Defendant probationer’s actions (sounding like he was hiding things) before the search of his bedroom created reasonable suspicion for a search of the bedroom. State v. Uhlig, 38 Kan. App. 2d 610, 170 P.3d 894 (2007):

Also pertinent to this case, Samson makes a distinction between probationers and parolees. The Court held that “parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation.” 126 S. Ct. at 2198. This statement suggests to us a continuum:

— Prisoners have no expectation of privacy (see Hudson v. Palmer, 468 U.S. 517, 530, 82 L. Ed. 2d 393, 104 S. Ct. 3194 [1984]) and lack Fourth Amendment rights (they can therefore be searched at any time for any reason);

— parolees have a slight expectation of privacy and therefore can be searched in the absence of reasonable suspicion, but not arbitrarily or capriciously (Samson, 126 S. Ct. at 2202); and

— probationers have a higher expectation of privacy than parolees, but no standard is set forth.

Such lessons are clear. The law of search and seizure varies based upon the status of the individual searched. First, Griffin indicates that probable cause is not required when a search of a probationer is made because of the special needs of the government. According to Griffin, a state regulation only requiring reasonable grounds to search is constitutionally sufficient. Second, Knights teaches that reasonable suspicion is sufficient when a search of a probationer is made. The reasonableness of the search is determined by applying a balancing test that gives much weight to the government’s strong interest in allowing the search. Third, Samson indicates that no suspicion is required when a search of a parolee is made, but the opinion fails to set the standard for probationers.

Compare United States v. Hamilton, 2007 U.S. Dist. LEXIS 81266 (W.D. Ark. October 25, 2007), posted just hours ago.

Officer’s actions in extending a “public safety” stop to other things showed the stop was excessive. State v. Marx, 38 Kan. App. 2d 598, 171 P.3d 276 (2007):

Here, the district court determined that Doudican’s stop was not primarily motivated by community caretaking concerns. The district court noted that Doudican did not immediately stop the motor home as soon as he caught up to it, but instead Doudican followed the motor home for about 1 mile before he stopped the Marxes for the traffic infraction. Also, Doudican testified he was looking for a violation to stop the motor home, and Doudican clearly testified the real reason for the stop was the perceived traffic infraction. Substantial competent evidence supports the district court’s decision that Doudican’s primary motivation in stopping the motor home was due to a traffic infraction, not to return the hubcap.

Doudican’s motivation aside, the Marxes argue that losing a hubcap is not a sufficient reason to justify a public safety stop. We agree. Although the Gonzales court upheld the initial vehicle stop for public safety reasons, the court expressly rejected the open fuel hatch as justification for the stop. The court stated: “There is no dispute that the open hatch cover was not perceived as a safety problem; even [the officer] referred to it as a ‘courtesy’ to alert the driver to that condition. It was the bouncing tire that was the alleged safety concern.” 36 Kan. App. 2d at 453.

Here, under the initial prong of the test enunciated in Gonzales, there were no facts that suggested to Doudican that a citizen was in need of help or was in peril at the time of the stop. Doudican already had the hubcap in his possession, and there was only a minimal risk that the motor home might lose other hubcaps on the highway in such a manner as to endanger the public. Consistent with the court’s determination in Gonzales that the open fuel hatch did not implicate public safety, Doudican’s return of the hubcap more closely resembled a “courtesy” to the Marxes rather than a concern for public safety. We conclude as a matter of law that the stop of the Marxes’ motor home was not warranted under a public safety rationale.

Police came to do a knock-and-talk at defendant’s apartment and misrepresented themselves as “maintenance.” Defendant told them to come back. Then they identified themselves and he opened the door and they asked to come in. He backed up and let them in. The argument was apparently framed as lack of probable cause for a knock-and-talk and not as a coercive atmosphere. [Whether it would have succeeded argued otherwise is hard to tell.] United States v. Valensia, 2007 U.S. Dist. LEXIS 79338 (N.D. Ill. October 11, 2007):

In the present case, the evidence shows that the officers knocked three times on Valensia’s apartment door. When they first identified themselves as “maintenance,” Valensia or someone else inside asked them to come back at a later time. When the officers responded by saying that it would only take a short time, Valensia then willingly opened the door. When he did, he was facing a uniformed police officer and another man with a badge on his chest. At this point, the officers requested permission to enter the apartment. There is no evidence that the officers used any intrusive measures, or forced their way in, or made any demands whatsoever. When the officers asked Valensia if they could come into the apartment, the uncontroverted evidence is that he backed up slightly, opened the door wider, and gestured with his hand for them to enter. While Valensia did not testify at the suppression hearing, McCain and Sellers did, and neither of them testified that the officers forced their way into the apartment or demanded to be let into the apartment. Therefore, Valensia’s argument that the officers did not have probable cause to approach his apartment or to conduct a “knock and talk” is without merit.

Officers with an arrest warrant do not have to wait for the defendant to come out of the house to arrest him–they can go in to his residence, particularly if there are security concerns. United States v. Williams, 2007 U.S. App. LEXIS 26462 (2d Cir. November 15, 2007) (unpublished):

To the extent Williams asserts that federal agents should never have entered his residence because they could easily have executed the warrant for his arrest on the street, the law is well established that “an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” United States v. Lovelock, 170 F.3d 339, 343 (2d Cir. 1999) (quoting Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)). The record evidence established the necessary reasonable belief of Williams’s presence in his residence, and further identified valid security reasons for effecting the arrest inside the premises.

Officers had probable cause to believe defendant was inside, so they could enter with a warrant to arrest him. State v. Drown, 2007 ME 142, 937 A.2d 157 (2007).*

The government failed to prove that there were exigent circumstances for a warrantless entry and protective sweep. Officers responded to a disturbance call with a report of a gun, but the person who made the call denied ever stating that there was a gun involved. Also, the defendant left the area when instructed, and then the officers had no cause to search his separate premises. Motion to suppress granted. United States v. McKinney, 2007 U.S. Dist. LEXIS 84196 (N.D. Miss. November 14, 2007).

A TVA law enforcement officer exists under federal law, 16 U.S.C. § 831r, so a § 1983 action cannot be maintained against him; it must be under Bivens, and it cannot be brought in his official capacity. Merely “unnecessarily tackling” plaintiff was not unreasonable force. Hendricks v. Governor’s Taskforce for Marijuana Eradication, 2007 U.S. Dist. LEXIS 84171 (E.D. Tenn. November 14, 2007).*

The time during a warrant check is a detention. “[W]hen Anderson ordered the warrant check, the encounter evolved into a restraint on defendant’s liberty. In other words, the encounter evolved into a stop. Given the state’s concession–with which we agree–that Anderson lacked reasonable suspicion to stop defendant at that point, the stop was unlawful.” State v. Rider, 216 Ore. App. 308, 172 P.3d 274 (2007).

