377 Ill. App. 3d 190, 879 N.E.2d 366 (3d Dist. 2007):

However, the finding of an articulable basis does not end the inquiry. The analysis must proceed to determine if the four questions posed by Sergeant Blanks in this case converted the Terry stop into an illegal seizure. The record shows Blanks did not immediately ask for consent to search the vehicle. Rather, he posed several questions, each one serving as a building block for the next, logically progressing so that the last question could be asked in such a manner to make an affirmative answer more likely, if not inevitable. The first three questions the officer posed were short, succinct, and formulated to produce “yes” or “no” responses, which did not unduly delay the fourth and final question regarding consent to search. These brief inquiries are similar to the nature of questions asked by the officer in Terry and did not unfairly convert this brief investigative stop into an unconstitutional seizure of defendant or his vehicle.

Stop was validly based on a warrant for the passenger, and that led to plain smell of marijuana which justified a search of the car, which was consented to. Somesso v. State, 288 Ga. App. 291, 653 S.E.2d 855 (2007).*

Defendant failed to object to admission of evidence seized from his pocket at trial, so suppression was waived. Considering it on the merits, however, the defendant’s arrest for trespassing was not unlawful and it was based on probable cause, so the search incident to that arrest was valid. State v. Johnson, 237 S.W.3d 277 (Mo. App. 2007).*

Officer stopped vehicle for speeding that he knew had been stolen. That gave probable cause to search the occupants because it was reasonable to assume they were on a joint venture with the stolen car, per Pringle. Hatcher v. State, 177 Md. App. 359, 935 A.2d 468 (2007).*

District Court erred in concluding that there was reasonable suspicion at an earlier time that the Court of Appeals finds, but it is not reversible error. Officer shouting “Gun” and drawing weapon effected a stop because no reasonable person would believe he was free to go. United States v. Goddard, 377 U.S. App. D.C. 66, 491 F.3d 457 (2007):

We disagree with the district court that the stop happened “as soon as the police officers drove up to the gas station.” … Moreover, the fact that the car halted in the gas station’s entrance way does not suggest that a reasonable, innocent pedestrian would have felt unfree to leave.

Nor did the stop occur when the police exited their car and began to approach Goddard and the other three men. Admittedly, some of the circumstances are suggestive of a stop, including that four officers were present–all with guns and handcuffs showing and wearing identifiable MPD jackets and badges–and that the officers “jumped out” of the car. Tr. of June 21, 2004 Hr’g at 58. But the presence of multiple officers does not automatically mean that a stop has occurred.

Based on the record before us, the stop occurred when one of the officers yelled “gun” and told Walker to return to the group. We have no doubt that a reasonable person would feel unfree to leave upon hearing officers seven or eight feet away yell “gun”–a statement sure to arouse the concern of all officers and civilians in the immediate area–and order one of his companions to return. See Wood, 981 F.2d at 540 (finding stop where officer ordered defendant to stop); United States v. Alarcon-Gonzalez, 73 F.3d 289, 292 (10th Cir. 1996) (finding seizure where officer ordered defendant’s coworker to “freeze” when individuals “were only five feet apart and … obviously working together”).

Dissenting, Judge Janice Rogers Brown wrote: “As a result, what we are now tempted to enforce is not Terry but the rule that, in a high-crime neighborhood, being young, male, and black creates reasonable, articulable suspicion.”

Reasonable suspicion was present, primarily from the occupants of the car not having their stories straight as to where they were going. United States v. Orta, 228 Fed. Appx. 633 (8th Cir. 2007) (per curiam)*:

Within the first twelve minutes of the stop, the trooper observed (1) the vehicle’s California license plate, (2) a single key on the key ring in the ignition, (3) three cell phones on the center console, (4) Orta’s Washington driver’s license, (5) an insurance card presented by one of Orta’s passengers which did not list the stopped vehicle, and (6) inconsistent statements between Orta and a passenger about the length of their intended stay in St. Paul as well as their inability to provide specific information about their trip destination.

Search incident that occurred before arrest was valid where there was probable cause. United States v. Dotson, 246 Fed. Appx. 897, 2007 FED App. 0411N (6th Cir. 2007)* (unpublished).

The FAA’s 2006 rule that extends drug testing beyond maintenance workers to their subcontractors as well was a proper exercise of the FAA’s statutory authority under the Administrative Procedure Act. It also satisfied the Fourth Amendment. Aeronautical Repair Station Ass’n v. FAA, 377 U.S. App. D.C. 329, 494 F.3d 161 (2007):

The petitioners next contend the 2006 Final Rule’s drug testing requirement subjects employees of noncertificated subcontractors to unreasonable searches in violation of the Fourth Amendment. Again we disagree.

In National Federation of Federal Employees v. Cheney, 884 F.2d 603 (D.C. Cir. 1989), the court upheld against a Fourth Amendment challenge the U.S. Army’s practice of subjecting civilian aviation maintenance personnel to compulsory, random toxicological urine testing because the Army had a compelling interest in ensuring air safety given “the quintessential risk of destruction to life and property posed by aviation.” 884 F.2d at 610. The same justification exists here. Nonetheless, the petitioners offer three grounds for finding the testing program unconstitutional.

First, the petitioners assert that the employees subject to testing are “ordinary citizens.” The same is true, however, of the employees of certificated air carrier contractors and subcontractors and was true of the civilian employees in National Federation. Yet the petitioners do not suggest these groups may not constitutionally be tested.

Second, the petitioners object to the expansive scope of the testing insofar as it applies to all maintenance work, all employees who “participate” in the work and, especially, to current employees of noncertificated subcontractors. These objections applied as well to employees of a certificated contractor or subcontractor when they first became subject to testing in the late 1980s. Further, as to the first objection specifically, as indicated previously, the FAA can work out through guidance and consultation with subcontractors (as it has with certificated contractors and subcontractors) what is and is not test-triggering “maintenance” work. Further, as to the third objection, while testing of incumbents may as a general matter require a closer relationship between the employee’s job and the government interest served than does testing of new applicants, see Stigile v. Clinton, 110 F.3d 801, 805-06 (D.C. Cir. 1997); Willner v. Thornburgh, 928 F.2d 1185, 1188 (D.C. Cir. 1991), the nexus between aircraft mechanical work and aviation safety is sufficient, as our decision in National Federation made clear. Third, the petitioners argue, as earlier, that the additional testing “simply ‘is not needed'” in light of the airworthiness testing all aviation components undergo before being placed in service. Pet’rs Br. at 46 (quoting Chandler v. Miller, 520 U.S. 305, 320 (1997)). We reject this argument here for the same reasons given earlier. See supra Part II.B.2. Because of “the quintessential risk of destruction to life and property” posed by substance impaired lapses by maintenance workers at any tier, the testing is justified under National Federation.

