Habeas petitioner's attempt to cast manufactured exigent circumstances claim as a Fourteenth Amendment issue rather than a Fourth Amendment issue did not circumvent Stone. COA denied. Barber v. Jones, 2008 U.S. App. LEXIS 11526 (10th Cir. May 28, 2008):

Mr. Barber argues that Stone does not apply to this issue, because the arresting officers' conduct in "creating an 'exigent circumstance' through fraud and de[]ception ... was in violation of the 14th Amendment and that is not the same as the 4th Amendment." Aplt. Br. at 16. A person who asserts that his arrest or physical incarceration was unreasonable or unwarranted, however, is making a Fourth Amendment argument-he cannot use the Fourteenth Amendment as "a fallback to protect interests more specifically addressed by the Fourth Amendment in this context." Becker v. Kroll, 494 F.3d 904, 919 (10th Cir. 2007). Mr. Barber's claim is a Fourth Amendment claim, and it is barred by Stone.

District court's finding that defendant was not an overnight guest with standing was supported by the evidence. United States v. Smith, 282 Fed. Appx. 143 (3d Cir. 2008) (unpublished).*

Defendant failed to show a Franks violation. United States v. Hawkins, 2008 U.S. App. LEXIS 11439, 2008 FED App. 0292N (6th Cir. May 23, 2008) (unpublished).*

The nature of a computer as a repository of personal data and technological changes did not change the rationale that a computer can be searched under a warrant that identifies it and shows probable cause for its search. United States v. Giberson, 527 F.3d 882 (9th Cir. 2008):

Giberson does not deny that it was reasonable in this case for the agents to believe that the documents specified in the warrant might be found on his computer. Rather, he argues that the analogy between a computer and other "containers" is not appropriate because computers are somehow entitled to heightened protection, and are searchable only when specified in the warrant. We observe at the outset that Fourth Amendment exceptions and distinctions based solely on a type of technology are "unwise[ ] and inconsistent with the Fourth Amendment." See Kyllo v. United States, 533 U.S. 27, 41 (2001) (Stevens, J., dissenting). Technology changes. To be acceptable, Giberson's argument must be based on a principle that is not technology-specific. Though Giberson offers several rationales for treating computers differently from storage mediums such as filing cabinets and briefcases, none is persuasive.

Giberson's principal argument is that computers are able to store "massive quantities of intangible, digitally stored information," distinguishing them from ordinary storage containers. But neither the quantity of information, nor the form in which it is stored, is legally relevant in the Fourth Amendment context. While it is true that computers can store a large amount of material, there is no reason why officers should be permitted to search a room full of filing cabinets or even a person's library for documents listed in a warrant but should not be able to search a computer. Giberson's purported exception would also create problems in analyzing devices with similar storage capacities. If we permit cassette tapes to be searched, then do we permit CDs, even though they hold more information? If we do not permit computers to be searched, what about a USB flash drive or other external storage device? Giberson's purported exception provides no answers to these questions.

Similarly, attempting to limit Fourth Amendment searches based on the format of stored information would be arbitrary. We have already held that microcassettes, which store data differently from traditional paper, are seizable in a search for "records." See Gomez-Soto, 723 F.2d at 652. There is no reason why material stored digitally on a computer should not also be searchable. Once again, Giberson's purported exception generates more questions than answers: If we permit a person's Day-Timer to be searched, what about one's Black-Berry? The format of a record or document should not be dispositive to a Fourth Amendment inquiry.

Giberson's purported rule creates a brightline exception to the Fourth Amendment that provides no principles by which to evaluate whether a search is reasonable. The Supreme Court has consistently eschewed such brightline rules. See Ohio v. Robinette, 519 U.S. 33, 39 (1996). Here, the only principle upon which we can anchor this analysis is the one already articulated by this court: that to search a container, it must be reasonable to expect that the items enumerated in the search warrant could be found therein. If it is reasonable to believe that a computer contains items enumerated in the warrant, officers may search it. Here, numerous documents related to the production of fake I.D.s were found in and around Giberson's computer and were arguably created on and printed from it. It was therefore reasonable for officers to believe that the items they were authorized to seize would be found in the computer, and they acted within the scope of the warrant when they secured the computer.

Shutting a dresser drawer that had been opened by consent did not work to prevent the officer from seizing contraband that he had already seen. Revocation of consent after a plain view of contraband is ineffective to prevent a seizure. State v. Ford, 220 Ore. App. 247, 185 P.3d 550 (2008).*

State confessed error that the officer held defendant's identification too long and asked for consent. State v. Adams, 220 Ore. App. 305, 185 P.3d 570 (2008).*

Placing a paper temporary plate in the rear window was not a violation of state law, so defendant's stop was invalid, and the inventory search thereafter was unreasonable. Young v. State, 886 N.E.2d 636 (Ind. App. 2008).*

Under these facts, a casino employee in Michigan ousting a patron is a state actor because they are licensed by Michigan law. Moore v. Detroit Entm't, LLC, 279 Mich. App. 195, 755 N.W.2d 686 (2008).*

Officers surrounded defendant's house looking for a shooting suspect. They knocked on the door and, when it was opened, they smell burning marijuana. The defendant consented to an entry to recover the marijuana. The officer's guns were not drawn. State v. Nelson, 2008 Ohio 2530, 2008 Ohio App. LEXIS 2130 (9th Dist. May 28, 2008).*

One person's assertion of control over a duffel bag created apparent authority to search it, even though they didn't have authority. United States v. Purcell, 526 F.3d 953, 2008 FED App. 0202P (6th Cir. 2008):

In the case at hand, when the agents began their search of the luggage in the hotel room, they had a good-faith basis to believe that Crist had authority to consent. Crist asserted that the duffel bag that yielded the marijuana was hers, and her purse was sitting on top of the duffel bag. Crist's statements created apparent authority for the officers, and their search of the duffel bag was justified because they acted in good-faith reliance upon Crist's assertions. Purcell acknowledges in his brief that the officers reasonably relied upon Crist's assertion of authority over the duffel bag.

Reasonable suspicion that all occupants of a vehicle were involved in carrying contraband justified extending the stop. This was not mere propinquity to somebody else for which there was reasonable suspicion, a different situation. United States v. Rivera, 2008 U.S. Dist. LEXIS 41613 (D. Conn. May 27, 2008).*

Shooting an officer during an illegal entry would not be suppressed. It is not exploitation of the prior illegality. State v. Deisz, 145 Idaho 826, 186 P.3d 682 (App. 2008):

Although the officers acquired evidence of Deisz's violent actions in close temporal proximity to their allegedly unlawful intrusion, this close temporal proximity is outweighed by the other factors in the Brown test. In Schrecengost, this Court held that Schrecengost's actions--grabbing contraband seized from her at jail and attempting to flush it down the toilet after an illegal arrest--were her own and were independent of any police coercion caused by the illegal arrest and search for evidence. Accordingly, the intervening circumstance factor strongly militated against suppression. Schrecengost, 134 Idaho at 550, 6 P.3d at 406. Likewise, Deisz's independent illegal acts of shooting one officer and aiming his gun at another were his own actions independent of any police coercion caused by the intrusion into his residence. We do not accept Deisz's assertion that the officers' intrusion was stealthy and therefore precipitated his illegal actions. Deisz averred in his affidavit that the officers did not knock or announce they were entering through the garage entrance. The record before us, however, does not contain evidence contradicting the officers' testimony that they contacted Deisz over a cellular telephone and that they announced their presence just prior to when he shot at them. Finally, suppressing evidence related to Deisz's shooting at the officers would not provide any deterrent effect to illegal police conduct. The rationale of the exclusionary rule is that police officers, knowing that unlawfully discovered evidence will be excluded at a subsequent trial, will avoid illegal conduct to the best of their ability. Id. at 550, 6 P.3d at 406. The police in the instant case did not enter Deisz's residence with the expectation that he would shoot at them and they would obtain evidence of that criminal activity.

IRS summons enforcement action does not require that the IRS show probable cause to believe that it will find anything. All that is needed under Powell is a legitimate purpose. United States v. Schlabach, 2008 U.S. Dist. LEXIS 41353 (E.D. Wash. April 18, 2008).*

The justifiable extension of the detention was reasonable when it was caused by the language barrier between the officer and the defendant. United States v. Martinez, 2008 U.S. App. LEXIS 11267 (5th Cir. May 27, 2008) (unpublished).*

Temporary tag in the window was properly displayed and the videotape showed it, so the stop based on its being improperly displayed was invalid. United States v. Ontiveros-Salazar, 2008 U.S. Dist. LEXIS 41248 (D. Utah May 22, 2008).*

"The transcript of the motion to suppress in Davenport's case bears witness to Davenport having had 'both the incentive and the, opportunity to fully and fairly litigate the issues in the criminal proceeding,' Pattershall v. Jenness, 485 A.2d 980, 983 (Me. 1984), and under these circumstances, it would be fair to preclude Davenport from raising his probable cause for arrest argument as well as his investigatory stop claim." Davenport v. City of Caribou, 2008 U.S. Dist. LEXIS 41448 (D. Me. May 22, 2008).*

Standing was not litigated during the suppression hearing, but, when the evidence was offered in the state's case in chief, the defendant objected again, and state argued the defendant lacked standing and the defendant had no evidence of standing, and the trial court agreed with the state. The question of admissibility of evidence is open until the trial. Gregory v. State, 2008 Ind. App. LEXIS 1149 (May 5, 2008).*

Use of force against an autistic man who was resisting was not excessive. Plaintiff also received medical treatment right away. Cooper v. Worsham, 2008 U.S. Dist. LEXIS 41191 (W.D. Ky. May 22, 2008).*

Officer had sufficient probable cause for plaintiff's arrest despite claim that the officer falsified the serial number on a $20 bill in his report to justify the arrest. Fox v. Graff, 276 Fed. Appx. 936 (11th Cir. 2008) (unpublished).*

(Website was bogged down this morning for some unknown reason.)

