Defendant lacked an expectation of privacy in a package that was shipped between the continental U.S. and Puerto Rico and subjected to an inspection where he put another person’s name on it as both shipper and recipient. United States v. Colon-Solis, 508 F. Supp. 2d 186 (D. P.R. 2007). Comment: The district court, in an extremely long footnote (n. 2), noted that packages shipped between the U.S. and P.R. are not subject to border inspection because P.R. is a part of the U.S. The government, however, conducts limited inspections for a non-customs purpose. The issue remains open, but the court expressed doubt as to the legality of those inspections:

The legality of the search itself turns on whether U.S. Customs agents were statutorily authorized to conduct random, warrantless searches on items imported to Puerto Rico from the continental United States. The government maintains their ability to search such packages is rooted in the regulations mandating the filing of a Shippers Export Declaration (“SED”). They claim U.S. Customs and Boarder Protection (“CBP”) agents are authorized to conduct random searches for SED verification and enforcement purposes. The SED is a dual purpose document used by the Census Bureau for statistical reporting purposes only, and by the Bureau of Industry and Security and other government agencies for export control purposes. 15 C.F.R. § 30.4. It is this dual use that creates a novel legal issue not previously addressed in the First Circuit or elsewhere. Though the SED is required under two separate agencies and for completely separate purposes, the same form is used for both. A problem arises in that one agency, the Census Bureau, requires the SED to be filed for shipments from the United States to Puerto Rico while the other agency, the Bureau of Industry and Security, excludes Puerto Rico-bound shipments from the SED requirement. Moreover, the provisions governing the use of SEDs are unique to each agency and at times contradictory. (See i.e. 15 C.F.R. § 30.4(a) (designating that the SED provisions of that part apply only to the statistical reporting requirements and not to the export control requirements)). It is drafting such as this that breeds confusion.

Consent to “look around” authorized a search for guns and drugs. United States v. Cole, 246 Fed. Appx. 112 (3d Cir. 2007)* (unpublished).

Assuming, without deciding, that defendant’s stop was illegal, his flight was an intervening act that purged the taint. United States v. Jackson, 246 Fed. Appx. 478 (9th Cir. 2007)* (unpublished). The First Circuit had a similar case a few days later, and defendant was never seized until after flight. United States v. Holloway, 2007 WL 2460035 (1st Cir.(Mass.) Aug 31, 2007).

Officers had reasonable suspicion for a probationer search from information from an informant that provided “rich detail” that was corroborated on important points. Most importantly, “the suppression analysis could have begun and ended with this fact: before the search began, Loranger admitted that the probation officers would find marijuana at his place. Statements against penal interest are presumed reliable. … Loranger essentially volunteered probable cause to believe that evidence of a crime would be found on the premises.” United States v. Jeffery, 2007 U.S. Dist. LEXIS 64374 (W.D. Wis. August 30, 2007).*

The Seventh Circuit held that non-password protected files on a jointly used computer were subject to consent by the third person. [The court erroneously shifts the burden to the defense to show the third party consent was invalid.] Antonelli v. Sherrow, 246 Fed. Appx. 381 (7th Cir. 2007)* (unpublished):

Several other circuits have addressed the issue of a third party’s authority to consent to a search of a shared computer when the third party does not have access to all areas of the computer. In general, these courts have decided that when one user has protected files with a password that the other user does not know, the second user cannot consent to a search of the password-protected files. United States v. Buckner, 473 F.3d 551, 554 (4th Cir.), cert. denied, 127 S. Ct. 2119, 167 L. Ed. 2d 830 (2007) (No. 06-10245); Trulock v. Freeh, 275 F.3d 391, 403 (4th Cir. 2001). On the other hand, when the joint users share access to the computer’s files, either one can consent to a search of the whole computer. See United States v. Morgan, 435 F.3d 660, 663-64 (6th Cir. 2006); United States v. Andrus, 483 F.3d 711, 719-22 (10th Cir. 2007).

Antonelli, who has the burden of showing that his ex-wife’s consent was invalid, see Valance v. Wisel, 110 F.3d 1269, 1279 (7th Cir. 1997), has presented no evidence that there were password-protected files on the computer or that he even told Mrs. Antonelli that certain files were private. Instead, he suggests that Mrs. Antonelli’s failure to detect unspecified files when she searched the computer is evidence of their inaccessibility. But without even an assertion that Antonelli password-protected files, her failure shows only the incompleteness of her search, not the inaccessibility of files. Because Antonelli gave his ex-wife use of the computer without password-protecting files or even informing her that any files were off-limits, he could not reasonably expect that she would recognize them as private. See United States v. Shelton, 337 F.3d 529, 536-37 (5th Cir. 2003) (defendant gave up his reasonable expectation of privacy in his house with respect to his estranged wife when defendant did not change locks or do anything to restrict her access to house). And Antonelli’s written objections to the ATF after the computer’s seizure cannot overcome qualified immunity to constitutional liability because the then clearly established law was that a timely objection by a non-consenting joint user who is actually present does not override the other user’s consent. See Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 1520 n.1, 164 L. Ed. 2d 208 (2006).

Traffic stop was not unduly long as officer completed initial investigation. Also, defendant lacked standing in search of rental car, but he could be asked for consent to look for the rental agreement [go figure!]. United States v. Fristoe, 2007 U.S. Dist. LEXIS 48859 (N.D. Okla. July 5, 2007):

Owen’s [the officer’s] request for Fristoe to look for the rental agreement was within the scope of the traffic stop, and the Court has not found precedent suggesting that Owen could not ask Fristoe to produce the rental agreement. Based on existing case law, the Court concludes that Owen did not violate the Fourth Amendment by asking a passenger to produce the rental agreement.

The officer did not have reasonable suspicion on the totality of circumstances for the continued detention. United States v. Jackson, 517 F. Supp. 2d 859 (W.D. La. 2007):

The totality of factors or indicators relied upon by Trooper Nash do not amount to reasonable suspicion of drug trafficking or other illegal behavior. Most people are nervous when they are stopped by police on an unfamiliar highway while traveling away from home. It is common for someone to demonstrate some nervousness, i.e., shaking of the hand, when handing the trooper his or her driver’s license. The recording of the stop, however, shows that any nervousness on the part of Defendant quickly subsided. He responded to Trooper Nash’s questions with complete answers, he was not evasive and his eye contact increased as the stop went on. When Trooper Nash was running Defendant’s information through the computer, Defendant stood in front of Trooper Nash’s car (after having declined the invitation to sit and wait in his own car), looking back in Trooper Nash’s direction and calmly smoking his cigarette.

