Florida’s 5th DCA holds that the good faith exception applied to sustain a search without the court even attempting to analyze whether probable cause existed. The case apparently was close enough on probable cause that it was easier to go directly to the good faith exception, and gratuitously relied on the experience of the judge, the lack of evidence of corruption [well, Duh!], and the reliance of the police in finding the good faith exception applicable. State v. Watt, 946 So. 2d 108 (Fla. App. 5th Dist. January 5, 2007, released for publication January 24, 2007):

In this case, an experienced trial judge reviewed Agent Brannon’s affidavit and determined that probable cause existed to justify the issuance of a search warrant. The police executed the search pursuant to the warrant issued by the judge. In order to reject the application of the good faith exception in this case, we would need to conclude that an objectively reasonable police officer would have a better understanding of the law of search and seizure and probable cause than did the trial judge who issued the warrant. We are not willing to do so.

No indication exists in the record that either the police officer or the trial judge was corrupt, dishonest, or acted in bad faith. Accordingly, this case is controlled by the principle we articulated in State v. Harris, 629 So. 2d 983 (Fla. 5th DCA 1993):

“The warrant was regular on its face and the affidavit upon which it was based was not so lacking in indicia of probable cause that the officer executing the warrant could not with reasonable objectivity rely in good faith on the magistrate’s probable cause determination and on the technical sufficiency of the warrant.”

Id. at 984.

Comment: I, for one, find such a cavalier attitude toward the good faith exception to be troublesome. This is an understatement, so let me rephrase: This opinion reads like an ad hominem judicial cop-out. Of course the judge was experienced. Does that imply that less experienced judges’ paperwork is to be subjected to more or closer scrutiny? Hardly. I have seen experienced judges literally sign search warrant applications in chambers without even reading them. They would qualify as “experienced,” if an old, worn rubberstamp for the police could be called “experienced.” To say that there is no evidence of corruption of the judge is an extreme hypothetical situation which would rarely be made and even more rarely provable, barely hinted at in Leon on the lack of a neutral and detached magistrate issuing a search warrant, if one reads between Leon‘s lines. If being a shill for the police is a form of intellectual “corruption,” most issuing judges will fall in that category because the good faith exception has given them an out–they don’t have to read the paperwork as closely or even think about it because they well know that it doesn’t even matter as much under Leon because the proof is in the affirmances. Worse yet, the police know it, too. It shows in suppression hearings where officers parrot the lines necessary to get in under Leon. Finally, the comment that the defendant here would expect the police to know the law better than the magistrate overlooks the fact that the police control the affidavit process because they prepare the affidavits, and, after 22 years of Leon, police officers watching judges sign off on search warrants without (or perfunctorily) reading them means that they have to know what they put in there no longer matters. This is a simple truth, and it was inevitable from Leon, but the Supreme Court was warned of its folly by the dissenters and amici and did not care. After reading this opinion, one is almost struck with a sense of the court’s near desperation to sustain the search. Why could the court not just say “We have looked at the affidavit for the search warrant, and the question is too close to call. Anything near a tie goes to the state.” Moreover, there are two questions when Leon is invoked: (1) Is there probable cause? (2) If not, does the good faith exception apply or does one of the four exceptions to the good faith exception apply? That is the gist of the good faith exception. Skipping the first question and going straight to the second only encourages judicial laziness, on all levels of the judiciary, which is evident on this court. When probable cause does not matter to the appellate courts, it does not matter to the trial courts, and it finally gets through to the police that it does not matter to them, either. This case is an embarrassment to the Florida judiciary. It could have been dealt with “more professional,” as they say to us lawyers, or more judiciously, as judges would say. Leon is demeaned in any case, such as this one, where it is viewed as a judicial panacea thrown up to the defense as an impenetrable wall. It is not. Treating it as such devalues Leon, the court writing the opinion, and the law as a whole.

Defendant’s 15 year old daughter reported capital sexual battery on her father, and the police came to investigate. At their strong suggestion, she entered defendant’s bedroom to retrieve used condoms as evidence. The trial court found, and the appellate court agreed, that she was acting as an agent of the state when she made the entry on the officer’s strong suggestion. The state’s alternative argument of consent failed because there was no showing of equal access to the room. Suppression order affirmed. State v. Moninger, 957 So. 2d 2 (Fla. App. 2d Dist. 2007). (There is a case I read more than a year ago reaching opposite result on the child’s apparent authority to go into the father’s bedroom because that was where the sexual assaults occurred. I cannot remember the name, and the cases from more than a year ago are archived.)

California again decides that an officer has to know that the defendant is on probation before the state can rely on a post hoc rationalization of probation status as justifying an otherwise unlawful search. People v. Miller, 146 Cal. App. 4th 545, 52 Cal. Rptr. 3d 894 (4th Dist. January 4, 2007).

Stop never matured into a de facto arrest (although officers had developed probable cause in the meantime). Defendant was conversing with officer and minimizing his role in the suspected offense, and he was always free to go and not even obligated by the police to go with them to talk to them. He consented. United States v. Moss, 2007 U.S. Dist. LEXIS 293 (S.D. Fla. January 2, 2007).*

The plaintiff in a strip search case in California is granted partial summary judgment on liability because the case is not materially distinguishable from a recent case in the Ninth Circuit. Craft v. County of San Bernardino, 2006 U.S. Dist.LEXIS 95756 (C.D. Cal. December 7, 2006).

“The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.”

[Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861 (1979).] This test has been applied by the Ninth Circuit most recently in Way v. County of Ventura, 445 F.3d 1157 (9th Cir. 2006) (finding unconstitutional a strip search of an arrestee, performed pursuant to a blanket policy, where the arrestee was arrested on charges of being under the influence of a controlled substance), cert. denied, U.S. , 2006 WL 2516530 (Nov. 27, 2006). Accordingly, the Court looks to the four factors of scope, place, manner, and justification to determine if the uncontroverted facts establish the constitutional violations advanced by plaintiffs.

As to the scope of the intrusion, the Ninth Circuit has justifiably recognized that the strip and/or visual body cavity search at issue in Way, and at issue here, is “frightening[ly] invasi[ve]” and “humiliating.”

“The scope of the intrusion here is indisputably a frightening and humiliating invasion, even when conducted with all due courtesy. … Its intrusiveness cannot be overstated. … [T]he fact that a strip search is conducted reasonably, without touching and outside the view of all persons other than the party performing the search, does not negate the fact that a strip search is a significant intrusion on the person searched …. The feelings of humiliation and degradation associated with forcibly exposing one’s nude body to strangers for visual inspection is beyond dispute.”

Id. at 1160 (internal citations and quotation marks omitted). The factor regarding the intrusiveness of the search strongly favors plaintiffs.

As to the manner of the search, Defendants argue, in conclusory fashion, that “inmates … are not subjected to a search that is excessive, vindictive, harassing, or unrelated to any legitimate penological interest.” Opp. at 9. Here, however, it is undisputed that the searches are conducted in a group setting, with the individuals separated only by gender. Although defendants have presented evidence of some measures taken to preserve the privacy of those being searched, the evidence of record reveals that they have taken no steps to conduct the searches on an individual basis and have instead continued to conduct the searches en masse without any attempt to limit the humiliation occasioned by conducting the searches in full view of dozens of other individuals. In Way, although the Ninth Circuit ultimately found the blanket policy at issue to be unconstitutional, it looked favorably upon the fact that the search was conducted by one officer, with no one else present. Way, 445 F.3d at 1160-61; cf. Beard v. Whitmore Lake School Dist., 402 F.3d 598, 606 (6th Cir. 2005) (noting that “[t]he fact that the searches of the females did not occur in the presence of only school officials, but rather in the presence of other [female] students, further supports the conclusion that the searches were unreasonable”). Accordingly, the factor regarding the manner of the search also strongly favors plaintiffs.

