I received an e-mail with a post from a blog today asking, essentially, “why is there no Hudson v. Michigan blog?” It mentions two other blogs, here and here.

Maybe someday I’ll add a separate page for Hudson, but, if you want Hudson cases, every case that substantively discusses it at all is cited here. Just search “Hudson.”

Memphis criminal defense and domestic relations lawyer Robert Friedman was shot and killed in the parking garage of his office building on his way to work in 2002. The police developed PC to arrest defendant and went to his house to arrest him, but they did not break in. After a while, he came to the door and was arrested, and the house was searched, finding no murder weapon. The reason for the shooting was stated by the defendant during his statement: “[t]o shoot him for the cruel way he betrayed me in representing me.” He was under de facto arrest when the house was surrounded. He could move around the house, but he sure could not leave. State v. Noel, 2006 Tenn. Crim. App. LEXIS 738 (September 25, 2006):

Although the defendant was not in the actual physical control of the officers until he stepped out of his apartment, his residence remained surrounded by officers. Using the terminology of Crutcher, there was a restraint on his freedom of movement. Thus, the defendant was under arrest at some point prior to his opening the apartment door. The trial court, accrediting the testimony of Lieutenant Williams, reached that same conclusion.

The officers had, however, probable cause, and they took him into custody, Mirandized him, and got a statement. The arrest did not taint the statement.

In the ensuing trial, the confession was admitted into evidence. The defendant had been represented by the victim in a divorce case that included a custody issue regarding his daughter. He admitted that he had waited in the parking garage for the victim and stated that his plan was “[t]o shoot him for the cruel way he betrayed me in representing me.” He described himself as in a state of despair because he had lost everything, including a place to live, in the divorce. The defendant acknowledged that he shot the victim four times with a .38 revolver from a distance of four feet. He also stated that he “wanted to kill Chancellor Alissandratos but I didn’t figure I had enough time ….” He told officers that he then drove to his apartment, changed clothes, and returned his rental car.

Comment: Defense counsel in this case did a remarkable job of getting a manslaughter conviction in the first place, considering Noel lay in wait in the parking garage and ambushed Friedman at the elevator door and hid out for the rest of the day.

In a warrantless search case, the lack of exigency question is not even relevant until the question of existence of probable cause is found in favor of the government. The search of the house was invalid. People v. Cundiff, 2006 Guam 12, 2006 Guam LEXIS 13 (September 27, 2006):

We hold that, notwithstanding the testimony of the police officers, the arrest in this case occurred at the moment Defendant-Appellee August Castro Cundiff was placed in handcuffs at the North Perino Street residence. We further hold that in circumstances where there is an otherwise lawful arrest, the failure to strictly comply with the statutory requirements for an arrest pursuant to 8 GCA § 20.35(a) does not necessitate suppression of evidence. Finally, we hold that the testimony presented at the suppression hearing was insufficient to show that officers had probable cause to arrest Cundiff. Therefore, the evidence derived therefrom, including Cundiff’s statements at the precinct and the identification made by the victim, must be suppressed under the Exclusionary Rule as being fruits of the unlawful arrest. The physical evidence obtained at the home – the pocket knife, the pouch, and the bicycle – are admissible despite the warrantless search, as officers obtained voluntary consent to search the premises prior to recovering these items. Accordingly, the trial court is AFFIRMED in part, and REVERSED in part.

Defendant was in his car near the place of execution of a search warrant, and the police drove up to block his path. He then moved to dispose of drugs. While the officers had guns drawn, the defendant apparently did not even know it. The stop was reasonable. United States v. Jennings, 2006 U.S. Dist. LEXIS 70603 (N.D. Ind. September 15, 2006):

The holdings of Baker, Bohannon, and Burchett demonstrate the reasonableness of the police conduct in this case. Those cases teach that officers executing a narcotics search warrant need not confine their attention to the area contained by the walls of the building they are authorized to search. They may detain–briefly, and with no more than reasonable force–those whose presence adjacent to the scene of a search poses a potential significant risk to the officers or to the persons detained. They may detain persons who might be occupants, and if the premises have a history of people coming and going frequently, those who might be customers or suppliers. People who draw near a place where a narcotics search warrant is in the beginning stages of execution are, at best, in danger and, at worst, may be threats themselves or confederates of those operating from the place to be searched.

There may be factual situations in which it would be unreasonable for police to act as they did here. But under the facts of this case, it was reasonable to seize the occupants of the Cadillac. As noted earlier, courts have upheld the display of firearms during a warrantless seizure if it is consistent with the reason for the seizure. See, e.g., United States v. Vega, 72 F.3d 507, 516 (7th Cir. 1995); United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994). Given the circumstances of this detention, the display of the firearms did not convert the stop into an arrest.

Officer was invited into hotel room by co-tenant, and that validate his plain view that validly made it to an affidavit for a search warrant. United States v. Beasley, 2006 U.S. App. LEXIS 24560 (6th Cir. September 26, 2006)* (unpublished).

Massachusetts law requires reasonable suspicion to order a suspect out of his car. Here, defendant was nervous but courteous and compliant. On the seat, officer saw a police baton, and that was reason enough. Commonwealth v. Rivera., 2006 Mass. App. LEXIS 955 (September 14, 2006).

Search condition was imposed by probation department and not by court, and probation search was valid under the agreement. Whether the court had to order it first was not presented to trial court and is waived. State v. Anderson, 720 N.W.2d 854 (Minn. App. September 12, 2006).

