Home Depot is running an ad this month (click on "Pulled Over Santa") where Santa Claus is pulled over by an officer who asks for his license and registration. Santa can't find the registration, and he sits back looking resigned to the fact that something bad may be in the offing. The elf nervously waves to the officer. The officer then asks: "What's in the bag?"

So, if kids, or even the general public, see this ad, are they supposed to believe that it is legally permissible for a police officer during a traffic stop to ask "What's in the bag?"

The ad is funny on one level because it shows the reality of stops of suspicious characters. It is deathly serious on another level if the public thinks that this police conduct is de rigueur and lawful. (The ad appears to have been produced in Canada for Home Depot.)

Update: No, there is no reasonable suspicion. There is no excessive nervousness, failure to make appropriate eye contact, talkativeness, or furtive movements from Santa or the elf or overpowering smell of air fresheners or obvious modifications to the sleigh for a compartment where contraband could be hidden. Also, it appears unlikely from the video that there was any a bona fide moving violation to pull the sleigh over in the first place. There was, however, no registration in hand. That does not, however, translate into justification for the officer to ask "What's in the bag?" How many innocents are stopped and subjected to the same routine for every one that gets arrested? Without police stop statistics, we can never know.

A few years ago, I bought an enlargement of NACDL's Champion cover that showed Santa Claus being rousted, hands up and "assum[ing] the position" at the border by officers from every police agency, going through the sleigh and his bag. The ATF bomb disposal expert examining a box is the best character of the six shaking down Santa Claus. I pull that one out every year to get into the Christmas cheer. And this was before some of the media manufactured a "War on Christmas."

Motion to terminate a 1982 consent decree against strip searches at a county jail is granted under the Prison Litigation Reform Act, 18 U.S.C.S. § 3626(b)(1)(A)(iii). The fact that there were some complaints of unconstitutional strip searches in the last few years is insufficient to keep the case in court. Regan v. County of Salt Lake, 2006 U.S. Dist. LEXIS 89472 (D. Utah December 11, 2006):

Plaintiffs' meager allegations that the existence of two lawsuits against Salt Lake County alleging improper strip searches, which were settled in 1999, as well as certain "ambiguous and/or highly invasive" provisions of the Salt Lake County Jails Policy Manual "suggest" that there are current and ongoing violations of detainees' federal rights are not a sufficient basis upon which the court could make written findings that the prospective relief contained in the Consent Decree remains necessary to prevent Defendants from engaging in a current and ongoing violation of detainees' federal rights. Because Plaintiffs have not alleged specific facts which, if true, would amount to a current and ongoing constitutional violation, the court, in its discretion, finds that an evidentiary hearing is not necessary in this case and that pursuant to the PLRA, the Consent Decree should now be terminated. Therefore, IT IS ORDERED that Defendants' Second Motion to Terminate is hereby GRANTED.

Defendant was stopped for a traffic offense, and he was driving without a valid license. The officer gave him a warning and let the passenger drive. He said they were free to go. As the defendant was going back to his car, the officer mentioned there being "trouble" with guns and contraband and asked for consent, which the defendant agreed to. A drug dog alerted, and a search found cocaine. The search was valid. Garvin v. State, 283 Ga. App. 242, 641 S.E.2d 176 (December 13, 2006).*

In an IAC claim, the court found ample probable cause to believe that the defendant had illegal drugs in his house. The fact the warrant did not specify stolen property would not have changed the outcome. Edwards v. State, 2006 Iowa App. LEXIS 1723 (May 10, 2006).*

The Wisconsin Court of Appeals refuses to reject Miller on there being no reasonable expectation of privacy in bank records under its state constitution. State v. Popenhagen, 2007 WI App 16, 728 N.W.2d 45 (December 12, 2006).* [The reason that the state constitutional provision is virtually identical to the Fourth Amendment is never a controlling factor at all, except where a court can't think of a better reason.]