Comment: Since this is the D.C. Cir., it spends more time on the administrative law issue and comparatively brushes off the Fourth Amendment, just barely adequately addressing it. As a civil libertarian who is a frequent flyer, with a son who builds airplanes (but not for airlines) and a former client who repaired private airplanes, I fully appreciate that even subcontractors should be drug tested, too. Am I a hypocrite? I don’t think so. I have also represented cops and firemen who were meth abusers on the job. The worse-case scenario would scare anybody.

In a fire scene search, the first was immediately after the fire while it was still being put out, and the officer wanted to collect evidence before water could damage it. His leaving the scene was just to retrieve a camera to photograph what was there, and that was merely a continuation of the first entry. The third search, however, was later in time and to collect criminal evidence, so the first two entries were valid and the third was not. State v. Lewis, 2007 MT 295, 340 Mont. 10, 171 P.3d 731 (2007).

The defendant’s encounter with the officer in this case in a convenience store parking lot was purely consensual, and the record supports that finding. State v. Cobbs, 2007 Ohio 5950, 2007 Ohio App. LEXIS 5215 (8th Dist. November 8, 2007).*

Two guys were stopped having bought lithium batteries and psuedophedrine and they admitted that they were delivering them to the defendant’s garage in exchange for money and drugs. They became informants and made the delivery. The police entered without a warrant, but they procured a warrant later. The primary illegality of the warrantless entry was purged by the issuance of the warrant based on independent probable cause. Horn v. Commonwealth, 240 S.W.3d 665 (Ky. App. 2007).*

Right of confrontation does not apply in pretrial proceedings like a suppression hearing. State v. Miller, 2008 Ohio 100, 2008 Ohio App. LEXIS 77 (5th Dist. January 11, 2008):

Appellant contends the out-of-court statements of the confidential informant offered by the police officer at the suppression hearing are “testimonial” under Crawford; however, “[t]he right to confrontation, which includes the right to physically face and cross-examine witnesses, is not a constitutionally compelled rule of pretrial proceedings.” State v. Dunn, Washington App.No. 03CA47. 2004 Ohio 2883, P 11, citing Pennsylvania v. Ritchie (1987), 480 U.S. 39, 52-53, 107 S.Ct. 989, 94 L.Ed.2d 40. Although this appears to be a question of first impression in this Court, the Sixth District Court of Appeals has concluded that the rule of Crawford applies to the actual criminal trial, not to a suppression hearing. See State v. Massie, Ottawa App.No. OT-04-007, 2005 Ohio 1678, P 16. Upon our review of Crawford and its progeny, we decline to extend the rule to pretrial suppression hearings under the circumstances of the case sub judice.

Defendant had an expectation of privacy in a locked footlocker located in a basement storage area that others had access to. It was a proper target of a search under a warrant, however, because it could have contained the object of the search: drugs. Commonwealth v. Pierre, 71 Mass. App. Ct. 58, 879 N.E.2d 131 (2008).*

Search of defendant’s jacket was not justified by consent, exigent circumstances, or any other exception that produced drugs used against him. However, it was harmless beyond a reasonable doubt. State v. Tallant, 2008 Tenn. Crim. App. LEXIS 21 (January 14, 2008).*

Intrusive search condition for defendant who pled to a financial crime was not an abuse of discretion. In fact, it almost cannot be an abuse of discretion under Samson. The district court could justifiably be concerned that defendant’s conduct was not aberrational, despite his claims to the contrary. United States v. Betts, 511 F.3d 872 (9th Cir. 2007):

Betts argues that the court abused its discretion because he had no prior convictions and had fully accepted responsibility for his crime. We cannot characterize the judge’s exercise of discretion as an abuse, even though it is very intrusive. First, the public is entitled to protection against the possibility that Betts’s conduct may not have been so aberrational as he contends, and considering his skill and success in committing this subtle fraud, protection will not be easy.

Second, the Supreme Court recently held in Samson v. California, that a similarly worded condition imposed by statute on all California parolees did not violate the Fourth Amendment, even though the condition did not require reasonable suspicion. The Court considered the high risk of recidivism for people convicted of crimes, and the problem that “[i]mposing a reasonable suspicion requirement … would give parolees greater opportunity to anticipate searches and conceal criminality.” Because the blanket requirement imposed by California on state parolees did not violate the Fourth Amendment, a fortiori the individualized requirement imposed in this case on supervised release does not. There is no sound reason for distinguishing parole from supervised release with respect to this condition. The federal system has abolished parole, and uses supervised release to supervise felons after they get out of prison. People on supervised release have not completed their sentences, they are serving them. The Court in Samson itself drew the analogy to supervised release. After Samson, there is no room for treating the search condition in this case as an abuse of discretion.

911 dispatcher is included within the “collective knowledge” requirement. (See also People v. Ewing posted 12/23.) Government’s argument defendant lacked standing to challenge his stop as a passenger is rejected (pre-Brendlin). United States v. Wehrle, 2007 U.S. Dist. LEXIS 94110 (S.D. Ga. January 29, 2007).*

Defendant failed to show standing in the truck he was driving, but, even if he did have it, he consented to the search of the truck. United States v. Figueroa-Espana, 511 F.3d 696 (7th Cir. 2007).*

Where plaintiff did not allege a § 1983 violation and proceeded directly under the Fourth and Sixth Amendment, the case could not be removed to federal court because there is no claim directly under the Fourth Amendment cognizable in federal court. Phillips v. Sacramento County, 2007 U.S. Dist. LEXIS 94489 (E.D. Cal. December 27, 2007).*

Informant was corroborated by officers before they sought a search warrant, so there was probable cause. United States v. Alford, 2007 U.S. Dist. LEXIS 93989 (E.D. Ky. December 20, 2007).*

Knock and talk ripened into probable cause when the defendant opened the door and the officer smelled a meth lab. United States v. Walters, 2007 U.S. Dist. LEXIS 96267 (E.D. Tex. October 10, 2007). Comment: This case has an interesting, and lengthy, discussion of the development of knock and talk and the implied invitation to come to the front door:

American courts, generally, and the Fifth Circuit in particular, view pristine “knock and talk” incidents as legitimate investigative tactics. U.S. v. Lewis, 476 F.3d 369 (5th Cir. 2007); U.S. v. Gould, 364 F.3d 578 (5th Cir. 2004); United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001). American society deems that its citizens impliedly consent to unsolicited visits to their residences by members of the public such as Girl Scouts selling cookies, candidates for public office, pollsters, persons distributing religious literature and the like. Accordingly, citizens have a “diminished expectation of privacy” in that area surrounding their homes which constitutes the main route taken by members of the general public when visiting. See United States v. Titemore, 437 F.3d 251, 259 (2nd Cir. 2006).