Three officers went to defendant’s house to check out a stolen vehicle report. They had also heard that defendant had been moving stolen property from the vehicle to the house. The court found no consent to the officer’s barging into the house, but it found exigent circumstances from the fact that contraband was likely being moved into the house. The court found that exigent circumstances supported the officer’s entry into the residence notwithstanding the fact that the other two officers were unsuccessful in their attempt to convey their knowledge that defendant possessed a firearm to the one inside. Under the circumstances, the officer was reasonably and legitimately concerned for his own safety as well as the safety of the neighbors. Because the firearm was in plain view, it was properly seized. United States v. Poe, 462 F.3d 997 (8th Cir. September 19, 2006). Comment: This raises the “collective knowledge” doctrine to a new level. An officer makes what would be an illegal entry, but it is saved because another officer not inside has knowledge that the officer inside does not have. Again, see the Eighth Circuit’s local unwritten rule.

“A warrant authorized a search of defendant’s residence for guns, ammunition, footwear, clothing, and any other related fruits, instrumentalities and evidence of the crime. During the search, officers discovered a pipe bomb in a hidden compartment, which contained ammunition, and other items related to making a pipe bomb in plain view. The trial court ruled that severance was applicable and ordered partial suppression, upholding the seizure of a gun and ammunition and other items pursuant to the plain view doctrine. The court held that severance of the warrant and partial suppression was appropriate. There was no probable cause for a search for footwear or clothing. The firearms and ammunition provisions were distinguishable from the other portions and were the main subject of the warrant, and thus the valid portions of the warrant made up the greater part of the warrant. Total suppression was not required where there was no indiscriminate rummaging or hours of ransacking, or any suggestion that the officers’ actions constituted flagrant disregard for the Fourth Amendment or the permissible scope, duration, and intensity of the search under the redacted warrant. [Lexis overview]” United States v. Sells, 463 F.3d 1148 (10th Cir. September 19, 2006).

Hudson applied to prevent exclusion for an alleged knock and announce violation. Also, trash left out for collection was subject to seizure by the police. United States v. Kearns, 2006 U.S. Dist. LEXIS 66389 (N.D. Ga. September 15, 2006).*

Officers could seize a safe for which they had PC to believe contained evidence of a crime for the 38 hours it took to get a search warrant. The defendant’s privacy interest in the safe was not interfered with by taking it as opposed to having an officer stand guard in his house. United States v. Cone, 2006 U.S. Dist. LEXIS 66464 (D. Me. September 15, 2006).

The Sixth Circuit holds that a violation of 8 U.S.C. § 1357(a)(2) does not warrant exclusion of evidence from the arrest because there is no statutory remedy of exlusion for violation of the statute. United States v. Abdi, 463 F.3d 547 (6th Cir. September 22, 2006):

The exclusionary rule is a judicially fashioned remedy aimed at deterring constitutional violations, the application of which is appropriate when the Constitution or a statute requires it. Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2680 (2006); United States v. Caceres, 440 U.S. 741, 754-55 (1979); United States v. Giordano, 416 U.S. 505, 524 (1974) (in the absence of Fourth Amendment violation, suppression remedy depends upon provisions of the statute); United States v. Ware, 161 F.3d 414, 424-25 (6th Cir. 1998). It is well-settled that “[s]uppression of evidence . . . has always been our last resort, not our first impulse,” and the exclusionary rule is only applicable “where its remedial objectives are thought most efficaciously served.” Hudson v. Michigan, 126 S. Ct. 2159, 2163 (2006) (citation omitted).

Although exclusion is the proper remedy for some violations of the Fourth Amendment, there is no exclusionary rule generally applicable to statutory violations. Rather, the exclusionary rule is an appropriate sanction for a statutory violation only where the statute specifically provides for suppression as a remedy or the statutory violation implicates underlying constitutional rights such as the right to be free from unreasonable search and seizure. See Sanchez-Llamas, 126 S. Ct. at 2679-682 (finding that suppression is not an appropriate remedy for violation of Article 36 of the Vienna Convention); United States v. Donovan, 429 U.S. 413, 432 n.22 (1977) (denying exclusion for violation of wiretapping statute, 18 U.S.C. § 2518); Ware, 161 F.3d at 424 (6th Cir. 1998) (“statutory violations, absent underlying constitutional violations, are generally insufficient to justify imposition of the exclusionary rule”); United States v. Meriwether, 917 F.2d 955, 960 (6th Cir. 1990) (holding that government violations of the Electronic Communications Privacy Act do not warrant suppression of evidence).

The Supreme Court’s recent decision in Sanchez-Llamas, rejecting the application of the exclusionary rule to violations of the Vienna Convention, supports our holding that application of the judicially created exclusionary rule to a statutory or treaty-based violation is only appropriate in cases where: (1) the evidence arose directly out of the statutory violation and the statute or treaty itself mandates suppression, or (2) the violation implicates important Fourth or Fifth Amendment interests. 126 S. Ct. at 2680-81. See also United States v. Chaparro-Alcantara, 226 F.3d 616, 621-22 (7th Cir. 2000) (finding that “the rights protected by the Vienna Convention are equivalent to the rights protected by a statute because treatises and statutes have been held by the Supreme Court to be ‘on the same footing’ with each other under the Constitution” and holding “[w]e cannot attach the judicially created remedy of suppression to the Vienna Convention without some explicit support from the treaty itself”). Accordingly, to hold that suppression is the necessary consequence for failure to obtain an administrative warrant or satisfy the exceptions to the warrant requirement under 8 U.S.C. § 1357(a)(2), we must find the suppression remedy in the text of the statute.