Government showed probable cause for a search of defendant’s house for evidence of arson. “In this case, the affidavit establishes that defendant Mayneng Xiong was an owner of the David Street residence, as well as the TMS Mays Supermarket. She was identified as the woman who purchased 12 bottles of isopropyl alcohol, an ignitable liquid that is sometimes used in incendiary fires. Ten of the 12 bottles were recovered after the arson at defendant Mayneng Xiong’s store. She had provided false information to the investigating officers about her whereabouts on the evening of January 8, 2006. The officers established that defendant Mayneng Xiong drove a Dodge truck and that the truck was registered to her at 310 David Street.” In any event, the good faith exception would save the search. United States v. Mayneng Xiong, 2007 U.S. Dist. LEXIS 68999 (E.D. Wis. September 14, 2007).*

Officer had a lawful basis for a stop of defendant who fled on foot discarding a gun. He was not seized when he tossed the gun. United States v. Davis, 2007 U.S. Dist. LEXIS 68881 (D. Del. September 14, 2007).*

Because court finds that officer was not credible on whether the license plate was properly illuminated for the basis of the stop, the court also finds the rest of his testimony not credible on the alleged swerving in the lane and suppresses the search. United States v. Walters, 492 F. Supp. 2d 754 (W.D. Mich. 2007).* (Comment: This case is interesting because the officer’s strained efforts to manufacture justification for the stop, belied by photographs, tainted all his testimony. Why can’t they just be content with the truth? Apparently they can’t when they make up facts to justify a stop.)

Government’s certification motion for an interlocutory appeal was not even filed until after the appeal was argued orally and got onto that issue. The government’s failure was not in bad faith, and did not affect the substantial rights of the defendant. On the merits, from all indications (fake ID, on a drug courier route, hands shaking uncontrollably, etc.) the officer had reasonable suspicion to detain briefly for a drug dog. United States v. Newland, 246 Fed. Appx. 180 (4th Cir. 2007)* (unpublished).

Stop based on partially obstructed license plate was valid under state law, and reasonable suspicion developed after that. United States v. Fleetwood, 235 Fed. Appx. 892 (3d Cir. 2007)* (unpublished).

During a traffic stop, the officer saw over the defendant’s ear what was obviously a blunt, and that was plain view. United States v. Stanyard, 2007 U.S. Dist. LEXIS 41564 (M.D. Ala. June 7, 2007).*

The testimony of the officer was sufficient to show that the roadside questioning of the defendant was not unreasonable. “The facts elicited from Officer Connell, the sole witness at the hearing, fail to show that he extensively questioned or requestioned of Heathman or asked questions unrelated to the purpose for the stop. No evidence supports defendant’s contention that the stop was appreciably lengthened by any questions unrelated to the stop, nor do other facts show that defendant’s detention was unreasonable.” United States v. Johnson, 2007 U.S. Dist. LEXIS 41392 (D. Kan. June 6, 2007):

This court’s examination is clear.

“… we need not make a time and motion study of traffic stops; we consider the detention as a whole and the touchstone of our inquiry is reasonableness. …we must consider the individual circumstances that confronted the troopers, using ‘common sense and ordinary human experience’ to determine whether ‘the police acted less than diligently, or … unnecessarily prolonged [the] detention.’ United States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985).”

United States v. Patterson, 472 F.3d 767, 776 (10th Cir. 2006).

The Tenth Circuit recently rejected a challenge similar to the one made by this defendant in these words:

“Even if this task might have been performed slightly faster had [the officer] not been asking questions, the time involved was not ‘beyond the time reasonably required to complete that [task].’ Caballes, 125 S. Ct. at 837; see United States v. Martin, 422 F.3d 597, 601-02 (7th Cir. 2005) (‘A traffic stop does not become unreasonable merely because the officer asks questions unrelated to the initial purpose for the stop, provided that those questions do not unreasonably extend the amount of time that the subject is delayed.’); United States v. Childs, 277 F.3d 947, 949 (7th Cir.2002) (en banc) (‘questions that do not increase the length of detention (or that extend it by only a brief time) do not make the custody itself unreasonable’). Therefore, this questioning was lawful.”

Alcaraz-Arellano, 441 F.3d at 1259.

Defendant was arrested and not arraigned for more than 72 hours, so his detention was presumptively unreasonable under County of Riverside v. McLaughlin. It was, however, harmless because the remedy is not dismissal, but exclusion of evidence. Since defendant showed nothing had been derived from it or admitted in evidence against him, he was not entitled to habeas relief. Hunt v. Wolfenbarger, 2007 U.S. Dist. LEXIS 62834 (E.D. Mich. August 27, 2007)*:

However, the mere fact that a violation of McLaughlin may have occurred does not imply that the petitioner is entitled to habeas relief. The Sixth Circuit discussed the appropriate remedy for such a violation in United States v. Fullerton, 187 F.3d 587 (6th Cir. 1999). Fullerton’s warrantless arrest was not validated by a judicial officer until 72 hours after his arrest, and he argued that the trial court should have suppressed evidence obtained in connection with the arrest. Id. at 590-91. The Sixth Circuit rejected the argument on the grounds that the evidence at issue was actually seized before the delay occurred, but it also endorsed the concept that McLaughlin violations are “susceptible to harmless error analysis.” Id. at 592. In this case, the petitioner has not alleged that he was prejudiced in any way by the delay by, for example, the seizure of evidence or eliciting of incriminating statements. Compare with Powell v. State, 113 Nev. 41, 930 P.2d 1123, 1126 (1997) (discussed in Fullerton, 187 F.3d at 592). Moreover, as the Sixth Circuit noted in Fullerton, the Supreme Court has yet to delineate “the appropriate remedy for a McLaughlin violation.” Fullerton, 187 F.3d at 591. [Therefore, the state court ruling was not contrary to Supreme Court cases.]

Reasonable suspicion existed for a detention, and defendant admitted that he gave consent. United States v. Blanc, 245 Fed. Appx. 271 (4th Cir. 2007)* (unpublished).

The district court credited the officers by finding that the defendant consented to a search of his house and not just the entry of the house. The evidence supports the district court’s conclusion that defendant consented. United States v. Venzant-Diaz, 2007 U.S. App. LEXIS 20507 (10th Cir. August 27, 2007)* (unpublished).

In response to defense counsel’s Anders brief, defendant pro se argued that defense counsel was ineffective for not pursuing a search issue. That issue had to be brought in a § 2255 when a record was made. United States v. Mulgado, 241 Fed. Appx. 567 (10th Cir. 2007) (unpublished).

Defendant’s Franks claim could not prevail in any event, so his request for a COA to appeal denial of his § 2254 is denied. Bernard v. Ray, 246 Fed. Appx. 553 (10th Cir. 2007)* (unpublished).

Petitioner’s state law violation of a prison cell search that led to evidence of a crime was not cognizable in habeas, even if the court could reach it under Stone v. Powell. Harris v. Wolfenbarger, 2007 U.S. Dist. LEXIS 62828 (E.D. Mich. August 27, 2007).