Consent was a product of unlawful entry, and it was too close on its heels to be attenuated. State v. Washburn, 216 Ore. App. 261, 173 P.3d 156 (2007)*:

In this case, the evidence as described above clearly establishes that the deputies sought consent “solely as a result of the knowledge of inculpatory evidence” obtained in the first entry. Further, the time between the two searches was short, five minutes at most; no intervening circumstances occurred; and no mitigating circumstances occurred. Additionally, the deputies “traded on,” or exploited, the discoveries made during the first search in order to obtain Buchholtz’s consent. They referred to both the unattended child and the condition of the room immediately before asking him if they could enter in order to further discuss the situation.

In sum, the first entry was an unlawful search. But for that search, the deputies would not have sought consent for a reentry. The state has not shown that the second entry would (or could) have occurred based on independently obtained information, nor that the connection between the unlawful search and the subsequent consent was attenuated. Defendant’s motion to suppress should have been granted.

Defense counsel was not ineffective for not challenging the search of defendant’s motorcycle because it was based on probable cause. Alternatively, it was a valid inventory for forfeiture. Commonwealth v. West, 2007 PA Super 349, 937 A.2d 516 (Pa. Super. 2007).*

Vehicle stop for cracked windshield also involved officer’s knowledge that the back seat occupant was making furtive movements. When the car was stopped, the driver gave an apparently forged DL, and that led to his arrest and search incident which produced evidence of more forgery. The search incident was valid. Officers, as a matter of course, may order a passenger or passengers either to get out of the car or to remain in the car during a lawful traffic stop if the officers deem it necessary for officer safety. Whether the passenger is ordered to stay in the car or get out of the vehicle is a distinction without a difference. An officer making a traffic stop may immediately take the reasonable steps he or she deems necessary to secure the officer’s safety, including ordering a passenger to remain in or to get out of the vehicle, without violating the Fourth Amendment. People v. Vibanco, 151 Cal. App. 4th 1, 60 Cal. Rptr. 3d 1 (6th Dist. 2007).*

Heavy traffic from a house and a traffic stop of a person who came from inside that produced drugs was not sufficient grounds to get a search warrant issued. State v. Gentile, 373 S.C. 506, 646 S.E.2d 171 (2007):

The narcotics officers’ decision to investigate Gentile was precipitated primarily by the receipt of citizen complaints regarding a high volume of traffic at Gentile’s residence. Even though the officers verified the pattern of traffic at Gentile’s residence, this, without additional investigation into the residence, was not sufficient to establish that narcotics activity was taking place. …

Next, we consider the single citizen claim that she smelled marijuana in the vicinity of Gentile’s residence. Initially, we question whether the magistrate was privy to this information. Based on our review of the record, we are unable to find where Bradley, the officer who obtained the warrant, testified regarding this information. Instead, the only reference to this tip was through the testimony of Corporal Jenkins. Furthermore, there is no mention in the affidavit regarding this tip. Therefore, it is questionable whether it was communicated to the magistrate.

Even if we conclude that Bradley communicated to the magistrate the citizen’s tip, we find it was insufficient to establish probable cause. First, the tip is vague in that there is no indication of how many times the citizen may have smelled marijuana or that she could readily identify that the odor was emanating from Gentile’s residence. Secondly, there was no indication that the citizen was knowledgeable about the smell of marijuana. Significantly, there was no independent verification by the narcotics officers regarding this tip.

The trial court incorrectly held that an officer had to have reasonable suspicion before he could ask for consent to search. State v. Nash, 957 So. 2d 1266 (Fla. App. 4th Dist. 2007).*

Defendant’s weaving within a line of traffic was not reasonable suspicion for a stop in itself, but the fact the vehicle was traveling in tandem with another, all inside a city, and other facts accumulating was enough to give reasonable suspicion that something was up on the totality of circumstances. The court of appeals decision was reversed. State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634 (2007).*

Texas dodges the merits of a no-knock warrant issue and simply follows Hudson and holds that it would not suppress anyway. State v. Callaghan, 222 S.W.3d 610 (Tex. App. — Houston (14th Dist.) 2007).

Failure to controvert the state’s response to a suppression motion with an affidavit means no hearing and it is denied. Matter of M.A.R., 2007 NY Slip Op 27108, 15 Misc. 3d 784, 832 N.Y.S.2d 794 (Nassau Co. 2007).*

There is no expectation of privacy in a call from a jail where both parties hear a recorded message that the call may be monitored. She talked about making meth “drops,” and law enforcement was alerted and was waiting for her. State v. Dickey, 2007 Ohio 1180, 2007 Ohio App. LEXIS 1092 (2d Dist. March 16, 2007).*

There was cause for defendant’s stop when he was speeding. When asked about drinking, he first said he had one beer then later said five, and there was an open beer can sitting in the back seat. State v. Marcinko, 2007 Ohio 1166, 2007 Ohio App. LEXIS 1113 (4th Dist. March 2, 2007).*

Officer pulled over defendant because he was known to have been with a burglary suspect earlier. When stopped, the defendant was excessively nervous and apparently under the influence. There was cause for continuation as a DUI stop. State v. Hogue, 2007 UT App 86, 157 P.3d 826, 573 Utah Adv. Rep. 15 (2007).*

Defendant was stopped for speeding and the officer discovered that his driver’s license was suspended. He asked the defendant to get out of the car, and he did and locked it. He consented to a search (the officer said he was looking for an open container, since there was a shot glass on the console), and the officer saw child porn in the backseat. The search was legal. State v. Bons, 2007 WI App 124, 301 Wis. 2d 227, 731 N.W.2d 367 (2007).*

In that same case, the appellant’s attorney was sanctioned for not providing in the appendix the trial court’s rationale for the decision, thereby imposing on the appeals court panel the burden of looking it up. Id.* The concurring judges complain about finding out about these issues after dispersing to go home between sessions, thereby delaying resolution of the case, acting like there is no such thing at the court like fax machines or .pdf files and law clerks to look it up for them and fax or e-mail it. (Comment: In my state, they just default the issue and make the appellant pursue post-conviction relief against appellate counsel, which takes about two years from filing to decision on appeal. My view is that it is easier for an appellate judge to find default rather than do his or her job, even though it leads to great expense to the taxpayers and parties to relitigate the issue in post-conviction. They know I feel that way because I have put it in briefs before where I have to argue around a procedural default issue that it wastes everybody’s time and money because judges are too lazy to walk down the hall and look at the record, a clear instance of form over matter. Is my honesty going to win me any friends on the court in pointing out their folly? I never had any.)

