In the past, I have occasionally ranted in comments that some appellate courts lack common sense in their determination that a motorist is free to leave after having been pulled over. Prosecutors have argued this with some success, considering that appellate courts with their heads in the sand (or elsewhere) have bought into the argument that a detention became consensual at some point even though the police car still had its lights on and the officer was standing around. Coercion is implicit, and no reasonable person could feel free to leave. The rub comes when the motorist is told that he is free to leave and the officer reinitiates questioning. The motorist is already stopped. Is the reinitiation of questioning a part of the original detention or not? To argue that it is not is, to me anyway, pure sophistry. How can a motorist feel free to leave? At best, the officer has sent grossly conflicting signals. “You may go, but one more thing….” This is a continuation of the detention under any reasonable person’s view. If this means that appellate courts that buy into the prosecution argument that it is consent are “unreasonable,” so be it. They are.

Yesterday’s holding in Brendlin v. California, 2007 U.S. LEXIS 7897 (June 18, 2007), previously posted here, adds weight to my argument, 2007 U.S. Lexis 7897, *16-18:

A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on “privacy and personal security” does not normally (and did not here) distinguish between passenger and driver. United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976). An officer who orders one particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place. Cf. Drayton, supra, at 197-199, 203-204 (finding no seizure when police officers boarded a stationary bus and asked passengers for permission to search for drugs).

It is also reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety. In Maryland v. Wilson, 519 U.S. 408 (1997), we held that during a lawful traffic stop an officer may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk. Id., at 414-415; cf. Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam) (driver may be ordered out of the car as a matter of course). In fashioning this rule, we invoked our earlier statement that “‘[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.'” Wilson, supra, at 414 (quoting Michigan v. Summers, 452 U.S. 692, 702-703 (1981)). What we have said in these opinions probably reflects a societal expectation of “‘unquestioned [police] command'” at odds with any notion that a passenger would feel free to leave, or to terminate the personal encounter any other way, without advance permission. Wilson, supra, at 414.

It all boils down to using the last sentence in context. So, readers, the Supreme Court has given a way to put this appellate sophistry to an end. Brendlin should be applied to attempt to direct courts to hold that a highway stop is legally coercive in its nature, since the motorist was stopped under color of law, and to argue that a person can just drive off when the officer keeps talking is just contrary to all normal human experience. The fact the officer says the motorist can go and then keeps talking tells the motorist he cannot leave. It is implicit coercion, if not explicit.

A search conducted under the search incident doctrine does not have any independent requirement of exigent circumstances, although one of the purposes of search incident is to neutralize potential weapons. State v. Cooney, 2006 MT 318, 2006 Mont. LEXIS 642 (December 5, 2006).

Consent was found based on testimony of officers and a recording of defendant’s voluntary Mirandized statement where he consented. State v. Ayer, 917 A.2d 214, 154 N.H. 500 (2006).*

Defense counsel could not be ineffective for not challenging what was clearly a private search. State v. Howard, 2006 Ohio 6410, 2006 Ohio App. LEXIS 6372 (8th Dist. December 7, 2006).*

Defendant came to a fire station and was talking to volunteer firemen as they were leaving for a call. They saw and smelled that it was apparent defendant was drunk. They called the police who went to defendant’s home where his vehicle was outside still running. His girlfriend invited them in, and there was the defendant drunk. Entry was by consent and there was cause for arrest. State v. Runge, 2006 SD 111, 725 N.W.2d 589 (2006).*

Defendant was stopped for a violation of a noise ordinance, and he provided all his paperwork. While the officers were running the paperwork, they obversed the defendant reach into the console. This was a furtive movement, and they were justified in looking there for a weapon, but no further. Officers unlawfully expanded their search beyond the reasonable suspicion to look for a weapon. People v Jones, 2007 NY Slip Op 3391, 39 A.D.3d 1169 (4th Dept. 2007).

Defendant failed to show standing in the place searched. In any event, the police had exigent circumstances. People v Washington, 2007 NY Slip Op 3460, 39 A.D.3d 1228 834 N.Y.S.2d 407 (4th Dept. 2007).*

Washington also sustains DNA testing of all felons under state constitution and Fourth Amendment. State v. Surge, 160 Wn.2d 65, 156 P.3d 208 (2007).* (No appellate court, save one that was reversed en banc, has held that DNA testing is unconstitutional.)

§ 1983 claim failed to state sufficient personal involvement by defendant that it had to be dismissed without prejudice to try again. In a footnote, the court helpfully attempts to explain the issue of accrual of the cause of action under Wallace v. Kato. Spencer v. City of Stamford, 2007 U.S. Dist. LEXIS 28809 n.1 (D. Conn. April 18, 2007):

Though the court addresses only two of the defendants’ grounds for dismissing the Complaint, the court notes that Spencer’s § 1983 claim may be completely barred by the three-year statute of limitations for filing such actions. See Williams v. Walsh, 558 F.2d 667, 670 (2d Cir. 1977). Federal law determines the accrual date of a § 1983 action. Wallace v. Kato, __ U.S. __, 127 S. Ct. 1091, 1095 (2007). Accrual generally occurs “when the plaintiff has a complete and present cause of action,” id. (quotations and citations omitted), or, “when the plaintiff knows or has reason to know of the harm.” Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994). Spencer’s complaint appears to challenge the legality of the search of his home on April 12, 2000. He filed this action nearly six years later, on July 28, 2006. Because it appears that Spencer’s unreasonable search claim would not necessarily render his conviction invalid, see Heck v. Humphrey, 512 U.S. 477, 487 n.7, 129 L. Ed. 2d 383 (1994), it also appears that Spencer’s harm occurred “by the invasion of his zone of privacy.” Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir.1990).

Spencer argues that the applicable statute of limitations did not begin to accrue until April 27, 2004, when the Connecticut Supreme Court ruled that the cocaine found in his apartment should have been suppressed. Pl. Reply at 2. However, this would only be true if Spencer alleged wrongdoing analogous to malicious prosecution. See Wallace, 127 S. Ct. at 1097 (discussing Heck rule of delayed accrual for malicious prosecution claims).

The difficulty in resolving this matter is that Spencer’s accrual argument and the ambiguity of his Complaint raise a doubt as to whether he actually intended to allege malicious prosecution, or if his Reply merely makes a legal error with respect to the accrual of his unreasonable search and/or seizure claim. Settling this matter is not necessary for the purposes of the instant motion, and the court will not attempt to do so at this time. Regardless, Spencer is advised that it would behoove him to clarify the nature of his Fourth Amendment claim should he file an amended complaint.

