Apparent authority for third party consent requires the court to independently evaluate the consent’s authority over containers on the premises separate from the premises. Authority over containers may be obviously or apparently limited. United States v. Smairat, 2007 U.S. Dist. LEXIS 57769 (N.D. Ill. August 8, 2007):

Courts must independently consider whether a third party has the authority to consent to a search of a residence and whether the third party has authority to consent to particular containers within that residence. Groves, 470 F.3d at 320; see also United States v. Karo, 468 U.S. 705, 725-26, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984). Consent to search a room is not necessarily sufficient for officers to search closed containers within that room. United States v. Rodriguez, 888 F.2d 519, 523 (7th Cir. 1989). The officers must consider whether the scope of the consent can be reasonably understood to extend to particular containers, Florida v. Jimeno, 500 U.S. 248, 252, 111 S. Ct. 1801, 114 L. Ed. 2d. 297 (1991) (distinguishing between the reasonableness of searching a paper bag pursuant to a general consent to search for drugs in a car and the unreasonableness of searching a locked briefcase pursuant to such a consent), and also whether it is reasonable to believe that the party consenting to the search has authority over those containers. Ruiz, 428 F.3d at 882.

In this situation, “apparent authority turns on the government’s knowledge of the third party’s use of, control over, and access to the container to be searched, because these characteristics are particularly probative of whether the individual has authority over the property.” United States v. Basinski, 226 F.3d 829, 834 (7th Cir. 2000) (citations omitted).

. . .

Because the court has found that Michil did not have apparent authority over the boxes in the basement, it follows that he also did not have apparent authority to consent to a search of the drawers or of containers that have a higher indicia of privacy, including the filing cabinets, the locked safe, and closed boxes in Nabil’s and Barbara’s closets. The two computers found in the basement fall into the same category. Moving on, the agents had no information regarding Michil’s authority over the Jeep and its contents, the computer found in the office, and the additional computer. Seizing these items based on Michil’s consent without any further inquiry was also unreasonable. Additionally, because the court has no information about where the seized keys were found, it must also conclude that their seizure based on Michil’s consent was not reasonable.

This leaves only the $260,000, which was found in the basement in a Crock Pot. Unlike closed boxes, whose privacy generally depends on their circumstances, a Crock Pot is the sort of container that most people assume is not private. It is used for cooking, not generally for storing private items, and the agents could properly assume that when they asked for consent to search the home for drugs, they could open a Crock Pot without inquiring about its ownership.

First Circuit holds DNA collection constitutional, but does so on the “totality of the circumstances” standard rather than special needs as all other circuits did. United States v. Weikert, 504 F.3d 1 (1st Cir. 2007):

This case presents a question of first impression in this circuit: is it a violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures to require an individual on supervised release to provide a blood sample for purposes of creating a DNA profile and entering it into a centralized database? Agreeing with the eleven other circuits that have held similarly, we hold that it is not. In doing so, we interpret the Supreme Court’s decision in Samson v. California, 126 S. Ct. 2193 (2006), to require that we join the majority of the circuits in applying a “totality of the circumstances” approach to the issues in this case, rather than the “special needs” analysis used by the minority of circuits.

However, we also impose an important limitation on our holding. Because the appellant is currently on supervised release and will remain so until 2009, we do not resolve the question of whether it is also constitutional to retain the DNA profile in the database after he is no longer on supervised release. Mindful of the well-established principle that constitutional cases should be decided as narrowly as possible and the rapid pace of technological development in the area of DNA analysis, we reserve judgment on that issue for another day.

Comment: This outcome is different, but it does not matter in the overall scheme of this issue because the Supreme Court is not going to grant cert. It does, however, show the application of the totality of the circumstances test.

Plaintiff filed a civil rights claim against an officer who caused an injury while moving her broken down car. The car picked up speed while rolling and dragged the plaintiff, injuring her. The jury found for the plaintiff on an “undefined civil rights claim” and attempted to award $0, but the judge sent the jury back and they returned a verdict of $1. Because she prevailed on one of five claims, the district court reduced the attorney’s fees 73% to $12,956. On appeal, the First Circuit found no civil rights claim and reversed. The officer’s order that she push her car was not a Fourth Amendment seizure. Lockhart-Bembery v. Sauro, 498 F.3d 69 (1st Cir. 2007).*

Defendant passenger had standing to challenge his own detention under Brendlin, but the officer had reasonable suspicion for further detention of the passengers. United States v. Davis, 2007 U.S. Dist. LEXIS 70758 (D. Kan. September 24, 2007).*

Officer had reasonable suspicion to believe that defendant was driving the SUV he stopped based on information from an informant under Adams v. Williams. United States v. Moran, 503 F.3d 1135 (10th Cir. 2007).*

Bail pending appeal is denied because the suppression question to be raised on appeal will likely fail. Inevitable discovery saved the search here: “The Government showed that the police would have discovered the cocaine legally, without the police misconduct; the police possessed leads making the discovery of the cocaine inevitable at the time that Defendant’s cooperation was illegally coerced; and the search was already underway at the time of the police misconduct.” United States v. Alexander, 2007 U.S. Dist. LEXIS 70842 (N.D. Ohio September 25, 2007).*

Case was time barred under Wallace v. Kato. Issuance of legal process ends the false imprisonment, and that was at the beginning of plaintiff’s criminal case. Whitfield v. Wilmington Police Dep’t, 2007 U.S. Dist. LEXIS 70985 (D. Del. September 25, 2007):

“False arrest and false imprisonment overlap; the former is a species of the latter.” Wallace v. Kato, — U.S. –, 127 S.Ct. 1091, 1094 (2007). Limitations begin to run against an action for false imprisonment when the alleged false imprisonment ends.” Id. (citations omitted). A false imprisonment ends once the victim becomes held pursuant to legal process. Id. at 1096. If there is a false arrest claim, damages for that claim cover the time of detention up until issuance of process or arraignment, but not more. Id. (citations omitted); Montgmery v. De Simone, 159 F.3d 120, 126 (3d Cir. 1998).

Civil case that directly attacks a state criminal conviction is Heck barred. Bowman v. City of Middleburg Heights, 2007 U.S. Dist. LEXIS 70664 (N.D. Ohio September 24, 2007).*

Thermal imaging warrant used for a flyover view need only be supported by reasonable suspicion. Alternatively, it was supported by probable cause anyway. United States v. Kattaria, 503 F.3d 703 (8th Cir. 2007):

The four dissenters in Kyllo argued that using a thermal imaging device to monitor heat emissions from a private residence “is an entirely reasonable public service,” and “the countervailing privacy interest is at best trivial.” 533 U.S. at 45 (Stevens, J., dissenting). The majority rejected this analytical approach in deciding whether a warrant is constitutionally required. Expressing concern about the potential invasiveness of future technology, the majority drew a bright line, requiring a warrant for the use of non-public technology, regardless of the type of information being gathered from inside the home. Id. at 40.