Where the plaintiff did not contend that the original seizure of his money was unlawful, the fact it took too long for plaintiff does not overcome qualified immunity. Gallo v. Pillow, 2007 U.S. Dist. LEXIS 20479 (E.D. Ark. March 20, 2007):

Gallo does not allege that the original seizure of the money was unreasonable. He maintains that, after his arrest, Defendants did not return it within a reasonable period of time. Holding onto property seized from a lawful search may violate the Fourth Amendment, but this conduct is not a clearly established violation. Because keeping property too long is not a clear violation of the Fourth Amendment — to the extent that Pillow and Volner were arguably culpable — they are entitled to qualified immunity.

Detention of 15-17 minutes was reasonable based on reasonable suspicion. United States v. Terry, 220 Fed. Appx. 961 (11th Cir. 2007)* (unpublished).

“The motions filed by defense counsel in this case are insufficient as they lack supporting detail as to what conduct by the officers they are challenging or even as to which search warrant they are objecting. Further, there are no facts or details offered to support the Defendants’ conclusions that the searches were illegal or unreasonable. Accordingly, the Court will dismiss the motions without prejudice.” Defendants also failed to show standing to challenge the search of the vehicles involved. One came back to a person with the same address as one defendant’s driver’s license, but that was not enough. United States v. Avila Rubio, 2007 U.S. Dist. LEXIS 20663 (D. Idaho March 21, 2007).*

In a case involving aggravated and sexual assault in Indian country, the court did not have to determine whether the Indian officer was qualified under Iowa law to investigate crimes to apply for a search warrant because any citizen could provide the same information in a search warrant as a citizen informant. United States v. Papakee, 2007 U.S. Dist. LEXIS 20680 (N.D. Iowa March 21, 2007).

Officer who approached a truck parked with the motor running in high crime area did not violate the Fourth Amendment by initiating contact. Reasonable suspicion developed from the conversation. State v. Henry, 2007 Tenn. Crim. App. LEXIS 263 (March 22, 2007).*

The defendant was stopped for a traffic offense. “After directing the defendant to pull over and stop, the officer approached the vehicle and observed the defendant sweating, crying, reluctant to speak in response to questions, and gagging after being ordered out of his car. When the defendant opened his mouth on the officer’s command, the officer noticed a clear plastic bag in it, covered in blood and saliva, but the defendant refused to spit it out. Suspecting that the bag contained cocaine, the officer grabbed the defendant by the throat with one hand and applied enough pressure to inhibit the defendant’s ability to swallow. After about fifteen to twenty seconds, the defendant spit the bag onto the sidewalk.” Grier v. State, 868 N.E.2d 443 (Ind. 2007):

The application of force to a detainee’s throat to prevent swallowing of suspected contraband violates the constitutional prohibitions against unreasonable search and seizure. By grabbing the defendant’s throat to prevent him from swallowing the suspected bag of drugs, the police violated this constitutional protection.

Evidence obtained as a result of an unconstitutional search must be suppressed. … We therefore hold that the trial court should have granted the defendant’s motion to suppress evidence obtained by the application of physical force to his throat to prevent him from swallowing it.

Consent after arrest in Indiana can only be sought after a Miranda warning. Peel v. State, 868 N.E.2d 569 (La. App. 2007):

When considering the above, we can only conclude that Peel and Capps were in custody for purposes of Miranda after admitting that they had committed a criminal offense. Thus, for a consent to search to be valid, they were entitled to an advisement of the right to counsel before a valid consent to search the motel room could be obtained. Inasmuch as the record unequivocally establishes that no such advisements were given, the trial court erred in denying Peel’s motion to suppress.

Defendant brought a backpack to a friend’s house and left it for a while. The friend’s parents could smell marijuana, and they called the police. The officer smelled the marijuana and he seized it and opened it later. The plain smell doctrine only determines probable cause; not an ability to search without a warrant. State v. Wise, 2007 Ohio 3113, 2007 Ohio App. LEXIS 2873 (6th Dist. June 22, 2007).*

Defendant had standing as renter or owner of premises to challenge the basis for the search, but not the method of the search since he was not present. Four locations were searched in a tax protestor’s case. United States v. Kahre, 2007 U.S. Dist. LEXIS 51817 (D. Nev. July 13, 2007):

The Court finds that Defendant Robert Kahre has standing to challenge the validity of the search warrants with respect to the properties at issue. Defendant Kahre either owned the properties at issue, leased the properties, or otherwise conducted his business at the four locations searched. However, a person who is not present at the search cannot challenge the officers’ failure to knock and announce or present the warrant. United States v. Silva, 247 F.3d 1051, 1059 (9th Cir. 2001). Moreover, Fourth Amendment rights cannot be asserted vicariously. Id. Defendant Kahre was arrested at the Bank of the West and was not available to monitor any of the search locations while the search warrant was being executed. Thus, while Defendant Robert Kahre has standing as to the premises searched, he lacks standing as to the manner in which the Government executed the search warrant. Id.

. . .

B. Probable Cause to Employ “Special Entry Procedures”

Defendants also claim the Government lacked probable cause to utilize special entry procedures at the properties searched. The Affidavit indicates that the Government planned to execute simultaneous searches on the properties listed in the warrant. The Affidavit sets forth specific facts indicating the need for special procedures. For example, Defendant Robert Kahre had previously sent letters to the IRS indicating that he did not recognize IRS agents as having any legitimate law enforcement authority or the right to carry weapons. The Government also had information regarding a probable presence of armed guards on the premises to be searched. In addition, bank personnel confirmed the presence of security guards with Defendant Kahre when he visited the bank. These facts are sufficient to establish that the magistrate “had a substantial basis for … concluding that probable cause existed” as to the need for special entry procedures. Bridges, 344 F.3d at 1014 (citation omitted). Thus, the Government had probable cause to employ special procedures, including the anticipated use of reasonable force. However, as analyzed below, the Court does not opine on whether the Government used unreasonable force in carrying out the search warrants with regards to specific items of property.

. . .

IV. Scope of the Search Warrants and Unreasonable Force

. . .

As mentioned above, whether the entries and searches were conducted reasonably in this case is currently the subject of a separately pending civil action. While this Court does not ultimately issue an opinion regarding whether the Government used excessive force, in order not to bind the Court handling the civil dispute, the Court does find that the Government had probable cause to use special entry procedures. Defendant Kahre believed the IRS had no authority to carry out law enforcement activities and had made his beliefs known to the Government. Further, the Government had received information that Defendant Kahre regularly used armed security guards. Further, in his correspondence with the IRS, he had implied altercation and violent response if the IRS attempted to enter. Therefore, the Government had legitimate concerns about their safety in entering and searching the house because, according to Kahre, Kahre would have considered the IRS agents as trespassers, illegally entering and confiscating his property as well as detaining his workers.

Comment: The last sentence of the first quoted paragraph is an overbroad statement of the law, and thus legally incorrect, and the court could have used more precise language. As applied in the opinion, however, the court is correct. Therefore, that single sentence will be taken out of context by the government in the future.

The court also dealt with whether the warrant was overbroad, which it was, but it was saved by the affidavits for warrants which were stapled to the search warrants and at the scene:

While the search warrant at issue alone does not satisfy the particularity requirement, the search warrant references Attachments A and B, as well as the relevant affidavit. Attachment A indicates the properties to be searched, and Attachment B contains a list of items to be seized. While the Defendants argue the Government failed to present the affidavit at each search site, the Court finds that the affidavit was available at each property the Government searched. The evidence presented at oral argument establishes that Government did in fact attach the affidavit to the warrant. The xerox copies of the attachments reveal identical staple marks to the accompanying warrant. In addition, Defendants failed to present sufficient evidence at oral argument to establish that the Government failed to attach the affidavit to the warrant. Accordingly, the warrant, accompanied by attachments, satisfies the particularity requirement. See Ramirez, 298 F.3d at 1026.