Immigration agents are permitted, by statute, to make warrantless arrests under certain circumstances. n12 However, it is clear that nothing in the text of 8 U.S.C. § 1357 provides an independent statutory remedy of suppression for failing to obtain an administrative warrant. Accordingly, we find that the district court erred in reading such a remedy into the statute. Meriwether, 917 F.2d at 960; Chaparro-Alcantara, 226 F.3d at 622. Because the statute authorizing ICE agents to arrest persons for immigration violations, like the Vienna Convention, by its terms, does not require the application of the exclusionary rule to violations of the statute, we hold that the district court erred in suppressing Abdi’s statements and the derivative evidence based on the Government’s failure to comply with the statute.

Also, while government can appeal orders suppressing evidence, the defendant cannot cross-appeal orders denying suppression of other evidence. Those issues are already preserved for review after conviction. Id.

Vehicles on the curtilage could be searched under a warrant for the property and vehicles on it. United States v. Sykes, 2006 U.S. Dist. LEXIS 67461 (W.D. N.Y. September 20, 2006).

Smell of marijuana alone is PC. United States v. Nelson, 2006 U.S. Dist. LEXIS 67793 (E.D. Pa. September 19, 2006):

Every other circuit to have considered the issue has held that the smell of marijuana alone provides probable cause for a search. See Humphries at 658; United States v. Foster, 376 F.3d 577, 588 (6th Cir. 2004) (smell of marijuana provides probable cause to search a vehicle without a search warrant); United States v. Wimbush, 337 F.3d 947, 951 (7th Cir. 2003) (same); United States v. Winters, 221 F.3d 1039, 1042 (8th Cir. 2000) (same); United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1989) (same); United States v. Barron, 472 F.2d 1215 (9th Cir. 1973) (same); cf. United States v. Parker, 72 F.3d 1444, 1450-51 (10th Cir. 1995) (smell of marijuana provides probable cause to search the passenger compartment of a vehicle).

Reminder: While this is the federal consensus, and that of many states, it does not mean that a state court will not hold differently.

TX ABC went into permitted premises and seized allegedly obscene materials, and the operator of the premises sued on the familiar theory that potentially protected materials are subject to a prompt determination of alleged obscenity. Full scale confiscation of material was unconstitutional. Carico Investments v. Texas Alcoholic Bev. Comm’n, 439 F. Supp. 2d 733 (S.D. Tex. July 24, 2006):

The TABC attempts to deflect the Fourth Amendment issue. The TABC argues there is no Fourth Amendment issue because there is no reasonable expectation of privacy at TABC licensed premises. This is undoubtedly true, but irrelevant. The Fourth Amendment issue here is unreasonable seizures, not unreasonable searches.

The TABC admits that no procedure beyond the subjective determination of individual TABC officers was used in seizing otherwise presumptively protected materials. Cf. Universal Amusement Co. v. Vance, 587 F.2d 159, 172 (5th Cir. 1978) (en banc), aff’d, 445 U.S. 308 (1980) (concluding Texas statute was constitutionally infirm because of its inadequate process for ascertaining whether materials were obscene). It attempts to bypass the issue by arguing that obscene materials are not protected and therefore may be confiscated. But this assumes the very premise (obscenity) that is required to be proven. Cf. A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 211 (1964) (“It is no answer to say that obscene books are contraband. . . .”). The law neither allows this presumption, nor does it allow seizures solely on the judgment of TABC agents that the magazines or movies were obscene. See Roaden v. Kentucky, 413 U.S. 496, 506 (1973) (citations omitted) (“The seizure proceeded solely on a police officer’s conclusions that the film was obscene; there was no warrant. Nothing prior to seizure afforded a magistrate an opportunity to ‘focus searchingly on the question of obscenity'”). There is no question that the TABC actions failed to comport with the procedural safeguards mandated by a clear line of Supreme Court precedent.

Border patrol set up a “static observation post” on I-40, 12 miles east of Albuquerque, 250 miles from the border. “The government states that the observation post was set up at that location because Department of Homeland Security Intelligence indicates that I-40 is a known alien smuggling corridor. [¶] According to border patrol agents, they had reasonable suspicion that the vehicle may have been engaged in alien smuggling. Specifically, the agents assert that the following factors supported their suspicion: characteristics of the area of the stop, previous experience of the agent with alien traffic, driver’s and passengers’ response to the border patrol observation post, aspects of the vehicle, appearance of vehicle as heavily loaded, cargo inconsistency, ethnicity of occupants and general occupant relationships.” Based on the totality, there was no RS for a stop. “This Court is also struck by the fact that, as a matter of border patrol policy, the further from the border a border patrol stop occurs, the less effort that border patrol agents make to determine whether the vehicle originated from the border.” United States v. Juarez-Torres, 2006 U.S. Dist. LEXIS 52898 (D. N.M. July 21, 2006).