Officer seeing heavy undercoating on a Ford Explorer while driving next to it and having seen another with sequential vanity plates was sufficient suspicion to look under the vehicle when he stopped it for a traffic offense and saw what he believed was a hidden compartment. Based on the fact the officer had stopped six other Ford Explorers with similar hidden compartments, this was probable cause. United States v. Zamudio-Carrillo, 499 F.3d 1206 (10th Cir. 2007):

This court employs a two-factor test to determine whether evidence of a hidden compartment is, by itself, sufficient to establish probable cause: (1) “the likelihood that there really is a hidden compartment” and (2) “the likelihood that a vehicle with a hidden compartment would, in the circumstances, be secreting contraband.” United States v. Jurado-Vallejo, 380 F.3d 1235, 1238, 87 Fed. Appx. 147 (10th Cir. 2004). As to the first factor, at the time Zamudio-Carrillo was stopped by Trooper Harvey, observations made by Trooper Rule strongly supported his conclusion the Ford Explorer driven by Beltran-Lugo contained a hidden compartment. Trooper Rule testified he visually inspected the underside of the Explorer and observed that a crudely constructed metal panel had been installed around the gas line and a fresh layer of undercoating had been applied to the area. He testified he had previously seized six to ten Explorers and numerous other sport utility vehicles with false compartments beneath the floor, all constructed in basically the same way.

As to the second factor, Trooper Rule testified he could think of no legitimate reason to add a false compartment to a vehicle. Neither Zamudio-Carrillo nor Beltran-Lugo testified at the suppression hearing and neither offered any explanation for the presence of the compartment. Further, we observed in Jurado-Vallejo that “if the vehicle ha[s] a hidden compartment, it [is] highly likely to contain contraband.” Id.

Accord: United States v. Beltran-Lugo, 245 Fed. Appx. 834 (10th Cir. 2007)* (unpublished).

The California sexually violent predator program was challenged in a case submitted nearly 2½ years ago. The Fourth Amendment claim of how detainees were surrounded by guards for restraint was not subject to dismissal under Rule 12(b)(6) because it stated a claim for relief. Hydrick v. Hunter, 500 F.3d 978 (9th Cir. 2007):

The Plaintiffs allege that Defendants’ policies and practices subject Plaintiffs to unreasonable searches, seizures, and unnecessary use of force. According to the Plaintiffs, they are subjected to public strip searches, retaliatory searches of their possessions, and arbitrary seizures of their personal belongings upon arrival at Atascadero. SVPs are also shackled during transport to Atascadero and during visits with family and friends. When they refuse to participate in treatment, SVPs are subjected to “red light alarms” even when they do not pose any physical risk. Moreover, SVPs are force-medicated as a means of intimidation and punishment, and for the convenience of staff.

Accepting these allegations as true, the Plaintiffs may be able to state a “clearly established” violation of their Fourth Amendment rights, and thus, the claims are not appropriate for dismissal at the Rule 12(b)(6) stage. The watchword of the Fourth Amendment in every context is “reasonableness.” As this court held in Thompson v. Souza, 111 F.3d 694 (9th Cir. 1997), “the Fourth Amendment right to be secure against unreasonable searches and seizures ‘extends to incarcerated prisoners.'” Id. at 699 (quoting Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988)). Thus, this protection certainly extends to SVPs.

Of course, “the reasonableness of a particular search [or seizure] is determined by reference to the [detention] context.” Michenfelder, 860 F.2d at 332. There are concerns that mirror those that arise in the prison context: e.g., “the safety and security of guards and others in the facility, order within the facility and the efficiency of the facility’s operations.” Andrews v. Neer, 253 F.3d 1052, 1061 (8th Cir. 2001). But even so, qualified immunity does not protect a search or seizure that is arbitrary, retaliatory, or clearly exceeds the legitimate purpose of detention.

Under this framework, we cannot dismiss the Plaintiffs’ claims. The “reasonableness” of a search or seizure is a fact-intensive inquiry that cannot be determined at this stage.

Class certification is granted in a strip search case where nonviolent, nondrug felony suspects were subjected to strip searches as a matter of course without reasonable suspicion. Smith v. Dearborn County, 244 F.R.D. 512 (S.D. Ind. 2007):

Plaintiff has satisfied all of the requirements for class certification. Plaintiff’s Motion for Class Certification is GRANTED.

The class is defined as follows: All pretrial detainees who were subjected to a strip search upon intake into the Dearborn County Jail during the two year period prior to the filing of the Complaint, and for which the records indicate were strip searched solely because they were charged with a felony and despite no specific articulable individualized reasonable suspicion that they were secreting weapons or contraband.

A § 1983 claim for failing to provide medical services is hardly a Fourth Amendment claim. Willis v. Charter Township of Emmett, 2007 U.S. Dist. LEXIS 64345 (W.D. Mich. August 30, 2007).*

The U.S. government cannot be sued in a § 1983 claim for alleged unconstitutional searches. Kamar v. Krolczyk, 2007 U.S. Dist. LEXIS 64230 (E.D. Cal. August 29, 2007).*

Owner of car not present when it was searched had no standing to contest the search in a § 1983 case. He did, however, have standing to question unnecessary damage to the vehicle during the search. The driver, his son, made a fact question for trial on consent for the search of the car, but there was reasonable suspicion for the stop. Levy v. Kick, 2007 U.S. Dist. LEXIS 64117 (D. Conn. August 29, 2007).*

The limited record provided for the appeal still supports the trial court’s conclusion that the defendant consented to a search despite his alleged limited knowledge of English. United States v. Nguyen, 246 Fed. Appx. 557 (10th Cir. 2007)* (unpublished).

Defendant made a Franks challenge to a search warrant. Talking the allegations as true, defendant would not prevail, and the motion to suppress is denied without a hearing because there was ample probable cause. United States v. Carroll, 2007 U.S. Dist. LEXIS 64086 (D. Utah August 28, 2007).*

Search incident was based on defendant’s arrest for public intox that led to his shouting obscenities, which reinforced the officer’s conclusion. After he was handcuffed and placed in the back of the police car, his backpack was validly searched. He had requested that the backpack be brought with him. State v. Allen, 2007 Iowa App. LEXIS 1096 (October 12, 2007).*

Defense counsel was not ineffective for not making a motion to suppress. “Viewing a stopped car in the country at two o’clock in the morning gave the officer reasonable cause to believe a driver may need assistance. Seeing a group of persons using Moyer’s property also supports a reasonable suspicion of trespass. The officer had reasonable cause to make an investigatory stop.” Moyer v. State, 2007 Iowa App. LEXIS 1059 (October 12, 2007).*

Officer had reasonable suspicion to stop defendant based on a report of a burglary and a susicious vehicle at 2:20 a.m., and defendant was seen parked at a closed business in the vicinity. State v. Brock, 2007 Iowa App. LEXIS 1104 (October 12, 2007).*

Stop in a high crime area plus furtive movement in the car on the stop justified a search of the console. Commonwealth v. Murray, 2007 PA Super 307, 936 A.2d 76 (2007):

We find that Officer Keith articulated sufficient facts to lead him to properly conclude that Murray could have been armed and dangerous, thus justifying a limited search for weapons in the passenger compartment of the vehicle. Specifically, the knowledge of the neighborhood being a well-known narcotics area, when coupled with the excessive movement inside the vehicle and hour of night, raised serious and obvious safety concerns that justified a search for weapons.