Defendant was asked to consent to a “real quick” “check” of the car, and he agreed. That is a limited consent to search that did not include removing an inside panel. People v. Cantor, 149 Cal. App. 4th 961, 57 Cal. Rptr. 3d 478 (4th Dist. April 13, 2007):

We have reviewed the police videotape of the vehicle stop plus the transcript of its audio and conclude the search exceeded the scope of defendant’s consent to Weizoerick’s request for a “real quick” “check” of the car. After receiving defendant’s consent, Weizoerick proceeded to methodically search the car’s passenger compartment, its trunk, under its hood, and then its interior again several times. By then, almost 15 minutes had passed since defendant had given his consent and still Weizoerick had found nothing incriminating. At that point, if not sooner, the search should have ceased. A typically reasonable person would not have understood defendant’s consent to a “real quick” search to extend beyond that point, much less to include authorization to unscrew the panel of a piece of equipment during a second search of the trunk while awaiting the arrival of a drug sniffing dog.

Reason for protective sweep made it unlawful: a deputy had reasoned that the sweep was necessary because “there may or may not have been a working meth lab in the home.” State v. Gray, 285 Ga. App. 124, 645 S.E.2d 598 (2007).

Defendant fled into a third party’s home trying to elude police, and the officer thought it was defendant’s own home. He had no expectation of privacy as to the police entry. “Although Officer Schnapp was not aware at the time he observed the defendant push his way into the residence that he had witnessed the defendant commit the felony offense of unauthorized entry of an inhabited dwelling …. the defendant had no objectively reasonable and legitimate expectation of privacy when he fled into that home.” State v. Walker, 953 So. 2d 786 (La. 2007).*

Nolo plea with a discharge did not bar a subsequent civil action under Heck. Jansma v. Grand, 2007 U.S. Dist. LEXIS 27508 (W.D. Mich. April 13, 2007):

There is legal precedent in finding a no contest plea can bar a subsequent § 1983 claim under Heck. See Cummings v. City of Akron, 418 F.3d 676 (6th Cir. 2005); Schreiber v. Moe, 445 F. Supp. 2d 799, 812-13 (W.D. Mich. 2006); Ramirez v. Dennis, 2002 U.S. Dist. LEXIS 10436, *11-13 (W.D. Mich. June 6, 2002) (listing authorities). However, none of these cases contemplate a no contest plea which is subsequently discharged without an adjudication of guilt at the end of the probationary period as is the present circumstance. If the probation period has expired and Jelta’s charge has been discharged, there would not be a conviction such that Heck could be invoked. Therefore, where Jelta’s plea has been expunged with no adjudication of guilt or a conviction, n6 Heck cannot bar his claim under § 1983.

The Fifth Circuit rejects an appeal of denial of a suppression motion because the attempted conditional plea was not sufficiently reserved and presented to the court. A passing reference in the PSR is not enough, and the plea agreement was silent. United States v. Stevens, 487 F.3d 232 (5th Cir. 2007).

The affidavit for the search warrant in a child porn case was sufficient in its conclusion that child porn would be kept in the home. United States v. Watzman, 486 F.3d 1004 (7th Cir. 2007):

So we must determine whether the affidavit sworn on October 24, when purged of these facts, still contained sufficient information to establish probable cause. Watzman argues that it did not, primarily because the officers’ observations on October 22 were the only evidence that his apartment had a working computer and Internet connection, and without that information the affidavit “failed to establish that any illegal activity could be found” in his home. The district court improperly assumed, he argues, that “pornography necessarily is viewed in the privacy of one’s own home.” Watzman submits that it is “equally likely” that one might download child pornography in “innumerable places, such as offices, public and private libraries, universities and airports.”

Watzman’s argument is meritless. First, probable cause is not certainty; it requires “only a probability or substantial chance that evidence may be found.” Sidwell, 440 F.3d at 869. Thus, Watzman’s assertion that alternative inferences might have been drawn about where child pornography might be stored is unavailing. Moreover, a finding of probable cause “does not require direct evidence linking a crime to a particular place.” Anderson, 450 F.3d at 303. Reasonable inferences are permitted. Id.; United States v. Angle, 234 F.3d 326, 335 (7th Cir. 2000). In his affidavit Agent Wolflick explained in great detail his experience with consumers of child pornography and specifically averred that these individuals tend to hoard collections at home. The district court’s reliance on these expert representations is not an “assumption”; the court was entitled to rely on Agent Wolflick’s expertise to conclude that there was a fair probability that child pornography would be found in Watzman’s home. See United States v. Hall, 142 F.3d 988, 995 (7th Cir. 1998) (citing “expert information” in affidavit that “pornographers tend to maintain their collections of material for long periods, usually at home”); United States v. Lacy, 119 F.3d 742, 746 (9th Cir. 1997) (holding that affidavit provided “ample reason” to believe items sought [*9] were in defendant’s apartment, where affiant stated that “collectors and distributors of child pornography value their sexually explicit materials highly, ‘rarely if ever’ dispose of such material, and store it ‘for long periods’ in a secure place, typically in their homes”).

Police received a 911 call of a domestic disturbance and a “beating” in progress. At the scene, the caller said that she changed her mind and everything was fine. There was no indication of injury. Nevertheless, the officers entered the house to talk to the defendant, and he allegedly went for a knife and they tazered him. The entry was invalid. State v. Delong, 2007 Ohio 2330, 2007 Ohio App. LEXIS 2170 (4th Dist. May 11, 2007).

A search warrant was issued for specific property, none of which was contraband or a firearm, and the officers seized ammunition because the defendant was under an order of protection and it was illegal to possess ammunition. The ammunition was in plain view despite being outside the particularity of the warrant. United States v. Dunbar, 2007 U.S. Dist. LEXIS 35473 (W.D. Pa. May 15, 2007).*

An officer was approaching defendant’s house to do a knock and talk and discovered a propane tank used for anhydrous ammonia in the back of a truck with the distinctive bluish color. The state satisfied its burden of being in a lawful vantage point and that the evidentiary value of the tank was immediately apparent. Keehn v. State, 223 S.W.3d 53 (Tex. App. — Ft. Worth 2007)*:

Viewing the evidence in the light most favorable to the trial court’s ruling, we hold that law enforcement officers had probable cause to believe that the propane tank–located inside the van that was parked in the driveway in front of Keehn’s home–was associated with criminal activity. See Kelly, 204 S.W.3d at 818. It was thus immediately apparent that the propane tank constituted evidence of a crime. See Walter, 28 S.W.3d at 541. Because Deputy Deford and Officer Spragins had a lawful right to be on Keehn’s driveway when they observed the tank, and because it was immediately apparent that the propane tank constituted evidence of a crime, the State met its burden of proving the reasonableness of the search and seizure by establishing the applicability of the plain view doctrine–a “specifically defined and well-established” exception to the warrant requirement. See McGee, 105 S.W.3d at 615. Accordingly, we overrule Keehn’s sole point.

Defendant was stopped for weaving, and he gave a false name and claimed no driver’s license on his person. The officer ran the name given and got no hits. He asked the driver to come back to the patrol car so they could talk about it because a differently spelled first name had a warrant out. Defendant claimed the name, and the warrant. Defendant and the occupants were more than normally nervous. Bail was $630 and the officer said he would take the defendant to get the bail. Going back to the car, he told the passengers, and a door was opened and the inside light showed the handle of a gun, which the officer seized. The officer was justified in seizing the gun. United States v. Cloud, 2007 U.S. Dist. LEXIS 3211 (D. Minn. January 16, 2007).*

Under new F.R.A.P. 32.1, we are starting to get memorandum opinions from some federal appellate courts that are as cryptic or more as some New York appellate decisions that are per curiam and simply state “We find that, based on the totality of the circumstances, the arresting officers did not act unreasonably in securing the evidence that Brown sought to have suppressed,” with no statement of fact. United States v. Brown, 2007 U.S. App. LEXIS 934 (D.C. Cir. January 16, 2007).* Opinions like this are meaningless to everybody but the parties.