Warrant for fraud records led to officers coming upon child porn. The police did not have to rely on the labels on CD-Roms because files could have been hidden there. United States v. Kearns, 2006 U.S. Dist. LEXIS 66966 (N.D. Ga. September 15, 2006):

Defendant does not contest that the warrant authorized the seizure of electronic storage media and the search of that media for evidence of real estate or financial fraud. Defendant also does not assert that the item of suspected child pornography initially discovered and seized was done so illegally. Rather, Defendant argues that “when Secret Service Agent Murray, . . . came across the first ‘JPG’ file containing suspected child pornography on the defendant’s external media music CD, which exceeded the scope of the warrant, he did not terminate his search of the CD and seek a search warrant for suspected child pornography.” (Id. at 3.)

The Court agrees that a search must be constitutionally reasonable and its scope constitutionally proper. See Horton v. California, 496 U.S. 128, 138 (1990). The Court concludes the search conducted here met these constitutional requirements. Special Agent Murray, who searched the electronic media, considered each kind of storage media before he determined the reasonable method for searching it. In searching a computer generally, which contains very large amounts of data, he opened those files where he was likely to find documents or information described in the warrant, rather than searching each stored item. Smaller storage media, and CDs in particular, required a different approach. For CDs, Special Agent Murray opened each file. This was necessary to insure that he identified all material permitted to be seized pursuant to the warrant, because he knew files could be saved under different names and named to disguise their contents. Defendant argues that procedure should have been altered once Special Agent Murray opened the first file with a .jpg identifier and a suggestive title and discovered suspected child pornography.

Under the facts here, it was not unreasonable for Agent Murray to open briefly each file on CD29 to view it for evidence of fraudulent activity. In this case, the government intercepted a conversation in which Defendant stated he was aware of the investigation and had taken step to alter his electronic storage media, specifically, by deleting information from it. (R&R, at 7-8.) Importantly, Special Agent Murray was aware that in CDs like CD29, files can be saved under a name and extension which disguises the content of the file. Contrary to Defendant’s assertion that Special Agent Murray should have stopped short of opening and viewing the files containing child pornography because he should have known what kind of material each file contained without having to open it, Special Agent Murray was authorized to cursorily review the files to determine if they were covered by the search warrant. (R&R, at 18-19.) The Magistrate correctly pointed out that the warrant authorized the search of photographs related to fraud; therefore the agent was permitted to open and inspect contents of graphical images. In fact, the agent even found financial or business documents that were labeled with a .pdf format, but instead contained pictures. (R&R, at 20.)

Passengers clearly have standing to challenge the stop of their vehicle. The stop was justified, however, by an unsafe turn. Then, reasonable suspicion developed. United States v. Spragling, 2006 U.S. Dist. LEXIS 66908 (S.D. Ohio September 19, 2006).*

Defendant failed to show a Franks violation as showed by the hearing on the motion. The statements were neither false nor reckless. United States v. Olander, 2006 U.S. Dist. LEXIS 66824 (D. Or. September 18, 2006).*

Reopening argument to assert a new ground is within the discretion of the trial court. While this rule is almost always asserted by the defense, here it is raised by the government, and the court disapproves of the government asserting grounds to sustain a search without investigation or research and then having to come up with a new argument to salvage the search after the proof is in. United States v. Gourley, 2006 U.S. Dist. LEXIS 63787 (E.D. Wash. September 7, 2006):

Although the waiver provision has regularly been applied to criminal defendants, the actual language of Rule 12(e) does not limit its application: “A party waives any Rule 12(b)(3) defense, objection, or request not raised ….” Fed. R. Crim. P. 12(e) (emphasis added). Just as a ground for suppression is waived when not timely raised, the Court finds a ground raised in opposition to a motion to suppress may be waived as well. Accordingly, the Court has no duty to consider the Government’s newly-minted theory of administrative seizure. See United States v. Bush, 794 F. Supp. 40, 44 (D.P.R. 1992) (stating the district court “need not consider” an issue in support of a motion to suppress because it was raised for the first time at the suppression hearing and not raised in briefing).

The Government has not shown good cause for the Court to consider its new argument. Instead, the Government has shown a distinct and serious lack of preparation and responsiveness to issues clearly raised. Notably, the Government, in filing its brief, made factual assertions and arguments apparently before conducting an investigation into the facts with the witnesses involved. The Government’s theory that no search ever took place was made without an adequate basis in law or fact. Such representations to the Court made without investigation violate the standard of practice expected from the United States Attorney’s office.

The United States has the largest and most powerful legal office in the nation, if not the world. It has a vital responsibility to criminal defendants, the courts, and to the public to exercise its powers responsibly and justly. Consequently, this Court and the laws of this country hold the Government to a high standard when it brings its authority to bear on individuals such as the Defendant. The Court therefore will exercise its discretion not to permit the Government’s introduction of new grounds in response to Defendant’s motion to suppress.

At the hearing, the Government abandoned its search-incident-to-arrest argument in opposition to Defendant’s motion to suppress. Consequently, the Court finds no warrant exception applies to the Government’s initial search of the vehicle and the evidence observed during this search was illegally obtained.

An officer need not have personal knowledge to have cause to obtain a search warrant. Here, a neighbor previously in an argument with the defendant was the source of information that was detailed and corroborated. Also the warrant was not stale. “Within the past year” is not stale when dealing with firearms. United States v. Waddell, 2006 U.S. Dist. LEXIS 65637 (N.D. Okla. September 13, 2006).

A co-occupant with apparent authority to consent to a search need not be present to consent to the search. United States v. Antwann, 2006 U.S. Dist. LEXIS 65512 (W.D. Mich. September 14, 2006).