The fact plaintiff’s state case is on appeal bars a civil claim under Heck. Olson v. Lemos, 2007 U.S. Dist. LEXIS 28893 (E.D. Cal. April 18, 2007).*

There was sufficient reliability of the informant shown for probable cause to arrest the defendant. Defendant asserted lack of consent for the first time on appeal, so that issue was waived. People v Carter, 2007 NY Slip Op 3458, 39 A.D.3d 1226 (4th Dept. 2007).*

I know: This is a blog about the Fourth Amendment, not due process of law, prosecutorial misconduct, or the fine points of a Brady violation. It is, however, still a blog about the Constitution and how the ministers of the law administer it. So, I cannot resist. I have to talk about Mike (“rogue prosecutor”/”too little, too late”) Nifong, the Durham N.C. District Attorney ordered disbarred Saturday night by the North Carolina Bar Disciplinary Panel.

Like all conscientious criminal defense attorneys, I gave Mr. Nifong the benefit of the doubt. Maybe I’m instilled with the disciplinary double standard that has existed heretofore in the legal system where prosecutorial misconduct gets a wink and a nod but defense counsel misconduct results in charges. Mr. Nifong was represented by a capable criminal defense attorney, David B. Freedman of Winston-Salem. Even the best lawyer cannot win when the facts are so overwhelming. Been there, done that.

In Friday’s NY Times is this:

At one point after the accusation surfaced, Mr. Nifong said, “I am not going to let Durham’s view in the eyes of the world be a bunch of lacrosse players from Duke raping a black girl from Durham.”

On Friday, he said, “I think that crossed the line.”

Mr. Nifong said he had made other mistakes in the case but continued to defend himself against charges from the bar that he had intentionally lied and withheld from the defense DNA evidence favorable to the defendants.

Mr. Nifong, a 29-year veteran of the district attorney’s office who had been appointed to the job in April 2005 by Gov. Michael F. Easley, attributed his mistakes to inattention, preoccupation with a political campaign, and what he said was inexperience in handling felony cases in recent years. (emphasis added)

When I read that he blamed his lack of experience, I laughed out loud. Here is a “29-year veteran” of the DA’s office pleading inexperience as justification for his flagrant misrepresentations that there was no Brady material. He charged young men he could not even prove were at the party, the DNA evidence exonerated them and he hid it, police officers warned him that he was charging people that he could not place there. Nifong may not be far off the mark, however. Many state prosecutors wilfully ignore or belittle Brady thinking that nothing is exculpatory.

His excuse is the kind all criminal defense lawyers hear from clients who are incapable of taking responsibility. Mr. Nifong played it close to the vest and admitted only that which he had to, I’m sure against his lawyer’s advice. In a federal sentencing, a federal judge might not consider some of his testimony full acceptance of responsibility under U.S.S.G. § 3E1.1, up until he finally offered to give up his ticket, likely in hopes that the disciplinary panel would just accept it and not issue an opinion.

But they did.

After Mr. Nifong offered to be disbarred, the ethics panel said it still had to decide on a penalty, and 40 minutes later it issued a scathing opinion.

“There is no discipline short of disbarment that would be appropriate in this case,” said F. Lane Williamson, a Charlotte lawyer who led the panel.

See Comments of Disciplinary Panel’s Chairman from NYTimes.com.

I have dealt with several prosecutors who played close to the line and a few who actively sought to subvert Brady. Some remember nothing of Brady except what they learn in law school, and it leads to uncertainty in convictions and endless post-conviction. But this: This was a Brady violation with a vengenance. I had a prosecutor once deny on the record that there was any exculpatory evidence when a police officer told me that the prosecutor knew that another man had confessed to the crime my client was charged with. The punishment? No contempt, no referral, no nothing. DAs are judged by different standards, at least until now.

In the end, this proves that there is no double standard in lawyer discipline, and some disciplinary authorities will take prosecutorial misconduct seriously.

The State should just get ready to pay these young men for what they went through. Nifong may be immune, thanks to Imbler v. Pachtman, but the State should pay them their attorney’s fees and mental anguish, which has to be considerable.

And criminally? Nifong may not be out of the woods there, either. Obstruction of justice, abuse of office, falsifying public records, false swearing, contempt of court?

I bought a Duke Lacrosse t-shirt off eBay when this case started to smell. I’m wearing it to work tomorrow.

The defense lawyers for the lacrosse players? They are the heroes here because they kept plugging away for their clients so “the truth will out.” They make me proud.

The Supreme Court unanimously decided Brendlin v. California, 2007 U.S. LEXIS 7897 (June 18, 2007), today, just as predicted here when cert was granted: a passenger in a car illegally stopped has standing to challenge the stop. It could not reasonably have come out any other way. Indeed, the only strange thing about the case is the fact that the California Supreme Court got it so wrong.

From the Syllabus:

After officers stopped a car to check its registration without reason to believe it was being operated unlawfully, one of them recognized petitioner Brendlin, a passenger in the car. Upon verifying that Brendlin was a parole violator, the officers formally arrested him and searched him, the driver, and the car, finding, among other things, methamphetamine paraphernalia. Charged with possession and manufacture of that substance, Brendlin moved to suppress the evidence obtained in searching his person and the car, arguing that the officers lacked probable cause or reasonable suspicion to make the traffic stop, which was an unconstitutional seizure of his person. The trial court denied the motion, but the California Court of Appeal reversed, holding that Brendlin was seized by the traffic stop, which was unlawful. Reversing, the State Supreme Court held that suppression was unwarranted because a passenger is not seized as a constitutional matter absent additional circumstances that would indicate to a reasonable person that he was the subject of the officer’s investigation or show of authority.

Held: When police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and so may challenge the stop’s constitutionality. Pp. 4-13.

(a) A person is seized and thus entitled to challenge the government’s action when officers, by physical force or a show of authority, terminate or restrain the person’s freedom of movement through means intentionally applied. Florida v. Bostick, 501 U. S. 429, 434; Brower v. County of Inyo, 489 U. S. 593, 597. There is no seizure without that person’s actual submission. See, e.g., California v. Hodari D., 499 U. S. 621, 626, n. 2. When police actions do not show an unambiguous intent to restrain or when an individual’s submission takes the form of passive acquiescence, the test for telling when a seizure occurs is whether, in light of all the surrounding circumstances, a reasonable person would have believed he was not free to leave. E.g., United States v. Mendenhall, 446 U. S. 544, 554 (principal opinion). But when a person “has no desire to leave” for reasons unrelated to the police presence, the “coercive effect of the encounter” can be measured better by asking whether “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Bostick, supra, at 435-436. Pp. 4-6.

(b) Brendlin was seized because no reasonable person in his position when the car was stopped would have believed himself free to “terminate the encounter” between the police and himself. Bostick, supra, at 436. Any reasonable passenger would have understood the officers to be exercising control to the point that no one in the car was free to depart without police permission. A traffic stop necessarily curtails a passenger’s travel just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on “privacy and personal security” does not normally (and did not here) distinguish between passenger and driver. United States v. Martinez-Fuerte, 428 U. S. 543, 554. An officer who orders a particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect the officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place. It is also reasonable for passengers to expect that an officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety. See, e.g., Maryland v. Wilson, 519 U. S. 408, 414-415. The Court’s conclusion comports with the views of all nine Federal Courts of Appeals, and nearly every state court, to have ruled on the question. Pp. 6-9.