Mandatory blood draws for a firemen’s “wellness program” under FEMA auspices was a Fourth Amendment seizure because it was mandatory and they were subject to punishment for not agreeing. Anderson v. City of Taylor, 2005 U.S. Dist. LEXIS 44706 (E.D. Mich. August 11, 2005):

Defendants contend that all of Plaintiffs’ cited cases involve some sort of punitive aspect to a seizure, i.e. in Chandler, a testing of urine was a prerequisite to qualify for state office. In other words, Defendants contend that there is no punitive aspect in the blood draw because it is used solely for the benefit of a health screening of Plaintiffs. It is correct that the results of the Plaintiffs’ blood draws will not dictate a particular punishment upon the Plaintiffs. However, the Defendants miss the central aspect of the blood draws–they are mandatory. The United States Supreme Court has set forth that a blood draw itself is a search or seizure implicating the Fourth Amendment. Skinner at 616. Because the blood draws are mandatory, it follows that Plaintiffs would be subject to some form of punishment for refusing the constitutionally protected intrusion. In fact, Plaintiffs Pochron, Bell, and Lavender set forth in their affidavits that they would have been punished had they not participated in the blood draw. (Plaintiffs’ Response, Exs. 3-6). Herein, lies the punitive aspect to the blood draws at issue in this case. The Court notes that the United States Supreme Court has not held there must be a punitive aspect tied to the results of a blood draw.

The Court finds that the mandatory blood draws instituted by Defendants, despite the fact that they were intended to benefit Plaintiffs, violates their personal privacy rights protected by the Fourth Amendment. As Justice Brandeis set forth in his landmark dissent in Olmstead v. United States, 277 U.S. 438 (1928), albeit addressing a more serious issue, “[e]xperience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficient.” Id. at 485.

Defendant Marine’s wife (an ex-Marine herself) had apparent authority to consent to a search of the defendant’s briefcase when NCIS agents came to their house on base to inquire about a possible child sex offense and whether there were pictures of it. United States v. Gallagher, 65 M.J. 601 (N-M. Ct. App. 2007).*

The right to privacy in Hawai’i does not include prostitution or “blowjobs” and “handjobs” for consideration. State v. Romano, 114 Haw. 1, 155 P.3d 1102 (2007).*

After a rape suspect was excluded by a DNA test, the unknown sample was sent to CODIS, and it came back as belonging to the defendant. Defendant was on parole, and he was called in for a blood sample. He was never in custody and he was not entitled to a warning before consent was sought. The taking of the sample was purely consensual. State v. Bandy, 2007 Ohio 859, 2007 Ohio App. LEXIS 776 (7th Dist. February 22, 2007).*

Rearguing search issue affirmed on appeal via a § 2255 was improper. Also, other prongs of that argument were waived by not having appealed, and he had a full and fair opportunity to litigate the issue in the first instance. United States v. Ringgold, 2007 U.S. Dist. LEXIS 13983 (D. Nev. February 22, 2007).*

Heck‘s requirement that a conviction be set aside before a § 1983 case may be filed creates an element of the constitutional claim, so the statute of limitations begins to run from the date the last element occurs. Kucharski v. Leveille, 2007 U.S. Dist. LEXIS 14055 (E.D. Mich. February 12, 2007).*

Tractor trailer at a weigh station was pulled aside for inspection, and the officer noticed that the trucking company was on a DEA watchlist and the defendant’s demeanor was sufficient to create reasonable cause. The smell of bondo was strong, and the officer located an apparent false compartment which was probable cause. United States v. Mercado-Nava, 486 F. Supp. 2d 1271 (D. Kan. 2007):

Even absent the regulatory justification for this search, Trooper Epperly had probable cause to believe that defendant was engaged in criminal activity, prior to the vehicle search. He knew defendant’s trucking company was on a DEA watchlist of companies having prior drug involvement, and that it had a relatively high DOT number. He noticed that defendant was overly friendly, very talkative, and sweating. He saw that defendant was from Phoenix and his truck was from California, which he considered to be drug source areas. He smelled a strong odor of putty and paint inside the truck, and viewed an alteration to the undercarriage of the truck, which led him to believe that the floor of the cab had been dropped for purposes of concealing a compartment to be used for illegal activity. These factors collectively formed probable cause that defendant was engaged in criminal activity, sufficient to justify the search of the hidden compartment in which drugs were found. See United States v. Orrego-Fernandez, 78 F.3d 1497, 1502 -1505 (10th Cir. 1996).

After the defendant was told he was free to go, the officer decided to order him out of the car for further questioning, and this was unreasonable. State v. Henderson, 2007 Ohio 2315, 2007 Ohio App. LEXIS 2137 (11th Dist. May 11, 2007):

[*P28] Officer O’Leary’s motive in asking Henderson to exit his vehicle is not controlling. Apart from his motive, O’Leary had probable cause for the initial traffic stop. However, his continued detention and questioning after advising Henderson that he was “free to go” required the existence of reasonable suspicion of ongoing criminal activity. At the time O’Leary told Henderson he was “free to go,” there was no ongoing criminal activity that O’Leary could observe. As the Second Appellate District stated in the case of State v. Retherford:

[*P29] “‘[T]he mere fact that a police officer has an articulable and reasonable suspicion sufficient to stop a motor vehicle does not give that police officer “open season” to investigate matters not reasonably within the scope of his suspicion.'”

[*P30] Instead of simply handing Henderson his citation for expired plates and allowing him to go on his way, O’Leary pursued the items that did not make sense to him and continued with his questioning of Henderson until he got Henderson’s consent to search his vehicle. Thus, the statement to Henderson that he was “free to go” was ephemeral. A reasonable person would not perceive that he was free to go when the officer moves into the next round of questioning with the lights from his patrol vehicle still flashing.

Stop was valid, and the officer recognized defendant as matching the description given by an informant from a drug deal. Defendant consented and it was valid. United States v. Flanders, 2007 U.S. Dist. LEXIS 34723 (S.D. Ga. May 10, 2007).*

Consent to search was granted while the officer was still holding the driver’s license and car rental agreement. The Arkansas Supreme Court found no problem with that. Yarbrough v. State, 2007 Ark. LEXIS 293 (May 10, 2007):

During the course of this encounter, Sgt. Davis determined that he was going to give Yarbrough a warning for the traffic violation; but, before doing so, he asked Yarbrough for his consent to search the vehicle. Yarbrough directed the officer to Guzman, whose name was on the rental contract. Guzman consented to the search approximately sixteen (16) minutes after the initial stop. As of the point in time when Guzman gave his consent to the search, Sgt. Davis had neither returned Yarbrough’s identification papers to him nor given him a copy of the warning.

In Lilley v. State, supra, we viewed the traffic stop as completed after the warning and vehicle documentation were handed to the driver. Likewise, we said in the Sims case that the legitimate purpose of the stop had terminated “after [the officer] handed Sims back his driver’s license and registration, along with a warning for [the traffic offense] ….” Sims v. State, 356 Ark. at 513, 157 S.W.3d at 534. Based on this case law, we cannot say that the circuit court’s ruling is clearly against the preponderance of the evidence.

Nonetheless, Yarbrough asserts that the officer had issued the warning before the search took place, thereby “completing the basis of the traffic stop.” In support of that assertion, he suggests that there was a discrepancy in the officer’s testimony and the report made shortly after the arrest. At the hearing, Sgt. Davis testified that he was in the process of writing the warning before consent was requested and obtained; whereas, his report contained the following sentence: “I ran a check on his license and issued him a warning for his violation.” In rejecting Yarbrough’s discrepancy argument, the circuit judge specifically found the officer’s testimony at the hearing to be credible. In matters of credibility, it is well-settled that this court defers to the circuit judge. Flanagan v. State, 368 Ark. 143, ___ S.W.3d ___ (2006).

Yarbrough also suggests that Sgt. Davis’s irrelevant line of questioning was in and of itself an unreasonable detention. However, that argument was not made below. This court has repeatedly stated that we will not address arguments, even constitutional arguments, raised for the first time on appeal. Dowty v. State, 363 Ark. 1, 210 S.W.3d 850 (2005). In any event, we have clearly held that, as part of a traffic stop, a police officer may ask the motorist routine questions during the process of performing a number of routine tasks related to the traffic violation. Laime v. State, supra.