In our view, the “practical alternatives” factor provides good reason to shift the analysis when the issue is the quantum of evidence required to obtain a warrant solely for the purpose of conducting investigative thermal imaging. Special Agent Perry wished to conduct thermal imaging to investigate a suspected indoor marijuana grow operation. When the thermal imaging results confirmed the probable presence of an indoor grow operation, Perry applied for three warrants to conduct far more intrusive physical searches of Kattaria’s properties. His supporting affidavits included the thermal imaging results from 1814 Malvern and additional facts from Perry’s on-going investigation. This is a constitutionally reasonable investigative sequence. It provides important corroboration that criminal activity is likely being conducted in a home before the homeowner is subjected to a full physical search. If the same probable cause is required to obtain both kinds of warrants, law enforcement will have little incentive to incur the expense of a minimally intrusive thermal imaging search before conducting a highly intrusive physical search.

For these reasons, we are inclined to believe that the same Fourth Amendment reasonable suspicion standard that applies to Terry investigative stops should apply to the issuance of a purely investigative warrant to conduct a limited thermal imaging search from well outside the home. Applying that standard, the first warrant was clearly valid, taking into account what the CD told Special Agent Perry, Kattaria’s criminal history, and, most significantly, utility records showing extremely high relative electric consumption that was not explained by what Perry could observe when he drove by the 1814 Malvern residence several times.

Alternatively, the thermal imaging warrant was supported by probable cause.

Defendant’s frisk was justified because the officer found a warrant for the defendant for a violent crime, and that is the classic situation contemplated by Terry. United States v. Faison, 2007 U.S. Dist. LEXIS 74573 (E.D. Pa. October 5, 2007).*

Officer had reasonable suspicion to patdown the defendant, and that led to lawful discovery of crack on the defendant. United States v. Johnson, 2007 U.S. Dist. LEXIS 74560 (E.D. Pa. October 5, 2007).*

An Eighth Amendment deliberate indifference claim does not implicate any Fourth Amendment claim. Corley v. Prator, 2007 U.S. Dist. LEXIS 74599 (W.D. La. October 4, 2007).*

Plaintiff was naked and armed with a handgun, and there was a five hour standoff with police, and plaintiff was tasered when arrested and taken for a psyche eval. The officers were clearly entitled to qualified immunity for their actions in dealing with the plaintiff. Nero v. Baltimore County, 512 F. Supp. 2d 407 (D. Md. 2007).*

Officer who obtained search warrant for medical provider records had probable cause for seizure of the records at the time the warrant was issued, and that was fatal to plaintiffs’ civil claims under § 1983. Afreedi v. Devlin, 2007 U.S. Dist. LEXIS 74676 (D. Mass. August 2, 2007).*

Hot pursuit of a man with a gun that the police believed he would use was sufficient exigent circumstances for a warrantless entry. United States v. Ponder, 240 Fed. Appx. 17, 2007 FED App. 0428N (6th Cir. 2007)* (unpublished).

Defendant’s stop was justified by his weaving and repeatedly hitting his brakes. When stopped, his eyes were bloodshot and his speech was slurred. The officer asked for and received consent. Defendant was a felon in possession of ammunition. Such questioning during a stop is not unreasonable. United States v. Mesa, 2007 U.S. App. LEXIS 15036 (9th Cir. June 19, 2007)* (unpublished):

Mere police questioning does not constitute a seizure unless it prolongs the detention of the individual, and, thus, no reasonable suspicion is required to justify questioning that does not prolong the stop. Muehler v. Mena, 544 U.S. 93, 101 (2005) (citing Illinois v. Caballes, 543 U.S. 405, 408 (2005)). The rule applies to questioning during traffic stops, as well as in other contexts. United States v. Mendez, 476 F.3d 1077, 1081 (9th Cir. 2007). The Ninth Circuit in Mendez determined that police questioning did not prolong a traffic stop where the entire encounter lasted approximately eight minutes, during which the police ran a records check and searched the vehicle. Id. at 1080-81.

Stop that lasted 21 minutes including the request for consent after the paperwork was returned was not unreasonable. It became a consensual encounter because it was not coercive. United States v. Rochin-German, 2007 U.S. Dist. LEXIS 45335 (D. Kan. June 21, 2007):

Sonja was advised that Cocking had nothing more for her and was told to have a good evening. Only then was Sonja asked if Cocking could have permission to search her vehicle. There is no indication that Cocking made any “coercive show of authority” such that a reasonable person would not have felt free to leave. See United States v. Turner, 928 F.2d 956, 959 (10th Cir. 1991) (discussing factors for finding a “coercive show of authority, such as the presence of more than one officer, the display of a weapon, physical touching by the officer, or his use of a commanding tone of voice indicating that compliance might be compelled”). The court therefore finds that the traffic stop had become a consensual encounter.

(Comment: Again, the fiction of lack of show of authority.)

Officer had reasonable suspicion for patdown after stop based on several factors, including the fact that the defendant had left a known drug house, it was 2 a.m., defendant’s nervousness and furtive movement, evasive answers about age, and a dispatch that the person stopped was a missing person. United States v. Collins, 2007 U.S. Dist. LEXIS 45320 (D. Utah June 21, 2007).*

Request to a passenger of a broken down vehicle to get out was reasonable when the officer arrived and smell burnt marijuana. The fact the vehicle was broken down and not stopped did not matter. [This was in an Anders brief] United States v. Henderson, 237 Fed. Appx. 834 (4th Cir. 2007)* (unpublished):

Although Henderson makes much of the fact that Vanicek originally approached the van simply because he received a report of a disabled vehicle as opposed to pursuant to a traffic stop, Henderson neglects to consider that this was not why Vanicek requested that Henderson exit the vehicle. As Vanicek’s report on the incident established, after approaching the vehicle, Vanicek noticed a “strong odor” of marijuana emanating from the vehicle. Accordingly, Vanicek’s request that Henderson, who had been sitting in the driver’s seat, exit the vehicle was not predicated on the fact that the van was disabled, but on Vanicek’s recognition that illegal drugs either were being, or had recently been, used. “[W]hen the officer has a reasonable suspicion that illegal drugs are in the vehicle, the officer may, in the absence of factors allaying his safety concerns, order the occupants out of the vehicle.” United States v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998). Accordingly, we conclude that Vanicek’s request that Henderson exit the van did not violate the Fourth Amendment.

We further reject Henderson’s contention that Vanicek’s initial pat-down search was illegal because Vanicek lacked a reasonable belief that Henderson was armed. Pennsylvania v. Mimms, 434 U.S. 106, 110-11, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977), authorizes a police officer to frisk a vehicle’s driver or occupant if there is a reasonable belief that they are armed and dangerous. As we have recognized, “[t]he indisputable nexus between drugs and guns presumptively creates a reasonable suspicion of danger to the officer.” Sakyi, 160 F.3d at 169. The noticeable presence of marijuana supported Vanicek’s decision to frisk Henderson.