The defendant was observed by a drug surveillance team doing drug sales in Manhattan, and he was arrested. Because the officers testified to experiencing a significant number of arrestees hiding drugs in their anus, it was reasonable to strip search the arrestee here. People v Hall, 2007 NY Slip Op 1015, 39 A.D.3d 100, 829 N.Y.S.2d 85 (1st Dept. 2007):

In Mitchell, this Court applied the standard enunciated in Bell v. Wolfish, under which the reasonableness of searches must be determined by considering (1) the scope of the intrusion, (2) the manner in which the search is conducted, (3) the justification for initiating the search, and (4) the place in which the search is conducted (see 441 U.S. at 559). Applying those criteria to the particular facts and circumstances of this case, the visual body cavity search initially conducted here was justified and reasonable. While the scope of the intrusion is substantial in view of the degrading nature of the procedure, the manner and place of the search were reasonable, and, importantly, the visual body cavity search procedure was justified by the facts known to the police, including their experiences with the common practices of drug sellers in the neighborhood, and the officer’s observation of defendant selling drugs, packaged in small packets, during which the seller had to temporarily retreat to an unseen spot prior to completing the transaction in order to retrieve the goods he sold.

As we observed in Mitchell (2 A.D.3d at 148), some courts have applied the “reasonable suspicion” standard enunciated in Weber v. Dell to station house strip searches incident to arrest, requiring “reasonable suspicion that the arrestee is concealing a weapon or other contraband.” We need do no more here than note that even if that standard were determined to be applicable in this context, it was satisfied by the evidence here.

Officer’s claim that emergency existed because person in house was sleep deprived from meth abuse was not an emergency justifying an entry into the house. State v. Baca, 2007 NMCA 16, 141 N.M. 65, 150 P.3d 1015 (2006):

[*28] We recognize that officers in the field are confronted with a wide variety of situations in which the welfare of an occupant of a residence may be in question. There may be an element of uncertainty and the facts may not be entirely clear. In some situations, danger may be more apparent; police may hear screams, or threats of violence, and the need for immediate intervention may be more readily apparent. See, e.g., State v. Drennan, 278 Kan. 704, 101 P.3d 1218, 1232-33 (Kan. 2004) (holding entry was justified where police knew of prior history of domestic violence between the defendant and his live-in girlfriend, a neighbor reported hearing an argument, a woman scream, and then silence, no one responded when the officer knocked at the door, and when the defendant finally appeared he was unresponsive to questions and refused to say where his girlfriend was). See generally LaFave, supra, § 6.6(a), at 458-59 n.28 (collecting cases). There may also be tangible evidence suggesting serious bodily injury or serious illness requiring immediate attention. See id. But this case does not present those facts. Rather, the evidence is consistent with Officer Chaves’ initial assessment that the situation involved someone suffering from sleep deprivation resulting from methamphetamine use, which, we assume, was an assessment different from drug overdose. This is insufficient to establish an emergency. And, as we have discussed, the evidence does not permit a rational inference that Defendant was suffering from a drug overdose circumstance that required immediate intervention.

Defendant’s conduct was essentially innocuous, and did not support an inference of criminality that led to his frisk. State v. Rivas, 2007 NMCA 20, 141 N.M. 87, 150 P.3d 1037 (2006):

[*13] In the present case, the circumstances regarding officer safety are less compelling than in Jason L. Here, there was no testimony supporting the likely presence of weapons other than the officer’s bare assertion that “[u]sually where there are drugs, we find guns.” The parties did not ask the officer whether this was true even in the case of possession of a small quantity of marijuana, as was found here, as opposed to trafficking scenarios involving large quantities of drugs. We observe that in Patterson, companions of both defendants were found to possess drugs before the defendants were searched, and this did not lead to an automatic conclusion that the searches were justified because guns were likely to be present. Even if Officer Marion’s assertion could be shown to be generally true, it does not amount to individualized suspicion that Defendant, on whom drugs had not yet been found, had committed or was about to commit a crime.

Window tint stop was complete when the defendant offered, without any request, to allow the officer to search his car, so the search was by consent. State v. Trujillo, 2007 N.C. App. LEXIS 221 (February 6, 2007).*

Applying N.Y.’s long standing Mitchell rule on emergency entries, the court finds the entry in this case was valid because of a dead body. More significantly, however, the court held that the crime scene unit’s stay was permissible under the original entry. People v. Desmarat, 2007 NY Slip Op 2773, 2007 N.Y. App. Div. LEXIS 4054 (2d Dept. March 27, 2007):

Moreover, the crime scene unit’s subsequent recovery of evidence from the motel room did not exceed the scope and duration of the emergency (see People v George, 7 A.D.3d 810, 811, 776 N.Y.S.2d 883; cf. People v Cohen, 87 A.D.2d 77, 82-83, 450 N.Y.S.2d 497, affd 58 N.Y.2d 844, 446 N.E.2d 774, 460 N.Y.S.2d 18, cert denied 461 U.S. 930, 103 S. Ct. 2092, 77 L. Ed. 2d 302), inasmuch as Room 210 was secured while officers waited for the crime scene unit, which arrived within several hours and then seized the ripped currency, ripped sheet, and blood evidence that was in plain view (see People v George, supra; see also People v Brown, 96 N.Y.2d 80, 89, 749 N.E.2d 170, 725 N.Y.S.2d 601). While the newspapers from which the police later obtained the defendant’s fingerprints may not have been lawfully seized under the plain-view doctrine because their incriminating nature was not immediately apparent, the information derived from them — that the defendant was the occupant of Room 210 — was, in fact, subsequently obtained by the police from a variety of independent sources (see People v Goodwin, 286 A.D.2d 935, 733 N.Y.S.2d 319; see generally People v Arnau, 58 N.Y.2d 27, 32-33, 444 N.E.2d 13, 457 N.Y.S.2d 763, cert denied 468 U.S. 1217, 104 S. Ct. 3585, 82 L. Ed. 2d 883). Accordingly, suppression of the physical evidence was properly denied.

Pulling an unmarked car up behind the car in which defendant was a passenger and then requesting [demanding?] defendant’s identification was a seizure under the Fourth Amendment because the defendant would not objectively feel free to leave. City of Roswell v. Hudson, 2007 NMCA 34, 141 N.M. 261, 154 P.3d 76 (2007).

Lack of reasonable suspicion for a probation search was not argued to the trial court, and it is deemed waived for appeal. Bamberg v. State, 953 So. 2d 649 (Fla. App. 2d Dist. 2007).*

Defendant was stopped and asked for his identification, which he could not immediately produce. The officer arrested him for failure to provide identification. The appeals court held, however, that the officer should have asked the defendant for his social security number so his name could be run before arresting him. Therefore, the arrest was invalid, and so was the search incident. State v. Green, 2007 Ohio 1459, 2007 Ohio App. LEXIS 1333 (8th Dist. March 29, 2007).*

Defendant’s “resistance and flight, which amounted to obstruction, broke the link in the chain between the initial unconstitutional investigatory stop and the later seizure of the handgun. Under such circumstances, suppression of the evidence is not warranted by the exclusionary rule.” State v. Williams, 192 N.J. 1, 926 A.2d 340 (2007).