Video of defendant during stop and his granting of consent showed that it was valid. “The video recording of Defendant’s consent demonstrated that no coercive police procedures were utilized, Defendant exhibited a desire to cooperate with the officers, and Defendant was not under duress when he consented to the search. Because Defendant’s consent was given freely and voluntarily, the search of the vehicle was legal, and there was no constitutional infirmity in the incriminating statements subsequently made by Defendant. Defendant’s Motion to Suppress is therefore DENIED.” United States v. Cheneau, 2006 U.S. Dist. LEXIS 65468 (S.D. Tex. August 31, 2006).

Controlled buy by a wired informant is probable cause. Defendant was arrested with the informant and placed in the back of a police car, and the informant was told to not converse with the defendant, but he did, and the defendant impliedly admitted being a heroin dealer for twelve years. There was no reasonable expectation of privacy in the back of a police car. State v. Simmons, 2006 Ohio 4751, 2006 Ohio App. LEXIS 4681 (8th Dist. September 14, 2006).

Officers visited a motel for a “business check” and smelled burning marijuana. Walking through the building, they found burning incense in a hallway and heard an aerosol spray in a room. So, they did a knock and talk of the room, and, when defendant opened the door, taking care to conceal the contents, officers could see a gun in his waistband, and that plain view justified their entry. State v. Holloway, 2006 Ohio 4797, 2006 Ohio App. LEXIS 4692 (2d Dist. September 15, 2006)* (Note: This started as an Anders brief, but the court determined under its Penson v. Ohio review that this issue needed to be briefed.)

Issue of validity of entry into defendant’s home, a unit of a housing project, was not presented to the trial court, so it was waived. Consent to search defendant’s purse was a matter of credibility, and record supports the trial court’s finding. State v. Gammons, 2006 Ohio 4766, 2006 Ohio App. LEXIS 4671 (8th Dist. September 14, 2006).*

Reversing its court of appeals (State v. Domicz, 377 N.J. Super. 515, 873 A.2d 630 (2005)), the New Jersey Supreme Court held that a thermal imaging of defendant’s home that was lawful at the time it was done that led to other investigative efforts, including a grand jury subpoena for records, and then knock and talk and a consent search, was not unreasonable. State v. Domicz, 188 N.J. 285, 907 A.2d 395 (September 20, 2006). The first four headnotes:

Under the circumstances, the warrantless thermal scan and seizure of electricity records did not constitute prior unlawful conduct that could have tainted the later search. Grand jury subpoena procedures adequately protect any privacy interest in utility records. Law enforcement officers are not required to have a reasonable and articulable suspicion that criminal activity is occurring within a home before seeking consent to search the residence.

1. The record does not support a conclusion that the detectives engaged in prior unlawful conduct that tainted the consent search. At the time Detective Peacock conducted the thermal scan, a majority of federal courts had ruled that a thermal scan was not a “search” requiring a warrant under the Fourth Amendment. The detective’s failure to predict that one year later the United State[s] Supreme Court would reach the opposite conclusion cannot be considered part of a pattern of illegality or used to impair his credibility. (pp. 12-15)

2. A grand jury subpoena is sufficient to satisfy whatever privacy interest defendant had in his electricity records under Article I, Paragraph 7 of the State Constitution. The Court previously held that grand jury subpoena procedures sufficiently protect citizens’ reasonable expectation of privacy in bank records. There is no persuasive reason why utility records should be given more protection than bank records, which expose more about a person’s private life. (pp. 15-20)

3. The area around a home to which the public is welcome, such as a walkway leading to an entrance, is not given Fourth Amendment protection because the resident has given implied consent to visitors to approach the home that way. When a law enforcement officer walks to a back door of a home to make contact with a resident and, as the trial court found in this case, reasonably believes that the door is used by visitors, there is no unconstitutional trespass. (pp. 21-23)

4. Law enforcement officers are not required to have a reasonable and articulable suspicion that criminal activity is occurring within a home before seeking consent to search the residence. The Court does not extend its decision in State v. Carty, 170 N.J. 632 (2002), which requires a reasonable and articulable suspicion of criminal wrongdoing before seeking consent to search a lawfully stopped motor vehicle, to the search of a home. Carty addressed concerns about racial profiling on New Jersey highways and widespread abuse of consent searches of vehicles stopped for minor traffic violations. There is no claim here that there is an abuse of consent searches of homes or that minority residents are disproportionately targeted by such searches. Also, a person in his home is under less compulsion to consent to a search than a motorist on the highway after a motor vehicle stop. (pp. 24-33)

Illinois holds that a defendant who succeeded in getting a new trial on post-conviction a decade after his original trial was barred from relitigating his suppression issues that were raised and denied in the first case but not appealed. The court, however, left a crack in the door for a change in circumstances. People v. Sutherland, 2006 Ill. LEXIS 1109 (September 21, 2006):

Based on our review of the record in the present case, we conclude that the issues raised in defendant’s suppression motions filed on remand were previously raised and litigated in defendant’s first trial and that the doctrine of collateral estoppel bars relitigation of the trial court’s earlier pretrial ruling. We also conclude that defendant has failed to identify special circumstances or additional evidence that would warrant relitigation. Accordingly, the trial court did not err in declining to hold an evidentiary hearing on defendant’s suppression motions.