A general conset to search a motel room permits a search of everything that could contain the object of the search; in this case, drugs. United States v. Contreras-Ramos, 2007 U.S. Dist. LEXIS 75870 (D. Ore. October 10, 2007).*

A snitch was inside the defendant’s house and reported to the police when he came out that the defendant had a pill soak going on. The snitch was a meth cook himself. The house was under surveillance while a search warrant was being prepared. The defendant was outside, preparing to leave. Then, the children of the home were seen coming home, and the officers decided to seize the house to prevent the children from going inside. The seizure was valid as based on exigent circumstances. United States v. Gray, 2007 U.S. Dist. LEXIS 83946 (D. Utah November 13, 2007).*

Defendant had been arrested inside and taken outside and put in a patrol car. The search of the living room at that point was hardly incident to his arrest. The state’s alternative argument that defendant abandoned the bag that was left inside on his arrest was also unavailing, he retained an expectation of privacy in it, and the occupant’s consent to search that bag was ineffective. State v. McCarthy, 288 Ga. App. 426, 654 S.E.2d 239 (2007).*

Defendant was stopped because his headlights were off at 2:30 a.m., and that was justification for the stop. State v. Boyd, 2007 Wisc. App. LEXIS 982 (November 14, 2007)* (probably will be unpublished, but the opinion does not say; decided by one appellate judge).

Officer had an uncorroborated anonymous tip of smoking of marijuana at a bar, and he showed up there and the occupants reacted by running when they saw him, and that made corroboration. State v. Moore, 2007 Wisc. App. LEXIS 989 (November 14, 2007).*

The difference between criminal and civil searches can be dramatic. Consider these two cases from Arizona and the Eighth Circuit decided Wednesday and Thursday:

The defendant had been arrested and was subjected to a strip search, incidentally by a code enforcement officer who had not been trained in doing strip searches, but was the only female around to do it. The trial court suppressed removal of a bag partially protuding from defendant’s anus because no warrant was sought because precedent required a warrant for any search that was so intrusive. State v. Barnes, 215 Ariz. 279, 159 P.3d 589 (2007):

P8 The state primarily contends that Armstrong did not intrude beyond the surface of Barnes’s body because “no piercing, probing, or even touching of the skin was required to seize” the bag. See State v. Magness, 115 Ariz. 317, 321, 565 P.2d 194, 198 (App. 1977) (visual search of area “around the rectum” permissible in absence of a warrant as part of search incident to arrest.). To address this contention, we must determine whether an officer transforms a lawful warrantless strip search into an intrusion beyond the body’s surface requiring a warrant when he or she handles an object protruding from, and extending into, an arrestee’s anal cavity. Although the state correctly observes that its officer neither inserted any object, digit, or instrumentality into Barnes, the officer’s manipulation and removal of the protruding portion of the bag necessarily exerted force on the portion of the bag extending into Barnes’s rectum. And the officer’s actions had the effect of moving the portions of the bag within Barnes’s rectum as the bag emerged. Once an officer’s actions have the effect of exerting force within an arrestee’s body, we decline to draw constitutional distinctions based on the mechanism by which the officer does so. The invasion of privacy is the same regardless of the mechanism used. See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1449, 1449 n.11 (9th Cir. 1991) (finding “Schmerber governs all searches that invade the interior of the body” and is not limited to “cases in which skin is pierced or entry is forced”). Moreover, the Court’s opinion in Schmerber instructs that the intrusiveness of a body search must be assessed in part by the potential risks of inflicting trauma or pain. 384 U.S. at 771- 72, 86 S. Ct. at 1836. Although nothing in the record suggests that Barnes actually suffered any trauma or pain, we have little doubt that an officer’s removal of items extending into a suspect’s “innards” generally poses such potential risks, the relevant consideration here.

P9 We are not the first court to conclude that an officer must secure a warrant to remove items partially protruding from an arrestee’s rectum. In Hughes v. Commonwealth, 524 S.E.2d 155, 159, 162 (Va. Ct. App. 2000), quoting Commonwealth v. Gilmore, 498 S.E.2d 464, 469 (Va. Ct. App. 1998), the court found that an officer’s removal of a plastic bag protruding halfway from a defendant’s rectum constituted an “intrusive physical body cavity search” requiring a warrant in the absence of both exigent circumstances and “‘a clear indication that evidence is located within a suspect’s body.'” And, in People v. More, 764 N.E.2d 967, 969 (N.Y. 2002), quoting People v. Luna, 535 N.E.2d 1305, 1308 (N.Y. 1989), New York’s highest court characterized physical body cavity searches, such as the seizure of a bag partially protruding from a suspect’s rectum, as “‘invasive'” and “‘degrading'” and found such searches “at least as intrusive” as the blood test procedures addressed in Schmerber. Accordingly, the court held the evidence found in the suspect’s rectum should have been suppressed because officers had neither complied with the warrant requirement set forth in Schmerber nor articulated exigent circumstances sufficient to obviate the need for a warrant. More, 764 N.E.2d at 969-70.

The plaintiff was strip searched in a motel room after his arrest, where he was handcuffed and had his pants pulled down by the defendant officer, was bent over, and a tissue was removed from his buttocks. After a four day trial, the jury awarded $35,000 in “nominal” damages which the district court reduced to $1. The parties appealed and cross-appealed, and the Eighth Circuit granted qualified immunity to the officer. Richmond v. City of Brooklyn Ctr., 490 F.3d 1002 (8th Cir. 2007):