Officer had reasonable suspicion to detain defendant based on the unusually high mileage on his truck (39k miles in 7 months) and unusual travel plans which were indicative of drug running. Alternatively, the defendant granted effective consent [explained in detail], and a recent patched hole in the firewall under the hood was discovered, and that justified further detention. The vehicle was seized and removed for a further search which produced 78 pounds of cocaine. United States v. Gallardo, 495 F.3d 982 (8th Cir. 2007).*

Officer stopped a tractor trailer, and determined that there was reasonable suspicion for continuing the stop from where the truck had spent the night before in a known drug corridor and the driver’s odd and suspicious way of answering questions. A drug dog was called, and the dog alerted on the sleeper cab. The use of the dog was reasonable because of reasonable suspicion. Considering the existence of reasonable suspicion, the length of the stop was not unreasonable.United States v. Williams, 238 Fed. Appx. 566 (11th Cir. 2007)* (unpublished):

The police officer testified at the hearing on Williams’s motion that through a series of questions he noted, among other things, that Williams did not behave as truckers normally do when pulled over, did not have valid registration papers for his tractor trailer, had a 24-hour or more layover in an area known as a drug corridor, and behaved oddly when answering whether he was transporting illegal people or substances. Based on these factors, the police officer became suspicious that Williams may not have had authority to drive the tractor trailer or may be transporting something illegal, such that he summoned a police dog. After the police dog alerted near the cab of the tractor trailer, the police officer found approximately 200 pounds of marijuana in the sleeper berth of the cab. The testimony at this hearing also revealed that the entire detention lasted approximately 37 minutes, 13 minutes of which was spent waiting for the police officer’s partner to transport the police dog to the site of the stop.

The issue was an alleged knock-and-announce violation, and Hudson was decided after appellant’s briefs were filed but before argument. In an effort to avoid Hudson, appellant argued then that the federal violation of 18 U.S.C. § 3109 should be treated differently than a Fourth Amendment violation, but the Second Circuit disagreed. They are essentially the same and protect the same interests, and they should not be treated differently in application of the exclusionary rule. United States v. Acosta, 502 F.3d 54 (2d Cir. 2007) [This case may be known as United States v. Carvajal when published; it appears on the Second Circuit’s website with that name. Carvajal was the only appellant of the three in the case when it came up with this issue; all three were in the government’s cross-appeal, which it dismissed.]:

Given the common law origins of § 3109 and the Fourth Amendment’s knock-and-announce principle, it is unsurprising that they overlap to a considerable extent. Indeed, we have often observed that the contours of § 3109 coincide with the reasonableness inquiry of the Fourth Amendment. … Because § 3109 “codifies the common law in this area,” while “the common law in turn informs the Fourth Amendment,” Fourth Amendment cases necessarily “serve as guideposts in construing the statute.” …

Because of this cross-fertilization, both § 3109 and the Fourth Amendment knock-and-announce principle have been held subject to the same exceptions and found to protect similar interests. …

In the Ninth Circuit, the court dealt with an alleged unreasonable search conducted under the aegis of a knock-and-announce violation that included alleged unnecessary use of force with a flash bang device and shooting up the place. The unreasonableness of the entry, if it was, was not causally related to the seizure of evidence under Hudson. United States v. Ankeny, 502 F.3d 829 (9th Cir. 2007) (amended and reissued):

Here, the discovery of the guns was not causally related to the manner of executing the search. The police had a warrant, the validity of which is not questioned, and the guns, money, and other contraband were not hidden. Even without the use of a flash-bang device, rubber bullets, or any of the other methods that Defendant challenges, “the police would have executed the warrant they had obtained, and would have discovered the [evidence] inside the house.” Hudson, 127 S. Ct. at 2164; cf. United States v. Hector, 474 F.3d 1150, 1155 (9th Cir. 2007) (holding that suppression was inappropriate where “[t]he causal connection between the failure to serve [a] warrant and the evidence seized is highly attenuated, indeed non-existent”). Accordingly, we affirm the district court’s denial of Defendant’s motion to suppress the evidence.

A vehicle was stopped in a traffic stop, and it was apparent that it had an electronically opened compartment in which cocaine was found. Officers determined that another vehicle was travelling with it, and they radioed ahead and requested that it be stopped if a traffic offense was observed. It was following too close. The knowledge of the two cars driving in tandem was reasonable suspicion for the second detention. United States v. Lopez-Garcia, 238 Fed. Appx. 402 (10th Cir. 2007) (unpublished).

“It is irrelevant that the police disbelieve ownership disclaimers or know that the defendant is lying.” Defendant’s bogus disclaimer was a waiver of standing. United States v. O’Brien, 498 F. Supp. 2d 520 (N.D. N.Y. 2007).

Officer walked up to defendant’s car after observing a likely drug deal go down and the buyer walking hurriedly away. Talking to the defendant was not a seizure. United States v. Hemingway, 2007 U.S. Dist. LEXIS 56193 (W.D. N.Y. August 1, 2007).*

2255 petitioner could not claim the benefit of Brendlin on post-conviction because his search issue did not involve a standing issue. United States v. Kirksey, 2007 U.S. Dist. LEXIS 56236 (E.D. Mich. August 2, 2007).*

Fired police officer filed a civil rights case over his firing and alleged a Fourth Amendment violation without any factual support, so that claim was dismissed. Viola v. Throop, 2007 U.S. Dist. LEXIS 56181 (M.D. Pa. August 2, 2007).*

Knock-and-announce and request for consent inside the home is not inherently coercive, and there is no heightened scrutiny of such requests for consent. “In sum, the police were not required to request permission to speak to Rivera or specifically inform him that he had a right to refuse to speak to them.” People v. Rivera, 156 Cal. App. 4th 60, 67 Cal. Rptr. 3d 19 (4th Dist. 2007), publication status of this document has been changed by the court from unpublished to published October 16, 2007, on remand from People v. Rivera, 41 Cal.4th 304, 59 Cal. Rptr. 3d 473, 159 P.3d 60 (2007).*

Traffic stop of another person led to reason to conduct a knock-and-talk at defendant’s residence. When the officers knocked, a female inside ran to another room. This concerned the officers about their own safety, and they followed her, finding a gun and drugs in the room she was hiding in. The entry and finding of the drugs and gun was valid. Hamilton v. Commonwealth, 2007 Ky. App. LEXIS 362 (September 28, 2007).