Confession at school to police officer by 12 year old to sex offense involving his three year old sister was not custodial so Miranda did not apply. In re J.H., 928 A.2d 643 (D.C. App. 2007)* (per curiam):

Appellant, who was twelve years old at the time, was interrogated by a police officer at his school and confessed to a sexual offense involving his three-year-old sister. No Miranda 1 warnings were given by the police officer. Concluding that appellant had not been in “custody,” the trial court declined to suppress the confession, which constituted the primary evidence against the youth. Applying the proper standard of review to the record presented, “we cannot conclude as a matter of law that [appellant] was in custody when the police interrogated [him], i.e., that [his] freedom of action was curtailed to a degree associated with a formal arrest.” Morales v. United States, 866 A.2d 67, 74 (D.C. 2005). We therefore uphold the trial court’s denial of the motion to suppress.

The New Mexico Court of Appeals refuses to overrule cases, using the word “constrained” [bad sign], requiring a separate showing of exigency in automobile searches. State v. Bomboy, 2007 NMCA 81, 141 N.M. 853, 161 P.3d 898 (2007), cert. granted, No. 30,381, June 4, 2007:

[*4] In Garcia and Gomez, our Supreme Court rejected the federal bright-line automobile exception in search and seizure cases that permits a vehicle search without a particularized showing of exigent circumstances. See Garcia, 2005 NMSC 17, P 29; Gomez, 1997 NMSC 6, PP 35, 39, 44. Under Article II, Section 10 of our New Mexico Constitution, a warrantless search of a vehicle or warrantless seizure of an object from within a vehicle requires a particularized showing of exigent circumstances or some other recognized exception to the warrant requirement. See Garcia, 2005 NMSC 17, P 29; Gomez, 1997 NMSC 6, PP 35, 39; Jones, 2002 NMCA 19, PP 12, 15; see also State v. Duffy, 1998 NMSC 14, P 61, 126 N.M. 132, 967 P.2d 807 (stating that “[a]mong the recognized exceptions to the warrant requirement are exigent circumstances, consent, searches incident to arrest, plain view, inventory searches, open field, and hot pursuit”).

[*5] The State does not contend that exigent circumstances or any other exception to the warrant requirement is applicable. The State’s arguments center solely on its contention that the circumstances of this case should not come within the reach of Garcia, Gomez, or Jones. The State argues that the seizure was lawful based on the existence of obviously illegal, incriminating evidence in plain view in a vehicle, giving rise to reasonable inferences of criminal activity on the part of Defendant. The State also argues that the seizure was lawful because it was based on Defendant’s lack of any lawful possessory interest in the inherently unlawful drugs and of any legitimate expectation of privacy, and also based on the de minimis nature of the intrusion. The State’s arguments raise a valid question whether, under the circumstances, the officer’s seizure of the methamphetamine should be considered unlawful. The State makes an arguable point, but it is insufficient to override the Garcia, Gomez, and Jones trio that forbids a warrantless seizure of an object in a vehicle unless an exception to the warrant requirement applies.

The consenter in this case was in the process of being evicted from the premises, but he still had common authority to consent to a search. State v. Haapala, 139 Wn. App. 424, 161 P.3d 436 (2007):

¶15 According to Lynda Spindor, the landlord, Craig was the only signatory on the lease, but several additional tenants lived in the house to share the rent obligation. Haapala moved into the upstairs bedroom on January 1 or 2, 2005, when Craig was moving out of that bedroom. Haapala asked Spindor to extend the lease with him as the tenant, but she refused. Due to complaints from neighbors, on January 15, 2005, Spindor served Craig with an eviction notice that gave Craig three days to vacate the premises. Police searched the house on January 19, 2005.

¶16 The trial court found that although Craig was being evicted, he was the only person on the lease and he “still had furniture and other possessions in the house and his car was visible outside of the house.” Clerk’s Papers (CP) at 74. From that finding, it concluded that “Craig, as the person who rented the home, … had the authority to consent to the [initial] search.” CP at 77. The record shows that Craig retained sufficient access and control over the residence to consent to a search of the common areas, including the downstairs bedroom. See Morse, 156 Wn.2d at 10-11.

. . .

¶18 . . . Spindor still needed to file an unlawful detainer action and obtain a court’s order to force Craig to vacate the premises. RCW 59.12.040-.080. And Spindor could not have taken possession of the house during the unlawful detainer action’s pendency unless she received a writ of restitution from the court. RCW 59.12.090. Even then, Craig could have filed a bond with the court to stay enforcement of the writ of restitution and to retain possession of the premises until the unlawful detainer action concluded. RCW 59.12.100. Thus, Craig, as a user and possessor of the house, would have had the authority to consent to a search of the common areas until the court ordered him to vacate the premises.

A child’s mother surreptitiously recorded telephone calls between her daughter and the defendant by plugging into a telephone jack. The telephone calls revealed a sexual relationship. “Article 38.23(a) of the Texas Code of Criminal Procedure states, ‘No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.'” The Court of Criminal Appeals held, relying on Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998), that the mother could vicariously consent for the daughter. Alameda v. State, 235 S.W.3d 218 (June 27, 2007), aff’g Alameda v. State, 181 S.W.3d 772 (Tex. App.–Ft. Worth 2005).*

Defendant was stopped for a traffic offense and consented to a search. He was asked whether he would mind if the officer searched. The trial court’s finding of fact supporting consent in the face of the argument defendant misunderstood is not clearly erroneous. Clarke v. State, 868 N.E.2d 1114 (Ind. 2007)*:

The meaning of Clarke’s response of “no” to whether he would “mind” if his car was searched is for the trial court to resolve. Bostick, 501 U.S. at 432. Clarke may have misunderstood the question, but, as phrased, a negative answer is a consent to the search. Moreover, Eastwood testified that Clarke’s “body language” conveyed a consent, and Clarke made no effort to change his response. Eastwood therefore reasonably accepted Clarke’s response as a consent, and the trial court’s finding that consent was given is not clearly erroneous and is dispositive of that issue. Under Bostick, the Fourth Amendment permits consensual interrogation “as long as the police do not convey a message that compliance with the requests is required.” 501 U.S. at 434-35. There is no evidence that Eastwood conveyed that message. Her mere presence as a uniformed law enforcement officer does not convert her questions into commands. Id. Accordingly, there was no seizure before Clarke gave consent to the search, and the search established probable cause to arrest Clarke. This process did not violate the Fourth Amendment.

Speeding in a school zone led to a plain view of marijuana and drug paraphernalia. When being arrested, he was asked about weapons in the car which he first denied, and then mentioned that he had a shotgun in the vehicle which was in a school zone, and that led to an impoundment which the court of appeals found unnecessary. State v. Rowell, 2007 NMCA 75, 141 N.M. 783, 161 P.3d 280 (2007), certiorari granted, 2007 N.M. LEXIS 651 (N.M., Dec. 11, 2007):

[*28] The State failed to present sufficient evidence to support application of either the exigent circumstances exception or the search incident to arrest exception in the present case. No one but Defendant was in the vehicle. After arresting Defendant, the officer asked him whether there were any weapons of which the officer should be made aware. Defendant initially stated “No,” but shortly thereafter stated that there was a shotgun in the back seat of his vehicle. The officer placed Defendant in his patrol vehicle for “safety purposes” and then “conduct[ed] an inventory pending impound of the vehicle,” pursuant to which the officer found several weapons. Apparently, the officer’s only reason for entering the vehicle was that he had determined to have the vehicle impounded and he wanted to perform an inventory search before it was towed. The officer did not say that he believed there was any threat to his safety, nor did he state any concern that objects in the vehicle would be concealed or destroyed.