Comment: Lame is right. This had to have been written by a law clerk. Justice Imber’s work is far better than this.

Trial court erred in granting a motion to suppress because of the defendant’s alleged inability to understand English when the record clearly showed that he did. People v. Castro, 159 P.3d 597 (Colo. 2007).*

Failure to object to seizure of evidence prior to its admission at trial is a waiver. Swanson v. State, 282 Ga. 39, 644 S.E.2d 845 (2007).*

There was reasonable suspicion based on immediate information of a crime just occurring, so the stop was valid. State v. Weis, 2007 Ohio 2279, 2007 Ohio App. LEXIS 2116 (3d Dist. May 14, 2007).*

An opened letter could be read during a plain view. It is not material that the “immediately apparent” requirement is not met by looking only at the first page and that the incriminating nature of the letter was not found on an exposed page. The court relies on cases from other jurisdictions, and finds logic compels this result. Commonwealth v. Johnson, 2007 PA Super 88, 921 A.2d 1221 (2007):

[*P11] We find that logic also dictates our result. The plain view doctrine functions differently depending upon the thing that is perceived. If a police officer spies a pistol on a table, its potentially incriminating nature is not only “immediately apparent,” it is very likely instantaneous. In contrast, if it is a sheet of paper on the table, there is nothing inherently incriminating in paper alone and nothing may be “immediately apparent.” On the other hand, if the paper contains writing, the writing itself may be incriminating. However, the incriminating nature of writing is not perceived until it is read. Only then does its incriminating nature become “immediately apparent.”

[*P12] Furthermore, we see no sense in imposing some artificial limit on the number of words that may be read before the incriminating nature of a document is no longer “immediately apparent.” The incriminating nature of a letter cannot be known until the key words are read and it should not matter whether they occur in the first sentence of the letter or the last. We will not restrict a police officer either to the first few words of a letter, where the eyes are naturally drawn, or to those that “jump off the page.” Simply stated, it seems foolish to tell our police officers that they may observe items in plain view, but that they must not look too closely. If a letter is left lying open on a table, we find that its entire contents are exposed to plain view and the letter is subject to seizure under that doctrine. n5

n5 We further find, without holding, that a police officer could not turn the pages of a multiple-page letter to reveal the unexposed pages as this would constitute improper manipulation and an independent search requiring probable cause. Arizona v. Hicks.

[*P13] Thus, we find that pursuant to both case law and logic, the court below erred in suppressing the letter at issue. The entire contents, including the passage at issue, were openly exposed in plain view, and its incriminating nature was immediately apparent upon the key words being read. Accordingly, we will reverse the order below and allow the letter to be admitted at trial.

Defendant was stopped for a traffic offense, and reasonable suspicion was developing, and another officer smelled marijuana on the defendant’s person. They told him that a dog would be called, and defendant then consented to a search. The videotape shows that it was voluntary consent. Lambeth v. State, 221 S.W.3d 831 (Tex. App. — Ft. Worth 2007).*

Search incident did not need to immediately follow arrest. Defendant was stopped because officer knew from talking to the defendant two days earlier that defendant’s driver’s license was suspended. The officer saw the defendant driving and pulled him over. The driver’s license was still suspended, and the officer allowed the defendant to throw away a donut wrapper before arrest. He noticed, however, that the defendant also discarded a baggie likely holding drugs. He handcuffed the defendant, retrieved the drugs and then validly searched the car. People v. Neff, 369 Ill. App. 3d 358, 867 N.E.2d 980 (4th Dist. 2006). (For those from Illinois, the court opined that People v. Stehman, 203 Ill. 2d 26, 270 Ill. Dec. 426, 783 N.E.2d 1 (2002), on the contemporaneity requirement may no longer be good law under Thornton even though Illinois might depart from the Fourth Amendment in some circumstances. One might think that the court is fishing for the state supreme court to take it up now and get it over with.)

Officers asked defendant on a bicycle in a high crime area to come over to talk to them. He started to and then fled. Flight + suspicious behavior + high crime area = reasonable suspicion. State v. Vance, 948 So. 2d 1106 (La. App. 5th Cir. December 12, 2006, released for publication March 2, 2007).*

Smell of burnt marijuana during traffic stop coupled with furtive movements in the car was grounds for search. Commonwealth v. Lites, 67 Mass. App. Ct. 815, 858 N.E.2d 302 (December 14, 2006).*

Defendants were stopped in their rental car for touching the white line. The officer issued a ticket and started to walk away, but then asked for consent. When they hesitated, he said that he would call for a drug dog if they did not consent and detain them for 40 minutes. This vitiated their consent. State v. Sund, 215 S.W.3d 719 (2007):

Here, too, considering the totality of the circumstances, a reasonable person in Ms. Sund’s and Ms. Wolfe’s position would not have felt free to leave at the time that they opened the trunk in response to the officer’s demand that if they did not do so he would call the canine unit to come search. It was nearly 11:00 p.m. on a cold night in late February. The two women were traveling alone on an interstate highway running through a rural area of Missouri. Neither was from Missouri, and in fact, Ms. Sund was visiting the United States from Sweden. They had nowhere to go and would have had to abandon their rented car and their possessions if they did leave. The encounter was not consensual, but constituted a detention that was unreasonable because the officer did not have reasonable suspicion of criminal activity.

It was only through Ms. Sund’s illegal detention that the officer was able to gain access to the trunk and its contents. The evidence found in the trunk must, therefore, be suppressed, for “evidence discovered and later found to be derivative of a Fourth Amendment violation must be excluded as fruit of the poisonous tree.” State v. Miller, 894 S.W.2d 649, 654 (Mo. banc 1995). Accord, United States v. Mosley, 454 F.3d 249, 253 (3d Cir. 2006) (passengers in a car illegally stopped can “seek to suppress the evidentiary fruits of that illegal seizure under the fruits of the poisonous tree doctrine”); United States v. Pulliam, 405 F.3d 782, 787 (9th Cir. 2005) (defendant has standing to seek to suppress evidence “that is in some sense the product of his unlawful detention”); United States v. Green, 275 F.3d 694, 699 (8th Cir. 2001) (defendant lacked interest in car “that would enable him to directly challenge the search,” but he could “seek to suppress evidence as the fruit of his illegal detention”).

See Mo. Supreme Court overturns drug conviction of Swedish model.

Malfunctioning headlight stop led officer to ask about whether there were open containers in the vehicle, and defendant replied there weren’t. There was a 12 pack in the backseat with some beer cans missing. The officer asked if he could look, and defendant consented. Meth was found. Trial court’s suppression order reversed. People v. Barker, 369 Ill. App. 3d 670, 867 N.E.2d 1021 (4th Dist. 2007).*

New argument raised in the suppression hearing that was not in the motion was not considered by the trial court, and this was not an abuse of discretion. McKinney v. State, 2007 Tex. App. LEXIS 95 (Tex. App. — Dallas January 9, 2007).*

Hot pursuit of a DUI suspect in Illinois is different than in Welsh which was really a hot pursuit case. An officer could enter a house in hot pursuit of a suspect. This case has a great discussion of hot pursuit into a dwelling and as an exigency in itself. People v. Wear, 371 Ill. App. 3d 517, 867 N.E.2d 1027 (4th Dist. 2007):

6. “Hot Pursuit” as an Exigent Circumstance Unto Itself

Defendant argues that Dawdy violated the fourth amendment by arresting him inside Foiles’s home because Dawdy was aware of no “‘exigent circumstances,'” within the meaning of Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980), and Welsh v. Wisconsin, 466 U.S. 740, 80 L. Ed. 2d 732, 104 S. Ct. 2091 (1984), to justify his warrantless, nonconsensual entry of the home.