Officers had probable cause for defendant’s stop and felony take down. State v. Williams, 2007 Ohio 5489, 2007 Ohio App. LEXIS 4817 (3d Dist. October 15, 2007).*

The defendant filed a two page motion to suppress and memorandum in support that relied on the presumption of unreasonableness of a warrantless search, but that did not compel that there be a hearing. The cryptic motion did not justify a hearing, and the motion to suppress was denied. United States v. Thompson, 2007 U.S. Dist. LEXIS 42917 (N.D. Ill. June 12, 2007):

The tacit premise of Mr. Thompson’s motion is that an evidentiary hearing is required whenever a warrantless search is conducted. No case supports that proposition. Where a court has before it all the material facts, and they are not disputed, a hearing is not necessary. United States v. Berkowitz, 927 F.2d 1376, 1385 (7th Cir. 1991). An evidentiary hearing is only required when the defendant alleges specific, definite, detailed, and non-conjectural facts, which, if proven, would justify the relief sought. United States v. Woods, 995 F.2d 713, 715 (7th Cir. 1993); United States v. Randale, 966 F.2d 1209, 1212 (7th Cir. 1992).

These fundamental principles were recently reaffirmed by the Seventh Circuit:

“Evidentiary hearings are not required as a matter of course; a district court need conduct a hearing only when the allegations and moving papers are sufficiently definite, specific, non-conjectural and detailed enough to conclude that a substantial claim is presented and that there are disputed issues of material facts which will affect the outcome of the motion. United States v. Villegas, 388 F.3d 317, 324 (7th Cir. 2004); see also Juarez, 454 F.3d at 720; United States v. Martin, 422 F.3d 597, 602-03 (7th Cir. 2005), cert. denied, 74 U.S.L.W. 3424 (Jan. 23, 2006) (No. 05-8234). We have emphasized the necessity of materiality in any factual disputes that are presented to the district court as a predicate for an evidentiary hearing. Villegas, 388 F.3d at 324; Juarez, 454 F.3d at 720; United States v. Berkowitz, 927 F.2d 1376, 1385 (7th Cir. 1991).

“Mr. McGaughy’s briefing and argument on the motion to suppress do not identify any specific ‘material factual dispute’ requiring resolution through an evidentiary hearing. In the district court, Mr. McGaughy did claim the information from Doe was up to two weeks old and therefore stale, and, on reply, added his claims that personal bias motivated the complaining officer in seeking the warrant. Mr. McGaughy did not make any serious effort to articulate what facts had to be adduced at an evidentiary hearing to inform the court’s analysis; furthermore, Mr. McGaughy did not articulate in what manner the district court’s ultimate determination of probable cause would have been different if his version of the facts were accepted. See Juarez, 454 F.3d at 720.”

United States v. McGaughy, __ F.3d ___, 2007 WL 1374758, *3-4 (7th Cir. 2007). See also Bradley v. United States, 2007 WL 956901 at *2 (7th Cir. 2007)(“before an evidentiary hearing will be granted, the appellant must provide a detailed and specific affidavit”).

The USMJ’s credibility determinations show that the search was justified. There was nothing inherently incredible or implausible about the testimony for an appeals court to reverse. United States v. Biggs, 491 F.3d 616 (7th Cir. 2007).*

Defendant was being arrested on an unrelated warrant, and he gave the keys to the officer before being taken in. The vehicle was inventoried before towing. The search was not challenged in the District Court, and, on plain error review, the search was valid on the policy. United States v. Carlton, 237 Fed. Appx. 530 (11th Cir. 2007)* (unpublished).

Warrant did not discuss weapons, but the warrant was valid, and weapons in plain view could be seized. United States v. Jarvis, 237 Fed. Appx. 636 (2d Cir. 2007)* (unpublished).

The standard of review for a consensual encounter is not different than a traffic stop. United States v. Torres, 237 Fed. Appx. 337 (10th Cir. 2007)* (unpublished).

Defendant’s disclaiming ownership of a car in an apartment complex denied him standing to challenge the search of the vehicle, even though the keys were found on him. United States v. Russell, 2007 U.S. Dist. LEXIS 42744 (W.D. Mich. June 13, 2007).*

When the district court erroneously applied the clearly erroneous standard to the Magistrate Judge’s R&R, the judgment had to be reversed and remanded. United States v. Quinney, 238 Fed. Appx. 150, 2007 FED App. 0517N (6th Cir. 2007)* (unpublished):

Thus while it is possible that the district judge in this case actually applied one standard of review but mistakenly told his readers that he was applying a different one, it is equally possible that the district judge not only wrote down the wrong standard but also applied that wrong standard as well. Indeed, both the deferential language used by the district court (noting several times that it “agrees” with the magistrate judge’s conclusions), as well as the court’s cursory treatment of the legal issues (one short paragraph on inevitable discovery, and one even shorter paragraph on alleged Miranda violations), tend to indicate that the district court did what it said it would do: namely, conduct a clearly erroneous review of the magistrate judge’s report and recommendation. And because the proper standard of review in such a case is indisputably de novo, see Curtis, 237 F.3d at 603, the district court applied the incorrect standard in reviewing the magistrate judge’s report.

Named informant was not attested to be reliable, but the police showed how they corroborated him by finding drugs hidden in a public restroom where defendant did a drug deal. He also said that he had been to defendant’s house and seen drug deals there. Probable cause and a nexus to the premises was shown. United States v. Smith, 2007 U.S. Dist. LEXIS 52527 (E.D. Mich. July 20, 2007).*

Police visits to an adult bookstore hardly rise to the level of “domestic surveillance.” “Plaintiff was in a store, a public venue; he was present with co-workers and thus displayed neither a subjective nor objective expectation of privacy. In other words, Plaintiff was in ‘plain view’ and Clift did not conduct a “search.” See Maryland v. Macon, 472 U.S. 463, 471 (1985) (detective’s presence in store to which the public was invited did not violate Fourth Amendment); ….” Lowe v. Clift, 2007 U.S. Dist. LEXIS 52523 (E.D. Tenn. July 19, 2007).

City avoids liability for alleged excessive force claim where there was no showing of policy or negligent training or supervision. Bell v. City of Topeka, 496 F. Supp. 2d 1182 (D. Kan. 2007).*

Defendant’s indefinitely suspended driver’s license supported a search incident, but there were unmistakable signs that the door had been tampered with, despite defendant’s denials, and that gave probable cause to remove the door panel. United States v. Gillespie, 2007 U.S. Dist. LEXIS 64478 (W.D. Mich. August 30, 2007).*

While defendant’s case had been remanded under Booker, it was not clear that he could have his search reconsidered under Randolph which was decided while the case was still not final. Nevertheless, inevitable discovery under Nix v. Williams because the officers had already “formed the intent” to get a search warrant and would have. They were securing the premises when consent was granted, as they could under Segura. United States v. Bowden, 240 Fed. Appx. 56, 2007 FED App. 0617N (6th Cir. 2007)* (unpublished).