[*29] Further, the weapons were not within Defendant’s immediate control at the time they were seized. None of the facts actually relied upon by the officer constitute facts that amount to any exigent circumstance justifying application of the exigent circumstances exception to the warrant requirement. Nor is there evidence of facts known to the officer at the time that he searched the vehicle which, viewed objectively, provided a valid constitutional ground for the officer’s actions.

A police officers’ search of an arrestee is unreasonable when the officers conduct a highly intrusive strip search in the parking lot of a public business in the presence of others and there were no exigent circumstances requiring an immediate search. Paulino v. State, 399 Md. 341, 924 A.2d 308 (2007).

Photographs taken during the search of a home by a police officer who entered and searched the home under the emergency-aid exception to the warrant requirement are inadmissible under the emergency-aid exception to the warrant requirement if taking the photographs was not related to the purpose for which the officer entered the home. In re The Welfare of J.W.L., 732 N.W.2d 332 (Minn. App. 2007).

Because an ineffective assistance claim on a Fourth Amendment claim would fail as a matter of law, post-conviction relief on that ground would be denied. Correa v. Comm’r of Corr., 101 Conn. App. 554, 922 A.2d 289 (2007).*

Furtive gesture in a car justified officer reaching where the person reached. State v. Weidner, 2007 NMCA 63, 141 N.M. 582, 158 P.3d 1025 (2007):

The State argues that in the present case, exigent circumstances existed justifying the seizure of the methamphetamine, given that Defendant was still in the vehicle, which could have been driven away, and that he could easily access the methamphetamine, which was within arm’s reach. We find this argument persuasive. The exigency in the present case is stronger than it was in Garcia or Gomez, because in this case Defendant was still behind the steering wheel and within arm’s reach of the methamphetamine. Defendant even attempted to conceal the methamphetamine by quickly flipping up the visor. Officer Ahlm testified that he did not believe it would be prudent to tell the other officer about the methamphetamine, as opposed, it appears, to immediately seizing it himself, because Defendant was still sitting behind the steering wheel of the vehicle. The officer was relying on more than just the inherent mobility of the vehicle in acting to seize the contraband. He was also relying on the fact that Defendant was in a position to operate the vehicle, and thereby evade the officers and remove or destroy the evidence. While the inherent mobility of the vehicle itself, alone, did not give rise to the exigency in this case, the fact that Defendant was still sitting behind the wheel of the vehicle supports the existence of the requisite exigency. See Gomez, 1997 NMSC 6, P 44 (noting that in most cases involving an automobile there may be an exigency, but requiring a case-by-case analysis of whether the exigency exists).

The fact the police surrounded a car did not make it “immobile” such that the automobile exception would not apply. State v. Willard, 374 S.C. 130, 647 S.E.2d 252 (2007):

Willard argues because the officers surrounded his vehicle, it was not “mobile” under Carney. However, temporary immobility may still be considered readily mobile so as to qualify for the automobile exception. See Myers v. State, 839 N.E.2d 1146, 1152 (Ind. 2005) (cases cited therein).

N.M. deals with the question of whether flight under Wardlow and Hodari D. was lawfully provoked or unprovoked. State v. Harbison, 2007 NMSC 16, 141 N.M. 392, 156 P.3d 30 (2007):

We recognize that the Wardlow analysis ultimately turns on whether the Defendant’s flight was provoked or unprovoked. Id. at 124 (stating reasonable suspicion founded on the defendant’s presence in high crime area combined with “unprovoked flight upon noticing the police”). The lack of provocation is critical. We agree with the position of the Eleventh Circuit Court of Appeals in United States v. Franklin, 323 F.3d 1298 (11th Cir. 2003), acknowledging that “officers cannot improperly provoke–for example, by fraud–a person into fleeing and use the flight to justify a stop.” Id. at 1302 (citing Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)); see also id. at 1305 (Pogue, J., dissenting) (“The police may not frighten an individual into fleeing, and then assert his flight as a justification for pursuing and stopping him.”); People v. Thomas, 198 Ill. 2d 103, 759 N.E.2d 899, 905, 259 Ill. Dec. 838 (Ill. 2001) (upholding denial of suppression motion despite officer’s lack of reasonable suspicion at the time of attempted seizure because the officer “did not act without reason or for the sole purpose of provoking the defendant’s flight”). Thus, if police action at the moment of an attempted seizure is illegal and taken for the purpose of provoking flight, then flight in response to that action, being unlawfully provoked, may not be factored into the reasonable suspicion equation. To hold otherwise would create

“great opportunities for police mischief in the gulf lying between Wardlow and … Hodari D. Hodari D. says that police pursuit, even when it makes apparent to the suspect a police intent to seize him, is not subject to Fourth Amendment limits. Surely it does not follow that such provocative activity may be deemed to provide the reasonable suspicion the police will need once they catch up with the suspect and take control of him.”

4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.5(f), at 530-31 (2004) (footnote omitted); see also Thomas, 759 N.E.2d at 905 (agreeing that its holding was not to be construed as giving “a license to conduct investigatory stops in every case where a citizen ignores, or fails to heed, a baseless police order or show of authority”).

In the case before us, however, the record does not support a conclusion that Defendant’s flight was unlawfully provoked. There is no evidence in the record of fraudulent conduct on the part of the police or actions taken “without reason or for the sole purpose of provoking [Defendant’s] flight.” Thomas, 759 N.E.2d at 905. The officers were acting appropriately in attempting to investigate a crime that had just occurred. The officers were legitimately present at the scene with probable cause to arrest Clark, who was known to have just completed a drug transaction. When the officers got out of their cars, Defendant fled. Given Defendant’s proximity to the crime scene combined with the officers’ need to maintain the status quo pending a brief investigation, and especially given the lack of record evidence that the police acted unlawfully to provoke Defendant’s flight so as to justify his seizure, we conclude, by applying Wardlow, that the police had reasonable suspicion to pursue Defendant and subject him to a brief investigatory stop. See generally 2 Wayne R. LaFave, Jerold H. Israel, & Nancy J. King, Criminal Procedure § 3.8(b) (1999) (indicating that a brief investigatory stop is appropriate not only to prevent crime but to also help detect it and suggesting that, in the immediate aftermath of a crime, an officer may be entitled to freeze a situation for a short time to make inquiry and determine possible perpetrators).