Officers on plaintiff's back porch at 11:30 p.m. were clearly on the curtilage and not open fields, and they were not permitted to be there. The plaintiff had a subjective and reasonable expectation of privacy in his hown as to a view in the back door at that hour. Young v. City of Radcliff, 561 F. Supp. 2d 767 (W.D. Ky. 2008):

The first question under Katz is whether Young manifested a subjective expectation of privacy in the object of the challenged search. Burton and Smallwood's testimony indicates that they were peering into the interior of Young's home through his glass back doors, effecting a visual search of the interior of Young's home. The Supreme Court has described observation of the interior of the home as "the prototypical ... area of protected privacy." Kyllo, 533 U.S. at 27. Indeed, "[a]t the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion." Id. at 31 (quoting Silverman v. United States, 365 U.S. 505, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961). It is hardly remarkable, therefore, to conclude that Young could subjectively expect privacy when he was inside a room at the back of his home at 11:30 at night. Cf. Ciraolo, 476 U.S. at 215 (quoting Katz, 389 U.S. at 361) (Harlan, J. concurrence)) (noting, "a man's home is, for most purposes, a place where he expects privacy ...").

The second part of the Katz inquiry examines whether this expectation was one society recognizes as reasonable, or in other words "what the person wanted to protect his privacy from, for example, non-family members ... strangers passing by on the street." Widgren, 429 F.3d at 579 (citation omitted). The Fourth Amendment protection of the home does not "require law enforcement officers to shield their eyes when passing by a home on public thoroughfares. Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer's observations from a public vantage point where he has a right to be and which renders the activities clearly visible." Ciraolo, 476 U.S. at 213.

Officers had detailed and corroborated information about defendant's drug activity from a CI and that gave reasonable suspicion to stop him under their collective knowledge. United States v. Motley, 561 F. Supp. 2d 1174 (D. Nev. 2008).*

Officers' entry into defendant's apartment was not justified by hot pursuit because the officers had not seen defendant in 40 minutes (United States v. Johnson, 256 F.3d 895, 908 (9th Cir. 2001) (30 minutes not hot pursuit)) and they were going door to door at 4 a.m. looking for him. Consent obtained from defendant's wife based on officers' threat to get a warrant was valid because the officers by then had enough probable cause to get a warrant. The subsequent consents were valid, too. State v. Ballou, 2008 Ida. App. LEXIS 50 (May 22, 2008).

Defendant did not have a reasonable expectation of privacy in files on a computer somebody else let him use in the other person's house, and that person could consent to a search of the computer. As for password protected files, the police had no duty to inquire into whether some files might have been password protected by defendant on another person's computer before EnCase was used to make a mirror image of the hard drive. People v. Brown, 279 Mich. App. 116, 755 N.W.2d 664 (2008).*

A federal search warrant for a computer of a member of the military seized from his apartment off base on an oral search authorization was valid. Appellant had taken pictures at a party where a sexual assault was alleged to have occurred, and OSI was investigating. He voluntarily showed them pictures on his computer, but they felt that there were more. They came back and seized the computer because there was evidence on it. He was not a suspect in any crime. After the seizure, OSI figured out that they should get a written search authorization. At the time the warrant was issued, the USMJ asked whether the hard drive of the computer had been searched, and they said it hadn't. The officers, however, had clicked on photographs which was beyond the authority in the oral search authorization because she was curious whether child pornography was on the computer. The search was thus invalid. United States v. Osorio, 66 M.J. 632 (A.F. C.A. 2008):

Here we find SA JL exceeded the scope of the search warrant the minute she opened the thumbnail to, in her own words, "make sure it was not contraband." SA JL admitted on cross-examination that she opened the thumbnail to verify if the picture was child or adult pornography, not to verify it was a mirror image of the other computer or to review a photograph taken on February 12, 2005. Having testified that she was not aware of the terms of the warrant and that once she opened the picture directory tree, her job was done, we find that SA JL was not acting within the scope of the warrant at the time of the discovery of the first suspect image.

As in Carey, the terms of the first warrant did not authorize SA JL to conduct a general search. She was only authorized to search for photos that related to a specific date. Thus we find that the military judge erred when she found that the scope of the warrant included clicking on any nude photos. While the affidavit mentions photos of nude or partially nude people, the warrant does not reference or authorize a search for any "nude photos" unrelated to the specific date included in the warrant. The federal magistrate limited the scope by the date of the photos. Searching beyond that date exceeded the warrant's scope. To conclude otherwise would invalidate our conclusion that the warrant was sufficiently specific to be valid.

Furthermore, we find that the intent of SA JL during her search is significant on the issue of scope. SA JL's intent in clicking on the nude photographs was, in her own words, to determine if it was "contraband" and child pornography. As she was unaware of the terms of the warrant, it is clear she was not opening the files to see if the pictures related to the 12 February party. Similar to the investigator in Carey, SA JL was conducting a "general search" of the thumbnails for pictures of child pornography and looking for child pornography, instead of pictures of the 12 February 2005 party. See Carey, 172 F.3d at 1273.

Blue lights alone is not a seizure, although it is usually indicative of one. It could be for an emergency or other reason when the officer is on the side of the road. Here, it was not a seizure. State v. Schlueter, 2008 Tenn. Crim. App. LEXIS 417 (May 23, 2008).*

Appellant did not show that the patdown in this case was after the search of his car. The evidence justified the finding that it occurred before and was based on reasonable suspicion. State v. Adams, 2008 Tenn. Crim. App. LEXIS 416 (May 22, 2008).*

Public employees retained a reasonable expection of privacy in their work computers where they were not precluded from using the computers for personal things and the use of the computer was not inherently unlawful (e.g., child porn). Here, a spreadsheet was found and that led to a search warrant for the computers. People v. Wilkinson, 2008 NY Slip Op 28192, 20 Misc. 3d 414, 859 N.Y.S.2d 356 (Onondaga Co. Ct. 2008).*

Merely standing outside of a house where a search warrant is being executed does not justify a patdown under Ybarra. People v. Sandoval, 163 Cal. App. 4th 205, 77 Cal. Rptr. 3d 156 (3d Dist. 2008).

Volunteer fireman from Texas who was driving on I-10 in Louisiana who used his emergency lights to stop defendant's car which was being operated erratically was not state action. State v. Lavergne, 991 So. 2d 86 (La. App. 1st Cir. 2008).*

Being under the influence was not a reason for a frisk because there was no indication that the defendant was armed. State v. Setterstrom, 163 Wn.2d
621, 183 P.3d 1075 (2008):

¶17 We do not find such a basis here. The police received an anonymous call claiming Setterstrom was under the influence, heard a lie about his name, and observed his nervous, fidgety behavior. The record shows no threatening gestures or words. Setterstrom did not even stand. At most, the record shows that Setterstrom was under the influence; this is not a crime in itself.

Evidence supports conclusion that the officers had reasonable suspicion of wrongdoing for a frisk during traffic stop. United States v. Bowen, 2008 U.S. App. LEXIS 10981 (9th Cir. May 12, 2008) (unpublished).*

D.C. District approves of a class action of arrested protestors who were strip searched when booked. Bame v. Dillard, 2008 U.S. Dist. LEXIS 40805 (D. D.C. May 22, 2008):

Plaintiffs have successfully established that there is sufficient commonality and typicality for the class to be certified. As this Court said in a recent order certifying a class action, "'a strip-search, by its very nature, constitutes an extreme intrusion upon personal privacy, as well as an offense to the dignity of the individual.'" Johnson v. District of Columbia, 248 F.R.D. 46, 53 (D.D.C. 2008) (quoting Wood v. Clemons, 89 F.3d 922, 928 (1st Cir. 1996)). This intrusion is alleged to have been commonly experienced by the putative members of the class. Further, Plaintiff has laid out issues of law and fact that are common to all members of the proposed class, including, primarily, whether the searches violated the Fourth Amendment. See Pls.' Mem. at 16.

Asking the defendant for consent to search for weapons was not related to the purpose of the stop, so the search was unlawful. State v. Kirkeby, 220 Ore. App. 177, 185 P.3d 510 (2008):

This case is controlled by Rodgers. At the point at which Steele asked defendant for permission to search him, Steele testified that, although he had defendant's name, date of birth, and driver license number, he "probably" did not have everything he needed to issue defendant a citation because he did not have defendant's proof of insurance and vehicle registration information. However, even if that information was essential for the issuance of a traffic citation, there is nothing in the record to indicate that Steele asked defendant for those items or was waiting for defendant to retrieve them, nor that he was engaged in any other steps related to the investigation of the traffic offense. Thus, the request for consent to search defendant did not occur "during an unavoidable lull in the investigation." Rodgers, 219 Ore. App. at 372.