Officers got a tip that a man was acting suspicious at a car wash and they found the defendant, without a car, with a latex glove on one hand feeding money into the change machine getting an “inordinately large number” of quarters. This was cause for a stop for “defrauding the change machine” because it appeared defendant was “laundering” the bills without leaving fingerprints. United States v. Jackson, 240 Fed. Appx. 88, 2007 FED App. 0622N (6th Cir. 2007)* (unpublished).

Defendant’s conduct was sufficiently suspicious to a trained officer to constitute probable cause on the totality for his search. Commonwealth v. El, 2007 PA Super 275, 933 A.2d 657 (2007).*

(Cases really late again today, and court all day.)

Samson does not apply to Kansas parole searches because Kansas law is different. Reasonable suspicion is required. And, “[r]efusal to consent to a search–even agitated refusal–is not grounds for reasonable suspicion.” United States v. Freeman, 479 F.3d 743 (10th Cir. 2007):

In Samson v. California, 126 S. Ct. 2193 (2006), the Supreme Court extended the principle of Knights to uphold a warrantless search of a parolee even in the absence of reasonable suspicion, where the parolee had signed a parole agreement that allowed parole officers or other peace officers to search the parolee “with or without a search warrant and with or without cause.” Id. at 2196. The Court noted “that some States and the Federal Government require a level of individualized suspicion,” and strongly implied that in such jurisdictions a suspicionless search would remain impermissible. Id. at 2201. Parolee searches are therefore an example of the rare instance in which the contours of a federal constitutional right are determined, in part, by the content of state law.

We interpret the Griffin line of cases, based on “special need,” as resting on the rehabilitative relationship between the parolee and the parole officer, and thus not extending to other law enforcement officers unless they are acting under the direction of the parole officer. We interpret the Knights-Samson line of cases as resting on the parolee’s diminished expectation of privacy stemming from his own parole agreement and the state regulations applicable to his case. As we shall see, neither rationale justifies the search in this case.

Defendant was in a car with a wanted felon, and it was reasonable for the officers to order him out of the car at gunpoint and handcuff him. That was custody for Miranda purposes, but a request for consent was not an interrogation for Miranda purposes. A finding of consent under those circumstances here was not clearly erroneous. United States v. Curls, 219 Fed. Appx. 746 (10th Cir. 2007)* (unpublished):

We discern no such error here. Mr. Curls’s argument amounts to the contention that the officers’ drawing of weapons and the use of handcuffs, even if reasonable under the Fourth Amendment, renders any subsequent consent involuntary. However, a number of decisions have rejected that view. See United States v. Guiterrez, 92 F.3d 468, 471 (7th Cir. 1996) (stating that “while we understand that the circumstances at the truck yard-law enforcement officers brandishing weapons, handcuffing [the defendant], and ordering him up against a wall-were unpleasant, there is nothing so inherently coercive about such tactics . . . to render subsequent cooperation involuntary”) (internal quotation marks omitted); United States v. Hidalgo, 7 F.3d 1566, 1571 (11th Cir. 1993) (concluding that consent was voluntarily given even though the defendant had been “arrested by SWAT team members who broke into his home in the early morning, woke him, and forced him to the ground at gunpoint”); United States v. Espinosa-Orlando, 704 F.2d 507, 510, 513 (11th Cir. 1983) (concluding consent voluntarily given after four officers had drawn their weapons, asked the defendant to step away from his car, told him to lie on the grass, and asked for consent while he was on the ground and one officer still had his weapon drawn). Moreover, we note that Mr. Curls has cited no case law supporting his contention that the circumstances here were inherently coercive.

We therefore conclude that because Mr. Curls consented to the search of the car, the district court did not err in denying his motion to suppress.

Wildlife officers investigating a violation of the Migratory Bird Act did not enter the curtilage of defendant’s home during the investigation. Assuming that there is a business curtilage, an issue not free from doubt, the court finds that his business curtilage was violated. The search, however, was not suppressed because enough was developed from the former search that there was probable cause and inevitable discovery. United States v. Zak, 476 F. Supp. 2d 29 (D. Mass. 2007).

A school locker search was justified by reasonable suspicion based on a tip from a named informant. Roy v. Fulton County School District, 509 F. Supp. 2d 1316 (N.D. Ga. 2007).*

Plaintiff stated a Franks issue for a § 1983 case. Taylor v. Payne, 2007 U.S. Dist. LEXIS 15824 (E.D. La. March 5, 2007)*:

After a review of the record, this Court finds a material discrepancy between the confidential informant’s testimony, and defendant Payne’s testimony. Defendant Payne’s observations of the alleged drug transactions taking place outside of the tire shop are in relevant part disputed by the confidential informant in her most recent deposition. The discrepancy is material because these observations were relied on in order to obtain the search warrant.

Suit against state SPCA would proceed for time being because of misstatements shown in the affidavit for the search warrant which undermined the probable cause. Also, federal § 1983 case was not “inextricably intertwined” with state case and state law to be barred by Rooker-Feldman doctrine. Allen v. Pennsylvania SPCA, 488 F. Supp. 2d 450 (M.D. Pa. 2007).*

The government failed to show reliability of their informant and reasonable suspicion, and the motion to suppress should have been granted. The government argued that the defense did not properly assert that there was no reasonable suspicion, but it carried the burden. United States v. Martinez, 486 F.3d 855 (5th Cir. 2007):

Without establishing the reliability of the informant, the government had to establish reasonable suspicion based on some or all of the other factors listed above: the specificity of the information provided, the extent to which the information is corroborated by officers in the field, and whether that information concerns recent activity or has instead gone stale. At the time of this stop, the police had (1) a tip that a person named “Angel” was storing weapons that had been used in a crime in his girlfriend’s house; (2) corroboration by the individual leaving the specified house that a man named “Angel” was inside; and (3) visual verification that two people left the residence 20 minutes after a phone call was placed asking Angel to pick up his car, and that those two people drove toward the location where the pick-up was supposed to occur. Therefore, at the time of the stop, the only verified information that the police had was that a man named Angel was in a specified residence. Notably absent, however, is any verified information that “criminal activity may be afoot.” Jaquez, 421 F.3d at 340-41. Our review of precedent, both our own and that of the Supreme Court, makes clear that this is insufficient to give rise to reasonable suspicion.

Spending an hour interviewing the informant was sufficient for the officer to establish reliability. O’Connor v. City of Philadelphia, 233 Fed. Appx. 161 (3d Cir. 2007)* (unpublished).