In Payton, 445 U.S. at 588-89, 63 L. Ed. 2d at 652, 100 S. Ct. at 1381, the Supreme Court held that entering a home without a warrant or consent and arresting someone therein–even for a felony that the police had probable cause to believe the arrestee committed–was presumptively unreasonable under the fourth amendment, applicable to the states via the fourteenth amendment (U.S. Const., amend. XIV) (Payton, 445 U.S. at 576, 63 L. Ed. 2d at 644-45, 100 S. Ct. at 1374-75), and that the state could rebut this presumption of unreasonableness only by showing “‘exigent circumstances'” (Payton, 445 U.S. at 589, 63 L. Ed. 2d at 652, 100 S. Ct. at 1381, quoting United States v. Reed, 572 F.2d 412, 423 (2d Cir. 1978)). The Supreme Court declined to “consider the sort of emergency or dangerous situation, described in [its] cases as ‘exigent circumstances,’ that would justify a warrantless entry into a home for the purpose of either arrest or search” (Payton, 445 U.S. at 583, 63 L. Ed. 2d at 649, 100 S. Ct. at 1378), “thereby leaving to the lower courts the initial application of the exigent-circumstances exception” (Welsh, 466 U.S. at 749, 80 L. Ed. 2d at 743, 104 S. Ct. at 2097).

While no list of factors is exhaustive, our own supreme court has set out some factors that a court may take into account when assessing exigency in a particular situation. Those factors are as follows:

“(1) whether the offense under investigation was recently committed; (2) whether there was any deliberate or unjustifiable delay by the officers during which time a warrant could have been obtained; (3) whether a grave offense is involved, particularly one of violence; (4) whether the suspect was reasonably believed to be armed; (5) whether the police officers were acting upon a clear showing of probable cause; (6) whether there was a likelihood that the suspect would have escaped if not swiftly apprehended; (7) whether there was strong reason to believe that the suspect was on the premises; and (8) whether the police entry, though nonconsensual, was made peaceably.” People v. Foskey, 136 Ill. 2d 66, 75, 554 N.E.2d 192, 197, 143 Ill. Dec. 257 (1990).

In Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2093, the Supreme Court considered whether “‘exigent circumstances'” allowed the police to make “a warrantless night entry of a person’s home in order to arrest him for a nonjailable traffic offense” of DUI. In that case, a motorist, Randy Jablonic, saw a car changing speeds and veering side to side until it swerved off the road and came to rest in an open field. Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2093. Another passerby stopped at the scene, and Jablonic asked her to call the police. Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2093-94. Before the police arrived, the driver of the car got out and walked home, leaving the car in the field. Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2094. Without obtaining a warrant, the police entered the driver’s home, found him lying naked in bed, and arrested him for DUI. Welsh, 466 U.S. at 743, 80 L. Ed. 2d at 738-39, 104 S. Ct. at 2094. The Supreme Court held that the “warrantless, nighttime entry into the petitioner’s home to arrest him for a civil traffic offense” was “clearly prohibited by the special protection afforded the individual in his home by the [f]ourth [a]mendment.” Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 746, 104 S. Ct. at 2100.

“[A]n important factor to be considered when determining whether any exigency exist[ed] [was] the gravity of the underlying offense for which the arrest [was] being made.” Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099. Under Wisconsin law, no incarceration was possible for a first offense of DUI. Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 746, 104 S. Ct. at 2100. The State claimed a potential emergency in the need to ascertain the driver’s blood alcohol level. Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099. But considering that Wisconsin had “chosen to limit severely the penalties that [could] be imposed” (Welsh, 466 U.S. at 754 n.14, 80 L. Ed. 2d at 746 n.14, 104 S. Ct. at 2100 n.14), thereby designating the offense as a minor one, “mere similarity to other cases involving the imminent destruction of evidence [was] not sufficient” (Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 746, 104 S. Ct. at 2100).

Unlike the state of Wisconsin in Welsh, Illinois does not limit the penalties for a first DUI: it is a Class A misdemeanor (625 ILCS 5/11-501(b-2) (West 2004)), punishable by imprisonment for up to 364 days (730 ILCS 5/5-8-3 (West 2004)). Fleeing or attempting to elude a police officer also is a Class A misdemeanor. 625 ILCS 5/11-204(a) (West 2004). Because Dawdy had probable cause to effect a seizure of the person for jailable offenses, Welsh is distinguishable. More important, Welsh was not a case of hot pursuit, as the Supreme Court pointed out. Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099.

We need not decide whether the factors in Foskey justify, on balance, Dawdy’s warrantless, nonconsensual entry of Foiles’s home; Dawdy was in hot pursuit of defendant and, for that reason alone, had the right to enter the house and arrest him. It appears that the majority of jurisdictions that have considered this question would so hold. D. Gilsinger, Annotation, When Is Warrantless Entry of House or Other Building Justified Under “Hot Pursuit” Doctrine, 17 A.L.R.6th 327, §§ 12, 14 (2006).

According to defendant, “the law is clear that hot pursuit is not itself an exigent circumstance or exception to the warrant requirement, but merely one factor to consider.” He cites Lagle, 200 Ill. App. 3d at 955, 558 N.E.2d at 519, in which the Fifth District disagreed with the State’s contention “that ‘hot pursuit’ [was] an exception to the warrant requirement separate and distinct from the exigent[-]circumstances exception.” The Fifth District stated:

“The cases do not discuss a separate hot pursuit exception to the warrant requirement, but discuss it within the context of discussing exigent circumstances. Hot pursuit is merely one factor to be considered in determining whether exigent circumstances justified a warrantless home entry. See Dorman v. United States (1969), 140 U.S. App. D.C. 313, 435 F.2d 385, 391 (‘Another doctrine excusing failure to obtain a warrant in case of entry for arrest has been cast in terms of “exigent circumstances,” or “necessitous circumstances.” While some decisions also refer to condition of “hot pursuit,” this term is not a limitation but rather an illustration of the kind of exigent circumstance justifying entry without a warrant to arrest a suspect’).” Lagle, 200 Ill. App. 3d at 955, 558 N.E.2d at 519.

In its holding in Santana, the Supreme Court did not refer to hot pursuit as only one factor among others. Although the Court remarked upon the possibility of destruction of evidence, its final, unqualified holding was as follows: “[A] suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under Watson, by the expedient of escaping to a private place.” Santana, 427 U.S. at 43, 49 L. Ed. 2d at 305, 96 S. Ct. at 2410. The Court did not add the qualification “provided that other factors” (such as those listed in Foskey) “are satisfied.” Most courts appear to take Santana‘s holding at face value, treating hot pursuit as an exception unto itself rather than as just another factor. E.g., People v. Tillman, 355 Ill. App. 3d 194, 198, 823 N.E.2d 117, 121-22, 291 Ill. Dec. 107 (2005), appeal denied, 215 Ill. 2d 616, 833 N.E.2d 8 (2005); People v. Wimbley, 314 Ill. App. 3d 18, 25, 731 N.E.2d 290, 295, 246 Ill. Dec. 762 (2000) (“Courts have also found exigent circumstances where police are in ‘hot pursuit’ of a suspect who flees from a public place into his residence”); State v. Blake, 468 N.E.2d 548, 553 (Ind. App. 1984) (“immediate and continuous pursuit from the scene of the crime formed the exigent circumstance”); People v. Lloyd, 216 Cal. App. 3d 1425, 1429, 265 Cal.Rptr. 422, 425 (1989) (“the officer’s ‘hot pursuit’ into the house to prevent the suspect from frustrating the arrest which had been set in motion in a public place constitutes a proper exception to the warrant requirement”).

Hot pursuit, as an exception unto itself, appears to have deep roots in 17th- and 18th-century English common law. Payton, 445 U.S. at 598, 63 L. Ed. 2d at 658, 100 S. Ct. at 1386. Hale stated: “[I]f the supposed offender fly and take house, and the door will not be opened upon demand of the constable and notification of his business, the constable may break the door, tho[ugh] he have no warrant.” 2 M. Hale, Pleas of the Crown 92 (1736), quoted in Payton, 445 U.S. at 595 n.41, 63 L. Ed. 2d at 656 n.41, 100 S. Ct. at 1385 n.41.