From the testimony, officers lacked reasonable suspicion to stop a pedestrian, and his public intoxication conviction was reversed. The only thing he did was react to the police vehicle that drove in his direction making a U-turn. Rich v. State, 864 N.E.2d 1130 (Ind. App. 2007).*

Defendant’s father had possession of real property and could consent to his son’s vehicle parked on the property which had switched vehicle licenses. The vehicle contained potential evidence in a murder case. Ross v. State, 954 So. 2d 968 (Miss. 2007).*

N.Y. Town Justices recused themselves from issuing a search warrant for a police dispatcher’s house. By the time a different justice was obtained, the warrant application was void, and it was also issued without jurisdiction. People v Alteri, 2007 NY Slip Op 27160, 16 Misc. 3d 167, 835 N.Y.S.2d 869 (New York Co. 2007).*

Allegations of complaint that officers used excessive force to break into the plaintiff’s house without announcing and breaking down the door with a battering ram stated a claim. Unreasonable entry is a clearly established right, at least since 1995. Mendoza v. Whitehouse, 2007 U.S. Dist. LEXIS 73680 (N.D. Cal. September 24, 2007).*

Officers could rely on farm building’s tenant as having common authority over a barn to permit a consent search. Johnson v. Weaver, 2007 U.S. App. LEXIS 22897, 2007 FED App. 0688N (6th Cir. September 24, 2007).*

Arrest on warrant that officer heard about from another officer and then found it was recalled at booking was not an arrest without probable cause. In dicta, Leon applies to arrest warrants. Hanks v. County of Delaware, 2007 U.S. Dist. LEXIS 73845 (E.D. Pa. October 3, 2007).*

Warrant for a child welfare entry was alleged to be issued by a false statement of the affiant, but there still was plenty of cause for issuance of it without the alleged false statement. The officer has qualified immunity. Southerland v. City of New York, 521 F. Supp. 2d 218 (E.D. N.Y. 2007).*

In a rare occurrence in the realm of computer searches, a court holds that a computer hard drive seizure was overbroad and the good faith exception was inapplicable. The government obtained a search warrant for the hard drives of any computers on defendant’s ship seeking to prove unlawful discharge from the bilge, but the warrant was deemed overbroad because the hard drives were mirror imaged and completely searched, and not just for discharge information. The corporate owner of a ship had standing to challenge search of computers on the ship. United States v. Fleet Management, Inc., 521 F. Supp. 2d 436 (E.D. Pa. 2007):

In the instant case, unlike the situation in Christine or Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, the warrant at issue did not describe in “specific and inclusive generic terms” what was to be seized, and did “vest the executing officers with ‘unbridled discretion’ to search for and seize whatever they wished.” Id. Indeed, the warrant authorized the seizure of “any and all data” from the three seized computers, “including, but not limited to” certain types of data relating to the Ship’s “operation, engineering, maintenance, pollution control equipment, navigational charts, and crew.” (See Attach. B to the Warrant Appl.) (emphasis added). It therefore placed absolutely no limitation on the data to be seized and “vest[ed] the executing officers with unbridled discretion to conduct an exploratory rummaging through [defendants’] papers in search of criminal evidence.” Christine, 687 F.2d at 753. Given the lack of guidance in the warrant itself, it is not surprising that the officer who conducted the forensic analysis of the computer hard drives relied only on the list of search terms that were provided to him. (9/24/07 N.T. (Fehrman) at 204-06, 213.) Meanwhile, the search terms, while primarily geared toward obtaining information about overboard discharges of waste, do not derive that focus from the general warrant, which contains no reference to overboard discharges. As such, it is plain that the executing officers exercised total discretion in the search, making their own determinations as to what they would seize from the hard drives, without any actual judicial control.

The Government asks that we focus on the particularity with which Attachment A to the warrant application identifies the three computer hard drives themselves, and emphasizes that the warrant clarifies the “any and all data” language by following it with the phrase “including, but not limited to [data] relating to the ship’s operation, engineering, maintenance, pollution control equipment, navigational charts, and crew.” We do not find these arguments persuasive. First, it is plainly insufficient to identify the computer hard drives with particularity as the hard drives were merely the property to be searched, not the properly to be seized. As the Fourth Amendment makes clear, a warrant must identify with particularity both the property to be searched and the property to be seized, and here, it is the description of the property to be seized that is at issue. See U.S. Const. amend. IV (requiring warrants to “particularly describ[e] the place to be searched, and the persons or things to be seized”).

Second, we find that the warrant’s “including, but not limited to” clause does not add particularity to the otherwise general warrant as it, by its own terms, imposes no limitation on the data to be seized. While the Government argues that “the warrant describes the data to be seized as relating to the ship’s operation, engineering, maintenance, pollution control equipment, navigational charts, and crew,” that is simply not the case. (Gov’t Mem. at 29.) Rather, as stated above, the warrant describes the data to be seized as “any and all data in the computers … including, but not limited to” the general categories of data referenced by the Government. As such, it merely lists those general categories of data as types of data that are necessarily included in the broad seizure power. Thus, in actuality, the warrant placed no restriction on the data that the Government could seize from the hard drives.

. . .

The Government contends that even in the face of a facial deficiency, the good faith exception can apply unless the facial deficiency “was so obvious that a law enforcement officer, without legal training, should have realized, upon reading the warrant, that it was invalid and should thus have declined to execute it.” Ninety-Two Thousand Four Hundred Twenty-Two Dollars, 307 F.3d at 146. However, “[g]iven that the particularity requirement is set forth in the test of the Constitution, no reasonable officer could believe that a warrant that plainly did not comply with that requirement was valid.” Groh, 540 U.S. at 563 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982)). The warrant here plainly did not comply with the particularity requirement, because it did not limit the scope of the officers’ search in any way, and we are confident that it would not take legal training for an officer trained in law enforcement to recognize as much. Accordingly, we find that the good faith exception simply cannot apply here.

Comment:I predict that the government will appeal this ruling. As I said, it is a rare occurrence that a court actually applies the particularity clause to a computer search. No area of the law is more prone to abuse by the courts and police than particularity and computer searches. But that’s just my opinion.

The LAPD’s May Day 2007 clash with Hispanics where “less than lethal force” was used was granted class certification status, including on excessive force grounds. The LAPD’s own continuing investigation (Report on Mac Arthur Park Incident) was not reason for the court to defer. Multi-Ethnic Immigrant Workers Org. Network v. City of Los Angeles, 246 F.R.D. 621 (C.D. Cal. 2007):

(b) Third, Fifth, Sixth and Seventh Claims for Relief: Fourth Amendment and related state claims for excessive force.

The Fourth Amendment prohibits the use of unreasonable force in effecting a search or seizure of a suspect. The LAPD use or threat of force against the assembled crowd may constitute a seizure, although there are individual factual questions as to whether a given officer caused a particular individual to be displaced by the use or threat of force. The parties focus their arguments not on whether there was a seizure, but on whether the actions of the police officers were reasonable. Thus, Plaintiffs focus on the LAPD commanders’ authorization of “less lethal” force (as distinct from the application of such force).