Disputed facts on exigency for warrantless entry precluded summary judgment. The same standard that precludes summary judgment on the facts may preclude application of qualified immunity, and here it does. Woods v. Valentino, 511 F. Supp. 2d 263 (M.D. Fla. 2007).*

Reasonable suspicion existed based on the similarity with the occurrence at hand and another one. That justified the longer detention and request for consent. United States v. Thompson, 2007 U.S. Dist. LEXIS 35074 (E.D. Mo. May 14, 2007)*:

Here the officers had reasonable suspicion based on the conduct of Defendant and the other suspects at the hotel and the marked similarity between this incident and the incident that had occurred the previous month, including that the Uplander [the vehicle] had been rented by the same individual who had rented the Pontiac G6 and the fact that bulky items appeared to be concealed in the Uplander in the same manner as before. Defendant’s statement regarding the purpose of his current travels appeared to be inconsistent with the surveillance conducted by the officers, providing further basis to expand the scope of the stop. Consequently, even if the officers had not, in the interim, determined that there was a large quantity of marijuana in the Uplander, they would have been justified in expanding the scope of the stop to request consent to search. ….

The fact the defendant was “attentive” during the search of his car was not proof that he was in constructive possession of a gun found in the car. United States v. Bethly, 511 F. Supp. 2d 426 (D. Del. 2007):

The government relies heavily on Bethly’s conduct during the search of his car, noting that he was very attentive and was watching the officers very closely. The government does not specifically argue, but seems to imply that this behavior constitutes suspicious conduct. As previously mentioned, suspicious conduct is a proper factor to consider in the constructive possession calculus. See Bellinger, 461 F. Supp. 2d at 347; Iafelice, 978 F.2d at 97. This court, however, is not willing to make the leap the government urges. That is, the court is reluctant to find that a person’s attentiveness to a search of his or her vehicle alone is necessarily the behavior of someone who has hidden contraband in the vehicle, and is concerned about its discovery. This court hopes that a person would take an interest in a search of his vehicle by police. In fact, this Judge would be very attentive and watch police officers very closely if they were conducting a search of his own vehicle, and he would expect the same of his fellow citizens. The court, therefore, gives little weight to the government’s argument regarding Bethly’s conduct during the search of his vehicle.

Officer was on notice that the person he was seeking consent from was without apparent authority. Therefore, the purported consent is invalid. United States v. Washington, 2007 U.S. Dist. LEXIS 69303 (S.D. Ohio September 19, 2007).*

Estranged wife did have apparent authority to consent to a search. United States v. Stone, 2007 U.S. Dist. LEXIS 69210 (D. Conn. September 18, 2007).*

D.C. Cir. holds that impoundment of vehicle in accord with unwritten addition to “standard policy” but contrary to the written policy was unreasonable. United States v. Proctor, 376 U.S. App. D.C. 512, 489 F.3d 1348 (2007):

We believe that if a standard impoundment procedure exists, a police officer’s failure to adhere thereto is unreasonable and violates the Fourth Amendment. Cf. United States v. Maple, 358 U.S. App. D.C. 260, 348 F.3d 260, 263-64 (D.C. Cir. 2003) (search of vehicle relocated by police after traffic arrest unreasonable because contrary to [policy] GO 602.1). GO 602.1 provides that a vehicle “classified as prisoner’s property shall be disposed of in any lawful manner in which the person arrested directs.” GO 602.1, AA at 42 (emphasis added). Thus, before impounding the vehicle, an officer should provide the arrestee with the opportunity to arrange for its removal. See Hill v. United States, 512 A.2d 269, 274 n.10 (D.C. 1986) (“As ‘prisoner’s property’ [under GO 602.1] … a vehicle cannot be impounded without first giving the prisoner an opportunity to make other lawful arrangements for its disposition.”); Arrington v. United States, 382 A.2d 14, 18 (D.C. 1978) (“[P]olice are authorized to impound a motor vehicle as prisoner property [under GO 602.1] only where the prisoner consents thereto or is incapable of making other arrangements for its disposition.”). Proctor, however, was afforded no such opportunity. On the contrary, Shegan testified that the officers were required to impound Proctor’s vehicle because no one was present to remove it, see Tr. 11/23/04 at 24, Proctor was not the owner and they “weren’t going to wait” for the owner to remove it, id. at 38; see also id. (“I don’t believe I had a choice.”). Accordingly, the officers’ impoundment (seizure) decision violated GO 602.1.

The officers’ impoundment decision led to an inventory search that also violated GO 602.1. As noted earlier, Shegan testified that due to a lack of impoundment space at MPD facilities, MPD’s “new procedure” necessitated that a ROC crane tow Proctor’s vehicle to a private impoundment lot rather than to an MPD facility. Id. at 24-25, 52-53. According to Shegan, the officers were thus required to search “[t]he entire vehicle” before it was towed, id. at 26, “[t]o reduce liability on the police department and to preserve any property that the owner of the vehicle or the occupants of the vehicle may have,” id. at 25. GO 602.1, however, expressly prohibits an inventory search of a vehicle not taken to an MPD impoundment lot. GO 602.1, AA at 43 (“If a vehicle classified as prisoner’s property is disposed of so that it is not taken to a police facility, it shall not be inventoried in any way.”).

Consensual stop escalated into a detention without reasonable suspicion, and defendant was just going along. United States v. Washington, 490 F.3d 765 (9th Cir. 2007):

Recent relations between police and the African-American community in Portland are also pertinent to our analysis: According to testimony at the suppression hearing, in the one and a half years before Shaw initiated contact with Washington, there were two well-publicized incidents where white Portland police officers, during traffic stops, shot, and in one instance killed, African-American Portland citizens. As a result of these incidents, the Portland Police Bureau published and distributed several pamphlets advising the public how to respond to a police stop. Washington testified that he knew of and discussed with a friend one of the pamphlets, n3 which contained advice to citizens such as “follow the officer’s directions” when stopped, and “if ordered, comply with the procedures for a search.” Additionally, in a message from the Chief of Portland’s Police Department, the pamphlet listed common reasons police will stop a person, such as a person “committed a crime,” or “is about to commit a crime.”

. . .

Washington’s voluntary consent to the search of his person, however, does not preclude the possibility that officer Shaw improperly seized Washington as events unfolded. See Mendoza-Cepeda, 250 F.3d at 628 (recognizing that a consensual encounter may become a seizure); United States v. Ayarza, 874 F.2d 647, 650 (9th Cir. 1989) (stating that a consensual encounter “may evolve into a situation where the individual’s ability to leave dissipates”). If Shaw and Pahlke’s actions exceeded the scope of Washington’s consent to the search of his person, such that a reasonable person in Washington’s situation would not have felt free to depart if he so chose, then Shaw and Pahlke seized Washington. See Terry v. Ohio, 392 U.S. 1, 18, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (recognizing that “a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope”); United States v. $25,000 U.S. Currency, 853 F.2d 1501, 1506 (9th Cir. 1988) (reasoning that even if the suspect voluntarily consented to a search of his bag, the law enforcement officers could have “seized [him] for purposes of the fourth amendment at a later point”).