Police officers with legitimate business may enter areas impliedly open to the public, and are permitted the same license to intrude as a reasonably respectful citizen. Thus, when an officer of the law simply walks up to the door and knocks, (s)he visits the house in the same lawful way that a private citizen would, and the ensuing “knock and talk” does not implicate the Fourth Amendment or its exceptions because no search or seizure occurs.

Officers, of course, do knock and talks without probable cause, just fishing for an excuse to enter. And, citizens actually acquiesce and let them in when the officers lack any justification for the entry.

The Sixth Circuit, the first time it has faced the question, adopted the “extended border search” doctrine for somebody who cleared Customs, but her traveling companion had not and was being questioned. She was picking up luggage, and a Customs van went to get her 1500 feet from the Customs station at the Memphis airport. She had not been under surveillance after clearing Customs, but it was highly unlikely the condition of her belongings changed in the meantime. United States v. McGinnis, 247 Fed. Appx. 589, 2007 FED App. 0367P (6th Cir. 2007) (2-1):

In deciding whether to uphold an extended-border search as reasonable, courts generally have asked three questions: (1) did the individual cross the border? (2) did law enforcement seize the individual and her luggage sufficiently soon after the crossing to be reasonably confident that the condition of the individual and her luggage did not change after the border crossing? and (3) does law enforcement have a reasonable suspicion that the individual violated a criminal law? See, e.g., Yang, 286 F.3d at 945; see also United States v. Espinoza-Seanez, 862 F.2d 526, 531 (5th Cir. 1988) (applying similar test); Alexander v. United States, 362 F.2d 379, 382 (9th Cir. 1966). The salient question is whether “reasonable suspicion” of criminal activity exists, paying special attention to whether the suspected criminal activity relates to a recent border crossing (e.g., smuggling as opposed to a murder charge) and whether the search occurred sufficiently close in time to the border crossing as to eliminate the risk that the individual obtained the contraband after the crossing. Except for the dice-loading name of the rule–an “extended border search” doctrine suggests that suspicion is never required in the same way that an “extended house search” doctrine would suggest that probable cause is always required–we adopt our sister circuits’ general approach to this issue.

The search of McGinnis satisfies these requirements. First, no one questions that McGinnis crossed the border. She had just traveled by plane from Amsterdam and crossed the “border” at the Memphis International Airport.

Second, the customs officials had a reasonable basis for concluding that the condition of McGinnis’s luggage had not changed by the time of the search. The illegal contraband was the $17,358 in cash that McGinnis hid in her luggage and refused to declare when asked to do so. McGinnis never left the airport terminal. While waiting for Ely, she went to “get[] tickets for the next leg of her trip,” JA 180, which at most would have permitted her to spend money, not to get more of it. It suspends reality to think that McGinnis could have acquired the necessary additional cash-over $7,000-to trigger the currency reporting requirement between the time she exited the inspection area and the time officers came to pick her up to take her back to customs–at most 1 hour and 35 minutes. See JA 125-26, 129-30, 144, 201. Obtaining more than $7,000 in an airport in general or at an ATM in particular in such a short time span strikes us as a daunting, if not a nearly impossible, task. See generally Yang, 286 F.3d at 948 (valid search even though defendant was not under surveillance in the airport for up to 45 minutes); United States v. Mejias, 452 F.2d 1190, 1192-93 (9th Cir. 1971) (valid search even though 90 minutes had elapsed since defendant, who was not under constant surveillance, passed through customs at airport); ….

Third, customs officials had reasonable suspicion that McGinnis had engaged in criminal activity. …

The Ninth Circuit interprets Payton to require that a 12 hour standoff that brought the SWAT team ultimately required a warrant. The initial surrounding of the house did not, but the length of the event required a warrant. All the plaintiff obtained, however, was nominal damages [and attorneys fees?]. Fisher v. City of San Jose, 509 F.3d 952 (9th Cir. 2007) (2-1):

We have found no case of this court that directly addresses whether police must obtain a warrant during a standoff such as occurred here between the police and a citizen if any initial exigency dissipates before further intrusions into the home to coerce the targeted individual to submit to arrest. We conclude, however, from our review of cases from other circuits involving police standoffs that the Payton warrant requirement does not evaporate the moment officers surround a home with weapons and begin to take measures to induce an individual to leave his home. Rather, officers must obtain a warrant before any additional intrusions into the home if the initial exigency dissipates sufficiently to allow the police to obtain a warrant.FN9 The initial exigency can dissipate either because the danger posed by the targeted individual decreases or because, with the passage of time, resources become available that allow the police both to maintain safety and to obtain a warrant.

9. We need not and do not decide whether a warrant would be required if armed police surrounded an individual in his home, but during the standoff made no further intrusions into the home for purposes of effecting an arrest. In this case, police clearly did intrude into the home after the initial seizure by throwing CS gas canisters into Fisher’s house.

. . .

As should be evident, the dissent’s suggestion, post at 15073, that we are requiring a retroactive warrant is simply incorrect. Although a seizure is initially accomplished by surrounding a home, the police in such instances may–as here–take additional steps that intrude further into the home, and do not accomplish the formal arrest until the individual surrenders. To view this entire sequence of events as a single police decision made at the outset is both to indulge in a fiction and severely to undermine the warrant requirement. So, for example, had Fisher refused to come out and had the police therefore decided forcibly to enter Fisher’s home at 2:30 p.m., that decision and action could not reasonably be viewed as outside the warrant requirement on the ground that Fisher had already been seized at home earlier.

. . .