Instead of asking defendant for that information--a logical next step in processing the infraction--Steele proceeded down an unrelated path, that is, he asked defendant for permission to pat him down. That, in turn, led Steele to ask defendant for consent to examine the items that Steele felt during the patdown, and, ultimately, for consent to look inside one of those items. Those actions, which were unrelated to the basis for the traffic stop, unlawfully extended the duration of the traffic stop in violation of Article I, section 9.

Officers knew that defendant had bought psuedophedrine and that her son had red phosphorus. They went to her house for a knock and talk and, when she opened the door, they could immediately smell methamphetamine production. Exigent circumstances were present for a protective sweep. State v. White, 2008 Ohio 2432, 2008 Ohio App. LEXIS 2072 (9th Dist. May 21, 2008):

[*P12] Initially, we note that White has not challenged this Court's prior determination that the operation of a methamphetamine production laboratory constitutes an exigent circumstance. See Sandor at P10-12. See, also, R.C. 2933.33(A) (providing that exigent circumstances exist and officers may conduct a warrantless search of a premises if they have probable cause to believe that the premises is being used for illegal manufacturing of methamphetamines). Nor has she argued that officers exceeded the scope of the initial, protective search that they engaged in after entering her home. See State v. Walters, 9th Dist. No. 23795, 2008 Ohio 1466, at P10-11, citing Maryland v. Buie (1990), 494 U.S. 325, 327, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (holding that after an officer's initial entry, he may engage in a limited search of the premises incident to an arrest, if he has "a reasonable belief based on specific and articulable facts" that a protective sweep is necessary to minimize potential danger to himself or others). She only argues that officers did not have probable cause to believe that a methamphetamine laboratory existed, such as to trigger the exigency and justify their initial entry. Consequently, we confine our analysis to White's probable cause argument with regard to the officers' initial entry. See App.R. 16(A)(7); Loc.R. (7)(B)(7).

Comment: Thus, once again, Buie is applied to a protective sweep for things and not people (slip op at ¶ 17).

A dog sniff at the front door of a house is not unconstitutitonal. The question of a dog sniff is the place where the sniff was made, and the front door is open to the public. People v. Jones, 279 Mich. App. 86, 755 N.W.2d 224 (2008):

Thus, the Court did not state or suggest that police activity at a home is categorically distinguishable from police activity involving the trunk of a car for purposes of analyzing the constitutionality of a canine sniff. Rather, the categorical distinction of which the Court spoke related to the difference between police activity that reveals lawful as well as unlawful conduct, thereby invading a zone of privacy and implicating Fourth Amendment protections, and a dog sniff that reveals only the presence of contraband (unlawful conduct) and does not intrude on legitimate privacy interests. Indeed, the Court distinguished Kyllo not because a home was involved there, but because lawful as well as unlawful activity could be detected in Kyllo. If the dissent were correct in its analysis, the Court in Caballes could have simply disregarded or distinguished Kyllo on the basis that the Kyllo search was of a home.

Comment: The court thus creates a conflict with Florida's 4DCA Rabb case. State v Rabb, 920 So. 2d 1175 (Fla. App. 4DCA 2006) (a canine sniff from outside a home to detect narcotics inside the home uses extra sensory procedure such that violates firm line at door of home protected from intrusion by Fourth Amendment), review denied, State v. Rabb, 933 So. 2d 522 (Fla. 2006), cert. den. 127 S. Ct. 665, 166 L. Ed. 2d 513 (U.S. 2006), posted here, distinguished, on remand from Florida v. Rabb, 125 S. Ct. 2246, 161 L. Ed. 2d 1051 (U.S. May 16, 2005), in light of Illinois v. Caballes, 543 U.S. __, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005).

Defendant under home detention on the back end of his prison sentence was legally the same status as a prisoner, and he had no expectation of privacy in his home. Also, he was shown a video before he joined the program that told him he was subject to a search of his house the same as a prisoner's cell is subject to search. United States v. Smith, 526 F.3d 306, 2008 FED App. 0192P (6th Cir. 2008).*

Tribal police officers' conduct is measured under the Fourth Amendment, the same as a police officer outside his or her jurisdiction, something not a Fourth Amendment issue. United States v. Erickson, 2008 U.S. Dist. LEXIS 40609 (D. S.D. May 8, 2008):

Like in Abbott, the reason the tribal officers' actions are in question is the result of the law of their sovereign. There is no dispute that the Rosebud Sioux Tribe has the power to authorize tribal officers to enforce the law on their reservation. The Rosebud Sioux Tribe has the corresponding power to limit the term of its tribal officers, just like the state of Missouri has the power to limit the jurisdictional boundaries of where its officers can make arrests. These circumscriptions of power, however, are not constitutionally mandated. The tribe's failure to renew the tribal commissions, although it may result in activity violative of tribal law by the noncommissioned officers, does not render the conduct of those officers "unreasonable" and therefore unconstitutional under the Fourth Amendment. Accordingly, the court finds that even assuming the officers involved in the arrests and searches of defendant did not possess valid RST commissions, their noncommissioned status is not relevant to the Fourth Amendment inquiry in this case.

Officer does not have to tell the defendant he was free to leave for the stop to be consensual. During this stop and request for identification, the defendant went to a pay phone and made a call for somebody to pick him up. He was not told he could leave, but he wasn't told he couldn't (like he would know the difference). State v. Lair, 2008 Ohio 2417, 2008 Ohio App. LEXIS 2068 (5th Dist. May 19, 2008). Significant is the fact the officer had defendant's driver's license 50 minutes, and the partially spoken fact that defendant could not leave without it, a fact of limited value here:

[*P14] In the case sub judice, Officer Staysniak approached appellant shortly before 9:00 AM and asked to see his identification, which appellant provided. Officer Staysniak returned appellant's identification at approximately 9:49 AM. It is crucial to note that although appellant carried a valid state identification card, he did not have driving privileges, and thus was unable to legally drive away. The record further indicates that appellant nonetheless walked over to use a pay telephone and call for a ride home. While appellant presently contends he was not free to leave the scene, Staysniak testified that he did not tell appellant he could not leave. Tr. at 12. Thus, we conclude the period of time between the officer's arrival at CVS and the officer's discovery of a license plate discrepancy constituted a voluntary consensual encounter, which did not implicate appellant's constitutional rights.

An Atlanta police officer Arthur Tesler who lied to investigators in the shooting death of Kathryn Johnson was sentenced to 4-1/2 years today. Two others pled guilty. See Findlaw from AP. The guilty plea his posted here.

Wife had apparent authority to consent to a search of a briefcase in the common area. United States v. Gallagher, 66 M.J. 250 (C.A.A.F. 2008):

Today we are asked the question whether, when one spouse consents to a search of the entire house, the apparent authority doctrine extends that consent to an androgynous, unmarked, unlocked, briefcase kept in a common area of the home, which could reasonably hold the object of the search. Based on the facts of this case, we hold that it was not objectively unreasonable for the officer to believe the consent to search the home extended to the briefcase, and the apparent authority doctrine applies. Because Appellant's wife had apparent authority to consent to the search, the military judge did not abuse his discretion in admitting the evidence found in the briefcase during the permissive search or the evidence based on the derivative seizure and subsequent command authorized search of Appellant's computer.

Common user could consent to an entry onto a loading dock and a protective sweep, but the user could not consent to a search of a closed box. United States v. Diaz, 2008 U.S. App. LEXIS 10777 (11th Cir. May 16, 2008) (unpublished).*

Defendant failed to show that the officer withheld material information from the magistrate or that he knew of what was attributed to him by defendant. United States v. Lum, 557 F. Supp. 2d 461 (D. Del. 2008).*

Unintended consequences of police officer firing a gun explained. Irick v. City of Philadephia, 2008 U.S. Dist. LEXIS 40496 (E.D. Pa. May 19, 2008):

The Fourth Amendment does not protect against unintended consequences of government action. Brower v. County of Inyo, 489 U.S. 593, 596 (1989). In order for a seizure to occur, the detention or taking must be willful; an unknowing act cannot be a "seizure" within the meaning of the Fourth Amendment. Id. Specifically, in a police shooting, there is no violation of an individual's Fourth Amendment rights if the police officer did not intend the bullet to bring the individual within the officer's control. Troublefield v. City of Harrisburg, 789 F. Supp. 160, 166 (M.D. Pa. 1992).

However, a seizure nonetheless occurs "when an unintended person is the object of detention, so long as the means of detention are intentionally applied to that person. Berg v. County of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000) (citing Brower, 489 U.S. at 596; Medeiros v. O'Connell, 150 F.3d 164, 169 (2d Cir. 1998); Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir. 1991); Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 796 (1st Cir. 1990)). The Third Circuit Court of Appeals explained this principle by way of the following example: "if a police officer fires his gun at a fleeing robbery suspect and the bullet inadvertently strikes an innocent bystander, there has been no Fourth Amendment seizure. If, on the other hand, the officer fires his gun directly at the innocent bystander in the mistaken belief that the bystander is the robber, then a Fourth Amendment seizure has occurred." Id. (citations omitted). Thus, our Court of Appeals has drawn a fine line between intentional shooting where the target's identity is mistaken, and intentional shooting where the target is missed and a non-target is hit. The former is a seizure, the latter is not. Id.