At the hearing on this motion, Defendants opposed certification because the LAPD is in the process of investigating which individual officers may be subject to discipline or liability. However, the scope of the Department’s investigation is necessarily limited. It is difficult to determine the identity of the officers responsible for any particular injuries, because the officers wore riot gear that obscured their name tags and they fired munitions from various skirmish lines. Despite the extensive video coverage of the event, thus far the LAPD has identified only twenty-six officers for individual investigations. Hence, individualized assessments of whether an officer’s use of force was reasonable will not be possible for the majority of putative class members. The LAPD’s internal investigation is not a reason to defer certification.

The Court recognizes that the conduct of individual officers in the field may present individual issues of reasonableness, namely whether it was reasonable under the circumstances for a particular officer to fire less-lethal munitions, use his baton to strike people, or use other forms of force, such as pushing and shoving.

Nonetheless, the individual issues share a common source: the command decisions to disperse the crowd and to authorize the use of less-lethal munitions if the crowd’s behavior warranted it. LAPD Report at 8, 34-35. Because the legality of these command decisions is the overriding common question, the predominance requirement is met as to the Fourth Amendment claim.

The Colorado Supreme Court assumes but does not decide that three sheriff’s deputies entered defendant’s property in violation of the Fourth Amendment. In response to the violation, he allegedly committed criminal acts against the deputies, including menacing them with a shotgun. The trial court suppressed all the evidence of his criminal acts on the ground that the evidence was derived from the deputies’ unconstitutional trespass. The Colorado court concludes that this evidence is not derivative of any constitutional violation, and reverses the trial court’s suppression order. People v. Doke, 171 P.3d 237 (Colo. 2007). Comment: This is the settled general rule.

Extending a traffic stop for lack of a seatbelt and a lack of a reflective strip on the temporary tag was defective for going beyond its purpose. State v. Connor, 288 Ga. App. 517, 654 S.E.2d 461 (2007):

As noted above, to pass muster under the Fourth Amendment, the continued questioning of a driver and passengers outside the scope of a valid traffic stop is permissible only when the officer has a reasonable articulable suspicion of illegal activity or when the valid traffic stop has become consensual. … A consensual encounter requires the voluntary cooperation of a private citizen with non-coercive questioning by a law enforcement official. Because the individual is free to leave at any time during such an encounter, he is not “seized” within the meaning of the Fourth Amendment. … In looking to the totality of the circumstances to determine whether a reasonable person would have felt free to leave, three important factors have been given particular scrutiny: (a) whether the driver’s documents have been returned to him; (b) whether the officer informed the driver that he was free to leave; and (c) whether the driver appreciated that the traffic stop had reached an endpoint. … It is clear that “an encounter initiated by a traffic stop may not be deemed consensual unless the driver’s documents have been returned to him.” (Citations omitted.) …

There is no privity of parties between a preliminary hearing and a § 1983 case over the same arrest and search for issue preclusion to apply. Saunders v. Knight, 2007 U.S. Dist. LEXIS 86291 (E.D. Cal. November 8, 2007).*

Defendant’s placing her hand in her pocket during a stop and refusing to remove it justified a patdown for officer safety. The object, however, was obviously not a weapon, so opening it up was unreasonable, and the motion to suppress should have been granted. Sudduth v. State, 288 Ga. App. 541, 654 S.E.2d 446 (2007):

In this case, as stated above, the officer could not identify the object he felt as either a weapon, or by its contour and mass, contraband and thus the State concedes that the intrusion into Sudduth’s pocket was impermissible under these facts.

Defendant admitted to consenting to a search by the police of a trailer owned by his father that he used for an adulterous relationship. The police showed up at 3:45 a.m. looking for him, and he signed a consent to search the trailer, then contended that it was not his, he only occasionally used it, and the gun was not visible until the officers pulled it out. The officers testified that the gun was immediately visible on entering the trailer, so the defendant’s conviction of possession was affirmed. State v. Vassar, 966 So. 2d 654 (La. App. 5th Cir. 2007), released for publication November 9, 2007.

Defendant had no reasonable expectation of privacy on his computer attached to a military base network in Saudi Arabia. He thought his files were password protected, but they were not, and his personal files were accidentally accessed by somebody finding child porn on his personal computer when it was attached to the network. Therefore, he had no reasonable expectation of privacy in the network. The court analogized it to a person having attempted to protect against others seeing the information but failing in the attempt. United States v. King, 509 F.3d 1338 (11th Cir. 2007):

We have held that tenants of a multi-unit apartment building do not have a reasonable expectation of privacy in the common areas of the building, where the lock on the front door is “undependable” and “inoperable.” United States v. Miravalles, 280 F.3d 1328, 1333 (11th Cir. 2002). We have also held that even though a company has a subjective expectation of privacy in documents that are shredded and disposed of in a garbage bag that is placed within a private dumpster, the company’s “subjective expectation of privacy is not one that society is prepared to accept as objectively reasonable” when the company fails to “take sufficient steps to restrict the public’s access to its discarded garbage.” United States v. Hall, 47 F.3d 1091, 1097 (11th Cir. 1995).

King has not shown a legitimate expectation of privacy in his computer files. His experience with computer security and the affirmative steps he took to install security settings demonstrate a subjective expectation of privacy in the files, so the question becomes “whether society is prepared to accept [King’s] subjective expectation of privacy as objectively reasonable.” See id. at 1094.

It is undisputed that King’s files were “shared” over the entire base network, and that everyone on the network had access to all of his files and could observe them in exactly the same manner as the computer specialist did. As the district court observed, rather than analyzing the military official’s actions as a search of King’s personal computer in his private dorm room, it is more accurate to say that the authorities conducted a search of the military network, and King’s computer files were a part of that network. King’s files were exposed to thousands of individuals with network access, and the military authorities encountered the files without employing any special means or intruding into any area which King could reasonably expect would remain private. The contents of his computer’s hard drive were akin to items stored in the unsecured common areas of a multi-unit apartment building or put in a dumpster accessible to the public.

Because his expectation of privacy was unreasonable King suffered no violation of his Fourth Amendment rights when his computer files were searched through the computer’s connection to the base network. It follows that his additional claim that the later search warrant was invalid because it incorporated information obtained from the search of his computer files also lacks merit.

Maryland apparently declines to follow Hudson by following state statute and Maryland’s common law. It reiterates prior holdings that the exclusionary rule applies, and the state conceded that the intermediate court’s decision was correct, did not file a cross-petition for certiorari, and then argued that Hudson should be followed under Maryland law, a proposition that the court rejected. The court seems to indicate that it would reject Hudson, but it technically left the question for another day. Parker v. State, 936 A.2d 862 (Md. 2007):

Nevertheless, we shall assume arguendo that, under federal law, Hudson v. Michigan controls the Fourth Amendment issue in this case, and that the Fourth Amendment’s exclusionary rule is inapplicable to any violations of the “knock and announce” principle that may have occurred in the case at bar. We shall decide, however, that, under the peculiar circumstances of this case, the evidence is excludable if there is a violation of Maryland’s “knock and announce” principle. This is a very limited decision based exclusively upon Maryland non-constitutional law and procedure.