We hold that a reasonable officer in the defendant’s position would not have understood that the strip search of [*14] Richmond in his motel room would violate his constitutional rights. The law in April 2001 was clear that strip searches should be conducted in an area as removed from public view as possible without compromising legitimate security concerns. See Franklin v. Lockhart, 883 F.2d 654, 656-57 (8th Cir. 1989) (holding that visual body cavity searches of prison inmates conducted within view of four to six other inmates did not violate the Fourth Amendment because any measures taken to increase privacy would implicate legitimate prison security concerns); see also Hill v. Bogans, 735 F.2d 391, 393-94 (10th Cir. 1984) (finding the manner of a strip search of an arrestee unreasonable where it was conducted in a police station lobby area with “ten to twelve people … milling about”). The law was also clear that strip searches should be conducted by officials of the same sex as the individual to be searched. E.g., Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir. 2001); see also Justice v. Peachtree City, 961 F.2d 188, 193 (11th Cir. 1992). Finally, the law was clear that strip searches should be performed in a hygienic fashion and not in a degrading, humiliating or abusive fashion. Cf. Seltzer-Bey v. Delo, 66 F.3d 961, 962-63 (8th Cir. 1995) (holding that a plaintiff stated a valid Fourth Amendment search-and-seizure claim where he alleged that he was subjected to sexual comments about his anatomy and rubbing of his buttocks with a nightstick during strip searches); see also Bell, 441 U.S. at 560 (stating that it is unreasonable to conduct a strip search “in an abusive fashion”); Bonitz v. Fair, 804 F.2d 164, 172-73 (1st Cir. 1986) (holding body-cavity searches unreasonable where, inter alia, the searching officers wore a single pair of gloves while searching multiple inmates), overruled on other grounds by Unwin v. Campbell, 863 F.2d 124, 128 (1st Cir. 1988), abrogated by Johnson v. Jones, 515 U.S. 304, 132 L. Ed. 2d 238 (1995) (abrogating Unwin).

In this case, the standards for privacy and hygiene clearly were met because only the officers and the arrestee were present for the strip search, the motel room was isolated from public view, the officers were the same sex as Richmond, and Officer Bruce wore a sanitary latex glove. Richmond claims that the search was performed in a degrading, humiliating or abusive manner because he was restrained during the search, he was not allowed to lower his own pants and boxer shorts, and Officer Flesland forcibly bent him over a table for the search. First, while the special verdict form did not ask the jury to make a specific finding as to whether Officer Flesland forcibly bent Richmond over a table, the jury did find specifically that Officer Flesland’s conduct during the search was reasonable. This indicates strongly that when the jury rejected Richmond’s testimony that the search included a body cavity search, it also rejected his concurrent testimony about Officer Flesland forcibly bending him over a table during the search. Therefore, viewing the evidence in the light most favorable to the verdict, we reject this aspect of Richmond’s allegation.

The fact the defendant, who the officer knew had a drug record, had a baggie protruding from his pocket was not probable cause for a search of his person. There are legitimate things that could be in a baggie. State v. Sweeney, 2007 Iowa App. LEXIS 1317 (December 28, 2007):

The State argues that Officer Johnson had probable cause to conduct a warrantless search of Sweeney because (1) she knew Walton’s license had been revoked for a drug-related offense, (2) she saw a plastic baggie protruding from Sweeney’s coat pocket, (3) when she asked about the baggie, Sweeney claimed to have no idea what it was and then pushed it back in his pocket, from which she could reasonably believe that Sweeney was lying about the baggie, and (4) she knew that illegal drugs are commonly carried in plastic baggies. We hold that an officer’s observation of an inch or two of a plastic baggie protruding from an individual’s pocket, under the facts and circumstances known to Officer Johnson, was insufficient to warrant a person of reasonable prudence to believe that the baggie contained contraband, and therefore does not constitute probable cause to conduct a warrantless search.

. . .

We find the facts in this case to be distinguishable from those in Carter. A baggie in an individual’s pocket is not necessarily an unusual setting. Individuals have baggies (generically known as sandwich bags) in their pockets to carry a variety of legitimate items, e.g., single doses of medication, litter, snacks, or even a sandwich. Further, unlike the driver in Carter, there was nothing in Sweeney’s behavior to justify a belief that he possessed drugs.

We also find that Officer Johnson’s knowledge that the van driver’s license had been revoked for a drug-related offense insufficient to justify the warrantless search. The State argues that the officer’s knowledge that Walton’s license had been revoked was an important factor giving rise to probable cause, yet cites no case authority where knowledge of the companion’s criminal background, under circumstances similar to this case, was found to support probable cause.

Indiana search warrant applications must also include evidence that negatives probable cause, but that is moot here because the affidavit for the search warrant was so lacking in showing probable cause that the good faith exception cannot even save it. All the officer could show was that the defendant was around others at the time the others might have been committing an offense, and nothing was shown that the defendant did. Eaton v. State, 878 N.E.2d 481 (Ind. App. 2007):

Here, the Affidavit is so lacking in indicia of probable cause as to render any official belief in its existence entirely unreasonable. Again, the Affidavit’s only reference to Eaton concerned his arrival at the shop. The Affidavit provided no reasonable basis to establish a fair probability either that Eaton was engaged in illicit activity or that a search of Eaton’s residence would uncover such illicit activity. Thus, the good faith exception cannot apply.

Wyoming rejects under its state constitution a search incident to an arrest of a vehicle where the defendant was approached for being in a park after hours apparently sleeping in the car, having been kicked out of his abode, and the officer asked for his driver’s license and found it had been suspended. A search incident was just not appropriate under the circumstances. Pierce v. State, 2007 WY 182, 171 P.3d 525 (2007):

[*P14] We cannot say that the search at issue in the instant case was reasonable. The general

rationale for permitting searches incident to arrest is to prevent the arrestee from reaching weapons or concealing or destroying evidence. See [Commonwealth v.] White, [543 Pa. 45,] 669 A.2d [896,] 905 [(1995)]. A search incident to arrest under our state provision for these reasons is reasonable. The inherent mobility of automobiles in combination with officer and public safety concerns created when a driver or a passenger is arrested are exigent circumstances weighing in favor of not restricting the scope, timing, or intensity of such a search.

Vasquez, 990 P.2d at 489. Such evidentiary and safety concerns are not articulable from the totality of the circumstances in the instant case, particularly considering that:

1. The officer testified that he did not observe any signs that the appellant was under the influence of alcohol or drugs.

2. There was no reasonable possibility that evidence of the crimes for which the appellant was arrested remained in the vehicle. There also was no evidence indicating that the appellant had committed any other crime.

3. The officer’s “pat down” search of the appellant’s person did not uncover anything of evidentiary value.

4. The State does not attempt in its appellate brief to justify the search for evidentiary reasons.

5. Our analysis of the circumstances does not reveal any reasonable basis for the officer to believe the appellant was armed or that there were weapons in the vehicle. The appellant was arrested for driving under suspension and failing to maintain liability insurance. The officer’s “pat down” search of the appellant’s person did not uncover any weapons.

6. There were no passengers in the vehicle, two officers were at the scene, and the officers and the appellant had already left the scene by the time the vehicle’s owner retrieved the vehicle.

7. The appellant was handcuffed and placed in a patrol car immediately prior to, and during, the search. Handcuffs are by no means foolproof (see Mackrill v. State, 2004 WY 129, PP19-21, 100 P.3d 361, 368-69 (Wyo. 2004)), but we must view this fact in light of all of the other facts in this case.

8. The appellant did not exhibit any furtive or suspicious activity, particularly with respect to the contents of vehicle.

9. The State does not contend in its appellate brief that considerations such as the time of day, the setting, the temporary registration tag issue, etc. contributed to any kind of safety concern in this case. The officer did not refer to any specific officer safety concerns he had that would have arisen prior to the time he initiated the search.