Children have a reasonable expectation of privacy from searches of their bodies while on the premises of their private school. Consent to talk to the children about child abuse is not consent to search their persons for evidence. Michael C. v. Gresbach, 526 F.3d 1008 (7th Cir. 2008):

Applied to the case sub judice, the inquiry is whether it was reasonable for Gresbach to believe that Reetz's consent to interview the children included consent to conduct a search of the children's bodies. We find that it was not. Based on Gresbach's representations that she needed to "see the children" to investigate a child abuse allegation, and that Reetz need not be present for the interview, Reetz allowed Gresbach to speak to the children privately in order to obtain their statements about an allegation of child abuse. A reasonable person would not have interpreted this to mean that Reetz authorized Gresbach to search the children's bodies. It is undisputed that Gresbach did not ask Reetz for permission to search the children for injuries. Gresbach argues that Reetz's "general consent" to interview included the consent to inspect the children's bodies, but she cites to no supporting relevant authority, and we are unaware of any case under Fourth Amendment jurisprudence that proscribes this notion.

In some instances, the line implicating Fourth Amendment concerns is blurred when it applies to the government and child abuse investigations. See Heck, 327 F.3d at 514 (acknowledging that there are circumstances in which the law of warrant and probable cause does not work effectively in the child removal or child examination context); Landstrom, 892 F.2d at 676 (holding that a search or seizure of a child by a state social worker must be "reasonable," but that does not necessarily require probable cause or a warrant); Daryl H., 801 F.2d at 902 (stating that the government must fulfill its responsibility to protect the young under difficult circumstances). Recognizing the sensitive nature of these types of investigations, officials may make a search or seizure under exigent circumstances, where they have reason to believe life or limb is in jeopardy. See Brokaw, 235 F.3d at 1010. We do not exempt child welfare workers from adhering to basic Fourth Amendment principles under non-exigent circumstances--to do so would be imprudent. In these circumstances, caseworkers can take preliminary steps short of searches, such as interviewing the child and a parent, or obtaining a warrant either personally to conduct a search or to have a doctor perform the search. See Roe v. Texas Dept. of Protective and Regulatory Services, 299 F.3d 395, 407 (5th Cir. 2002).

Statistic evidence is admissible to show profiling, but here the evidence did not prove it. The officer has a presumption of regularity attending his actions. Commonwealth v. Lora, 451 Mass. 425, 886 N.E.2d 688 (2008):

An assessment of the evidence admitted at the rehearing on Lora's motion to suppress leads us to the inescapable conclusion that the use of census benchmarking to compare the demographics of a small community with citation ratios on a major interstate highway, which happens to pass through it, is unreliable and not accepted in the scientific community. Such benchmarking data do not provide an adequate basis for assessing the racial composition of the drivers encountered by Shugrue on Route 290 and is inadequate to establish that similarly situated drivers of different races were treated differently. Indeed, Lora's own evidence disproves his premise of comparability: of the fifty-two motorists that Shugrue ticketed on Route 290 in Auburn, ninety per cent were not residents of Auburn. Lora therefore failed to present sufficient credible evidence of discriminatory effect. The judge's determination to the contrary was clearly erroneous, and the motion to suppress should not have been granted.

Actions can show consent to enter. United States v. Peck, 2008 U.S. Dist. LEXIS 40188 (D. Utah May 19, 2008):

Officer Koval testified, and Defendant does not dispute, that after he asked to speak to the male occupants of the house, Ms. Flores "opened the door, turned around, and started walking into the house." She also stated, "That's fine." Though she did not specifically invite the officers in, her non-verbal communication indicated to Officer Koval that he was free to enter because she opened the door further after Officer Koval asked to speak to the male occupants, and she did not protest when he followed her in. Therefore, Officer Koval's initial entry into the home was lawful.

In a § 1983 case too, what was found does not justify an unlawful search. Grayson v. Witt, 2008 U.S. Dist. LEXIS 40041 (E.D. Ky. May 16, 2008).*

"The issue presented by this appeal is whether a police officer who makes observations during a routine safety inspection of a commercial truck that reasonably lead him to believe it contains a hidden compartment containing contraband must obtain a search warrant before undertaking to confirm the existence of the hidden compartment and determine its contents. We conclude that a search of an area of a commercial truck that is within the scope of a proper safety inspection may be conducted without a warrant even though this area is concealed within a hidden compartment and the officer's purpose in continuing the search is to obtain evidence of a crime rather than to complete the safety inspection." State v. Hewitt, 400 N.J. Super. 376, 947 A.2d 674 (2008).

Court credits officer's testimony that there was a gun handle protruding from defendant's pocket and that is cause for a stop in NYC. United States v. Green, 2008 U.S. Dist. LEXIS 39778 (S.D. N.Y. May 16, 2008).*

The arrest warrant for defendant was valid, so defense counsel could not be ineffective for not having raised it at the motion to suppress hearing. Gillis v. United States, 2008 U.S. Dist. LEXIS 39807 (E.D. Tenn. May 15, 2008).*

Officer was in driver's house by consent. When the defendant was being arrested, the officer followed him into the bedroom when the defendant was getting dressed, and that was valid for officer safety under Chrisman. Hoover v. Director, Dept. of Transportation, 2008 ND 87, 748 N.W.2d 730 (2008).*

Turn signal violation is strict liability, and the fact that the officer may have mixed motives for the stop is irrelevant. State v. Greever, 286 Kan. 124, 183
P.3d 788 (2008), revg State v. Greever, 150 P.3d 918 (Kan. App. February 2, 2007) posted here.*

Fact that a forfeiture seizure was allegedly illegal was not established to show that a default judgment should be set aside. State v. $33,000.00 United States Currency, 2008 ND 96, 748 N.W.2d 420 (N.D. 2008).*

Defendant was riding with a probationer who had been stopped. He was directed out of the car, and he was handcuffed "for officer safety." While handcuffed he admitted having used marijuana which was an offense. The arrest was valid and supported by the evidence. State v. Gay, 2008 ND 84, 48 N.W.2d 408 (N.D. 2008).*

There is no Fourth Amendment violation in a technical violation of Rule 41(d) that the warrant be delivered to the target at the time of the search. United States v. Sherrer, 2008 U.S. Dist. LEXIS 39360 (D. Ore. May 13, 2008).*

Affidavit for search warrant showed probable cause for child porn based on statements the defendant made to the informant of his preference for young girls. The affidavit was not stale because child porn tends to be kept, and it is likely that child porn will be kept at home. United States v. Potts, 559 F. Supp. 2d 1162 (D. Kan. 2008).*

Defendant's furtive conduct when approached by a police officer was suspicious. Defendant got out of his car and locked it with the remote. The officer looked in the car and saw a syringe and aluminum foil for cooking drugs. Camp v. State, 983 So. 2d 1141 (Ala. Crim. App. 2007).*

Defendant was free to go, without a traffic ticket having been issued, and walking away from the officer when the officer asked for permission to search, which was granted. People v. Montalvo-Lopez, 215 P.3d 1139 (Colo. App. 2008).*

Search incident to a suspended license arrest was invalid under Wyoming Constitution. The diminished expectation of privacy in a car is not total [citing Treatise § 18.4]. Holman v. State, 2008 WY 54, 183 P.3d 368 (2008).

Seconds of flailing arms does not show a fight was going on in the vehicle stopped, so the stop was invalid. State v. Martin, 291 Ga. App. 548, 662 S.E.2d 316 (2008).*

Defendant's stop and patdown were illegal, so his abandonment of what was in his pocket was ineffective. Also, this is not inevitable discovery.
Erickson v. State, 181 P.3d 1117 (Alas. App. 2008).

Officer was called to assist a woman in getting her car license back from the defendant. The officer's admission into the defendant's residence was impliedly authorized by another woman there who said defendant was inside and turned and headed in with the officer following. United States v. Goncalves, 2008 U.S. Dist. LEXIS 39671 (N.D. N.Y. May 15, 2008):

In this case, the Court finds, based on the totality of all the circumstances, that when Stacey Goncalves, in response to Officer Coyle's inquiry as to where defendant was, stated that defendant was inside, turned around and entered the house without further explanation or instruction, and left the doors open behind her, she impliedly consented to the officers' entry into the house for the purpose of locating defendant.