One court has explained:

“Hot pursuit situations have a policy basis distinct from other exigent circumstances in that they involve arrests that have already been set in motion. Logic dictates that, regardless of the gravity of [*51] the offense, an individual should not be able to avoid an otherwise lawful warrantless arrest merely by outracing the police officers into the individual’s dwelling.” Erickson v. Commissioner of Public Safety, No. C2-92-507, slip op. at ____ (Minn. App. August 25, 1992).

Under Minnesota law, this unpublished opinion is “not precedential,” but parties are permitted to cite it (Minn. Stat. § 480A.08(3) (2004)), and we find its logic to be persuasive.

Thus, we respectfully disagree with the Fifth District’s discussion of the doctrine of hot pursuit in Lagle. Moreover, we are uncertain that the language the Fifth District quotes from Dorman actually supports the proposition that the Fifth District draws from it: just because one characterizes hot pursuit as an “exigent circumstance,” it does not necessarily follow that hot pursuit is “merely one factor” among others.

When defendant repeatedly ignored Dawdy’s commands to stop and tried to elude him by going (or, rather, staggering) into Foiles’s house, reasonable suspicion ripened into probable cause, and the fourth amendment did not require Dawdy to simply shrug his shoulders and go obtain a warrant. Apparently, defendant thought the enforcement of traffic laws resembled a children’s game of tag, whereby Dawdy was “it” and defendant was “safe” if he reached “home” before Dawdy apprehended him. See United States v. Schmidt, 403 F.3d 1009, 1014 (8th Cir. 2005). As Santana teaches, the fourth amendment does not contemplate this game.

The affidavit showed a substantial basis for showing probable cause, given that warrants are entitled to substantial deference. There was a substantial basis for believing that evidence would be found at defendant’s house in a murder case based on what was presented to the magistrate. State v . Berry, 2007 Ohio 278, 2007 Ohio App. LEXIS 263 (8th Dist. January 25, 2007).* (Comment: The defense argument was more that the probable cause had other possible innocent explanations, but that is not the question for the reviewing magistrate.)

The Fourth Amendment does not provide for suppression of evidence of a crime committed against the officers during the arrest in defendant’s house. State v. Skipper, 2007 Tenn. Crim. App. LEXIS 53 (January 25, 2007).*

The case against the City of Los Angeles for rousting “skid row” denizens in violation of the Fourth Amendment is extended. It expired after three years. The District Court finds that, applying the summary judgment standard, to the factual allegations of continued violations of the original stipulated injunction, the plaintiffs have pled enough to go to trial. Fitzgerald v. City of Los Angeles, 485 F. Supp. 2d 1137 (C.D. Cal. 2007):

The settlement agreement constituted a stipulation to a permanent injunction as follows:

1. Officers will not conduct detentions or “Terry” stops without reasonable suspicion that a person is involved in criminal activity or has committed a crime or violated parole or probation. However, officers may continue to engage in consensual encounters with persons, parolees, probationers, or others residing in or otherwise present in the “Skid Row” area of Los Angeles.

2. Officers will not search the persons and/or possessions of those individuals stopped on the public streets and sidewalks of the “Skid Row” area of Los Angeles without probable cause and/or reasonable suspicion that the person has committed a crime or violated parole or probation. However, nothing shall prohibit officers from performing “pat-down” searches in accordance with the law.

3. Officers will not search residences of persons residing or otherwise present in the “Skid Row” area of Los Angeles except with a valid warrant, other legal justification, or with reasonable suspicion that they are on parole or probation and have violated the terms of their parole or probation.

“It matters not whether the defendant is arrested eventually for a crime other than that for which probable cause existed initially. All that matters is — as here — probable cause to arrest existed at the time the search was initiated.” United States v. Langel, 2007 U.S. Dist. LEXIS 30562 (D. Colo. April 25, 2007).

To show a private actor acted with a public actor under § 1983, it is required to allege that they had a common purpose to violate plaintiff’s constitutional rights. Here, plaintiff’s property was entered by a private process server to levy on a judgment assisted by a law enforcement officer. The process server was related to the plaintiff. The allegations of the complaint were insufficient. Rowell v. King, 2007 U.S. App. LEXIS 9576 (10th Cir. April 25, 2007)* (unpublished).

Nolle pros of state case overcomes Heck bar. Contorno v. McCann, 2007 U.S. Dist. LEXIS 30776 (N.D. Ill. April 25, 2007):

As noted, the unlawful possession of alcohol and obstruction charges were dismissed pursuant to a nolle prosequi, which is not a final disposition; rather it “is a procedure which restores the matter to the same state which existed before the Government initiated the prosecution.” Id. at 557 (citation omitted). As such, the court denies the McCann Defendants’ motion to dismiss these claims based on Heck.

Defendant’s late filing of a motion to withdraw his guilty plea was denied, and he waived his motion to suppress which was not filed, even though he claimed the police lied in his police reports. United States v. Keating, 2007 U.S. Dist. LEXIS 30516 (E.D. Mo. April 25, 2007).*

The en banc D.C. Cir. holds that a search incident to an arrest may actually precede a formal arrest. United States v. Powell, 483 F.3d 836 (D.C. Cir. 2007), rev’g 451 F.3d 862 (D.C. Cir. 2006):

In Rawlings the Supreme Court held the police may search a suspect whom they have probable cause to arrest if the “formal arrest follow[s] quickly on the heels of the challenged search,” 448 U.S. at 111. The Court was quite clear in stating that, assuming such proximity in time, it is not “particularly important that the search preceded the arrest rather than vice versa.” Id. This court applied the Supreme Court’s clear teaching in United States v. Riley, 359 U.S. App. D.C. 121, 351 F.3d 1265, 1269 (D.C. Cir. 2003) (where “police had probable cause to arrest” before search, it was “of no import that the search came before the actual arrest”). So, too, did the Ninth Circuit in United States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004) (“So long as an arrest that follows a search is supported by probable cause independent of the fruits of the search, the precise timing of the search is not critical” (citations omitted)), and the Tenth Circuit in United States v. Lugo, 170 F.3d 996, 1003 (10th Cir. 1999) (“A legitimate ‘search incident to arrest’ need not take place after the arrest” (citation omitted)). Indeed, every circuit that has considered the question-save one-has concluded that a search incident to arrest may precede the arrest. See, e.g., United States v. Bizier, 111 F.3d 214, 217 (1st Cir. 1997); United States v. Donaldson, 793 F.2d 498, 503 (2d Cir. 1986); United States v. Currence, 446 F.3d 554, 557 (4th Cir. 2006); United States v. Hernandez, 825 F.2d 846, 852 (5th Cir. 1987); United States v. Montgomery, 377 F.3d 582, 588 (6th Cir. 2004); United States v. Ilazi, 730 F.2d 1120, 1126-27 (8th Cir. 1984); Smith, 389 F.3d at 951; Lugo, 170 F.3d at 1003; United States v. Banshee, 91 F.3d 99, 102 (11th Cir. 1996). Only the Seventh Circuit has held that a Belton search may not precede a custodial arrest, but it did so in an opinion that, like the briefs then before it, betrayed no awareness of the Supreme Court’s holding in Rawlings. See Ochana v. Flores, 347 F.3d 266, 270 (7th Cir. 2003).

Applying the teaching of Rawlings to the facts of this case, we must uphold Officer Jones’s search of the car. Powell acknowledges the officers had probable cause to arrest him and his companion for urinating in public before they searched his car. See D.C. Code § 22-1321 (2001); Scott v. United States, 878 A.2d 486, 488 (D.C. 2005). Indeed, Officer Jones testified that the officers “detain[ed]” the two men because “they were going to be placed under arrest” for “[u]rinating in public.” Immediately following the search, the two were indeed handcuffed and formally placed under arrest for public urination as well as for the firearms violation brought to light by the search. As in Rawlings, that is, “the formal arrest followed quickly on the heels of the challenged search.” 448 U.S. at 111. Therefore, as in Riley, because “the police had probable cause to arrest [before the search], the search was valid as one incident to arrest.” 351 F.3d at 1269.