. . .

Consequently, simply because Article 26 of the Maryland Declaration of Rights and the Maryland common law “knock and announce” principle may generally be in pari materia with the Fourth Amendment, does not require that, in the case at bar, we reconsider the state law holdings of Davis and Adams v. State, supra, and other cases.

There is a compelling reason why the present case is a particularly inappropriate vehicle for such reconsideration. The State failed to challenge the adverse decision of the Court of Special Appeals, or raise the issue of a Maryland exclusionary rule, by filing a cross-petition for a writ of certiorari. Although the petitioner Parker relied on Maryland law as well as the Fourth Amendment, both in his Court of Special Appeals’ brief and in his certiorari petition, and the Court of Special Appeals’ vacation of the judgments and remand for a new suppression hearing was based entirely on the Davis and Adams and Carroll cases in this Court, the State did not file a cross-petition for certiorari. On the contrary, the State’s answer argued in favor of the Court of Special Appeals’ decision vacating the Circuit Court’s judgments and ordering a new suppression hearing.

. . .

. . . The State in its brief and oral argument seeks to reverse a Court of Special Appeals’ judgment to which the State had consented. Such a reversal would be contrary to settled Maryland law.

Consequently, if there was a violation of Maryland’s common law “knock and announce” principle in this case, the evidence is inadmissible under the particular circumstances here. Whether such an exclusionary rule should be applied when there are violations of the Maryland “knock and announce” principle in other cases, or in cases arising after the effective date of Ch. 560 of the Acts of 2005, are matters which we leave for another day.

We agree with the Court of Special Appeals that Terrance Parker’s controlled dangerous substance conviction should be vacated. This matter should be remanded to the Circuit Court for a new suppression hearing and determination. See Southern v. State, 371 Md. 93, 104-112, 807 A.2d 13, 20-24 (2002), and cases there cited. While the Circuit Court, at the conclusion of the prior suppression hearing, considered the factual showing (or absence thereof) made by the police officers at the time of the warrant application, the court did not “review … the facts known to the officers at the time of entry,” Davis and Adams v. State, supra, 383 Md. at 427-428, 859 A.2d at 1132. In addition, we disagree with the Court of Special Appeals’ direction for the Circuit Court to determine whether “the evidence seized is nonetheless admissible under the ‘good faith’ exception to the exclusionary rule.” In light of our opinion in Davis and Adams v. State, supra, at least in cases not subject to Ch. 560 of the Acts of 2005, the so-called “good faith” exception, applied by the Court of Special Appeals, is not applicable under the Maryland common law “knock and announce” principle.

Upon remand, the Circuit Court should decide whether the evidence was admissible under the principles of this Court’s opinions in Davis and Adams v. State and State v. Carroll. If the court determines that the evidence was admissible, the controlled dangerous substance conviction should be reinstated. If the court decides that the evidence should be suppressed under Davis and Adams v. State and State v. Carroll, the controlled dangerous substance conviction should remain vacated and a new trial ordered on that count.

Hiding a gun in a closet that belonged to another tenant of a common building did not show reasonable expectation of privacy. Also, violation of knock-and-announce rule of Wilson is not even addressed because of Hudson. United States v. Williams, 2007 U.S. Dist. LEXIS 89570 (D. Conn. December 6, 2007):

Although Williams arguably demonstrated a subjective expectation of privacy in the closet by allegedly choosing to hide a gun there, he has not shown that his expectation of privacy in the closet was reasonable, which is fatal to his standing argument. The closet was outside Williams’ own room, which was the only area on the third floor over which he had exclusive dominion and control. According to the undisputed testimony of second floor resident Leroy Pittman, Pittman was the sole person authorized to use this closet and exclusively used it to store his hunting and camping equipment for many years. No other tenants used the closet or had permission to use the closet. 7 Courts have held that one who shares his or her home with another does not have a reasonable expectation of privacy in those areas of the home used exclusively by his or her roommate. See U.S. v. Haqq, 278 F.3d 44, 50 (2d Cir. 2002), citing Lenz v. Winburn, 51 F.3d 1540, 1549-50 (11th Cir. 1995) (grandparents lacked reasonable expectation of privacy in closet in their home used exclusively by granddaughter); People v. Fleming, 345 N.E.2d 10, 14-15 (1975) (where defendant and his brother shared an apartment and brother kept his bedroom locked and kept key in his possession, defendant had no reasonable expectation of privacy in the brother’s bedroom). Although there were no locks or markings to indicate the exclusive use of the closet by Pittman, the contents of the closet showed Pittman’s exclusive use. In addition, the defendant has not submitted any evidence indicating that Pittman did not have exclusive use of the closet. Thus, if Williams did have a subjective expectation of privacy in the closet, it would have been unreasonable, because anyone opening the closet would have observed it only contained Pittman’s belongings.

Store security videotape showed the length of the detention. Gun found was admissible. United States v. Williams, 495 F.3d 810 (7th Cir. 2007):

But Williams’s argument here is foreclosed by Devenpeck v. Alford, 543 U.S. 146, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004). In Alford, a civil suit under 42 U.S.C. § 1983 turned on whether the arresting officers had probable cause to arrest Alford. The Ninth Circuit had reversed judgment in favor of the officers, rejecting the officers’ claims that even though they incorrectly cited one crime as the grounds for arrest, they actually already had independent probable cause to arrest Alford for other crimes. Id. at 151-52. Like here, in Alford the other crimes were never charged. Id. at 150-51. The Supreme Court reversed the Ninth Circuit and held that as long as the officers had probable cause to arrest Alford, it was irrelevant that they had eventually charged him with different crimes. The Court held that its Fourth Amendment precedents:

make clear that an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. That is to say, his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. As we have repeatedly explained, the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.

Id. at 153 (internal citations and quotations omitted).

Such is the case here. Once the officers knew that they had retrieved a stolen gun from Williams’s car, they had probable cause to arrest him. Once they had that probable cause, it is irrelevant that their investigation eventually found evidence of other crimes, that he was originally charged with those other crimes, or that those crimes were charged based on an investigation that dragged out longer than was warranted by their original reasonable suspicion.

The affidavit for the search warrant showed probable cause as a matter of law as to one defendant but not another. The District Court erred in granting summary judgment on qualified immunity as to the other because it was factbound. Walczyk v. Rio, 496 F.3d 139 (2d Cir. 2007).*

“Perez gets nowhere with his argument that his girlfriend, Bobbi Compton, lacked actual and apparent authority to authorize a search of the Grand Am. Compton was the legal owner of the car and had the keys to it. Although Perez may have used the car more frequently than Compton did, Compton drove the car from time to time. By leaving his duffel bag inside the Grand Am, Perez assumed the risk that Compton would consent to a search of the car and its contents. See Matlock, 415 U.S. at 172 n.7 ….” United States v. Perez, 246 Fed. Appx. 140 (3d Cir. 2007)* (unpublished).