We do not disagree that Fisher was seized when police surrounded his home and stationed a sharpshooter to watch him, or that the warrant requirement applied to this seizure, absent exigency. See Al-Azzawy, 784 F.2d at 893. But despite having been seized, it is indisputable that Fisher had not yet been placed under formal arrest and brought into the custody of the police. Because Fisher remained in his house, not free to leave but not in the custody of the police, he continued to be subjected to entries into his home for the purpose of forcing him outside to arrest him, and the Payton warrant requirement continued to apply. As a result, we must ask whether any exigency that existed at 6:30 a.m. dissipated before police made further entries into Fisher’s home. We conclude that there was insufficient exigency to justify a warrantless arrest of Fisher at least by the time the CS gas canisters were thrown into his home at approximately 1:00 p.m.

. . .

As we have emphasized, to come within the exigency exception, the City must show both that dangerous circumstances existed and that it was infeasible to obtain a warrant safely. See United States v. Manfredi, 722 F.2d 519, 522-23 (9th Cir. 1984). We have used a nonexhaustive list of factors, first enunciated in Dorman v. United States, 435 F.2d 385, 392-93 (D.C. Cir. 1970) (en banc), to determine whether dangerous circumstances exist for purposes of the exigency exception. See United States v. Blake, 632 F.2d 731, 733 (9th Cir. 1980). Those criteria are: (1) “that a grave offense is involved”; (2) “that the suspect is reasonably believed to be armed”; (3) that there exists “a clear showing of probable cause”; (4) that there is “a strong reason to believe that the suspect is in the premises”; (5) that there is “a likelihood that the suspect will escape”; and (6) that peaceable entry is made onto the premises. See Dorman, 435 F.2d at 392-93.

Viewing the evidence in the light most favorable to the City, it was not unreasonable for the jury to find that the officers were justified in considering Fisher a danger both to them and to the public when they first surrounded his home in the early morning hours. Although no grave offense was involved, Fisher was armed, was certainly on the premises, and concedes that there was probable cause to arrest him. He was also intoxicated and had made at least one threatening comment to an officer. Moreover, it was not unreasonable for the jury to conclude that some level of danger persisted throughout the duration of the standoff, as Fisher remained inside his apartment, intoxicated and with access to weapons.

At the same time, the danger of the situation, if it did not [*40] terminate entirely after 6:30 a.m., certainly did not increase, and to some degree lessened. All nearby residents were evacuated at around 7:30 a.m. Furthermore, Fisher was not seen carrying a rifle for a full seven hours after 6:30 a.m., as the district court emphasized in granting the Rule 50(b) motion. During that post-6:30 a.m. period, Fisher took no further threatening actions, toward the police or anyone else. Nothing happened after 6:30 a.m. that increased the danger of the situation.

As to the second prong of the exigency exception–which requires that “the government … show that a warrant could not have been [safely] obtained in time,” United States v. Good, 780 F.2d 773, 775 (9th Cir. 1986)–the evidence, taken in the light most favorable to the government, clearly shows that there were enough officers working on Fisher’s case with enough time to obtain a warrant safely before the police sent the first of the CS gas canisters into Fisher’s apartment. Given the level of danger after 6:30 a.m., which remained significant but was not increasing, officers had the resources to begin the warrant process without risking the safety of officers or the public. Some of the original officers left the scene at 7 a.m. and returned to the station house, where they or their colleagues could have initiated warrant proceedings.

Comment: This is a fact dependent case: If other officers had not been coming and going from the scene of the standoff, the facts seemed to show that the standoff was de-escalating rather than escalating. And that does create a problem. If the situation ends up at a stand still and the police decide to act because they are tired of waiting for nothing, then what? This was a tough case, no doubt about it. If I were on the Ninth Circuit, I cannot tell you how I would come down on this because I have not gone to the court’s website and read the briefs. Just because the SWAT team shows up does not ipso facto mean it was a real emergency. When I first entered into the foray of knock-and-announce, I read up on SWAT teams and raid tactics. I have also cross-examined SWAT team members, and the individual officers involved do not always know what started the event they are there for. Later, they can even feel “all dressed up with no place to go,” waiting for anything to happen so they can do what they love best. Here, officers were leaving the scene because they weren’t needed as it dragged out, and that became a problem. But, back to nominal damages, what are the damages to the plaintiff for lack of a warrant?

Update: CNN.com today: SWAT team raids wrong house and leaves it in shambles. Not the same house, of course.

The consent form told the defendant that he had the right to refuse consent and it specified the place to be searched. United States v. Toomer, 2007 U.S. Dist. LEXIS 49976 (S.D. Fla. July 11, 2007).*

The fact that the defendant was truthfully told that there was an outstanding arrest warrant for him before he was asked for consent did not vitiate the consent. The situation was not otherwise coercive. United States v. Cogdell, 234 Fed. Appx. 75 (4th Cir. 2007)* (unpublished).

Seizure of banners, separate free speech issue, was not a Fourth Amendment issue because the banners were de facto abandoned property left hanging. Wilson v. Johnson, 247 Fed. Appx. 620, 2007 FED App. 0481N (6th Cir. 2007)* (unpublished).

Kentucky State Police received a 911 call that a man had been pointing a rifle at cars passing by him on an interstate highway. When they arrived at the scene, they had reason to talk with the plaintiff whom they found leaning against a guardrail with a gun leaning next to him. There was also qualified immunity. Campbell v. Stamper, 244 Fed. Appx. 629, 2007 FED App. 0473N (6th Cir. 2007)* (unpublished).

Plaintiff survived summary judgment on an excessive force case where he was tackled running from the police. While on the ground with his arms pinned under him and the officers on top of him, he could not move his arms and he was Tasered allegedly for not putting his arms behding this back. Nelson v. Hudepohl, 2007 U.S. Dist. LEXIS 49982 (M.D. Fla. July 11, 2007).*

Warrant for a particular address looking for defendant’s apartment was sufficiently particular to include his basement apartment. The police investigated and were not able to determine that this was a multiunit dwelling. When arrived, they found out that there was a back door entrance to the apartment, and they entered it. There was no misconduct on the police and they acted reasonably. The court analogized a case permitting a search of an attic apartment that was not known to exist until they were inside. United States v. Mousli, 511 F.3d 7 (1st Cir. 2007):

Mousli argues that the search warrant obtained by the Somerville police lacked sufficient specificity because it did not identify his particular basement unit, but only listed 19 Orvis Road. Mousli relies on Ferreras in arguing that the authority granted by any warrant is limited to the specific places described in it, and thus, does not extend to additional or different places. See Ferreras, 192 F.3d at 11. Mousli’s reliance is misplaced.