(c) The State Supreme Court’s contrary conclusion reflects three premises with which this Court respectfully disagrees. First, the view that the police only intended to investigate the car’s driver and did not direct a show of authority toward Brendlin impermissibly shifts the issue from the intent of the police as objectively manifested to the motive of the police for taking the intentional action to stop the car. Applying the objective Mendenhall test resolves any ambiguity by showing that a reasonable passenger would understand that he was subject to the police display of authority. Second, the state court’s assumption that Brendlin, as the passenger, had no ability to submit to the police show of authority because only the driver was in control of the moving car is unavailing. Brendlin had no effective way to signal submission while the car was moving, but once it came to a stop he could, and apparently did, submit by staying inside. Third, there is no basis for the state court’s fear that adopting the rule this Court applies would encompass even those motorists whose movement has been impeded due to the traffic stop of another car. An occupant of a car who knows he is stuck in traffic because another car has been pulled over by police would not perceive the show of authority as directed at him or his car. Pp. 9-13.

(d) The state courts are left to consider in the first instance whether suppression turns on any other issue. P. 13.

38 Cal. 4th 1107, 136 P. 3d 845, vacated and remanded.

The petitioner’s brief is here and the State of California’s brief is here.

From my previous post: “The California Supreme Court decision is People v. Brendlin, 38 Cal. 4th 1107, 45 Cal. Rptr. 3d 50, 136 P.3d 845 (June 29, 2006). Lexis Overview: ‘Because a deputy effected a traffic stop without any indication that defendant, the passenger, was the subject of his investigation or show of authority, defendant was not seized for Fourth Amendment purposes when the driver submitted to the deputy’s authority and stopped the vehicle; thus, defendant was not entitled to suppress evidence of drugs.’ [The free link to the California Supreme Court opinion is now dead.]”

Seatbelt stop was objectively reasonable, and it did not matter that the officer had an investigatory motive, so the plain view was proper. State v. Sheffield, 2007 Tenn. Crim. App. LEXIS 483 (June 21, 2007):

The state seatbelt law requires a driver and passengers to wear safety belts when a vehicle is in forward motion. See T.C.A. § 55-9-603(a)(1). Thus, upon seeing Defendant driving the car without wearing his seatbelt, Office Hagler had probable cause to believe that Defendant was in violation of the state seatbelt law. It is of no consequence that Officer Hagler had no intention to cite Defendant for violation of the seatbelt law. Likewise, it does not matter that Officer Hagler primarily wanted to investigate the suspicious conduct by Defendant and his passenger. The officer’s initial observation that Defendant was not wearing his seatbelt was sufficient justification for the stop. Once the stop was made, the officer’s detention of Defendant was not unreasonable in light of the sequence of events which occurred. The observation of evidence of contraband in plain view in the vehicle justified a search of the interior of the vehicle, State v. Byerley, 635 S.W.2d 511, 513-14 (Tenn. 1982), a search of the trunk of the vehicle, United States v. Ross, 456 U.S. 798, 820-21,102 S. Ct. 2157, 2170-71, 72 L. Ed. 2d 572 (1982), State v. McCall, 698 S.W.2d 643, 649 (Tenn. Crim. App. 1985), and a search of Defendant’s person and seizure of the evidence discovered as a result of the search of his person. State v. Crutcher, 989 S.W.2d 295, 300 (Tenn. 1999); Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 2564, 65 L. Ed. 2d 633 (1980). Accordingly, the trial court did not err in denying Defendant’s motion to suppress.

Informant was corroborated by officer going to defendant’s premises and smelling burnt marijuana himself. That made PC. United States v. Walter, 2007 U.S. Dist. LEXIS 44975 (D. Vt. June 20, 2007).*

There is no reasonable expectation of privacy in the records of gun dealers of one’s prior purchases. The gunsellers have no reasonable expectation of privacy, so it follows that the buyer does not either. Besides, the record is held by a third person. Harrison v. City of Chicago, 2007 U.S. Dist. LEXIS 45117 (N.D. Ill. June 19, 2007):

Here, the issue is whether a police recruit has a reasonable expectation of privacy in records a gun seller is required to keep with respect to the police recruit’s prior gun purchases. This Court concludes that the answer is no. The Supreme Court has explained that the gun sellers themselves have no reasonable expectation of privacy in their business such that a search warrant is not required to search their premises or records. United States v. Biswell, 406 U.S. 311, 315 (1972) (“close scrutiny of [firearms] traffic is undeniably of central importance to federal efforts to prevent violent crime and to assist the States in regulating the firearms traffic within their borders.”). The Seventh Circuit has described why firearm purchasers have no reasonable expectation of privacy with respect to their firearm purchases. City of Chi. v. U.S. Dep’t of Treasury, 287 F.3d 628, 637 (7th Cir. 2002) (“the purchase of a firearm is not a private transaction. The Gun Control Act requires that a transaction for the sale of a firearm be recorded and every dealer is required to make business records available to investigation. Again, every purchaser of a firearm is on notice that their name and address must be reported to state and local authorities and AFT. As a result, there can be no expectation of privacy in the requested names and addresses.”) (internal citations omitted), judg’t vacated on other grounds, 537 U.S. 1229. The Court concludes that a gun purchaser has no reasonable expectation of privacy in the fact of the gun purchase or in the record of such purchase. Because Harrison had no reasonable expectation of privacy with respect to the records of his prior gun purchases, he cannot prevail on his § 1983 claim against Leracz.

Officer’s reasonable suspicion defendant was transporting drugs equals reasonable suspicion he was armed. (“Courts have recognized that it is objectively reasonable to believe that a person involved in drug trafficking is armed and dangerous.”) A patdown was permissible. Benavides v. State, 2007 Tex. App. LEXIS 4802 (Tex. App. — East land June 21, 2007).*

Claim that defendant officer kicked in plaintiff’s door without a warrant to arrest plaintiff for DUI stated a claim, and the officer was denied qualified immunity. Cilman v. Reeves, 2007 U.S. Dist. LEXIS 45165 (E.D. Va. June 20, 2007).*

Plaintiff was convicted in state court based on the search of his property, and it was affirmed on appeal. He sued over the search, and the defendants did not raise collateral estoppel. The court held that collateral estoppel can be raised by the court on its own motion, so the defendant’s waiver did not matter. He was collaterally estopped by the state court judgment. Best v. Portland Police Dep’t, 2007 U.S. Dist. LEXIS 44791 (N.D. Ind. June 19, 2007).*

Traffic stop led to officer smelling marijuana when the driver opened the window. The occupants gave conflicting accounts. The marijuana justified the search, and the stories from the occupants justified seizure of the vehicle. United States v. 2004 Silver Chevrolet Minivan, 2007 U.S. Dist. LEXIS 44866 (D. Neb. June 19, 2007).*

Plaintiff sued for injunctive relief and not damages, and the district court held that he lacked standing to sue because of the speculative nature of a recurrence. Martinez v. Marino, 2007 U.S. Dist. LEXIS 44421 (E.D. Pa. June 18, 2007):

Martinez fails to satisfy the pleading requirements to show he may be entitled to injunctive relief. The Supreme Court has suggested that a plaintiff, who alleged he had been choked by police, might be able to seek injunctive relief if he could make “the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such manner.” City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983). The plaintiff in Lyons failed to meet this heightened standard and Martinez does as well.