Renting a storage unit in another’s name and allowing the other to keep the keys gives the other apparent authority to consent to a search of the storage unit. United States v. Trotter, 483 F.3d 694 (10th Cir. 2007).*

Defendant was speeding, trying to elude roving surveillance, and he was finally stopped, and officers could smell burnt marijuana. That gave cause to search. United States v. Taylor, 2007 U.S. Dist. LEXIS 27692 (N.D. Ohio April 13, 2007).*

Officer had reasonable suspicion on the totality that defendant was about to engage in a drug transaction from his car, and that justified the stop. United States v. Madden, 2007 U.S. Dist. LEXIS 27694 (N.D. Ohio April 13, 2007).*

A strip search at the jail that produced packages of cocaine from defendant’s buttocks crack was invalid because the officers could not articulate their justification for that search. King v. Commonwealth, 49 Va. App. 717, 644 S.E.2d 391 (2007):

Further, unlike Craddock, no evidence exists in this record to establish what led deputies to conduct the intrusive search at issue in this case. The Commonwealth argues that information in the probation violation report attached to the capias established that King was a person with a known history of drug abuse. Even if we were to assume that a defendant’s prior conviction of a drug offense was alone sufficient justification for a body cavity search, there is no evidence that the deputies who conducted the search had knowledge of the contents of the probation violation report. When the deputies searched King, the only information contained in the record regarding King and potential drug activity known by them was that King was seen leaving a house where two previous drug arrests had been made. This is hardly the “clear indication” that evidence was concealed in King’s body that is required for a body cavity search. See Hughes, 31 Va. App. at 460, 524 S.E.2d at 162 (holding that an informant’s tip that defendant was dealing drugs and kept them hidden in his underwear was insufficient to establish a clear indication that drugs were concealed in a body cavity).

Moreover, the record is devoid of any evidence of required exigent circumstances, such as “imminent medical harm to [King], or secretion of a weapon ….” Moss v. Commonwealth, 30 Va. App. 219, 226, 516 S.E.2d 246, 250 (1999). Therefore, the Commonwealth has failed to demonstrate any “special justification” for the search conducted in this case.

In summary, the search of King was undertaken without the authorization of a search warrant. It was, therefore, presumptively unreasonable, and the Commonwealth assumed the burden of establishing otherwise. From the record before us, we conclude that the Commonwealth failed to establish the facts that we have previously held are a necessary predicate to a warrantless visual body cavity search.

Defense counsel filed an Anders brief, and defendant raised suppression issue himself. The court found the search valid as a search incident or automobile exception because of probable cause to arrest. State v. Harrison, 2007 Ohio 2421, 2007 Ohio App. LEXIS 2237 (2d Dist. May 18, 2007).*

Defendant was not a guest, and he “had no standing to challenge the search of a house he neither resided in nor owned.” Dora v. State, 2007 Miss. App. LEXIS 331 (May 15, 2007).*

Defendant shared a house with his mother and sister, and his girlfriend lived with him in a separate room. She validly consented to a search of the room they shared and the common areas. She could not, however, consent to a search of defendant’s mother’s room because the mother did not share it with her. United States v. Castaneda-Abrego, 2007 U.S. Dist. LEXIS 2043 (W.D. N.C. January 8, 2007).*

Police had a parole violation warrant, and it authorized them to enter defendant’s premises after knocking and getting no answer (but they expected him to be inside). The parole conditions said “any time” and that allowed the search. United States v. Stewart, 193 Fed. Appx. 219 (7th Cir. January 12, 2007)* (unpublished).

Under the clearly erroneous standard of review, a police officer’s testimony that a taillight was broken and that was justification for a stop did not have to be corroborated by photographs to be sustained on appeal. United States v. Kemp, 214 Fed. Appx. 127 (3d Cir. 2007)* (unpublished).

Immigration checkpoint stop led to consent within a minute of the car’s arrival. A drug dog was brought out instead, and the dog’s alert was probable cause. United States v. Rodriguez, 213 Fed. Appx. 327 (5th Cir. 2007)* (unpublished).

Wealth of probable cause to believe the defendants were involved in a meth operation justified a search incident of the car they were in when they were arrested. A probation search was conducted of one defendant’s property, and then a search warrant was obtained. Even if the probation search had been invalid, removing all references to it from the consideration of the remainder of the affidavit still left probable cause to search. United States v. Fugate, 2007 U.S. Dist. LEXIS 2052 (W.D. Ky. January 10, 2007).*

The defendant did not have standing to challenge the admission of business records held by third parties that were obtained through improperly issued subpoenas. Moreover, exclusion would not be the proper remedy. People v. Gadomski, 274 Mich. App. 174, 731 N.W.2d 466 (2007):

Two of the subpoenas in question were directed at pawnshops and sought transaction records involving defendant. Another subpoena was directed at a retailer and sought purchase records of defendant. The last subpoena was directed to a credit-reporting agency and sought defendant’s credit report.

We conclude that, in regard to records held by third parties relating to business transactions, defendant lacks standing to challenge the admission of evidence obtained through the subpoenas on constitutional grounds. Specifically, defendant has no reasonable expectation of privacy in information that he or others had exposed to third parties, such as banks and vendors. [citing Miller]

. . .

Further, and most importantly, the text of MCL 767A.1 et seq., does not allude to the exclusionary rule as a remedy for noncompliance. n4 Our Supreme Court has expressly “decline[d] to expand the use of [the exclusionary] rule in the absence of an explicit constitutional or legislative requirement.” Id. at 500, n 9.” Hawkins, supra. Here, MCL 767A.1 et seq., does not contain an explicit legislative requirement that excludes evidence obtained from noncompliant subpoenas, and we decline to expand the use of the exclusionary rule to do so. For similar reasons, we reject the trial court’s conclusion that the Legislature, in enacting MCL 767A.1 et seq, intended to protect financial records consistent with the FRPA. MCL 767A.1 et seq does not refer to either the FRPA or financial records. Therefore, we conclude that the trial court erred in applying the exclusionary rule to remedy a violation of MCL 767A.1 et seq.

Suspicionless parole search in California was permitted under Samson. United States v. Lopez, 474 F.3d 1208 (9th Cir. February 5, 2007):

The Court explained that for inmates who elect parole, the California parole-search statute mandates that a parolee “submit to suspicionless searches by a parole officer or other peace officer ‘at any time.'” Id. (citing CAL. PENAL CODE ANN. § 3067(a)). This statute, reasoned the Court, served California’s interest in reducing recidivism, promoting public safety, and reintegrating parolees into productive society. Id. at 2200-01 n.4. Because the petitioner in Samson signed a parole order submitting to suspicionless search conditions, the Court held that “the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee.” Id. at 2202.

The protective sweep and parole search at issue in Lopez’s motion to suppress must be viewed in light of Samson. Like the petitioner in Samson, Lopez signed a parole condition allowing him, his residence, and any property under his control to be “searched without a warrant” by any law enforcement officer. Under Samson, the officers had authority to conduct a full parole search at the moment they knocked on Lopez’s front door to arrest him. Because a protective sweep is a less extensive search than a parole search, Samson necessarily makes both the protective sweep, and the parole search, lawful.

Reasonable suspicion came from victim who was threatened by defendant with a gun. That was sufficient cause for a stop. United States v. Hodges, 215 Fed. Appx. 737 (10th Cir. 2007)* (unpublished).

Defendant’s argument that the police could not enter his home under an arrest warrant because they did not have reason to believe that he was there was belied by the record. Even so, the gun he was charged with having possessed came from the later execution of a search warrant that he did not contest. United States v. Trzeciak, 215 Fed. Appx. 519 (7th Cir. 2007).*