In Ferreras, we found that an attic was, in effect, included in a search warrant for the second floor of that same building because it was connected to the second floor apartment, lacked an exit to the street, and was not equipped for “independent living.” Id. Mousli concludes from Ferreras’s holding that because his basement apartment existed independently from the rest of the house, had an exit to the street, and was equipped for “independent living,” it could not have been included in the warrant that sought to search only “19 Orvis Road.” We disagree with Mousli and find the facts in Ferreras distinguishable here.

In the present case, the police used all of the information reasonably available to them to secure as particularized a warrant as possible. The police made considerable efforts to gather as much information as possible to include in their affidavits and application for the warrant. The police drove by Mousli’s residence before securing the warrant. They did not know that 19 Orvis Road was a multi-unit dwelling. Townsend noted Mousli’s address on a package in his car as 19 Orvis Road, and police records indicated that Mousli’s address was 19 Orvis Road. Mousli had given 19 Orvis Road as his home address when he was arrested on a previous occasion. The Registry of Motor Vehicles listed 19 Orvis Road as Mousli’s address. While Mousli’s apartment did exist independently from the main residence at 19 Orvis Road, “[s]earch warrants and affidavits should be considered in a common sense manner, and hypertechnical readings should be avoided.” … Just as in United States v. Gilman, 684 F.2d 616 (1st Cir. 1982), “[t]he testimony and affidavits of the officers demonstrate no misconduct on their part. Their surveillance of the premises … did not alert them to the multiunit character of the building. The officers were not aware that the building contained separate living quarters or that it housed unrelated persons.” Id. at 618. We find that the police had a valid search warrant, supported by reasonable information, and that the valid search warrant gave the police the authority to search Mousli’s apartment. We conclude that the district court did not err when it denied Mousli’s motion to suppress.

“Katrina probable cause”: Three men were seen coming out of an already being looted Burlington Coat Factory with backpacks right after Hurricane Katrina. The officer, who had worked security there before the hurricane, had reason to believe that they were looters, and that justified their stop and a search of the backpacks. State v. Jones, 970 So. 2d 1143 (La. App. 5th Cir. 2007), released for publication January 11, 2008.

Videotape of defendant’s hour long stop showed that defendant consented to a search of his car but not his person. He consented to a search of the car, and he was frisked and nothing of interest was found, and then he was told to empty his pockets and thus searched again but before anything was found in the car. The government conceded that search incident did not apply because the defendant was not under arrest at the time. United States v. Ocampo, 2007 U.S. Dist. LEXIS 80898 (E.D. Mich. November 1, 2007).*

Preliminary hearing testimony was sufficient to show that there was probable cause for plaintiff’s arrest, so his false arrest civil case fails. Jackson v. County of Washtenaw, 2007 U.S. Dist. LEXIS 80885 (E.D. Mich. October 31, 2007).*

The document search of 2255 petitioner’s house was not unlawful, so defense counsel was not ineffective for not challenging it. Hill v. United States, 2007 U.S. Dist. LEXIS 80703 (D. Md. September 28, 2007).*

Consensual recording of defendant by his wife did not violate the Fourth Amendment or statutory privilege, which had been amended before defendant’s trial. The offense was against his wife’s daughter, and that was an exception under the statute, adopted after the offense. Carpenter v. Commonwealth, 51 Va. App. 84, 654 S.E.2d 345 (2007):

Appellant also argues that his wife’s recording of his statements violated his right under the Fourth Amendment to be free from unreasonable searches and seizures because Ms. Carpenter was acting as an agent of the police when she made the recording and that her tape recording of appellant’s statements therefore required a court order pursuant to Code §§ 19.2-66 and 19.2-68. A tape recording made in violation of these statutes, the argument continues, was not reasonable under the Fourth Amendment because a reasonable police investigation would have carefully obeyed state law regulating the interception and recording of oral communications. Assuming, without deciding, that Ms. Carpenter was acting as an agent of the police, appellant’s argument depends on the premise that his statements were an “oral communication” protected against unauthorized interception or disclosure by Chapter 6 of Title 19.2 of the Code. Appellant’s statements were not an “oral communication” within the meaning of the wiretap statutes for the reasons already mentioned in Part C of this opinion. While appellant’s brief does not offer an additional Fourth Amendment argument, beyond his mistaken claim that the recording violated the wiretapping statutes, we note that the United States Supreme Court has held that a person has no constitutionally protected expectation that a person with whom he converses will not reveal the substance of that conversation to the police. United States v. White, 401 U.S. 745, 751, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971). We therefore hold that the introduction of the recording into evidence at appellant’s trial did not violate the Fourth Amendment.

Knock and talk of defendant’s house led him to admit officer. While inside, the defendant picked up a humidor off a coffee table and was carrying it, and the officer asked about the marijuana in it. The trial court’s finding of consent was supported by the evidence. State v. Schlauch, 2007 Ohio 7053, 2007 Ohio App. LEXIS 6173 (9th Dist. December 28, 2007).*

Defendant booked into jail on a robbery warrant was subject to a body cavity search that produced drugs hidden in a baggie in his rectum. This was not intrusive because defendant was not even touched. Winston v. Commonwealth, 51 Va. App. 74, 654 S.E.2d 340 (2007):

The Supreme Court’s opinion in Bell governs our approach to this appeal. We conclude that the government has a compelling interest in maintaining order in a jail and in preventing the introduction of contraband into the facility. A prisoner or pretrial detainee has a limited reasonable expectation of privacy in regard to a search of his person. There is no requirement that a search be supported by either probable cause or reasonable suspicion. Instead, the relevant inquiry is whether under all of the circumstances the search was reasonable, which in turn depends on consideration of “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell, 441 U.S. at 559.

As set forth above, case law makes clear a prison search is not subject to a litmus test of probable cause or reasonable suspicion. Applying these principles to this case, we conclude the visual body cavity search of appellant was reasonable and therefore constitutional. Appellant, being held without bond, was entering the inmate population at a detention facility. Given the jail’s responsibility to find and destroy drugs, as well as its obligation to avoid potentially volatile situations, the deputy sheriff was justified in conducting the visual body cavity search. Furthermore, the search was carried out in a reasonable manner that protected appellant’s sense of personal dignity. He was escorted to a private area in which he was asked to disrobe. Two male officers observed him and limited the search to a visual inspection. Neither officer attempted to touch appellant.