…

Although defendant challenged the trial court’s denial of his suppression motion in his posttrial motion for a new trial, he did not raise the issue on direct appeal following his first trial. Defendant also did not argue in his postconviction petition that appellate counsel was ineffective for failing to raise the issue on direct appeal.

…

Considerations of judicial economy aside, the trial court’s earlier ruling that the police officers acted in good faith encompasses this new ground for suppression. Defendant’s failure, however, to challenge on appeal the trial court’s good-faith finding barred relitigation on remand. See Enis, 163 Ill. 2d at 386. Further, because defendant also failed to challenge the trial court’s earlier ruling that defendant had abandoned his vehicle and therefore had no legitimate expectation of privacy in the vehicle, the issue of whether the officers were on notice that the warrant was facially invalid is moot.

…

This court has recognized an exception to the bar of collateral estoppel where “special” or “exceptional” circumstances exist. Enis, 163 Ill. 2d at 386; Gilliam, 172 Ill. 2d at 506. Special circumstances have been found where a defendant is acquitted and thereby denied the opportunity to appeal the trial court’s ruling. In such a case, collateral estoppel will not bar relitigation of the trial court’s ruling in a subsequent proceeding. People v. Mordican, 64 Ill. 2d 257, 261, 1 Ill. Dec. 71 (1976). Similarly, where the evidence a defendant unsuccessfully sought to suppress in his first trial was not relied upon by the State, the defendant will not be precluded, on remand, from relitigating the trial court’s ruling because the issue would have been considered moot in his first appeal. See People v. Savory, 105 Ill. App. 3d 1023, 1027-28, 61 Ill. Dec. 737 (1982); see also People v. Smith, 72 Ill. App. 3d 956, 962, 28 Ill. Dec. 766 (1979) (holding that defendant was not precluded from relitigating issues on remand concerning the validity of a search warrant where issues were presented to, but not decided by, the appellate court).

Here, defendant has identified no special circumstances that prevented him from seeking or obtaining review of the trial court’s denial of his suppression motion on direct appeal from his first trial or in his petition for postconviction relief. Nor has defendant identified any case law supporting his argument that trial counsel’s ineffectiveness in failing to investigate and present certain evidence during his first trial “negates” the applicability of the collateral estoppel doctrine on remand.

Police received an anonymous 911 call that somebody was asleep or passed out behind the wheel of a car on a Wendy’s parking lot. When the officer arrived, the vehicle was leaving. The officer was justified in stopping the motorist because of the possibility that there was some condition that caused his original stupor that might still arise, all under the community caretaking function. State v. Brunk, 2006 Iowa App. LEXIS 1082 (September 21, 2006).

Officer lacking objectively reasonable facts to conclude that license plate was not properly illuminated had no basis for stop. Suppression order affirmed. State v. Nieves-Rivera, 2006 Iowa App. LEXIS 1099 (September 21, 2006).*

Stop based on possible violation of a domestic protective order was valid even though the officer was not aware that the defendant had not been served with it. “Given the fact that [Officer] Blakely knew a protective order had been obtained restricting Wilson’s contact with [his estranged wife], we believe the officer would have been subject to criticism had he not briefly detained Wilson to investigate the circumstances surrounding [her] report and to inquire whether the occupants of the vehicle fitting [her] description were involved in the incident.” DWI affirmed. State v. Wilson, 2006 Iowa App. LEXIS 1100 (September 21, 2006).*

Police received an uncorroborated anonymous tip about drugs and guns being kept in proximity to children. They went to defendant’s house to do a knock and talk, and she would not let them in. Back up arrived, and they knocked again and decided to arrest her based on the marijuana smell in her hair. Officers entered and searched for children, not finding any. One searched what he believed was a child’s backpack for a clue as to location of children and found marijuana. The search lacked justification and was suppressed. VanSlyke v. State, 936 So. 2d 1218 (Fla. App. 2d Dist. September 13, 2006):

Whether a warrantless search is justified by such an emergency does not turn on the “subjective motivation” of the police. [Brigham City, 126 S. Ct.] at 1948. “An action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify [the] action.” Id. (some internal quotation marks omitted) (alteration in original). Accordingly, “[the] police may enter a residence without a warrant if an objectively reasonable basis exists for the [police] to believe that there is an immediate need for police assistance for the protection of life.” Seibert v. State, 923 So. 2d 460, 468 (Fla. 2006). “In other words, where safety is threatened and time is of the essence, . . . ‘the need to protect life and to prevent serious bodily injury provides justification for an otherwise invalid entry.'” Riggs v. State, 918 So. 2d 274, 279 (Fla. 2005) (quoting Arango v. State, 411 So. 2d 172, 174 (Fla. 1982)). “[A] key ingredient of the exigency requirement is that the police lack time to secure a search warrant.” Rolling v. State, 695 So. 2d 278, 293 (Fla. 1997). In addition, “an entry based on an exigency must be limited in scope to its purpose. Thus, an officer may not continue her search once she has determined that no exigency exists.” Id. “[T]he burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.” Welsh v. Wisconsin, 466 U.S. 740, 750 (1984).

A phone call reporting child abuse may, of course, provide the basis for conducting a warrantless entry to render emergency assistance to an injured child or to protect a child from imminent injury. But for a report to justify a warrantless entry, the report–considered in the context of the totality of relevant circumstances–must provide “an objectively reasonable basis” for the police “to believe that there is an immediate need for police assistance,” Seibert, 923 So. 2d at 468, to “render emergency assistance” to an injured child or to protect a child from a threat of “imminent injury,” Brigham City, 126 S. Ct. at 1947.