We have identified several non-exhaustive situations where an officer’s actions escalate a consensual encounter into a seizure: “when a law enforcement officer, through coercion, physical force, or a show of authority, in some way restricts the liberty of a person,” Washington, 387 F.3d at 1068 (internal quotation marks omitted), or “if there is a threatening presence of several officers, a display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Mendoza-Cepeda, 250 F.3d at 628 (internal quotation marks omitted) (alteration omitted). In Orhorhaghe, we identified several factors to consider in determining if a person was seized, any one of which, if present, could constitute a seizure: (1) the number of officers; (2) whether weapons were displayed; (3) whether the encounter occurred in a public or non-public setting; (4) whether the officer’s tone or manner was authoritative, so as to imply that compliance would be compelled; and (5) whether the officers informed the person of his right to terminate the encounter. Orhorhaghe, 38 F.3d at 494-96.

Applying these factors, we conclude that under the total circumstances present in Washington’s case, Shaw and Pahlke’s encounter with Washington escalated into a seizure.

Hudson forecloses inquiry into a knock-and-announce violation. The defendant argued, and the district court found, that the brevity of time between the knock and entry was so short as to constitute a no-knock warrant. United States v. Ankeny, 490 F.3d 744 (9th Cir. 2007):

Turning first to the alleged knock-and-announce violation, see Wilson v. Arkansas, 514 U.S. 927, 930, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995) (“[The] common-law knock and announce principle forms a part of the reasonableness inquiry under the Fourth Amendment.”), we hold that suppression is foreclosed by the Supreme Court’s decision in Hudson v. Michigan, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006).

The federal DNA collection statute does not violate the Fourth Amendment. Banks v. United States, 490 F.3d 1178 (10th Cir. 2007).*

A Utah officer observed a pickup truck with excessive window tinting, and he stopped it. During the stop, the officer learned of a “skelton file” on defendant for not having a U.S. license during a stop in Arizona. The window tinting justified a search incident because it was a class C misdemeanor in Utah. United States v. Velasquez-Rojo, 2007 U.S. Dist. LEXIS 40092 (D. Utah June 1, 2007).

Alleged exigency for entry into premises from defendant’s use of his cellphone just as he was being arrested was belied by the fact the officers did not enter for two hours. United States v. De Arias, 510 F. Supp. 2d 969 (M.D. Fla. 2007):

Even assuming the agents did see Jenkins holding and manipulating a cell phone, at best, any exigency created by this alleged phone call was stale when the Agents arrived at the Residence about 2 hours later. TR at 189. Furthermore, exigency must be supported by facts, and Agent Locher testified that he was not aware of any unusual activity at the Residence between the time of the traffic stop and the time of the knock and talk, and that he did not know if anyone at the Residence had been “tipped off.” TR at 100. None of the other Agents provided any evidence to the contrary.

Defendant was driving without seatbelts in a high crime area, so the officer decided to stop him because of their “professional relationship.” [“I knew him [Mr. Bowers] on a professional basis, figured I could get more of a story, more of what’s going on from him.”] The officer asked the defendant about weapons and drugs, and conducted a patdown that led to a gun. While an alleged seatbelt violation is subject to abuse, this one was objectively reasonable.
Because of the late hour and place and knowledge of the defendant, “[i]n the circumstances, therefore, it was not unreasonable for Officer Stringer, an experienced officer, to simply ask whether either the driver or passenger had drugs or weapons in their possession and whether they would consent to a search.” United States v. Bowers, 490 F. Supp. 2d 285 (D. Conn. 2007).*

While the same police conduct could lead a court to suppress a consent but not suppress a statement, compare United States v. Betters, 229 F. Supp. 2d 1103 (D. Ore. 2002), this is not such a case. The consent to search was shown to be voluntary as was the statement. United States v. Jennings, 491 F. Supp. 2d 1072 (M.D. Ala. 2007).

A software copyright infringement case permitted a search of computers, despite defendant’s argument it was the digital equivalent of rummaging. The officer’s intent to use a key word search to prevent rummaging was determinative. United States v. Bhownath, 2007 U.S. Dist. LEXIS 65320 (D. Utah August 31, 2007):

Bhownath contends that the warrants language allowed the agents to search for and seize a limitless array of computer files, not just those relating to the alleged crime. Bhownath relies on a Tenth Circuit case stating that “[a] sufficiently particular warrant [is such] that the officer is prevented from generally rummaging through a person’s belongings.” United States v. Patterson, 64 Fed. Appx. 727, 729 (10th Cir. 2003).

The warrant in this case allowed the agents to search all the data contained on Bhownath’s computer. The court disagrees with Bhownath, however, that this is the digital era equivalent of rummaging. The agents must be allowed access to all files on a computer to search for files and folders relating to the case. The agents do so by searching all files for keywords. They then look at the files and folders that contain those keywords. The agents do not conduct a search by opening the first file, reading it, and then moving to the next. Searches of a computer are methodically done on an imaged hard drive.

Bhownath’s position would unnecessarily curtail the search for keywords in any file on the computer. The agents are not in a position to know what type of file or folder a defendant may use to store relevant information. If the court were to find the warrant facially overbroad, it would allow defendants to hide evidence of illegal conduct in unlikely places on their computer and escape the parameters of a warrant. Such a position is unworkable and unnecessarily limiting in the context of a computer search in a case such as this where a defendant is selling illegal products from a website associated with his home address and shipping products through an address associated with his home address. There was probable cause to search the computers at the address associated with the website. Given the facts presented in the affidavit, the computer at the residence was the most relevant source for information relating to the alleged crime. Therefore, the court concludes that the warrant was not facially overbroad with respect to the search of Bhownath’s computer.

Defendant’s consent to a patdown that led to his trying to avoid having his pockets touched was not a true withdrawal of consent, but he did withdraw, after a plain feel revealed constraband. State v. Cochran, 2007 Ohio 4492, 2007 Ohio App. LEXIS 4050 (3d Dist. September 4, 2007).*

Consent to a BAC test is implied in Texas from operating a motor vehicle, and it can be ineffective if the defendant is misadvised of the consequences of refusal. Defendant was subject to arrest, but he was not told, and it was apparent to him that he was restrained and not free to leave. He volunteered he’d been drinking, and that, coupled with his conduct and demeanor, showed probable cause to believe he was under the influence. Washburn v. State, 235 S.W.3d 346 (Tex. App.—Texarkana 2007).*

The defendant was stopped for going 8 mph over the speed limit, so he did not contest his stop. He was put in the back of the police car because it was raining, but the officer’s own video of the three days surrounding that event showed he did it to most people he stopped. He admitted that it was an “investigative technique” to see if the driver got excessively nervous. This was tantamount to an arrest. While Pennsylvania v. Mimms allows an officer to order a motorist out of the car and a patdown can be done when the officer has safety reasons, here there was no justification. State v. Berrios, 235 S.W.3d 99 (Tenn. 2007):

On the other hand, the placement of a driver into the backseat of a patrol car cannot be described as “de minimus” or a “mere inconvenience.” A process involving a frisk and placement into the back of a locked patrol car is more akin to a full-scale arrest than the brief detention generally incident to an ordinary traffic stop. After a traffic violation, a driver can generally expect “to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may then be given a citation, but that in the end he most likely will be allowed to continue on his way.” Berkemer v. McCarty, 468 U.S. 420, 437 (1984). “The government’s general interest in criminal investigation, without more, is generally insufficient to outweigh the individual interest in ending the detention.” United States v. Holt, 264 F.3d 1215, 1221 (10th Cir. 2001).