Ohio held three weeks ago, in a case received today, that standing may be raised by the appeals court where the state failed to argue it. Here, she was “merely a guest,” but the result would be the same and she would lose on the merits. State v. Bugaj, 2007 Ohio 967, 2007 Ohio App. LEXIS 903 (7th Dist. February 14, 2007). Texas just did the same thing, again, yesterday in Velez v. State, 240 S.W.3d 261 (Tex. App. — Houston (1st Dist.) 2007):

The State may challenge a defendant’s standing to contest a search for the first time on appeal. Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004). Here, the State did not challenge standing before the trial court, but instead stipulated that appellant had standing. Although the State did not challenge standing at the trial court, we address the State’s appellate challenge to standing. See id.

Comment: The Arkansas Court of Appeals did a version of this to me in a case where the state never argued standing in the trial court, but it did on appeal, and I argued, to no avail, that the state cannot sandbag the defense and not contest standing and then argue lack of standing on appeal. See Steagald v. United States, 454 U.S. 204, 208-09 (1981), which prohibits the state from not challenging standing below then raising it on appeal:

The Government initially seeks to avert our consideration of the Fifth Circuit’s decision by suggesting that petitioner may, regardless of the merits of that decision, lack an expectation of privacy in the house sufficient to prevail on his Fourth Amendment claim. This argument was never raised by the Government in the courts below. Moreover, in its brief in opposition to certiorari the Government represented to this Court that the house in question was “petitioner’s residence” and was “occupied by petitioner, Gaultney, and Gaultney’s wife.” Brief in Opposition 1, 3. However, the Government now contends that the record does not clearly show that petitioner had a reasonable expectation of privacy in the house, and hence urges us to remand the case to the District Court for re-examination of this factual question.

We decline to follow the suggested disposition. Aside from arguing that a search warrant was not constitutionally required, the Government was initially entitled to defend against petitioner’s charge of an unlawful search by asserting that petitioner lacked a reasonable expectation of privacy in the searched home, or that he consented to the search, or that exigent circumstances justified the entry. The Government, however, may lose its right to raise factual issues of this sort before this Court when it has made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation.

In my case, the Arkansas Court of Appeals was perfectly content to let the state do this and reverse for lack of standing because it had not been shown below, despite the fact that the state did not put us on notice to defend against it. This is judicial dishonesty.

State failed in its burden to show that a protective sweep of the defendant’s house was necessary after an arrest outside. Suppression order affirmed. State v. Pando, 284 Ga. App. 70, 643 S.E.2d 342 (2007):

Although Agent Massey testified that they entered the home and did the protective sweep because he believed “where there’s drugs there’s usually other people, and there’s weapon[s] involved,” there was simply no evidence of other people or weapons in this case. Agent Massey’s generic concern, while not per se unreasonable, falls short of establishing specific, articulable facts that indicated someone else was inside Pando’s house and posed a threat to the officers as they stood outside the house. See State v. Charles, 264 Ga. App. at 875-876 (1) (protective sweep of motel room was unjustified when there was no evidence that there was anyone inside the room). Moreover, the State has offered no explanation to show why, if the officers believed that they had enough evidence to secure a search warrant before entering the house and that there may have been other people waiting inside with weapons, they did not keep the defendants outside and secure the house from the outside while they obtained the search warrant, instead of choosing to enter the home and risk encountering a volatile and dangerous situation. See Illinois v. McArthur, 531 U. S. 326, 331-332 (II) (A) (121 S. Ct. 846, 148 LE2d 838) (2001) (given that officers had probable cause to believe that the defendant had drugs in his home, it was reasonable to detain the defendant outside his home for two hours while the officers secured a search warrant); see generally King v. State, 217 Ga. App. at 891 (an unnecessary, warrantless entry is not just illegal, but also unwise).

Accordingly, the evidence presented supports the trial court’s finding that the warrantless entry into and protective sweep of Pando’s home was not authorized under the circumstances and, therefore, violated the defendants’ constitutional rights. The court’s grant of the defendants’ motion to suppress on that basis was not error. State v. Charles, 264 Ga. App. at 875-876 (1).

Arrested co-conspirator named the defendant as the person he was meeting for a drug deal. While the co-conspirator was not a “reliable, confidential informant,” he was motivated to give accurate information because of his own predicament. The search warrant was based on probable cause. Massey v. State, 173 Md. App. 94, 917 A.2d 1175 (2007).

Missouri chooses to explain the difference between a motion to suppress and a motion in limine since one of them is interlocutorily appealable. State v. Whitwell, 215 S.W.3d 760 (Mo. App. S.D. 2007):

“The ‘suppression’ of evidence is not the same thing as the exclusion of evidence on the basis of some rule of evidence. Suppression is a term used for evidence which is not objectionable as violating any rule of evidence, but which has been illegally obtained.” Id. “The in limine order which is sought to be appealed here is not an order ‘suppressing’ evidence or having that substantive effect.” State v. Dwyer, 847 S.W.2d 102, 103 (Mo.App. 1992) (emphasis added). As an in limine order, the trial court’s ruling had the substantive effect of excluding evidence, not suppressing evidence. “Section 547.200.1 was not intended to allow the appeal of this order in limine.” Id. (emphasis added); see also State v. Holzschuh, 670 S.W.2d 184, 185 (Mo.App. 1984).

The defendant was arrested for sexual assault, and he was subjected to a penis swabbing by an evidence technician in a private room. Exigent circumstances supported the search because handcuffing alone would not protect the evidence; all the defendant had to do was urinate in his pants and compromise the evidence [like the defendant would know that]. Ontiveros v. State, 240 S.W.3d 369 (Tex. App.–Austin 2007), petition for discretionary review dismd In re Ontiveros, 2008 Tex. Crim. App. LEXIS 57 (Tex. Crim. App., Jan. 16, 2008):

In the instant case, appellant had been lawfully arrested on outstanding warrants. The police had probable cause to believe that he had committed a sexual assault involving penile penetration only a few hours before his arrest and thus to believe that DNA evidence might be found on his penis. The challenged search consisted of simply rubbing a swab across appellant’s penis. To spare appellant embarrassment, this procedure was performed in a private room. Appellant’s testimony to the contrary notwithstanding, the evidence supports a finding that no force was used and that the only other person in the room was the evidence technician. Appellant argues that even though he knew that he had been accused of the sexual assault, any risk that he might attempt to destroy the evidence could have been eliminated by simply handcuffing him and forbidding him from going to the restroom while the officers waited for a search warrant. But even while handcuffed, appellant could have urinated in his pants and thereby damaged the fragile DNA evidence. Considering the factors discussed in Wolfish and applied in Murphy and McGee, we conclude that the warrantless swabbing of appellant’s penis to obtain DNA evidence was, under the circumstances, a reasonable search under the Fourth Amendment.