…

In the instant case–unlike Boggess–the record is devoid of any details that would provide support for the conclusion that the report of abuse was reliable. Even though the identity of the person making the report was known to DCF, there is no showing concerning the basis for the informant’s knowledge of the supposedly threatening circumstances. There is nothing in the record to show that the information provided by the citizen informant was based on the informant’s personal knowledge. Although information provided by a “‘citizen-informant'” is ordinarily considered to be “at the high end of the tip-reliability scale,” State v. Maynard, 783 So. 2d 226, 230 (Fla. 2001), a particular “informant’s ‘veracity’ or ‘reliability’ and his ‘basis of knowledge'” must always be “understood as relevant considerations in the totality-of-the-circumstances analysis” that guides the determination of the reasonableness of reliance by the police on the information provided by the informant, Gates, 462 U.S. at 233. Here, the record shows no basis in the abuse report itself or in the surrounding circumstances for crediting the report of abuse.

A state search warrant adopted by the feds in United States v. Hansel, 2006 U.S. Dist. LEXIS 76683 (N.D. Iowa October 20, 2006), included “thumb drives” in the description of computer equipment to be seized. The issue there, however, was whether photographs could be seized in a child porn warrant when the officers had to look fairly intensively for them. “A warrant to search a residence generally extends to every part of the residence in which the items sought may be found. United States v. Ross, 456 U.S. 798, 820-21 (1982); see also United States v. Hughes, 940 F.2d 1125, 1127 (8th Cir. 1991) (‘A lawful search extends to all areas and containers in which the object of the search may be found.’).”

Neighbors complained of drug deals in the area, so police set up surveillance. Defendant, a known drug dealer, showed up, and apparent hand to hand sales with cars were occurring. The officers observed three sales and moved in, one defendant tried to run into a house, and the police gave chase. The entry was valid. United States v. Goode, 2006 U.S. Dist. LEXIS 76767 (E.D. Pa. October 20, 2006).*

Defendant’s consent was not an acquiescence to authority. It was apparent that he knew the evidence would ultimately be found, and he decided to get it over with. United States v. Mendoza-Rodriguez, 2006 U.S. Dist. LEXIS 76625 (N.D. Ga. October 17, 2006).*

Consent was found voluntary under the totality of circumstances. Here, the defendant consented twice, and, while there were multiple officers arriving at the scene, defendant only talked to one. Navarro v. State, 855 N.E.2d 671 (Ind. App. October 23, 2006).*

Police unlawfully entered defendant’s girlfriend’s house and the consent they obtained after that was not purged of the taint. Black v. State, 281 Ga. App. 40, 635 S.E.2d 568 (August 10, 2006).*

Defendant 400′ away from building when warrant was executed could not be detained under Summers. State v. VanHecke, 2006 Iowa App. LEXIS 954 (August 9, 2006):

Here, VanHecke was not present in or anywhere near the structures or curtilage listed in the search warrant when the officers arrived to execute the warrant or began doing so. He was at least 400 yards away in a hay field. Although the district court found VanHecke was “within [sight] of the officers while at the house,” we find no evidence in the record to support such a finding. The record does not affirmatively indicate that while the officers were at the residence they could see VanHecke or that he could see them. To the contrary, although the record is not entirely clear on this point it seems to affirmatively demonstrate that VanHecke was not readily visible from the residence, because Deputy Eckhardt had to ask VanHecke’s father where to find him. Deputy Eckhardt testified he then headed out to the hay field that VanHecke’s father “had pointed me toward,” and on his “way out there, maybe 400 yards, an estimate, on the top of the knoll” is where he found a truck with VanHecke in it.

Officer had RS that defendant was a prostitute based on her dress and actions and not on her race. State v. Wise, 2006 Iowa App. LEXIS 976 (August 9, 2006).*

After DUI arrest, officer found open bottle of vodka in plain view just as inventory was starting. [It would also be likely admissible under SI.] State v. Delao, 2006 MT 179, 140 P.3d 1065 (August 8, 2006).*

Weaving truck was stopped, and the fact that the wind was blowing enough to possibly cause it was balanced out by the officer’s observation that other trucks did not have the same difficulty. Therefore, the initial stop was justified and reasonable. United States v. Egan, 2006 U.S. Dist. LEXIS 61305 (D. Kan. August 25, 2006).*

Taking as true defendant’s representations in his moving papers, it was apparent that he did not have standing to challenge the search of the bedroom in the house where he used to stay, and others have stayed there since. United States v. Diggs, 2006 U.S. Dist. LEXIS 60994 (S.D. N.Y. August 25, 2006).*

The question was the timing of consent, and oral consent granted before it was memorialized in a written form was still valid, so, if defendant’s coat was seized after the oral consent but before the written consent was signed, it was still valid here. State v. Jones, 2006 MT 209, 333 Mont. 294, 142 P.3d 851 (August 29, 2006).