10. The officer admittedly had no other information about the appellant “as opposed to any other citizen.” By the officer’s own account, he and the appellant engaged in a friendly conversation, the appellant was honest about his suspended license, and the appellant seemingly offered a reasonable explanation for his presence at the park (the vehicle’s contents, to the extent they were visible to the officer, would seem objectively to support the appellant’s explanation).

11. The appellant cooperated with the officer and did not resist arrest or become combative with the officer.

This is not to say, of course, that any of these considerations might not be viewed differently if it were to arise in the context of different facts.

[*P15] It was the State’s burden to prove that the search-incident-to-arrest exception applied, and the applicability of such an exception is “dependent upon all of the facts and circumstances viewed in their entirety.” Moulton, P16, 148 P.3d at 43. The State’s appellate analysis instead focused almost exclusively on the fact that the appellant was arrested and advocates for a bright-line approach similar to the approach that we rejected in Vasquez. Our state constitution requires more in that regard–the search must not only be incident to a lawful arrest, but also reasonable under the circumstances. In other words, we must be able to find a reasonable basis, articulable from the totality of the circumstances in each case, to justify such a search.

Appellant’s 911 call was admissible, and the admissions made in it were separate from any suppressed statements. The police were called and appellant consented to the initial entry, and the police followed up by resorting to a search warrant, which was unnecessary and commendable. Ball v. State, 2007 OK CR 42, 173 P.3d 81 (2007):

[*P23] With respect to Appellant’s objections that the experts considered suppressed information about Appellant’s delay in seeking treatment and his description of how the injuries occurred, such information was also before the jury in Appellant’s 911 call and his statements to emergency responders. Appellant has not shown that the doctors materially relied on the suppressed statements, and to the extent that they might have done so, any taint is dissipated significantly because the same information was admitted from untainted sources. Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (finding illegally seized evidence admissible where the same evidence was subject to government subpoena); Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (evidence of location of body obtained in illegal interrogation admissible because body would have been discovered inevitably in extensive search). There is no reversible error here.

Defendant’s own testimony established his standing to challenge the search, contrary to the government’s assertions. United States v. Gomez-Vega, 519 F. Supp. 2d 241 (D. P.R. 2007):

Gomez-Vega testified at the suppression hearing only as to the standing issue.FN6 Based on Gomez-Vega’s testimony, we concluded at the hearing, and now we explain in further detail, he has standing to challenge the seized items under the totality of the circumstances and the evidence before the Court. Accordingly, Gomez-Vega has met the threshold established in Aguirre and Lochan.

6. One should not lose sight of the fact that “it has been well settled for over twenty years that testimony given to meet standing requirements cannot be used as direct evidence against the defendant at trial on the question of guilt or innocence.” United States v. Garcia-Rosa, 876 F.2d 209, 219 (1st Cir. 1989) (citing Simmons v. United States, 390 U.S. 377, 390, 88 S.Ct. 967, 974, 19 L. Ed. 2d 1247 (1968)). Thus, a defendant should have no prejudicial consequence in admitting ownership of the drug or portions thereof to sustain standing to contest its seizure under Fourth Amendment grounds.

Comment: Under Simmons, the defendant has the ability to testify in his own behalf to establish standing, and the testimony cannot be used against him at trial, unless, of course, he testifies at trial and contradicts that standing testimony.

Defendant lacked standing because he was not an overnight guest under Olson. He was a mere Carter visitor. Defendant also fled and abandoned evidence, and there was no seizure until after he was arrested. United States v. Roane, 2007 U.S. Dist. LEXIS 79789 (D. Del. October 29, 2007).*

Court finds as a matter of fact that the defendant understood enough English to consent to the search that led to the discovery of the money sought to be forfeited. United States v. $78,850.00 in United States Currency, 2007 U.S. Dist. LEXIS 79704 (D. S.C. July 25, 2007).*

Defendant was arrested outside. Protective sweep was unjustified because officers lacked any objective reason to believe that there were others inside. United States v. Wilcox, 2008 U.S. Dist. LEXIS 6353 (D. Utah January 29, 2008):

More importantly, Ritchie and the arrest area were all outside the home from the moment officers arrived. Officers entered and searched inside the home. Although an inside search may follow an outside arrest, there still must be a reasonable belief that the arrest area harbors an individual who poses a danger to the officers. Buie, 494 U.S. 325; Owens, 782 F.2d at 151. An officer’s lack of information as to what is inside a home does not validate an in-home search when the arrest occurs outside. Buie, 494 U.S. 325; Colbert, 76 F.3d 778; Carter, 360 F.3d at 1242-43; Delgadillo-Velasquez, 856 F.2d at 1298. In the instant case, the officers had no reason to believe anyone was still in the home who could pose a danger. Ritchie told the officers that no one was in the home, and the officers testified there were no sounds or smells coming from the home. Nobody was visible in the home, despite the door being open, and no one responded to the officers when they called into the home. All evidence before the officers at the time indicated that the home was empty. There is no evidence that suggests a dangerous individual was inside the home which would authorize the officers’ entry. Absent a reasonable and articulable suspicion of such an individual existing, the officers could not enter the home to conduct a protective sweep for officer safety.

The government argues that the search was based on the possibility that an occupant may be injured. The officers, however, had no evidence of a fight or other violent crimes. …

The search warrant in this case was not overbroad, and it properly included evidence of who was in control of the premises. United States v. Poulos, 2008 U.S. Dist. LEXIS 6185 (D. Me. January 25, 2008):

With respect to the second category of items to be seized–identity evidence–I agree with the government that it is reasonably clear from examination of the Warrant and Affidavit (which is attached to and incorporated by reference in the Warrant, see Warrant at 1, and therefore validly may be taken into account in assessing whether the Warrant is overbroad, see, e.g., Roche, 614 F.2d at 8) that the language referencing drug trafficking was mistakenly included. The Affidavit makes clear that the “Reason for Seizure” is to obtain evidence of the crime of reckless conduct; the focus of its customized facts section is the alleged firearm discharge. See Affidavit at [2]-[4]. What is more, as the government suggests, see Response at 10, Cashman, who had drafted the proposed Warrant and Affidavit and understood the Warrant only to authorize search for evidence of the crime of reckless conduct, was present throughout the search, including during a briefing at which all participating agents were advised that the Warrant authorized search for evidence of the crime of reckless conduct. As the government notes, see id., such circumstances militate in favor of a finding that an error is merely technical, see, e.g., United States v. Bianco, 998 F.2d 1112, 1117 (2d Cir. 1993) (“The affidavit was present at the time of the search, and spells out quite clearly the nature and purpose of the proposed search. It explains in detail the motivation behind the search and the nature of the documents sought. When the warrant and affidavit are read together, there is no ambiguity. Moreover, although the warrant may not have explicitly incorporated the affidavit, the presence and activity of agent Hutton, who had read the affidavit and who approved each seizure, satisfies us that the limitations included in the affidavit were observed.”).