Police officer testified that defendant did not consent to a search of his motel room, and defendant moved for a mistrial as soon as it came out. At a hearing at the bench, the judge sustained the objection and offered a cautionary instruction, but refused a mistrial. The way it occurred here, it was not so inflammatory as to require a mistrial. Huffman v. State, 234 S.W.3d 185 (Tex. App.–-San Antonio 2007).*

There clearly was probable cause to search the defendant’s car under the automobile exception (which will not be recounted here), and the car was sufficiently mobile to justify its search, despite the fact that the officers had two people in custody away from the cars and they had the keys so confederates could not get in the cars. United States v. Smith, 510 F.3d 641, 2007 FED App. 0500P (6th Cir. 2007):

Smith suggests that the automobile exception is not applicable in the present case because the Pontiac was not mobile: at the time of the search, the officers possessed the keys and had the only two users of the vehicle under their control. However, both this court and the Supreme Court have reiterated on numerous occasions that the automobile exception is justified not only by the exigency created by the “ready mobility” of vehicles, but also by the lesser expectation of privacy operators have in their vehicles. Carney, 471 U.S. at 391; Graham, 275 F.3d at 509. This court, moreover, has upheld warrantless automobile searches in which officers were in control of both the keys to the vehicle and the operator of the vehicle. See Graham, 275 F.3d at 507-11; see also Hofstatter, 8 F.3d at 322 (“Although the government might have had time to secure a warrant to search the automobile, there was no requirement that it do so.”).

Plaintiff had no standing to challenge an alleged profile stop of another, and the stops of him were with probable cause, so his case is dismissed. McCann v. Winslow Twp., 2007 U.S. Dist. LEXIS 93594 (D. N.J. December 20, 2007).*

Trial testimony about search revealed nothing that would indicate defense counsel was ineffective for not filing a motion to suppress, and petitioner’s moving papers add nothing to that. Lamb v. United States, 2007 U.S. Dist. LEXIS 93804 (M.D. Fla. December 21, 2007).*

(Postings were late today because of not enough bandwidth choking off my access. Whether that is a DOS attack or just too many readers remains to be seen. I know this site is not that popular.)

Police had probable cause to search defendant’s tractor-trailer which was locked up and parked behind a locked fence. The vehicle was still mobile enough for the vehicle exception to apply. State v. Anderson, 949 So. 2d 544 (4th Cir. 2007):

Moreover, although the appellant refers to an immobilized tractor-trailer in this case, there is nothing in the record to indicate that the vehicle was not readily mobile. Detective Stovall repeatedly referred to a truck, not a trailer. At one point he did refer to the vehicle as a “tractor-trailer” noting that it had been “backed into this lot.” The fence in front of the lot was not locked and apparently was easily opened in light of the detective’s testimony that the defendant repeatedly entered the lot. Because the vehicle was backed in, it presumably could be pulled out of the lot and driven away. Overall, it appears that, like the truck parked in a driveway in the Labron case, the vehicle was still “readily mobile” even if not parked on a public thoroughfare at the time of the search.

Officers went to a house during a homicide investigation that had occurred nearby and saw what appeared to them to be a recent burglary, which is not merely a property crime [because burglaries happen when people are at home and they become home invasion robberies]. This was an emergency that justified their entry on its own and because of the mere potential it might have been related to the homicide. State v. Lemieux, 726 N.W.2d 783 (Minn. January 18, 2007):

Burglary of a dwelling is not “deemed a purely property offense because *** such an offense always carries with it the possibility of violence and therefore some special risks to human life.” State v. Nunn, 297 N.W.2d 752, 754 (Minn. 1980). Other courts have concluded that police entry is justifiable under the emergency-aid exception where police have reasonable grounds to believe that a burglary is in progress or has recently occurred. See, e.g., United States v. Lenoir, 318 F.3d 725, 730-31 (7th Cir. 2003) (upholding warrantless entry where defendant who was carrying two high-powered rifles fled from police into nearby home but had trouble entering the door and police reasonably feared for the safety of the home’s occupants); United States v. Tibolt, 72 F.3d 965, 970-71 (1st Cir. 1995) (upholding warrantless entry on reasonable, though mistaken, belief that residence was the source of security alarm); Murdock v. Stout, 54 F.3d 1437, 1441-42 (9th Cir. 1995) (upholding warrantless entry during investigation of suspected burglary, where facts known to police indicated that resident was not responding and circumstances suggested that resident should have been present); Carroll v. State, 335 Md. 723, 646 A.2d 376, 384 (Md. 1994) (upholding warrantless entry based on open door, a broken window pane, and information that the resident was away and not expected to return for a day or two); see generally 3 Wayne R. LaFave, Search and Seizure § 6.6(a), at 459-61 (4th ed. 2004) (stating that entry is reasonable “to seek possible victims of violence in premises apparently burglarized recently”); Decker, supra at 490 (stating that “[m]ost courts have applied the emergency doctrine in circumstances where police reasonably believe that a burglary is in progress or has recently occurred”).

Furthermore, here the apparently burglarized residence was in close proximity to a brutal and seemingly random homicide. Ultimately, it was determined that the perpetrator entered the residence through the window: the victim’s blood was under the window on the exterior wall of the residence, the victim’s belongings were inside under the window sill, and, in closing arguments, counsel for both parties acknowledged that the perpetrator gained entry through the window. That the officers later learned Lemieux had entered his own abode is of no moment: “what matters is their reasonable belief” that a burglary was in progress or had recently occurred at the time of the entry. In re Sealed Case, 332 U.S. App. D.C. 84, 153 F.3d 759, 765 (D.C. Cir. 1998).