Younger abstention correctly applied to a § 1983 action filed before plaintiff was charged in state court and the search issue was subject to resolution in the state court action. Michel v. City of Akron, 278 Fed. Appx. 477, 2008 FED App. 0259N (6th Cir. 2008) (unpublished).*

CI has been corroborated by the officers in a months-long investigation, and the officer had probable cause for the stop and search. United States v. Pender, 554 F. Supp. 2d 289 (N.D. N.Y. 2008).*

Previously deported alien has no Fourth Amendment rights. United States v. Gutierrez-Casada, 553 F. Supp. 2d 1259 (D. Kan. 2008):

Just as an escaped prisoner is wrongfully present anywhere but in the penitentiary, the deported felonious alien is wrongfully present anywhere in the United States. Just as an escaped prisoner enjoys no greater Fourth Amendment rights when outside the prison walls than he does when within them, a deported felonious alien obtains no greater Fourth Amendment rights by reentering the United States than he would have had if he had remained outside the United States. Had this defendant remained outside the United States, he would have had no Fourth Amendment rights because that Amendment has no extraterritorial application. See Ross v. McIntyre, 140 U.S. 453, 464 (1891) (finding "the constitution can have no operation in another country."); Verdugo-Urquidez, 494 U.S. at 274-75, 110 S.Ct. 1056 (holding the Fourth Amendment does not protect nonresident aliens against unreasonable searches or seizures conducted outside the sovereign territory of the United States); Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (finding it "well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders.") See generally, Atamirzayeva v. U.S., ___ F.3d ___, 2008 WL 1959519 (Fed. Cir.2008) (reviewing cases finding that the Constitution is subject to territorial limitations).

Defendant's Fourth Amendment position at the time of the search is also comparable to that of a trespasser who has entered on another's land without the landowner's consent. "Trespassers have not been granted Fourth Amendment rights because they do not have a reasonable expectation of privacy in the property." State v. Cruz, 15 Kan. App. 2d 476, 481, 809 P.2d 1233, 1237 (Kan. App. 1991).

The officer could conclude that the consent to search bags in the back of a pickup truck was limited to only the driver's bags, but the defendant did not show standing in the other bags. In any event, there was probable cause for search of the whole vehicle after the driver and passenger were found in possession on their persons. United States v. Grey, 2008 U.S. Dist. LEXIS 39316 (E.D. Ark. May 14, 2008).*

ICE officers had exigent circumstances for an entry for undocumented aliens because of the likelihood that they would have moved before the officers got back with a warrant. United States v. Flore-Castaneda, 2008 U.S. Dist. LEXIS 39226 (S.D. Tex. May 14, 2008).*

Search warrant after an invalid subpoena for BAC results was an independent source. Commonwealth v. Lloyd, 2008 PA Super 101, 948 A.2d 875 (2008):

[*P18] Therefore, based upon our review of the record, we conclude that Sergeant Adams' decision to seek a search warrant was premised only upon information that had been observed legally by his colleagues on the night of the arrest and recorded in their reports and not based upon illegally-obtained information. Murray, 487 U.S. at 542 (reviewing court must consider whether subsequent police decision to obtain warrant was based on information observed by police misconduct). It is true that Sergeant Adams' investigation retraced the steps of the previous investigation, but we decline the invitation to penalize Sergeant Adams for the comprehensiveness of the previous investigation, especially here, where there was nothing of substance added to his investigation or the search warrant application by virtue of the illegally-obtained BAC results. Ruey, 854 A.2d at 571. Likewise, it is evident from the search warrant application that no mention was made of the illegally-obtained BAC results to the magisterial district judge. Id., 854 A.2d at 565; see also Murray, 487 U.S. at 542.

Officer saw people in a building at 2 a.m., and he initiated a burglary investigation. He entered and talked to the people inside. The officer could extend the initial stop. State v. Sawyer, 2008 Ga. App. LEXIS 556 (May 9, 2008).*

Telephonic search warrant complied with the duplicate that had been made according to the recording of the telephone call. State v. Jennings, 220 Ore. App. 1, 184 P.3d 1200 (2008):

Here, by contrast, the duplicate original warrant was facially valid, and the state relies on its validity, not on the validity of the preceding oral recital by the judge who considered and granted the telephonic warrant request. Moreover, as discussed, defendant's effort to undermine the validity of the duplicate original warrant fails because the judge's statement to the officer, when viewed in a common-sense, nontechnical way, evinced an intention to authorize the preparation and execution of a search-and-seize warrant.

Philadephia "live stop policy" for inventories was constitutional, and officer's modification was reasonable. The stop did not have to be terminated when the tow truck did not arrive in 30 minutes. United States v. Felder, 2008 U.S. Dist. LEXIS 39000 (E.D. Pa. May 13, 2008).*

Sole lessee had authority to consent to a search. United States v. Young, 278 Fed. Appx. 242 (4th Cir. 2008) (unpublished).*

Defendant refused to remove his hand from his pocket in a high crime area, and the officer had reasonable suspicion to order him to remove his hand, based on the totality. United States v. Black, 525 F.3d 359 (4th Cir. 2008).*

Government interlocutory appeals: "[W]e hold that the United States Attorney's bare certification regarding delay and materiality in accordance with the terms of § 3731 was sufficient to give us appellate jurisdiction to address the government's objections to the district court's orders. We therefore overrule our prior decisions to the extent that they conflict with our ruling today, including United States v. Loud Hawk, 628 F.2d 1139 (9th Cir. 1979) (en banc), and United States v. Adrian, 978 F.2d 486 (9th Cir. 1992)." United States v. Grace, 526 F.3d 499 (9th Cir. 2008).

Advancing on an officer with a box cutter in hand resulted in a shooting from two feet away when the officer was backed up against her patrol car. The officer was entitled to qualified immunity. She didn't have to check whether the blade was extended and how far. Njang v. Montgomery County, 2008 U.S. App. LEXIS 10394 (4th Cir. May 14, 2008) (unpublished)*:

First, Appellants point out that the box cutter did not, in fact, have its blade extended at the time of the shooting. They argue that the box cutter was therefore not actually dangerous, and posed no threat to Officer Marchone. Appellants misunderstand our inquiry here. The proper test is whether a reasonable officer in Officer Marchone's position would have perceived Njang's actions to be threatening. See id. For example, this court has held that an officer may use deadly force in certain circumstances even when the officer has not confirmed that the suspect is armed. See McLenagan v. Karnes, 27 F.3d 1002, 1007 (4th Cir. 1994) ("[W]e do not think it wise to require a police officer, in all instances, to actually detect the presence of an object in a suspect's hands before firing on him.").

Here, Officer Marchone testified that the object in Njang's hands "looked like a knife" to her. J.A. 57. One eyewitness thought that the object was a box cutter, and another confirmed that it "looked like a knife to [him]." J.A. 99. 7 Considering the "tense, uncertain, and rapidly evolving" circumstances preceding the shooting, Graham, 490 U.S. at 396, we can hardly say that Officer Marchone was unreasonable in believing that the box cutter, blade extended or not, posed a serious threat.

It might have been prudent to wait for proof of ownership of a vehicle, but the officer did not have to when somebody asserted that they were the owner for purposes of granting consent. Commonwealth v. Graham, 2008 PA Super 100, 949 A.2d 939 (2008).*

"¶11 ... [A]sking for consent to search did not turn a voluntary meeting into a seizure. Appellant's position, if accepted, would essentially vitiate any consent to search where probable cause to search did not already exist. Such is not the state of the law." State v. Harrington, 144 Wn. App. 558, 183 P.3d 352 (2008).*

Office gave a mixed motive for the stop of headlights and what he thought was suspicious activity, and this made the stop pretextual under Washington law. State v. Montes-Malindas, 144 Wn. App. 254, 182 P.3d 999 (2008).*

Questions to the passenger were justified by the officer's suspicions. State v. Funderburg, 2008 NMSC 26, 144 N.M. 37, 183 P.3d 922 (April 15, 2008):

[*31] ... As we have made clear, after finding drugs on the passenger, Officer Minter did not immediately turn his attention to Defendant and begin interrogating him as a suspect, as in Patterson or Williamson, about drugs on his person. He never asked for consent to search Defendant personally, and did not do so until much later in the investigation after his arrest. If the officer had focused prematurely on Defendant as a suspect, then our inquiry today would be different. However, Officer Minter, suspecting that other evidence of the passenger's criminal act could be found in the car, asked Defendant a single question--whether there was anything in the car he needed to know about--before requesting Defendant's consent to search the car. These two simple inquiries were reasonably designed to confirm or dispel Officer Minter's suspicion about the criminal activity of the passenger, not the driver, and the presence of other contraband in the car. The officer reasonably directed his inquiry at the driver, the one person who presumably would know about the car's contents and who could provide consent for its search.

[*32] In weighing the officer's intrusion on Defendant's privacy, we should ask ourselves what other actions a reasonable officer would be expected to take under similar circumstances, if not those taken in this instance. Upon developing reasonable suspicion that other drugs or drug paraphernalia might be in the car, based on the passenger's possession of similar contraband, Officer Minter had other options, but none that would have spared Defendant the risk of an even greater intrusion into his privacy. For example, the officer could have detained the car and conducted his own warrantless search on the basis of some theory of exigent circumstances, though no such theory was raised in this case. The officer could have detained the car, awaiting a warrant or a drug dog, and allowed Defendant to leave, no doubt at Defendant's considerable inconvenience. The officer could have erred on the side of caution, and simply let the car go, thereby ignoring his suspicions and turning a blind eye to criminal activity. Or, Officer Minter could take the simplest, most direct approach with minimal intrusion on Defendant's privacy, and ask a brief question about the contents of the car before requesting Defendant's consent to search the car. Officer Minter chose the last option, and we hold that his choice was constitutionally reasonable under the circumstances.