Plaintiff’s version of what he did to get arrested gave the officers qualified immunity. Benton-El v. Odom, 2007 U.S. Dist. LEXIS 44270 (M.D. Ga. June 19, 2007).*

“In the case at bar, the information was obtained from an informant whom the agent had known for 3 years and who had previously given information that lead to at least 8 arrests. There is no evidence whatsoever that the informant was unreliable or provided inaccurate information at that time or at any time in the past. Based on the totality of circumstances in this case, there is no evidence of any reason to not rely on the information provided by the well-known, trusted source.” United States v. Benson, 2007 U.S. Dist. LEXIS 44308 (M.D. Ga. June 19, 2007).*

Controlled delivery of a container load of drugs led to probable cause to arrest the recipients and search their vehicles. United States v. Pulido-Tejedo, 2007 U.S. Dist. LEXIS 44312 (S.D. Ga. June 18, 2007).*

Defendant’s argument that the USMJ lacked a substantial basis for finding probable cause on a corroborated informant was rejected. United States v. Crawford, 2007 U.S. Dist. LEXIS 44417 (E.D. Pa. June 18, 2007):

Taken together, these corroborated details, in addition to numerous other pieces of evidence described in the affidavit, supported the agent’s statement that the CS had provided reliable information in the past. The totality of the evidence clearly created a substantial basis for a finding of probable cause and was more than sufficient for the issuance of a warrant to search Rah’s Fashion Boutique. Accordingly, we are compelled to reject Defendant’s argument that the evidence should be suppressed for lack of probable cause.

State liquor control and local and state police officers conducted a raid on a frat house, and they detained all underage persons without cause to believe that they were drinking. The detention was unconstitutional. Commonwealth v. Mistler, 590 Pa. 390, 912 A.2d 1265 (Pa. 2006):

Similarly, this Court has upheld such suspicionless searches and seizures in the following contexts: (1) vehicle checkpoints, see, e.g., Blouse, 611 A.2d at 1179 (holding that suspicionless vehicle stops at fixed checkpoints to detect and remove unlicensed drivers and dangerous automobiles from the road are constitutional); (2) weapons and drugs searches at public schools, see, e.g., In re F.B., 555 Pa. 661, 726 A.2d 361, 368 (Pa. 1999) (deeming constitutional suspicionless point-of-entry search for weapons at public school); Cass, 709 A.2d at 365 (finding that suspicionless canine-sniff drug search of student lockers at public school does not violate Article 1, Section 8 of the Pennsylvania Constitution); but see Theodore v. Del. Valley Sch. Dist., 575 Pa. 321, 836 A.2d 76, 91 (Pa. 2003) (invalidating, under the state Constitution, the random drug testing of extracurricular participants and student drivers, where the record contained no evidence that a drug problem existed at the school or that the targeted group was particularly prone to drug use).

Having identified the framework necessary for our analysis, we now turn to a consideration of whether the search at issue satisfies its requirements. The Commonwealth argues that, upon balancing these three factors, it is clear that such a general search is legal and that suppression should be denied. We disagree.

As to the first prong, the interference with individual liberty was significant. Students who paid to attend the party entered the fraternity house with the reasonable expectation that they would be able to leave at will. Nevertheless, that reasonable expectation was frustrated when the LCE officers detained students under the age of twenty-one.

Next, we must assess the degree to which the seizure advanced the public interest. Certainly, the public has an interest in deterring underage consumption of alcohol. This is evident by, inter alia, the Pennsylvania statute outlawing such behavior. 18 Pa.C.S § 6308. Yet we see no evidence, and the Commonwealth has presented none, that the methods employed in this case are more effective in reducing underage drinking than a myriad of other available options.

Finally, we must address the gravity of the public concern served by the seizure. The United States Supreme Court has held that it would not deem the “general interest in crime control” as a justifiable reason for a regime of suspicionless stops; it has not condoned suspicionless searches where the program is aimed at uncovering evidence of ordinary criminal wrongdoing. City of Indianapolis, 531 U.S. at 42. In the instant case, we can identify no factor that elevates the level of public concern regarding underage drinking beyond that of “a general interest in crime control.” The Commonwealth, in its efforts to justify the seizure, presents no evidence that prosecution of underage drinkers qualifies as one of the few areas of criminal wrongdoing for which a regime of suspicionless stops should be deemed constitutional.

. . .

Given the absence of such a paramount public interest in the instant case, we believe that the suspicionless stop sub judice violated both the Fourth Amendment to the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution. The conduct of the LCE officers and the WCP does not comport with constitutional requirements as it failed to address an area of paramount importance. Rather, the actions of the officers were geared toward general crime control and the discovery of ordinary criminal wrongdoing, which the United States Supreme Court has deemed insufficient to justify a suspicionless stop. City of Indianapolis, 531 U.S. at 42. Such acts, absent a cause of heightened importance to the citizenry of the Commonwealth, cannot support a suspicionless detention.

The officer had reasonable suspicion to stop the defendant for a fictitious license plate, but, as he walked up to the car, he realized that he misread the license plate, and it was not fictitious. The defendant should have been free to leave at that point. State v. Cromes, 2006 Ohio 6924, 2006 Ohio App. LEXIS 6846 (3d Dist. December 28, 2006).

Comparing defendant’s DNA to the CODIS database is not an unreasonable search and seizure. State v. Cannon, 2006 Tenn. Crim. App. LEXIS 994 (December 27, 2006).*

In a March 31 post appears this:

In an unpublished opinion, the Houston TX Court of Appeals held that defendant’s girlfriend had apparent authority to consent to the search of a nonpassword protected computer that both of them used, even though the computer belonged to the defendant. Hebert v. State, 2006 Tex. App. LEXIS 2539 (Houston (14th Dist.) March 30, 2006).

The opinion was substituted and published with the same result at Hebert v. State, 2006 Tex. App. LEXIS 11070 (Tex. App. — Houston (14th Dist.) December 28, 2006):

Appellant’s brief concedes that Fridell had authority to consent to a search of the trailer’s common areas, and challenges only her authority regarding the non-common areas, such as appellant’s office and computer. However, appellant’s brief cites no cases to support a contention that separate and/or greater authority would be required for non-common areas, either generally or under circumstances similar to those in this case. In addition, appellant’s issue does not challenge the evidence supporting the trial court’s statements but only its legal conclusion that those facts amount to actual (or apparent) authority in that: (1) there is no evidence that Friddell was a party to the rental or ownership of the trailer; (2) Friddell testified that appellant used the third bedroom as his office and the computer there belonged to him; (3) appellant had the right to exclude Friddell from entering his office or using his computer there; (4) there is no evidence that appellant gave Friddell express or implied consent to enter his office or use his computer; and (5) Friddell testified that she had never used the computer without appellant being present. However, appellant cites no cases reaching a contrary conclusion on the issue of actual authority on facts resembling those relied upon by the trial court, nor does he cite any cases concluding that actual authority was lacking due to factors similar to those he relies upon to preclude a finding of actual authority.