. . .

In Wilson v. State, 745 N.E.2d 789 (Ind. 2001), the Indiana Supreme Court observed that it could “envision various particularized circumstances (including, for example and without limitation, inclement weather, the lack of available lighting for paperwork, the need to access equipment with the detained motorist, etc.) that may make it reasonably necessary for police to require a stopped motorist to enter a police vehicle,” but nevertheless concluded that “[a]n officer is not using the least intrusive means to investigate a traffic stop if, without a particularized justification making it reasonably necessary, he places a person into his patrol vehicle and thereby subjects the person to a pat-down search.” Id. at 793. Similarly, the Minnesota Supreme Court has ruled that “a reasonable basis must exist” for an officer to ask a driver to wait in the patrol car during a routine traffic stop. See State v. Varnado, 582 N.W.2d 886, 891 n.4 (Minn. 1998).

As to the frisk, the United States Supreme Court has granted “narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Terry, 392 U.S. at 27. The Court has ruled that there is no justification for an exception to the warrant requirement for a search incident to a traffic stop, observing that “[t]he threat to officer safety from issuing a traffic citation, however, is a good deal less than in the case of a custodial arrest.” Knowles v. Iowa, 525 U.S. 113, 117 (1998). The Court concluded that the interest of officer safety was sufficiently protected in a traffic stop setting through the search power permitted under Terry. See id. at 117-18; see also LaFave, 102 Mich. L. Rev. at 1869 (for a discussion of this doctrine). That is to say, an officer may conduct a pat-down for weapons if he has reasonable suspicion that the driver may be armed. Knowles, 525 U.S. at 117-18.

. . .

While in this case Officer Nichols’ intuition and persistence frustrated the illegal activities of the Defendant, a fact that would otherwise merit praise, our approval of this particular “frisk and sit” would deviate from generations of law in this area. The Supreme Court has warned that “illegitimate and unconstitutional practices get their first footing … by silent approaches and slight deviations from legal modes of procedure.” Boyd v. United States, 116 U.S. 616, 635 (1886). Moreover, those jurisdictions that permit a detention like this during a routine traffic stop do not allow a pat-down for weapons in the absence of reasonable suspicion. See, e.g., Lozada, 748 N.E.2d at 524 (“[D]uring a routine traffic stop, it is unreasonable for an officer to search the driver for weapons before placing him or her in a patrol car, if the sole reason for placing the driver in the patrol car during the investigation is for the convenience of the officer.”). Other jurisdictions have concluded that a pat-down for weapons is permissible before placing a person into a patrol car so long as there was a reasonable basis for the placement. As stated by one New York court, “Although a police officer may reasonably pat down a person before he places him in the back of a police vehicle, the legitimacy of that procedure depends on the legitimacy of placing him in the police car in the first place.” People v. Kinsella, 527 N.Y.S.2d 899, 899 (N.Y. App. Div. 1988).

Consent to search of defendant’s home was the product of coercion on the totality of the circumstances after 90 minutes of interrogation. State v. Munson, 339 Mont. 68, 2007 MT 222, 169 P.3d 364 (2007):

[*P55] Having considered the foregoing arguments and the record before us, we conclude that the totality of the circumstances weighs in Munson’s favor. Although there unquestionably are circumstances supporting both sides of the consent issue, we consider the following facts to be most significant.

[*P56] First, Munson indicated to the Officers upon their arrival that she did not want to visit with them at that time, but they insisted on visiting with her “right now,” thereby creating a coercive dynamic at the outset of the interview. Second, Munson unequivocally refused twice at the outset of the questioning to consent to a search of her apartment, but the Officers nevertheless pressured her to change her mind, thereby conveying that they would not take “No” for an answer. In this regard, we are not persuaded by the emphasis the State places on the Officers’ altruistic motive in going to Munson’s apartment “to help [her] get out of the pattern of drug use”–a characterization that is dubious in light of Basnaw’s statement, upon the Officers’ arrival, that he and Johnson were there to “follow up” on allegations of criminal activity involving Munson and her apartment. Indeed, the State’s portrayal of the events is belied by Basnaw’s own characterization (while requesting transportation of Munson) of what had just transpired:

Hi Hillary it’s Jase. Good. Hey that female I talked to ya’ about I’m at her house now. We did a consent to search and I’m gonna’ end up takin’ her to jail. Yeah. We got a little bit o’ meth and meth paraphernalia. She’s got a 1-year-old and a 5-year-old. So how do ya’ like that? Hahaha. Made to order.

[*P57] Third, the Officers employed what could fairly be characterized as psychological tactics to obtain Munson’s consent. Cf. Schneckloth, 412 U.S. at 229, 93 S. Ct. at 2049 (“In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.”). For instance, Johnson told Munson that “[t]here’s some pretty bad stuff goin’ on here,” opined that she was at “a fork in the road,” offered ideas on how she might change her life, and then suggested that signing the consent form would be the wise choice for her to make, noting that “[t]he decision you make today is gonna’ determine where your children are raised.” As a result, Munson’s consent ultimately was given while she was in an extremely emotional state brought on by the Officers’ lecturing her at length about her lifestyle, her children, and her future. For this reason, we cannot agree with the State that “[t]his is not a case in which the police wore down a suspect.” To the contrary, our review of the thirty-one-page transcript covering the approximately one hour and forty-five minutes that the Officers were at Munson’s apartment leads inescapably to the conclusion that Basnaw and Johnson’s approach achieved exactly what they had intended: to wear Munson down to the point where she made inculpatory statements and yielded to their warrantless search of her home.

[*P58] Lastly, although the Officers did indeed tell Munson that she did not have to sign the Consent to Search form, they also told her that she did have to sign the form. As a matter of fact, the transcript reflects virtually simultaneous contradictory statements by the Officers in this regard; at the very least, their statements to Munson that she did not have to sign the form were equivocal.

[*P59] Based on the totality of the circumstances, we conclude that Munson’s consent was not given freely and voluntarily and without duress or coercion. Thus, all evidence seized by the Officers under the guise of Munson’s consent is inadmissible. We accordingly reverse the District Court’s order denying Munson’s motion to suppress that evidence.