Reasonable suspicion for use of a drug dog during an otherwise valid traffic stop was supported by defendant’s obvious nervousness, his prior record for drugs, and the fact he had parked outside a known drug house. And, counsel was not ineffective for chosing this approach over challenging it as a parole search. State v. Meza, 2006 MT 210, 333 Mont. 305, 143 P.3d 422 (August 29, 2006).*

Under Oregon statute, officers lack the authority to run wants and warrants on a passenger during a traffic stop. The statute, however, does not provide a suppression remedy. Turning to the state constitution, the court finds that it was violated. The Oregon constitution is not based on a deterrence rationale like the Fourth Amendment. Instead, it vindicates personal rights. State v. Thompkin, 341 Ore. 368, 143 P.3d 530 (September 14, 2006):

The facts at issue here are similar to those in Hall. Here, one officer (Hill) requested and retained defendant’s identification to conduct a records check, including a check for outstanding warrants. While awaiting the results of that check, another officer (Reagan) questioned defendant concerning drugs and weapons, which prompted defendant to surrender the crack pipe. Here, as in Hall, we find it doubtful that a reasonable person in defendant’s position would think that he or she was free to leave at a time when that person was the investigatory subject of a pending warrant check and was being questioned about illegal activity. See id. at 19 (so stating). In view of those facts, defendant was unlawfully seized under Article I, section 9, because her liberty of movement was significantly restrained under the totality of the circumstances. See State v. Painter, 296 Ore. 422, 425, 676 P.2d 309 (1984) (holding that officer’s action of retaining defendant’s identification cards constituted seizure because it had practical effect of making defendant unable to leave).

Having concluded that defendant was unlawfully “seized” for purposes of Article I, section 9, we must next determine whether suppression of the evidence obtained during that illegality is required. As noted above, the trial court concluded that defendant had voluntarily surrendered the crack pipe in response to Reagan’s questioning. Again, Hall is the guiding precedent on this issue. In Hall, this court reiterated that the Oregon exclusionary rule is not predicated upon a deterrence rationale like its Fourth Amendment counterpart, but is a “constitutionally mandated rule that serves to vindicate a defendant’s personal rights.” 339 Ore. at 24. See State v. Davis, 313 Ore. 246, 249, 834 P.2d 1008 (1992) (holding that protection against unreasonable searches and seizures under Article I, section 9, includes right “to be free from the use of evidence that has been obtained in violation of the defendant’s rights prescribed by that provision”). “Thus, in deciding the applicability of the Oregon exclusionary rule, the critical inquiry is whether the state obtained the evidence sought to be suppressed as a result of a violation of the defendant’s rights under Article I, section 9.” Hall, 339 Ore. at 24.

SI was reasonably contemporary with arrest. “[T]he validity of such a search does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.” State v. Oyenusi, 387 N.J. Super. 146, 903 A.2d 467 (August 3, 2006).

Consent found from “I don’t care” to first request and “go ahead” to second. State v. Davis, 2006 N.C. App. LEXIS 1668 (August 1, 2006).*

Consent to search in a capital case was found from defendant’s statement: “I don’t care, you do what you have to do. I want you to get the person who did this to my Robert.” State v. Roberts, 110 Ohio St. 3d 71, 2006 Ohio 3665, 2006 Ohio LEXIS 2174 (August 2, 2006).*

Defendant’s testimony that officer said he could smell raw marijuana was pertinent to the trial court’s finding that the officer did, in fact, smell raw marijuana, and that was PC for arrest. State v. Sellards, 2006 Ohio 3924, 2006 Ohio App. LEXIS 3895 (5th Dist. August 1, 2006).*

Defendant trespassing in a vacant house had no standing to contest a search of it. Officer came by and saw the door open and went in and saw what appeared to be him a place where drugs were repackaged. Told supervisors who then directed that the house be watched. When it was occupied, officers did a knock and talk. Gouldsby v. State, 202 S.W.3d 329 (Tex. App. – Texarkana August 3, 2006).

Defendant was stopped on the highway, and the officer testified that he could smell marijuana coming from a baggie within a few seconds of walking up to the car window. The court does not buy it. United States v. Jennings, 2006 U.S. Dist. LEXIS 74972 (M.D. Fla. October 16, 2006):

The Government has failed to demonstrate that Cavanaugh had probable cause to search Jennings’ vehicle. The Government’s contention that the search was reasonable is based solely on Cavanaugh’s testimony that within a few seconds of standing outside the vehicle he could smell a small amount of cannabis which was sealed in a plastic bag several feet away in the center console. This unplausible scenario is without corroboration.

Although the Court has a poor sense of smell, it could not detect any odor emanating from the bag, even when held close. Even Cavanaugh admitted in his testimony that he could detect no odor from the bag at the hearing, claiming that the conditions in the courtroom were not the same as those in the truck. This Court has never before encountered a “drug sniffing deputy.” Typically, specially trained dogs, not humans, are used to identify marijuana by scent alone. (footnotes omitted)

Inventory of boat being towed behind a vehicle was invalid, but it was based on consent. The view of the boat led to officers getting a search warrant for evidence of alien smuggling. United States v. Zaldivar, 2006 U.S. Dist. LEXIS 75005 (M.D. Fla. October 16, 2006).*

Record supported a finding of consent. Defendant signed a consent form and followed the officers around during the search. United States v. Turner, 2006 U.S. Dist. LEXIS 75346 (N.D. N.Y. October 4, 2006).*

On a preapproved no-knock provision, assuming a violation, reviewing the question of good faith first, the court finds that the affidavit was sufficient for application of the good faith exception to the exclusionary rule. (Hudson not cited because the case was decided just before Hudson.) United States v. Robinson, 2006 U.S. Dist. LEXIS 75325 (D. Minn. May 19, 2006).*