Defendant was stopped for not having a seatbelt on. By the time the officer made a U-turn and stopped him, he was parked in front of his house. Defendant did not have proof of insurance, and a warrants check produced a warrant. The officer impounded the car and conducted an inventory that produced a gun. The community caretaking function did not justify the search. People v. Williams, 145 Cal. App. 4th 756, 52 Cal. Rptr. 3d 162 (2d Dist. December 13, 2006):

No community caretaking function was served by impounding appellant's car. The car was legally parked at the curb in front of appellant's home. The possibility that the vehicle would be stolen, broken into, or vandalized was no greater than if Morton had not stopped and arrested appellant as he returned home. In this regard, it is significant that other cars were parked on the street and that it was a residential area. The prosecution made no showing that the car was blocking a driveway or crosswalk, or that it posed a hazard or impediment to other traffic. Because appellant had a valid driver's license and the car was properly registered, it was not necessary to impound it to prevent immediate and continued unlawful operation. (Cf. People v. Benites (1992) 9 Cal.App.4th 309 [impoundment proper where neither driver nor passenger had valid driver's license]; People v. Burch (1986) 188 Cal. App. 3d 172, 232 Cal. Rptr. 502 [impoundment proper where car's registration tag was expired and driver's license was suspended].) No other justification that would further a community caretaking function was offered or supported by evidence. Indeed, Morton admitted he decided to impound the car simply because he was arresting appellant and almost always impounded the cars of drivers he arrested. The prosecution simply did not establish that impounding appellant's car served any community caretaking function. It therefore failed to establish the constitutional reasonableness of the seizure and subsequent inventory search.

Traffic stop for running a stop sign that did not exist led to officer searching a backpack on the passenger side of the car at defendant's feet without consent. The trial court suppressed, the state court of appeals affirmed, and the state sought leave to appeal to the state supreme court which remanded for a standing inquiry. On remand, the Michican Court of Appeals said that standing was irrelevant because the search could not be justified by any rationale offered by the state. People v. Labelle, 273 Mich. App. 214, 729 N.W.2d 525 (2006):

Turning to the second argument first, we are not persuaded that the search incident to arrest doctrine is applicable to this case. Michigan courts have held that the search incident to arrest exception to the warrant requirement "applies whenever there is probable cause to arrest, even if an arrest is not made at the time the search is actually conducted." But none of these cases involved traffic stops and the United States Supreme Court has made it clear that the search incident to arrest doctrine does not apply to a traffic stop which does not result in arrest, even if the officer would have been justified in making an arrest.

In Knowles, the officer stopped the defendant for speeding. Although Iowa law authorized the officer to arrest the defendant, the officer issued a citation instead. The officer then conducted a full search of the vehicle, discovering a bag of marijuana and a "pot pipe" under the driver's seat, resulting in the defendant's arrest. The defendant challenged the search, with the prosecution relying on the search incident to arrest doctrine. The Iowa Supreme Court ruled in favor of the prosecution, concluding that a "full-blown search" is authorized where probable cause to make a custodial arrest existed, even though no such arrest was made.

In rejecting the argument that a search incident to arrest is justifiable in such circumstances, the Court noted that neither of the two rationales for such searches applies in the traffic stop scenario which does not result in a full custodial arrest. The first rationale is the need to disarm a suspect when taking him into custody. The Court noted that the concern for officer safety is significantly less in the traffic citation situation because the encounter is briefer (because the suspect is not being transported to jail) and a person receiving a citation might well be less hostile to the police than one who is formally arrested. The Court was satisfied that the actions that police may take for their safety during a traffic stop, such as ordering the occupants out of the vehicle, were adequate without the need for a full-blown search of the vehicle.

The second rationale behind the search incident to arrest doctrine is the need to preserve evidence for later use at trial. The Court found no basis under this rationale because a search of the vehicle would not yield any additional evidence of the offense for which the citation was issued, namely speeding. The Court further rejected the argument that the search could be justified because it might yield evidence of an "as yet undetected crime."