Because: (1) the supported-by-the-record facts recited by the trial court show that Friddell had “joint access or control for most purposes” to the trailer premises; and (3) the factors relied upon by appellant show, at most, a lack of equal, but not joint, access or control over the office or computer, we conclude that appellant’s issue fails to demonstrate that the trial court erred in denying his motion to suppress. Therefore, appellant’s issue is overruled, and the judgment of the trial court is affirmed.

Indiana has the Indiana Public School Police which act as school resource officers. Acting on a tip, one encountered a student suspected of marijuana, and his original intent was to take the student to the dean’s office. Instead, the officer took the student to the police. The officer was governed by T.L.O. The court surveys the cases and finds that school resource officers generally are governed by T.L.O. even though they may be sworn police officers working in a school. T.S. v. State, 863 N.E.2d 362 (Ind. App. 2007):

Finally, courts have found relevant the officer’s purpose in conducting the search. See J.F.M., 607 S.E.2d at 307-08 (officer was concerned with student’s actions as violations “under the rules and policies of the school, not as violations of the laws of North Carolina”); In re Josue T., 1999 NMCA 115, 128 N.M. 56, 989 P.2d 431, 438 (N.M. Ct. App. 1999), review denied, (“The nature of a T.L.O. search by a school authority is to maintain order and discipline in the school. The nature of a search by a police officer is to obtain evidence for criminal prosecutions.”); State v. Tywayne H., 1997 NMCA 15, 123 N.M. 42, 933 P.2d 251, 255 (N.M. Ct. App. 1997), review denied (holding that search conducted by police officers hired as security for an after-school dance sponsored by local chapter of Mothers Against Drunk Driving was not governed by T.L.O. because the rationale of the student-teacher relationship, upon which T.L.O. was based, “is not applicable to a uniformed police officer conducting a search on his own initiative”).

We conclude that Sergeant Driskell acted as school resource officer acting to further educationally related goals. Although Sergeant Driskell’s encounter with T.S. ultimately resulted in Sergeant Driskell taking T.S. to the police station, Sergeant Driskell testified that, at the time he initiated the encounter, he intended to take T.S. to the Dean’s office. Tr. at 33. Therefore, although Sergeant Driskell did not act in conjunction with other school officials prior to the initial contact with T.S., when he initiated contact, he had the intent to involve the school’s dean. Such intent indicates that Sergeant Driskell was concerned with a possible violation of school rules, and not solely a criminal violation. We also agree with the rationale of the North Carolina and Pennsylvania courts that the presence of drugs on school property presents a serious threat to a learning environment. Therefore, Sergeant Driskell acted not only to ferret out criminal activity, but also to preserve an environment conducive to education.

We do not hold that any action by a school police officer is governed by T.L.O.‘s reasonableness test. As our supreme court has indicated, this standard applies to school resource officers acting on their own initiative, and acting “to further educationally related goals.” Myers, 839 N.E.2d at 1160. On the facts of this case, Officer Driskell was acting to further such goals, and we therefore will analyze his actions under the principles of T.L.O.

Oklahoma sustained a driver’s license checkpoint based on proof that there was a problem with unlicensed drivers in the jurisdiction and the officers’ plan was to avoid any impeding of traffic beyond seconds. Lookingbill v. State, 2007 OK CR 7, 157 P.3d 130 (Okla. Crim. App. 2007):

It is evident from the cases discussed above that law enforcement officers, operating within certain parameters, may establish checkpoints for the purpose of verifying that drivers are licensed and that they are operating ostensibly safe vehicles. The District Court concluded that the highway checkpoint seizure in Appellant’s case was not constitutionally flawed. In reviewing the record, we find the evidence is sufficient to support that conclusion.

The law enforcement officers in this case testified that there was a “significant” problem of unlicensed drivers in Greer County, and this was their stated purpose for planning the driver’s license checkpoint challenged here. The State offered proof showing that the officers chose the site because it was the route most traveled through Greer County. The checkpoint was in a fixed location, in broad daylight, and in an open area where the troopers could be easily seen. The officers planned to stop every passing car and, if everything was in order, to detain motorists for less than a minute. n6

n6 According to Trooper Cummins, their checkpoint plan included the contingency that if traffic should start to back up, vehicles would then be waved through so as not to cause any unreasonable delays in travel. A traffic backup never occurred, however, because Appellant was one of the first vehicles through the checkpoint, resulting in the checkpoint being promptly disbanded once Trooper Laughlin arrested Appellant and transported him to jail.

Use of a ruse to gain entry did not constitute a violation of the knock and announce requirement. Martinez v. State, 220 S.W.3d 183 (Tex. App. – Austin 2007).

Defendant’s grandfather had authority to consent to an entry into the premises and the bedroom defendant was staying in. Since it was his property, the police acted reasonably in believing that his consent extended to defendant’s backpack in the room. Glenn v. Commonwealth, 49 Va. App. 413, 642 S.E.2d 282 (2007) (en banc):

Equally important, nothing about the backpack itself put the officers on notice that Glenn claimed an exclusive privacy interest in it. The backpack had no lock or, for that matter, anything else ostensibly designed to inhibit someone from opening it. The backpack was found on the floor of a room sometimes used by Glenn, not squirreled away in some secretive place within his principal bedroom. No identifying information on the backpack revealed who owned it, used it, or had access to it. The officers did not know who left it there or who, if anyone, intended to come back for it. Under such circumstances, the officers were not required to speculate — as Glenn implicitly suggests — that grandsons, but never grandfathers, use backpacks.

Defendant worked at a Kroger store, and she was outside with a friend who had just bought a lot of kitchen matches with another friend. The off duty officer working loss prevention suspected the matches were going to be used to manufacture meth. The officer questioned the purchaser, and defendant tried to go back into the store; the officer said “Ms. Botto, can you come back here please?” This was a seizure. She later consented to a search of her work apron which produced a small quantity of meth. Botto v. Commonwealth, 220 S.W.3d 282 (Ky. App. 2006).

Police received an anonymous call about a suspicious person at a particular location, and they saw the defendant and another jump over a short brick wall leaving the premises. When stopped, the defendant said that it was her house, and she hopped over the wall because she had lost her key to the gate. The police entered her house and searched illegally. The motion to suppress should have been granted. State v. Marley, 945 So. 2d 808 (La. App. 4th Cir. November 8, 2006, released for publication January 11, 2007).