Videotape of defendant's stop corroborated state's claim of consent. Serrano v. State, 291 Ga. App. 500, 662 S.E.2d 280 (2008).*

Execution of a writ of attachment which led to an entry to seize children was not unreasonable. Cooper v. Upshur County Constable's Office, 2008 U.S. Dist. LEXIS 38516 (E.D. Tex. May 12, 2008).*

"The police were justified in their attempt to stop Defendant on Second Street, as discussed above, and thus to pursue him when he fled. In addition, Defendant has no expectation of privacy in any property he abandoned while being pursued by the police." United States v. Vanhoesen, 552 F. Supp. 2d 335 (N.D. N.Y. 2008).*

Defendant was seen riding a bicycle without a headlight, and this was cause for a stop and he fled. United States v. Warren, 2008 U.S. Dist. LEXIS 38849 (D. Del. May 9, 2008).*

Officer said he was stopping defendant for a turn signal violation, and that was justification for the stop. United States v. Ewell, 2008 U.S. Dist. LEXIS 38854 (D. Del. May 9, 2008).*

Informant inside defendant's premises was feared to be in danger, and that was an exigent circumstance for a warrantless entry. United States v. Escobedo, 2008 U.S. Dist. LEXIS 38636 (N.D. Ind. May 12, 2008):

If police officers fear for the safety of an informant or other individual, such a concern may justify an entry into an otherwise private area for exigent circumstances. United States v. Williams, 633 F.2d 742, 744 (8th Cir. 1980). The government states that in the present case, law enforcement officers were concerned about the safety of Somers, the possibility that Escobedo and others inside the Downingtown Drive house could escape undetected, and the potential for danger to the suspects, the police, and the public in general if the suspects attempted to flee the home in a vehicle. Government's Response, p. 1. In determining the reasonableness of a warrantless entry into a private residence, "the appropriate inquiry is whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced officer to believe that evidence might be destroyed or that there was a need to protect life or prevent serious injury." Id. (citing United States v. Bell, 500 F.3d 609, 612 (7th Cir. 2007)). Escobedo claims in his briefs that the police could have handled the entire affair differently and that they could have obtained a warrant. Escobedo argues that the police had no reason to fear for the safety of Somers since they had no direct evidence that she was in danger from Escobedo or any of his possible cohorts. Defendant's Brief, p. 7. He also argues that police could have kept Somers in protective custody while they obtained a warrant to search the Downingtown Drive home. Id. Escobedo argues that police could have posted "more police in surveillance positions so that all sides of Escobedo's house were visible." Id., p. 7. Finally, he states that if they feared the possibility of a vehicle chase, police could have simply blocked the end of Escobedo's driveway to prevent him or others from fleeing the home. Id., p. 8. Escobedo argues that if police had taken some or all of these actions, they would have had sufficient time to obtain a warrant before entering the premises. Id. But the government points out that "[t]he question with exigent circumstances is not whether, given the benefit of hindsight, the police could have done something different; the question is whether they had, at the time, a reasonable belief that there was a compelling need to act and time to get a warrant." Government's Brief, p. 3. The government summarizes the factual scenario leading up to the entry into Escobedo's residence by stating that "Detective Ray was confronted with a flurry of circumstances that posed a host of potential dangers to the informant, the Downingtown neighborhood, the public at large, the police officers, and even to the Defendant and his accomplices, and he made the decision to enter for the purpose of preventing anyone from getting hurt. Even if the police could have done something different in hindsight, Detective Ray nevertheless acted reasonably in protecting public safety and addressing the exigent circumstances." Id., pp. 3-4.

Stop was unreasonably extended, but a dog sniff was not a "but for" cause. "Because Peralez's prolonged seizure for questioning about drug trafficking was not a but-for cause of obtaining the evidence, suppression is not warranted. See Olivera-Mendez, 484 F.3d at 511 (holding, in the alternative, that evidence discovered after a dog sniff should not be suppressed because the dog sniff, and not an earlier arguably unreasonable extension of the traffic stop, caused the discovery of the contraband)." United States v. Peralez, 526 F.3d 1115 (8th Cir. 2008). As to extending the stop:

Our cases recognize two instances when an officer may extend or expand the scope of a traffic stop beyond the original justification for the stop. First, if the encounter becomes consensual, the stop may be extended. See, e.g., Morgan, 270 F.3d at 630 (conversation after the conclusion of traffic stop was consensual, and therefore extension of the stop was not unconstitutional). Second, if the officer develops reasonable suspicion that other criminal activity is afoot, the officer may expand the scope of the encounter to address that suspicion. See, e.g., Sanchez, 417 F.3d at 975 (reasonable suspicion developed during the course of the stop, warranting expansion). We do not face either of those circumstances. The government does not claim on appeal that the drug interdiction questions posed to Peralez or the van's driver occurred during a consensual encounter. Nor does the government contend that Trooper Schlueter had reasonable suspicion that the van's occupants were engaged in illegal activities when the trooper began asking drug interdiction questions. Indeed, Trooper Schlueter testified at the suppression hearing that he did not have any reason to suspect illegal activity when he shifted the focus of his inquiries. The question presented by the facts of this case is whether Trooper Schlueter's "blended process" of conducting a drug interdiction investigation during the course of a run-of-the-mill traffic stop violated the Fourth Amendment.

In Olivera-Mendez we acknowledged a split among the circuit courts as to whether an officer conducting a traffic stop based upon probable cause violates the Fourth Amendment "by asking a few questions about matters unrelated to the traffic violation, even if this conversation briefly extends the length of the detention." 484 F.3d at 510. Three circuits have found such a brief extension does not constitute a violation, United States v. Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir. 2006); United States v. Burton, 334 F.3d 514, 518-19 (6th Cir. 2003); United States v. Childs, 277 F.3d 947, 951-54 (7th Cir. 2002) (en banc), while one has reached the contrary conclusion, United States v. Pruitt, 174 F.3d 1215, 1220-21 (11th Cir. 1999).

We need not decide whether a brief extension would comport with the Fourth Amendment in the context of a probable-cause stop, because the delay caused by Trooper Schlueter's questions cannot be categorized as brief. The cases where our sister circuits found a brief extension consistent with the Fourth Amendment did not involve as extensive a departure from routine, traffic-related questions as this case. Cf. Alcaraz-Arellano, 441 F.3d at 1259 (off-topic questioning while the officer wrote out a warning ticket did not "appreciably lengthen" the detention); Burton, 334 F.3d at 518-19 ("a handful of questions" about illegal activity not unreasonable); Childs, 277 F.3d at 954 (one question about marijuana did not make seizure unreasonable). Here, Trooper Schlueter engaged in a "blended process" of conducting a routine traffic stop and a drug interdiction investigation. The off-topic questions more than doubled the time Peralez was detained. The video recording of the traffic stop makes clear the questions unrelated to the traffic violation constituted the bulk of the interaction between the trooper and the van's occupants. This was not a brief extension. The extent and duration of the trooper's focus on non-routine questions prolonged the stop "beyond the time reasonably required" to complete its purpose. Caballes, 543 U.S. at 407. This violated Peralez's Fourth Amendment right to be free from unreasonable seizures.

The newest invention to facilitate cellphone searches: The CSI stick.

PR Newswire refers to it as The Portable Cell Phone Forensic Tool:

Paraben Corporation, a digital forensic technology provider, announced today that it has released the new Cell Seizure Investigator Stick (CSI Stick). The CSI Stick is a thumb drive size device that forensically acquires data from cell phones. This portable solution is easy to use with a simple one button command to gather data from the device. Whether it is logical or physical information, the CSI Stick can gather the data. "The Paraben CSI Stick has the potential to be a great tool for street level patrol officers. The functionality of the stick allows street level officers to view media quickly and at the same time the stick maintains a forensic image for full exam by forensic lab personnel," said Jay Poupard, of the Michigan State Police.

The CSI Stick and its one button interface is the perfect tool for first responders as it gives them the ability to capture all the data off the phone or just grab the imperative data such as SMS messages, phonebooks and call logs, or multimedia messages.

The CSI Stick supports 330 models of Motorola and Samsung phones and is supplied with three adapters for the different connections. Other adapters for popular cell phones will be released later this year increasing the number of models that the CSI Stick will support with LG and Nokia support already in development.

From the manufacturer's website:

Cell Seizure Investigator Stick:

CSI Stick Product Details

Paraben's CSI Stick is THE portable cell phone forensic and data gathering tool. Paraben's CSI Stick opens the world of digital forensics to anyone needing to gather forensic grade data from cell phones. The process is simple:

Select the colored cell phone tip for the cell phone model to be acquired

Plug the portable power adapter into the USB end of the CSI Stick

Plug the CSI Stick into the cell phone

Select the data you wish to extract using the slider switch

- A logical copy gets all available active data (including text and multi-media files)
- The text filter copies all SMS and text messages, phonebooks, and call logs
- The multi-media filter copies all available pictures and movies
- A physical copy gets all memory on the device (Please Note: This process can take many hours to complete)

Push the acquire button and wait for the completion indicator
Plug the USB end of the CSI Stick into a PC to be read by Paraben's Device Seizure or Device Seizure Lite. Paraben's CSI Stick acquires data that can only be read and analyzed in Paraben's Device Seizure or Device Seizure Lite. These advanced forensic analysis tools enable you to view, search, and report on data extracted from handheld devices. The CSI Stick currently supports certain Motorola and Samsung phone models with more manufacturer support coming soon. For a list of supported models, CLICK HERE.