The officers’ search was also limited to the scope of the emergency, sweep-searching the floors for the presence of intruders or injured occupants and departing immediately upon finding the residence unoccupied. And assuming that the officers’ subjective motivations are a relevant state-law consideration, a warrantless search conducted during a criminal investigation does not necessarily preclude application of the emergency-aid exception so long as one of the motives for the warrantless search corresponds to an objectively reasonable emergency. See, e.g., Cervantes, 219 F.3d at 891 (concluding that officer making warrantless entry to locate a methamphetamine lab during criminal investigation was primarily motivated by concern for the safety of the apartment building’s occupants, as evidenced by the officer’s order that the tenants turn off open flames and evacuate the building); see also Decker, supra at 511-16 (discussing subjective-motivation element). Here, the officers’ warrantless entry was primarily motivated by concern of a burglary in progress, as evidenced by the call for backup and entry with firearms drawn.

In conclusion, we hold that the police entry of the residence in close proximity to a brutal and seemingly random homicide was justified under the emergency-aid exception to the warrant requirement because the officers had reasonable grounds to believe that a burglary was in progress or had recently occurred, the entry was motivated primarily to look for possible victims, and the scope of the search was limited to the emergency.

The place to be searched, an apartment in a multiunit building, was sufficiently described. “The affidavit described the location with sufficient certainty and designated a specific apartment ‘located in the south building on the south side on the rear near the railroad tracks.’ This description distinguishes the apartment to be searched from all other nearby apartments.” State v. Cotton, 2007 Tenn. Crim. App. LEXIS 34 (January 18, 2007).*

Search incident of only cellphone’s address book and call history was valid. United States v. Valdez, 2008 U.S. Dist. LEXIS 9995 (E.D. Wis. February 8, 2008):

In United States v. Rodriguez, 995 F.2d 776, 777 (7th Cir. 1993), officers seized the defendant’s personal address book following his arrest and photocopied each of its pages, learning that the book contained the phone number of a co-conspirator. The court upheld the search as valid incident to arrest, and upheld the photocopying of the contents of the book as a permissible attempt to preserve evidence. Id. at 778.

Finally, in United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996), the court approved the activation and retrieval of information from a pager seized incident to arrest. The court held:

An officer’s need to preserve evidence is an important law enforcement component of the rationale for permitting a search of a suspect incident to a valid arrest. Because of the finite nature of a pager’s electronic memory, incoming pages may destroy currently stored telephone numbers in a pager’s memory. The contents of some pagers also can be destroyed merely by turning off the power or touching a button. Thus, it is imperative that law enforcement officers have the authority to immediately “search” or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence.

Id. (internal citations omitted).

Relying on the logic of these cases, numerous other courts have upheld the search of cell phones for similar information. See, e.g., United States v. Finley, 477 F.3d 250, 259-60 (5th Cir.), cert. denied, 127 S. Ct. 2065, 167 L. Ed. 2d 790 (2007) (denying motion to suppress call records and text messages retrieved from cell phone searched incident to arrest); United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1278-79 (D. Kan. 2007) (collecting cases upholding cell phone searches incident to arrest); United States v. Cote, No. 03CR271, 2005 U.S. Dist. LEXIS 11725, 2005 WL 1323343, at *6 (N.D. Ill. May 26, 2005) (upholding seizure of the defendant’s cell phone incident to arrest and accessing of the phone’s call log, phone book and wireless web inbox); see also United States v. Dennis, No. 07-008, 2007 U.S. Dist. LEXIS 83892, 2007 WL 3400500, at *7 (E.D. Ky. Nov. 13, 2007) (relying on Finley to uphold cell phone search incident to arrest); United States v. Lottie, No. 3:07-cr-51, 2007 U.S. Dist. LEXIS 95999, 2007 WL 4722439, at *2-4 (N.D. Ind. Oct. 12, 2007) (upholding search of cell phone incident to arrest and based on exigent circumstances); United States v. Young, Nos. 5:05CR63-01-02, 2006 U.S. Dist. LEXIS 28141, 2006 WL 1302667, at *13 (N.D. W. Va. May 9, 2006) (upholding search of cell phone where evidence showed that numbers could be erased or lost when phone was de-activated).

Against the weight of this authority, defendant relies on a single, unpublished district court case, United States v. Park, No. CR 05-375, 2007 U.S. Dist. LEXIS 40596, 2007 WL 1521573 (N.D. Cal. May 23, 2007). The Park court noted the capacity of cell phones to store large amounts of personal information and worried that permitting the warrantless search of a phone might lead to the search of personal computers. 2007 U.S. Dist. LEXIS 40596, [WL] at *8. The court distinguished Ortiz, finding that the privacy interests in cell phones exceeded those in pagers. 2007 U.S. Dist. LEXIS 40596, [WL] at *9.

Further, the privacy concerns raised by the Park court are not implicated here: Brenner limited his search to the phone’s address book and call history. He did not listen to voice mails or read any text messages. As the magistrate judge noted, we can leave for another day the propriety of a broader search equivalent to the search of a personal computer.

This is a recurring and troubling occurrence. See prior posts here (iPhone) and here (Blackberry).

Defendant lacked a reasonable expectation of privacy in a car that he borrowed for a drug drop that he knew others had access to and admitted that he did not care about. United States v. Amaral-Estrada, 509 F.3d 820 (7th Cir. 2007):

Amaral-Estrada failed to manifest any sort of actual or subjective expectation of privacy. Instead, Amaral-Estrada possessed the car for the purposes of transporting contraband, such as the U.S. currency seized from the back seat. His expectations while using the car were that others would enter the vehicle, taking and/or leaving items therein. Furthermore, when the federal agents asked Amaral-Estrada about the vehicle, Amaral-Estrada denied any knowledge of the car. Amaral-Estrada also testified that he did not care about the bag in the back seat of the Chrysler M300 because it was not his bag and not his car. Under these facts reasonably relied upon by the district court, Amaral-Estrada failed to exhibit any legitimate privacy interest in the Chrysler M300 and therefore lacks standing to challenge the search of the vehicle; therefore we need not address his third issue on appeal as to whether there was probable cause to search the Chrysler M300.

Defendant was seen speeding and officers followed. He pulled into a driveway, reached under the seat, and got out of the vehicle and walked away from it. The officers recognized him as having warrants out and stopped him to arrest him. One officer looked in the vehicle and saw a gun in plain view. The vehicle was going to be impounded because it was parked in a driveway that was not defendant’s. The plain view and entry to retrieve the gun was lawful. United States v. Bynum, 508 F.3d 1134 (8th Cir. 2007).*