Furtive movements to the pocket when a police officer was observed in a high crime area was cause for a patdown for a weapon. State v. Kelly, 946 So. 2d 222 (La. App. 4th Cir. November 21, 2006, released for publication January 25, 2007).*

The fact information from an illegal search made it into a search warrant did not void the search under the warrant. The trial court is directed to excise the information derived from the illegal search from the affidavit and retest the balance to see if probable cause remains. State v. McKinney, 361 N.C. 53, 637 S.E.2d 868 (December 15, 2006), rev’g 174 N.C. App. 138, 619 S.E.2d 901 (2005) (which suppressed whole search).

“After careful review of the record and the applicable case law, we conclude that the duration of the stop is not the determinative issue in this case. At issue is whether, once the warning had been given and Rutledge was told he was free to go, the continued detention of the parties was reasonable.” Here, it was, and the trial court’s suppression order is affirmed. State v. Lavender, 2006 Ohio 6632, 2006 Ohio App. LEXIS 6553 (6th Dist. December 15, 2006).*

Defendant with his girlfriend was questioned by police, and, when the officer asked about a gun because he saw a gun cable lock, defendant’s girlfriend said “Here, I’ll show you.” The trial court’s finding of consent was not clearly errenous. State v. Keggan, 2006 Ohio 6663, 2006 Ohio App. LEXIS 6561 (2d Dist. December 15, 2006).*

Defendant was stopped for not having a license place light. Because a license check revealed that defendant had a drug arrest in the past, the officer asked for consent which was refused. The defendant was detained for a drug dog. The officer did not have grounds for detaining defendant after issuing him a citation for not having a tag light. The only reasonable suspicion articulated by the officer was that another officer had told him that defendant had been previously associated with drugs. The officer acknowledged that at the time of the traffic stop he had no belief that defendant was involved in criminal activity. The detention was without reasonable suspicion. Smith v. State, 2006 Ala. Crim. App. LEXIS 192 (September 29, 2006, released for publication March 23, 2007).

Defendant who handed off a baggie of cocaine when he knew he was about to be confronted by a police officer had no standing to challenge the search of the other person. State v. Davis, 2006 Ala. Crim. App. LEXIS 116 (June 30, 2006, released for publication March 23, 2007).*

Where the defendant abandoned property linking him to a murder, he could not show that defense counsel was ineffective for not challenging a search issue that he would surely lose. Gipson v. Quarterman, 2007 U.S. Dist. LEXIS 26128 (S.D. Tex. April 5, 2007).*

Law enforcement officers “were executing a facially valid warrant, [so] plaintiff’s Fourth Amendment claim fails to state a claim upon which relief may be granted.” Hann v. Michigan, 2007 U.S. Dist. LEXIS 25902 (E.D. Mich. March 2, 2007).*

Defendant’s consent to search his apartment included a bag of puppy food where drugs were found. Defendant’s argument that his dog was not a puppy did not make the search exceed the scope of his consent. S.T.E. v. State, 954 So. 2d 604 (2006).*

Merely being the driver of a car does not give standing to challenge its search. United States v. Vasquez, 2007 U.S. Dist. LEXIS 18882 (D. Utah March 15, 2007):

Notably, a defendant bears the burden of showing he satisfies the standing requirements. Allen, 235 F.3d at 489 (“[I]n order for a defendant to show such an expectation of privacy in an automobile, the defendant bears the burden at the suppression hearing to show a ‘legitimate possessory interest in or [a] lawful control over the car.'”) (quoting United States v. Gama-Bastidas, 142 F.3d 1233, 1239 (10th Cir 1998)). For vehicular searches, “[w]here the proponent of a motion to suppress is the car’s driver but not the registered owner, mere possession of the car and its keys does not suffice to establish a legitimate possessory interest ….” United States v. Valdez Hocker, 333 F.3d 1206, 1209 (10th Cir. 2003). Although “a defendant need not submit legal documentation showing a chain of lawful custody from the registered owner to himself,” id., he “must at least state that he gained possession from the owner or someone with authority to grant possession.” United States v. Arango, 912 F.2d 441, 445 (10th Cir. 1990).

Courts consider three factors to determine if a defendant satisfied his burden. Namely, “(1) whether the defendant asserted ownership over the items seized from the vehicle; (2) whether the defendant testified to his expectation of privacy at the suppression hearing; and (3) whether the defendant presented any testimony at the suppression hearing that he had a legitimate possessory interest in the vehicle.” Allen, 235 F.3d at 489. Under this standard, when a defendant “claim[s] that he personally obtained possession from the registered owner … he would ‘plainly ha[ve] a reasonable expectation of privacy in the vehicle and standing to challenge the search of the vehicle.'” Valdez Hocker, 333 F.3d at 1209 (quoting United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990)).

The first two factors cut strongly against Mr. Vasquez’s standing to challenge the constitutionality of the search and seizure. He did not assert ownership of the narcotics seized or testify at the evidentiary hearing. n6 But Mr. Vasquez told the police that Ms. Shoup–his girlfriend–loaned him her car. Although not offered by the defense, this evidence shows Mr. Vasquez claimed a legitimate possessory interest in the car. And no evidence disputes Ms. Shoup as the legal owner or contradicts Mr. Vasquez’s relationship with Ms. Shoup.

. . .

The court assumes, without deciding, that Mr. Vasquez has standing to challenge the search and seizure of the vehicle.

[And the defendant loses on the merits of the search.]

Court finds that defendant’s consent was voluntary based on his age and education, having an engineering degree. All the factors of voluntariness were found against him, including whether certain statements were made about getting a search warrant if he did not consent. United States v. Stierhoff, 477 F. Supp. 2d 423 (D. R.I. 2007).

Officer was not required to pursue the course of lesser intrusive means of determining whether defendant’s driver’s license was suspended. Officer had been told that earlier by defendant’s parole officer, and he could rely on that in making the stop and then seeking confirmation. State v. Batts, 281 Conn. 682, 916 A.2d 788 (2007).*

Defendant clearly and unequivocally denied officers consent to enter, but they did anyway. The trial court’s finding that defendant refused to consent was fully supported by the record. People v. Mikrut, 371 Ill. App. 3d 1148, 309 Ill. Dec. 717, 864 N.E.2d 958 (2d Dist. 2007).*

911 hearsay about a death was significantly corroborated to show probable cause. State v. Foy, 862 N.E.2d 1219 (2007):

The information provided by the 911 dispatcher derives from Jones’s 911 call. Jones informed the 911 dispatcher that: she, Diane, and Foy were in the Foys’ residence; she believed Diane was dead (although Diane had yet to be pronounced dead); Foy claimed he found Diane floating face-down in a nearby pond; Diane had bruises on her arm and a contusion on her head; and Foy had somehow harmed Diane. While the affidavit does not indicate whether Jones was a “professional informant” or known to the police before the investigation, the probable cause affidavit shows that her statements were corroborated by further police investigation, which demonstrates the trustworthiness of the information she provided. See State v. Spillers, 847 N.E.2d 949 (independent police investigation corroborates the informant’s statements). Further, the basis for Jones’s knowledge was her personal observation. See id. (some basis for the informant’s knowledge is demonstrated). This hearsay, therefore, cannot be characterized as uncorroborated, and the trustworthiness of the hearsay was sufficiently established. See Soliz v. State, 832 N.E.2d 1022 (Ind. Ct. App. 2005) (probable cause existed for issuance of search warrant where first-time informant’s statements were corroborated by police), trans. denied. Additionally, we note “[i]t is well settled that police officers may rely upon dispatches from their own and other departments.” State v. Hornick, 540 N.E.2d 1256, 1258 (Ind. Ct. App. 1989).