Paraben's CSI Stick includes everything you need to seize valuable cell phone data in the field.

Blogger News refers to it as "another boon to identity thieves."

I still don't get it that cellphones are subject to a search incident. This just flies in the face of all the logic and law of the search incident doctrine.

Defendant could conditionally raise standing as to a residence but argue at trial that he was not a resident. There was sufficient proof of residence (mail with that address on it) to show standing. Warrant for drugs in defendant's house was issued with probable cause and was not overbroad. "The items detailed in the warrant were sufficiently related to the matters set forth in the affidavit to defeat defendants' claim that it was overly broad." United States v. Jackson, 2008 U.S. Dist. LEXIS 38124 (S.D. Ill. May 9, 2008):

At the hearing, defendant Jackson stated that he would be asserting residence for purposes of this hearing, but reserved the right to take a position contrary to that at trial. Owens v. United States, 387 F.3d 607 (7th Cir. 2004). The Court FINDS that for purposes of this motion, there is at least an idicia of residence of both defendants, given that among the seized items were documents addressed to each defendant.

Failure to bring up a record of the suppression hearing makes it impossible to determine the appeal. State v. Price, 2008 Ohio 2252, 2008 Ohio App. LEXIS 1951 (9th Dist. May 12, 2008).*

On a motion for summary judgment, bringing along a private investigator on an execution of a search warrant could violate the Fourth Amendment where there was an appearance that the power to search was turned over to the private investigator. Shelby Indus. Park v. City of Shelbyville, 2008 U.S. Dist. LEXIS 38272 (S.D. Ind. May 9, 2008).*

"Please, go ahead" is consent to search a vehicle. United States v. $545,855.00 in United States Currency, 277 Fed. Appx. 652 (8th Cir. 2008) (unpublished).*

Trial court's finding that the officer was not entirely credible on the question of reasonable suspicion for a stop was not unsupported by the evidence. State v. Karkiewicz, 2008 Ohio 2256, 2008 Ohio App. LEXIS 1931 (3d Dist. May 12, 2008) (drifted over fog line once).*

The trial court's finding that there was reasonable suspicion for a stop was based on defendant drifting over the fog line twice. State v. Hoffman, 2008 Ohio 2253, 2008 Ohio App. LEXIS 1930 (3d Dist. May 12, 2008).*

The trial court's finding that there was no reasonable suspicion for continuing the stop was supported by the evidence. State v. Bailey, 2008 Ohio 2254, 2008 Ohio App. LEXIS 1933 (3d Dist. May 12, 2008).*

No specific time delay between an arrest and search incident of a car makes it unreasonable. The question is whether the search incident was part of a continuous series of events. Here, the search was twenty minutes later and the car had been moved to another location for highway safety. [At this point, the search incident doctrine and automobile exception will blend together, and here the search was alternatively valid under the automobile exception.] United States v. Kila, 2008 U.S. Dist. LEXIS 38002 (D.Haw. May 8, 2008):

13. The court concludes that the search of the Toyota Celica was contemporaneous with Kila's arrest and thus incident to the arrest. This case presents circumstances similar to those in McLaughlin and Weaver. There was no intervening event or pause in the decisionmaking process leading to the search of the Toyota Celica. The delay resulted from reasonable safety concerns. Unlike the officers in Ramos-Osequera, the officers here did not decide to search Kila's Toyota Celica only after driving the vehicle to the Federal Building. Rather, TFO Peralta decided at the scene of the arrest that the Toyota Celica would be searched. He instructed TFO Worthington to drive the vehicle to the Federal Building to ensure a safe search, away from freeway traffic. Kila's arrest, the removal of the Toyota Celica from a location that posed safety concerns, and the search of the vehicle were all part of a continuous series of events similar to the events in McLaughlin.

14. The court is not persuaded by Kila's arguments that a vehicle search could have been conducted safely at the location of the stop, or that the vehicle search should have been conducted near a closer highway exit rather than at the Federal Building. Kila was arrested at night on a highway with "medium" traffic conditions, in an area where cars tended to pick up speed. It was entirely reasonable to conduct the vehicle search at another location, especially because a vehicle search could reasonably require officers to open all doors and look under seats, leaving the officers physically vulnerable to highway traffic. In addition, it was not unreasonable to conduct the search at the Federal Building rather than to pull off at a nearby exit to conduct the search in an unknown area. As the court in Scott noted, a search is not considered remote from the arrest when the delay is caused by safety concerns. The search of the Toyota Celica was incident to Kila's arrest.

The officers here failed to substantially comply with the Alaska knock and announce statute. They knocked for 20 seconds on a hotel room door, but they never announced who they were or that they had an arrest warrant. They entered with a pass key and arrested the defendant. This is not substantial compliance under Alaska case law. [Defendant waived his state constitutional argument by not raising it until the reply brief.] Hudson is not followed under Alaska statute. Berumen v. State, 182 P.3d 635 (Alas. App. 2008):

The police officers in this case violated a longstanding requirement of Alaska law that is designed to protect the privacy and dignity of this state's citizens. On the issue of whether the police must announce their claimed authority and purpose, and on the related issue of whether the police are allowed to break into a building if they have neither sought nor been refused admittance, the statute is written in clear and unambiguous terms. The only exception to the statute's requirements -- the "exigent circumstances" exception -- has been identified and analyzed in Lockwood and in various subsequent decisions issued by this Court, and the State concedes that this exception does not apply to the facts of Berumen's case.

Under these circumstances, the words of the Supreme Court in McNabb are likewise applicable to Berumen's case: the evidence found in the hotel room was "secured through such a flagrant disregard" of the procedure specified by the Alaska legislature that it "cannot be allowed to stand without making the courts themselves accomplices in [willful] disobedience of [the] law."

Finally, the fourth Harker factor points toward application of the exclusionary rule. The fact that there are several Alaska appellate decisions that discuss the meaning and application of AS 12.25.100 suggests that this issue comes up more than occasionally in criminal litigation. And yet, despite this, it appears that police officers may not be paying sufficient attention to this statute. During the evidentiary hearing in this case, one of the officers could not remember that one of the reasons for the "knock and announce" statute is to protect citizens' privacy, and a second officer testified that he had no idea why the officers failed to abide by the requirements of the statute when they entered Berumen's hotel room. Given this history and this record, we cannot ignore the possibility that there may be widespread or repeated violations of the statute.

In sum, we conclude that all four of the factors mentioned in Harker support the application of the exclusionary rule to violations of AS 12.25.100 that are neither justified by exigent circumstances nor excused under the "substantial compliance" doctrine.

Mississippi day care centers are pervasively regulated under state law such that records inspections and visits are constitutional under New York v. Burger. The operators have no reasonable expectation of privacy in the operation. Moreover, by accepting the license, the operator has consented to the search (citing Samson). Ellis v. Miss. Dep't of Health, 2008 U.S. Dist. LEXIS 37951 (N.D. Miss. May 8, 2008).

Search of defendant's car glove compartment for a weapon was justified by search incident doctrine, even if he was standing outside of it when he was arrested for assault. The officers had reason to believe he was armed. Lyons v. State, 182 P.3d 649 (Alas. App. 2008).*

Hospital security officers were at the emergency room assisting with a gunshot victim brought to the hospital in a car. One asked about whether there was a gun in the car, and the driver said there was. He asked the driver to get out of and step away from the car. He searched the car and located a gun. This search was not state action. State v. Buford, 2008 Ohio 2231, 2008 Ohio App. LEXIS 1918 (2d Dist. May 9, 2008).*

When drugs were found during an inventory of defendant's car, a further search of the car was justified under the automobile exception. There is no "special exigency" or "separate exigency" requirement for the automobile exception. State v. Allensworth, 748 N.W.2d 789 n.4 (Iowa 2008):

We use the term "special exigency" to refer to some circumstance beyond the inherent mobility of the vehicle that makes it impossible or impractical for the police to obtain a search warrant prior to the vehicle being moved away. United States v. Graham, 275 F.3d 490, 509-10 (6th Cir. 2001) (noting the Supreme Court "has emphasized that no special exigency is required to conduct a warrantless search of an automobile when the car is mobile and the searching officer has probable cause to believe that fruits of a crime may be present in the automobile"). The Supreme Court has alternatively used the phrase "separate exigency" to refer to the same concept. See Maryland v. Dyson, 527 U.S. 465, 467, 119 S. Ct. 2013, 2014, 144 L. Ed. 2d 442, 445 (1999) ("[T]he 'automobile exception' has no separate exigency requirement.").