Ambiguous particularity clause in a search warrant made it defective. The officers knew it was ambiguous and elected which apartment to enter. Unlike Garrison, the ambiguity was known before the search, not after. The fact the officers entered the correct apartment cannot be a factor. Motion to suppress granted. United States v. Fahey, 2008 U.S. Dist. LEXIS 6319 (N.D. Ill. January 29, 2008):

The government also attempts to analogize the facts of this case to those in United States v. Owens, 848 F.2d 462 (4th Cir. 1988), in which a court upheld the constitutionality of a search because the executing officers were able to resolve the ambiguity with respect to the intended premises by relying on other information known to them outside the affidavit. In Owens, officers obtained a warrant authorizing them to search an occupied apartment on the third floor of a particular building. Id. at 465. Upon arriving at the building, however, they discovered that there were two apartments on the third floor, one of which appeared to have never been occupied, and searched the other apartment. Id. at 463, 465. As the Seventh Circuit explained in Jones,

While officers executing a warrant must generally suspend their search if they discover information that renders the warrant ambiguous, Garrison, 480 U.S. at 87, … the Fourth Circuit upheld the officers’ actions in Owens, as the affidavit supporting the warrant clearly identified the apartment to be searched as one that was occupied, and no other apartment fit that description.

Jones, 425 F.3d at 464-65 (citing Owens, 848 F.2d at 465).

Just as the facts in Owens were distinguishable from those that the Seventh Circuit confronted in Jones, so too are they distinguishable from the facts in this case. Here, as in Jones but unlike in Owens, “the evidence establishes that the description given in both the warrant and the affidavit fit the description of two separate apartments.” Jones, 425 F.3d at 465. Thus, here, as in Jones, “Owens does not apply to this case because the key facts in Owens were that the affidavit supporting the warrant specifically targeted an occupied apartment, and no other apartment fit the description given in the affidavit.” Id.

The government further notes that “of course, [Thomas] turned out to be right because the officers did, in fact, execute the warrant only in Urbina and Fahey’s apartment. The officers never entered Apartment D.” Gov. Resp. at 9. But just as “the discovery of contraband cannot validate a warrant invalid when issued,” Garrison, 480 U.S. at 85-86, neither does it validate a search that was unconstitutional because the officers conducting that search knew that the warrant lacked sufficient particularity.

Finally, the government argues that even if the search violated Fahey and Urbina’s Fourth Amendment rights, the evidence obtained pursuant to the search should not be suppressed because the officers acted in good faith in executing the search warrant. As discussed above, however, the good-faith exception does not apply here, where, as in Jones, the officers (1) executed a warrant they knew to be facially ambiguous prior to the execution of the warrant and (2) circumvented the magistrate judge and resolved the ambiguity amongst themselves based on information that was not disclosed to the magistrate who issued the warrant. See 425 F.3d at 465.

Habeas petition claiming a Fourth Amendment violation as a square peg in a round hole [my words]: It is not a claim of “actual innocence” somehow avoiding AEDPA limitations; it is “legal innocence,” which is barred and equitable tolling does not apply. Benjamin v. Wynder, 2008 U.S. Dist. LEXIS 5810 (E.D. Pa. January 25, 2008):

In arguing that the jury’s verdict depended on illegally obtained evidence, petitioner confuses the concepts of actual innocence and legal innocence. Petitioner has presented no new evidence casting doubt on whether he committed the offense of conviction. Furthermore, while petitioner has challenged the methods by which evidence used against him was obtained, he has not demonstrated that the evidence itself was unreliable or misleading. Thus, petitioner has made no showing of actual innocence.

Defendant who was pursued by the police was not “seized” until actually apprehended after his flight, which itself added to the justification for the stop. United States v. Olea-Diaz, 2008 U.S. Dist. LEXIS 5954 (S.D. Cal. January 25, 2008).*

Jailhouse telephone call was played at DUI death sentencing after judge ruled it inadmissible at trial. Woman Kills Man in DUI Accident, Laughs About It With Friend / Judge Calls Phone Call “Breathtaking In Its Inhumanity”. The link to the call is here on ABCNews.com.

Deputy Pima County Attorney Jonathan Mosher said he came across the call as part of a routine review of jailhouse communications. He sought to introduce the audiotape at trial for the jury, but Judge Cruikshank ruled against the motion, saying that the proper venue for the airing of the audio was at sentencing.

The jury acquitted Arrington of manslaughter, the most serious charge against her, and convicted her of negligent homicide.

Defendant could be stopped for tinted window offense, and he could be ordered out of the car for officer safety, but that does not translate into an ability to frisk without reasonable suspicion. Frisk suppressed. State v. Vineyard, 2008 Ohio 204, 2008 Ohio App. LEXIS 165 (2d Dist. January 11, 2008).*

Uncorroborated anonymous tip failed to provide reasonable suspicion for a patdown. State v. Jordan, 2008 Ohio 199, 2008 Ohio App. LEXIS 174 (2d Dist. January 11, 2008):

[*P11] For an anonymous tip to provide the suspicion required to perform a pat down search, the information obtained must be independently corroborated by the police officer to demonstrate that the defendant was engaged in criminal activity. State v. Works, Montgomery App. No. 19557, 2003 Ohio 4720, at P19, citing Alabama v. White (1990), 496 U.S. 325, 110 S.Ct. 2412. Here, an anonymous caller notified the police that a black male wearing a white t-shirt and blue jeans had been hanging around Breitenstrater Square. Upon his arrival, Leal encountered Jordan some distance away from the businesses, and did not observe the suspect engaging in any criminal activity. Therefore, the anonymous call merely gave the officer a reason to investigate, but did not provide the suspicion necessary to conduct a pat down search.

A “smoked cover” on a license plate is an objective basis for a stop under Wyoming law that says that the license has to be clearly visible. The record supports everything after that, which was consent to search revealing 77 pounds of cocaine. United States v. Martinez, 244 Fed. Appx. 187 (10th Cir. 2007)* (unpublished). (Comment: I see these license plate covers everyday. Indeed, I see a vehicle with some defect(s) and I mentally run through the scenarios where courts have held them sufficient for a stop.)