McCord’s affidavit is also based upon information provided to him by other officers, whom he refers to as “first responding officers” or “first responders”. See, e.g., Appellant’s Appendix at 21. Those officers informed McCord that, upon their arrival: “there existed a bloody cloth lying near or about [Diane], and that having last viewed [] Foy leaving the room, first responders noted the absence of that bloody cloth.” Id. We first note that, although the “first responding officers” did not testify in front of the issuing magistrate, “the existence of probable cause to arrest is determined upon the basis of the collective information known to the law enforcement organization[.]” State v. Hornick, 540 N.E.2d at 1258. Additionally, the first responding officers personally observed Foy at the Foys’ residence. This hearsay, therefore, was sufficiently trustworthy. See State v. Hornick, 540 N.E.2d 1256 (suppression of evidence clearly erroneous because officers’ observations established probable cause).

Finally, McCord’s affidavit is based in part upon statements made by emergency and ambulance personnel. Specifically, emergency and ambulance personnel informed McCord that: Foy had “a red substance” on his clothing and skin and “appeared to have abrasions on … his hands[,]” Appellant’s Appendix at 22; Diane’s body and clothing were dry; and Diane’s injuries were inconsistent with Foy’s assertion regarding her cause of death (i.e., drowning) because Diane’s lungs contained no water. The basis of the emergency and ambulance personnel’s knowledge was their personal observations of Diane and conclusions drawn therefrom, which demonstrates trustworthiness and supports the finding of probable cause. See State v. Spillers, 847 N.E.2d 949 (some basis for the informant’s knowledge is demonstrated).

This case is wholly dissimilar from those involving an anonymous or confidential, unnamed informant in which the reliability of hearsay information is often dubious or, at least, reasonably in doubt. To the contrary, the hearsay information in this case came from law enforcement officers, emergency and medical professionals, and someone in the alleged victim’s home who called 911 seeking medical help rather than to report criminal activity. The information provided a sufficient basis of fact to permit a reasonably prudent person to believe a search of the Foys’ residence would uncover evidence of a crime.

“Following the denial of his motion to suppress, defendant Gabriel Reed Strasburg pleaded no contest to misdemeanor possession of more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (c)). He contends that the sheriff’s deputy who seized the marijuana lacked probable cause to search his car because defendant was allowed to possess marijuana under the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5). We disagree because the Compassionate Use Act provides a limited defense against prosecution, but does not provide a shield against reasonable investigations and searches. Accordingly, we affirm.” People v. Strasburg, 148 Cal. App. 4th 1052, 56 Cal. Rptr. 3d 306 (1st Dist. 2007).

Officer had probable cause to arrest defendant based on the totality of the circumstances, particularly where police officer personally observed the occurrence of the crime and also executed the arrest. Haley v. State, 398 Md. 106, 919 A.2d 1200 (2007).*

Officers had qualified immunity for detaining the plaintiff based on reasonable suspicion. Quirk v. Blocher, 2007 U.S. Dist. LEXIS 19733 (S.D. Ind. March 19, 2007).*

Plaintiff’s cause of action accrued on his arrest, not when he received a videotape that supported the claim. Watts v. Epps, 2006 U.S. Dist. LEXIS 95731 (N.D. Ga. August 16, 2006).*

Traffic stop was valid, and it was properly extended by reasonable suspicion and consent. Close questions of reasonable suspicion go to the officer’s experience. State v. Moore, 154 P.3d 1 (Kan. 2007):

We emphasize that because whether reasonable suspicion exists depends upon the totality of the circumstances, a case-by-case evaluation is required. See DeMarco, 263 Kan. at 735. Accordingly, a broad reading of our opinion today is expressly discouraged. We do not advocate a total, or substantial, deference to law enforcement’s opinion concerning the presence of reasonable suspicion. The officers may possess nothing more than an “inchoate and unparticularized suspicion” or “hunch” of criminal activity. See Illinois v. Wardlow, 528 U.S. 119, 123, 145 L. Ed. 2d 570, 120 S. Ct. 673 (2000). Such a level of deference would be an abdication of our role to make a de novo determination of reasonable suspicion. But, in this close case, we give appropriate deference to the opinions of a particular law enforcement officer on the scene who, with thousands of traffic stops, is highly experienced in roadside searches and seizures and determinations of reasonable suspicion.

The state cannot manipulate a knock-and-talk to enter rural premises and make a purported “plain view” seizure of a trash bag in the yard 100′ from the road. State v. Fisher, 154 P.3d 455 (Kan. 2007):

We specifically disapprove of any State attempt to “piggyback,” i.e., to observe an object in open view from off the premises, to use knock and-in these cases, unsuccessful-talk for justified entry onto the premises, and then assert plain view while on the premises as a legal basis to seize the identical object that had been observed earlier. Such piggybacking under these facts would smear the careful distinctions drawn by the Horton Court between the right to merely observe an object (here, from off the premises) and the right to seize that object (on the premises). From a practical standpoint, this piggyback practice would grant law enforcement the right to seize virtually any object initially observed from a distance and subsequently located within plain view of a residential doorway by an officer purposely looking for that identical object.

An additional reason for us to reject the State’s request to apply the plain view doctrine for justification of the seizure is that Jager’s premises search and seizure of the bag exceeded the scope of his justified intrusion. This rejection applies whether the State were to contend that the off-highway observation of the bag alone, the off-site smell of ether alone, the previous citizens’ tips alone, or some combinations thereof, justified the knock and talk.

Nebraska for the first time adopts the community caretaking function search. State v. Bakewell, 273 Neb. 372, 730 N.W.2d 335 (2007):

The State asks this court to apply the community caretaking exception to the Fourth Amendment to Groves’ actions. This exception is rooted in Cady v. Dombrowski, where the U.S. Supreme Court noted that

“b]ecause of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”

Most jurisdictions which have considered the question of whether to adopt this exception have done so. In a few instances, courts have declined the invitation to adopt the exception based on the circumstances presented, generally concluding that on the facts before the court, the exception would not apply. This court has never had the occasion to apply this exception, though the Court of Appeals has done so.

In accordance with these other jurisdictions and the Court of Appeals, we hereby adopt the community caretaking exception to the Fourth Amendment. In so doing, we emphasize the narrow applicability of this exception. We agree with the other courts which have held that this exception should be narrowly and carefully applied in order to prevent its abuse.

Trial court’s decision that permitted DNA collection from any defendant was overbroad, but it was permissible here because the defendant had already been convicted of a crime when it was taken, and that was certainly constitutional. State v. Mckinney, 273 Neb. 346, 730 N.W.2d 74 (2007).*

Terry is limited to a frisk for weapons, and mere reasonable suspicion that the defendant might have drugs on him does not justify a frisk of the person. State v. Page, 2007 Ohio 671, 2007 Ohio App. LEXIS 603 (2d Dist. February 16, 2007):

[*P78] While the officers appear to have been justified in detaining Perkins and Page to investigate their suspicious behavior, Terry, 392 U.S. at 22, we perceive no basis from our review for a frisk for weapons. The officers pointed to nothing that would support a reasonable suspicion that Page was armed and dangerous. Indeed, their policy seemed to be to ask no questions upon approaching a suspect but, rather, to immediately handcuff the suspect and frisk him. Deputy Crosby’s generalization associating narcotics with guns and saying Page might have had a weapon did not demonstrate a justifiable belief that Page was armed and presently dangerous. Id. at 24.

[*P88] Because the frisk was unjustified, the seizure of the crack pipe was unlawful and Page’s arrest on account of possessing the pipe was likewise unlawful. The crack pipe and the additional contraband seized after the arrest should have been suppressed.

Defendant was stopped for violation of the local noise ordinance. In plain view in the car, the officer saw apparent pirated recordings, and that justified a further search. Defendant’s conviction for possession of pirated materials affirmed. Hayward-El v. State, 284 Ga. App. 125, 643 S.E.2d 242 (2007).

Nexus was shown to Hell Angels defendant’s computer for seizure in a search warrant because the basis shown was the use of the internet to communicate with each other. United States v. Fabel, 2007 U.S. Dist. LEXIS 10289 (W.D. Wash. February 8, 2007).*

Unprovoked flight from a parking lot known for drug activity on making eye contact with a police officer walking through the lot justified a Terry stop. Suppression order reversed. State v. Wynn, 948 So. 2d 945 (Fla. App. 5th Dist. February 16, 2007).*

Defense counsel’s failure to file a motion to suppress a protective sweep of a dance hall in which he had no reasonable expectation of privacy could not be ineffective assistance. Hollis v. State, 219 S.W.3d 446 (Tex. App. — Austin 2007).*

Officer had reasonable suspicion to stop defendant based on description of a light colored Cadillac pickup truck in the vicinity and defendant was driving a white one, the only one around. Mount v. State, 217 S.W.3d 716 (Tex. App. — Houston (14th Dist.) 2007) (substitute opinion for one issued August 8, 2006, but apparently not on Lexis):

Therefore, we conclude that Officer Dagnault had reasonable suspicion to stop appellant’s vehicle to investigate whether it was stolen. Pursuant to this investigative detention, Officer Dagnault was entitled to question appellant regarding his identity and vehicle registration. See Hoag, 728 S.W.2d at 380 (observing that an officer may briefly stop a suspicious individual in order to determine his identity or maintain the status quo while obtaining more information). In addition, because a valid investigatory stop had been made, the officer was justified in conducting a limited search of the person of the suspect, such as a frisk or pat down, for the protection of the officer while he conducted the investigation. See Wood v. State, 515 S.W.2d 300, 306 (Tex. Crim. App. 1974). During this brief and minimally intrusive detention, additional facts developed to support a continued detention of appellant. Although further investigation revealed that the vehicle appellant was driving was registered to appellant’s wife, in the interim Officer Dagnault reasonably began to suspect that appellant had been driving while intoxicated. Thus, even though appellant was not arrested for unauthorized use of a vehicle, the investigation refocused on whether appellant had violated another law. Officer Pierce of the DWI task force concluded that appellant had been driving while under the influence of alcohol, which led to appellant’s arrest. We overrule appellant’s third and fourth issues.

Foster care and social workers sought consent to enter defendant’s premises to determine if the children were being properly cared for. The entry was based on consent. In that entry, defendant was found to have marijuana and drug paraphernalia in her bedroom and a valid warrant was obtained to search and seize it. Hallum v. Commonwealth, 219 S.W.3d 216 (Ky. App. 2007):

[I]n the present case, when Ms. Finnerty entered the closed bedroom to investigate the referral she had received, it was not unreasonable for the detective to enter the room because the visit was not criminal in nature. Thus, the detective did not need to receive Appellant’s consent to enter the bedroom. Moreover, once Ms. Finnerty told Appellant that she was required to look in the bedroom, Appellant told her to go ahead and do so. He did not tell the detective that he could not go into the room with her.

Regardless, even if we were to assume, arguendo, that it was unreasonable for the detective to enter the bedroom and that he did so without Appellant’s consent, exigent circumstances were present, so the entry was nevertheless proper. When exigent circumstances are present, such as the threat of imminent injury or the imminent destruction of evidence, police are permitted to enter a home without a search warrant.

A civil claim against a search implied the invalidity of plaintiff’s conviction and was barred by Heck. Crawley v. Sirois, 2007 U.S. Dist. LEXIS 21195 (D. Conn. March 22, 2007):

A judgment in favor of the plaintiff as to the claims against defendant Amato would imply the invalidity of his conviction for possession of narcotics with intent to sell because plaintiff’s racial profiling claim alleges that he was pulled over, he was searched, drugs were seized and he was arrested without probable cause. See Gibson v. Superintendent of N.J. Dep’t of Law, 411 F.3d 427, 451-52 (3d Cir.2005) (stop based solely on pattern and practice of racial profiling, without any reasonable suspicion, is unlawful and evidence is excludable, and thus implies conviction was improper triggering Heck bar); Allen v. LaPorte, No. 02-CV-71361-DT, 2002 WL 1009563, at *1 (E.D. Mich. April 16, 2002) (holding Heck barred plaintiff’s “racial profiling and Terry stop claims, inasmuch as those claims addresses the validity of his arrest and related state criminal proceedings.”). The court concludes that the Bivens claims against defendant Amato are barred by Heck. The motion to dismiss is granted as to Bivens claims against defendant Amato in his individual capacity.

Defendant’s responding to his name being called out was probable cause to detain him because of an arrest warrant for him. Search incident was valid. United States v. Thomas, 480 F.3d 878 (8th Cir. 2007).*

Plaintiffs’ Franks claims were meager challenges to isolated facts that did nothing to undermine probable cause. Officers did not use excessive force in handcuffing plaintiffs. “Finally, and for all the reasons stated above, the court finds the use of handcuffs in this case to be the minimal force necessary to effectuate the safety of the officers and the occupants during the search. The use of force, in the form of handcuffs was reasonable in view of the governmental interests at stake.” Bradley v. West, 2007 U.S. Dist. LEXIS 21009 (M.D. Ala. March 22, 2007).*