That same day:

An officer stopped the defendant for an expired tag, and the officer walked up to the driver’s window. The defendant said that he had a temporary tag in the window, but the window was so dirty it had to be wiped off to see it. The defendant conceded at the suppression hearing there was cause for the stop. The officer had an objective basis for the stop, and the record supports what happened thereafter. United States v. Monje-Contreras, 245 Fed. Appx. 738 (10th Cir. 2007)* (unpublished):

In this regard, it would appear that it was later determined that the temporary registration had not expired, and was still valid. In connection therewith, the Trooper testified that as the Defendant was wiping the dust and grime off the windshield, it occurred to him that the Defendant had perhaps violated the Wyoming statute. As above mentioned, in this regard, the district court concluded that the Trooper did have a reasonable articulable suspicion that the Defendant had violated the Wyoming statute. Terry v. Ohio, 392 U.S. 1 (1968); United States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995). We agree, and like the district court, we reject the suggestion that the Trooper knew the registration was valid when he first exited his vehicle and went forward to engage in conversation with the Defendant.

Plaintiff stated a claim against the individual officer (but not any other entity) for relief alleging the officer “‘forcefully pull[ed]’ him out of his vehicle and placed handcuffs on him ‘without notice or warning,’ without his consent, and without his having committed ‘any wrongdoing.'” Gamble v. Barnette, 2007 U.S. Dist. LEXIS 48815 (W.D. N.C. July 3, 2007).*

Observation on “unpublished” opinions: F.R.A.P. 32.1, effective December 1, 2006, made all opinions authoritative. Some courts are still operating as if the rule was never adopted, still calling a case “unpublished,” probably as a flag to West to put the opinion in Fed. Appx. For what it is worth, I have noticed a trend in some federal appeals courts where the opinions are truly getting shorter, some marginally shorter. In the Ninth Circuit, they have been issuing “Memorandum [Per Curiam] Opinions” that are extremely short and to the point, just giving the public the bare facts necessary to justify the conclusion. It is obvious these opinions are written just for the parties. The Appellate Division of the New York Supreme Court has been doing this for as long as I have been around. Moreover, as the Tenth Circuit demonstrated last week, the core issue in the case; e.g., the basis of the stop; is the only one discussed, and then something to the effect of “We hold that the district court’s finding on that particular matter is supported by the record before us. And, we conclude that the district court’s resolution of this issue is consistent with Terry v. Ohio, 392 U.S. 1 (1968) and [whatever specific Tenth Circuit case is in point].” I am not complaining; just observing. My own circuit, the Eighth, has always been good about getting to the point in an unpublished opinion, sometimes summarily affirming in about three sentences, which tells the public nothing. I’ve been on the losing end of a few of those.

Notes to readers:

(1) I’ve been asked about this because there has been nothing online about it in a while. An asterisk after a citation means that the case is of insufficient legal significance to the law of search and seizure as a whole that it will not be included in any supplement to the book. I used to use my shorthand code for propositions before this website became searchable (e.g., RS = reasonable suspicion, PC = probable cause, SI = search incident, GFE = good faith exception), but I decided that people new to the site could not search it without knowing the code.

(2) Yes, there has been no supplement for three cycles now because I’ve been doing this website up to two hours a day, I practice law full time (65-70 hours a week), and I’m President-Elect designate of the National Association of Criminal Defense Lawyers. (Yes, I apparently have no life.) We plan to have the Fourth Edition out by early 2008. Several people are working on it under me, but three of them are studying for the bar, which happens in three weeks.

Police used a ruse to get defendant to mail them an envelope so he would lick the envelope and leave DNA. The police posed as a law firm and wrote to defendant telling him that he was entitled to participate in a case, and he needed to provide some elemental information about himself. The DNA from his saliva linked him to a 22 year old rape and murder. The Washington Supreme Court, construing its broader state constitutional protection for “private affairs” found that the obtaining of the DNA was not unlawful. It was also argued that the police abused the process by holding themselves out as a ficticious law firm. Granting that the attorney-client privilege theoretically could apply, the court held that leaving DNA on the envelope was not a “communication” for purposes of the privilege. State v. Athan, 160 Wn.2d 354, 158 P.3d 27 (2007).

A probation search extends to property and containers reasonably believed to be connected to the probationer. Also, those who live with probationers are subject to being searched, too, distinguishing Steagald. State v. Walker, 215 Ariz. 91, 503 Ariz.
Adv. Rep. 9, 158 P.3d 220 (2007):

P20 A probation search is authorized “[w]hen an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity.” Id. The Ninth Circuit Court of Appeals has held the scope of a probation search extends to an item that the police have “reasonable suspicion … is owned, controlled, or possessed by probationer.” U.S. v. Davis, 932 F.2d 752, 758 (9th Cir. 1991) (holding because officers had reasonable suspicion to believe a safe belonged to probationer, contents of the safe could be used as evidence against non-probationer who lived with probationer). In this case, based on the arrest warrant, Harkins had reasonable suspicion to believe that Gibbs violated the terms of her probation and was engaged in criminal activity, specifically drug use. This authorized the officer to conduct a probation search for contraband upon executing the arrest warrant for Gibbs. Moreover, the locked trunk in Gibbs’ home and her statement that she knew what was in it indicated that she owned, controlled or possessed the trunk, bringing it within the valid scope of a probation search. Thus, the search of Gibbs’ home and trunk constituted a valid probation search under the Fourth Amendment, and the evidence seized was lawfully obtained.

P21 We now address whether the evidence lawfully seized during a probation search of Gibbs can be used against Defendant, a non-probationer who cohabitated with her at the time of the search.

P22 “[W]here two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either.” U.S. v. Matlock, 415 U.S. 164, 172, n.4, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974) (quoting Skally v. U.S., 347 U.S. 935, 74 S. Ct. 630, 98 L. Ed. 1086 (1954)); see also State v. Jones, 185 Ariz. 471, 481, 917 P.2d 200, 210 (1996) (holding where owners had joint access or control over dining room closet where defendants’ clothes were found, they both had authority to consent). Additionally, when one allows a third party to use or control his property, he “assume[s] the risk” that the property will be seen by additional parties. Matlock, 415 U.S. at 171 (citing Frazier v. Cupp, 394 U.S. 731, 740, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969)); see also People v. Pleasant, 123 Cal. App. 4th 194, 19 Cal.Rptr. 3d 796, 798 (Cal. Ct. App. 2004) (“Persons who live with probationers cannot reasonably expect privacy in areas of a residence that they share with probationers”). (Citation omitted.)

P23 In this case, Harkins and his team were lawfully inside Gibbs’ and Defendant’s home pursuant to the arrest warrant for Gibbs and the authority of the probation search. During the initial cursory search to secure the residence, the officers noticed in plain view the gun and the drug paraphernalia in the bedroom. Also, because the trunk was in the living room, a common area, and because the officers were authorized to open the trunk under the rationale described above, the contents of the trunk were also properly seized against Defendant and the trial court did not err by denying his motion to suppress.

To rely on inevitable discovery, the prosecution must litigate it and make a recond. The trial court erred in applying inevitable discovery to a search where the state did not argue it. Also, the facts did not support it because there was nothing apparent from the record that the police were on an independent investigation that would lead to the same result. State v. Alvey, 2007 UT App 161, 2007 Utah App. LEXIS 161 (May 10, 2007).