Ten minute traffic stop was not unreasonable while questions about travel were asked. Defendant validly consented. United States v. Carvajal-Mora, 2008 U.S. Dist. LEXIS 37455 (N.D. Okla. May 7, 2008):

An officer conducting a traffic stop may request a driver's license, vehicle registration, run a computer check, and issue a citation. ... An officer may also "ask questions about the motorist's travel plans and authority to operate the vehicle" in addition to obtaining the relevant documentation. ... According to Turner, the traffic stop lasted approximately ten minutes from the time of the stop to defendant's arrest and Crivello's testimony suggests it may have been shorter. Crivello asked defendant to produce his license and the vehicle's registration and return with Crivello to his patrol car. He also asked defendant questions about his travel plans and criminal history. Defendant consented to a search of the vehicle and, even if the search exceeded the scope of the initial traffic stop, defendant's consent permitted them to extend the length of the detention without violating the Fourth Amendment.

Defendant was seized, but his person was not searched until a search warrant for his premises was issued. The fact it was about an hour and twenty minutes did not make the detention unreasonable. United States v. Evans, 2008 U.S. Dist. LEXIS 37453 (E.D. Ky. May 7, 2008).*

The search warrant in this case did not violate Franks. Defendant made the “substantial preliminary showing” and got his hearing, but he did not show that the officer’s affidavit was in reckless disregard for the truth. United States v. Dempsey, 2008 U.S. Dist. LEXIS 37555 (D. Del. May 8, 2008).*

Failure to have a search warrant in hand is not a Fourth Amendment violation as long as its terms are complied with. State v. Wilson, 984 So. 2d 870 (La. App. 5th Cir. 2008):

The Fourth Amendment does not require that the accused be served with a copy of the search warrant before the search and seizure occurs. See Katz v. United States, 389 U.S. 347, 355 n.16, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); United States v. Bonner, 808 F.2d 864, 869 (1st Cir. 1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1632, 95 L.Ed.2d 205 (1987); United States v. Woodring, 444 F.2d 749, 751 (9th Cir. 1971).

Protective search of defendant's gym bag in vehicle during traffic stop was justified by officer safety. McDowell v. State, 179 Md. App. 666, 947 A.2d 582 (2008):

The search of the gym bag during Trooper Gussoni's roadside traffic stop clearly falls within the parameters of Long. Accordingly, we must consider "whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Long, 463 U.S. at 1050 (internal quotation omitted). Under Long, "[t]o engage in an area search, which is limited to seeking weapons, the officer must have an articulable suspicion that the suspect is potentially dangerous." Id. at 1052 n.16.

After acquired information may nullify probable cause for an arrest or continued detention, but the question is what the officers knew at the beginning as to the legality of the stop. Here, the after acquired information nullified one offense but not another. United States v. Creighton, 277 Fed. Appx. 796 (10th Cir. 2008) (unpublished).*

Certificate of appealability on a 2254 claim is denied. As to the Fourth Amendment claim, defendant had no standing, effectively reaching the merits of the claim. Stone v. Powell mentioned in passing as an alternative ground. Long v. Roberts, 277 Fed. Appx. 801 (10th Cir. 2008).*

Search of defendant's computer was shown to be voluntary on the totality of circumstances. United States v. Smith, 276 Fed. Appx. 568 (9th Cir. 2008) (unpublished).*

Defendant had no expectation of privacy in his computer in a common military living area that he left on and allowed others to use. [The court also finds there was no expectation of privacy because it was connected to a network, although the search was direct through the keyboard and not the network, a doubtful holding to me.] United States v. Rosario, 558 F. Supp. 2d 723 (E.D. Ky. 2008):

The Court finds that the search did not violate Rosario's Fourth Amendment protections because he did not have a reasonable expectation of privacy in his computer. Rosario connected his computer to a network through which the files on the computer were accessible by other computers on the same network. Furthermore, Rosario admitted that he left his computer on all the time and allowed numerous individuals access to it. Additionally, there was no password on Rosario's computer at the time the search was conducted. Rosario took no steps to prevent others from accessing the files on his computer and surely contemplated that someone could access files on his computer either through the network or by using the computer with his permission. ... Consequently, the Court finds that Rosario did not have a subjective expectation of privacy in his computer. Even if the Court were to conclude that Rosario had an expectation of privacy, by connecting his computer to a network and allowing others to use it, that expectation was unreasonable.

Though it has not been argued by the parties it is worth noting that Rosario's expectation of privacy in his living space was also diminished by the fact that he lived in army barracks. See United States v. McCarthy, 38 M.J. 398 (CMA 1993) (holding that the threshold of a barracks/dormitory room does not provide the same sanctuary as the threshold of a private home). Rosario's living area, where the computer was searched, was located in a long open room. Other soldiers' bunks and living areas were separated from Rosario's by furniture. The expectations of privacy in a setting such as this differ from those in a home. What is an unreasonable intrusion in a civilian context may be reasonable in a military context. Id. Thus, the Court finds that Sergeants McNeil, Jones, Allen and Specialist Vallade did not violate Rosario's Fourth Amendment protections when they entered his living space to search his computer.

Search incident of a closet off a small room where defendant was arrested was valid. He was arrested on a warrant for possession of a weapon, and it was reasonable to believe that he might have a weapon nearby. State v. Wesley, 2008 Wisc. App. LEXIS 338 (May 6, 2008).

Officers knocked on defendant's hotel room door, and he opened the door. He could have done nothing. His opening the door enabled the police to see contraband in plain view. Bouyer v. State, 264 S.W.3d 265 (Tex. App. — San Antonio 2008).*

Did the police officer's actions "communicate the message of 'We Who Must Be Obeyed'"? Here, it did not. State v. Garcia-Cantu, 253 S.W.3d 236 (Tex. Crim. App. 2008) (over dissent):

Police officers are as free as any other citizen to knock on someone's door and ask to talk with them, to approach citizens on the street or in their cars and to ask for information or their cooperation. Police officers may be as aggressive as the pushy Fuller-brush man at the front door, the insistent panhandler on the street, or the grimacing street-corner car-window squeegee man. All of these social interactions may involve embarrassment and inconvenience, but they do not involve official coercion. It is only when the police officer "engages in conduct which a reasonable man would view as threatening or offensive even if performed by another private citizen," does such an encounter become a seizure. It is the display of official authority and the implication that this authority cannot be ignored, avoided, or terminated, that results in a Fourth Amendment seizure. At bottom, the issue is whether the surroundings and the words or actions of the officer and his associates communicate the message of "We Who Must Be Obeyed."

. . .

Each citizen-police encounter must be factually evaluated on its own terms; there are no per se rules. "The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a person to conclude that he is not free to 'leave' will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs." The officer's conduct is the primary focus, but time, place, and attendant circumstances matter as well. "A court must step into the shoes of the defendant and determine from a common, objective perspective whether the defendant would have felt free to leave."

. . .

The court of appeals erred in focusing upon one single fact--Officer Okland's use of a spotlight--instead of the totality of the circumstances. We conclude that, viewed in the light most favorable to the trial judge's ruling, the totality of the circumstances support his conclusion that appellee was detained by Officer Okland for purposes of the Fourth Amendment. We therefore reverse the judgment of the court of appeals, uphold the trial court's suppression ruling, and remand the case for further proceedings in the trial court.

Keeping a driver's license continued a stop, and the officer's words and actions in opening the vehicle door communicated that the defendant had to comply. State v. Icard, 190 N.C. App. 76, 660 S.E.2d 142 (2008):

Moreover, even if the pickup truck could have pulled forward to exit the parking lot, Officer Moore maintained possession of Mr. Coleman's license and registration for the duration of this encounter, essentially preventing him from leaving. Another officer arrived and parked his vehicle to the right of the truck, with his takedown lights shining on the passenger side. Combined with Officer Moore's words and actions in opening the door to the pickup truck after Defendant had essentially refused to cooperate with his requests for information, we conclude that an objective evaluation of the totality of these circumstances "would have conveyed ... to a reasonable person[,]" including one who was a passenger in the pickup truck, that "[s]he was being ordered to restrict [her] movement." California v. Hodari, 499 U.S. 621, 628, 111 S. Ct. 1547, 113 L. Ed. 2d 690, 698 (1991). As such, the police in this instance "restrained the liberty of a citizen," Bostick, 501 U.S. at 434, 115 L. Ed. 2d at 398, and the encounter was subject to the protections of the Fourth Amendment.

Record supported the conclusion that defendant consented to a strip search. State v. Neal, 2008 N.C. App. LEXIS 835 (May 6, 2008):

In the instant case, however, a reasonable person would have understood from the circumstances and exchanges between the officers and Defendant that the police intended to conduct a strip search of Defendant. See Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302. Officer Watkins informed Defendant that he needed to conduct a "better" search to determine what was in Defendant's pants and that a female police officer was on her way. Defendant consented to a "more thorough" search. Officer Mauney asked Defendant if she understood what was going to happen; Defendant responded that she did. Defendant was "extremely cooperative" during the search and never indicated that her consent did not extend to a strip search. Being taken to a women's restroom was another sign that the police intended to search inside of Defendant's clothing.

Comment: This holding is, to me, completely indefensible and grants all deference to the police. This case shows mere acquiescence to a claim of authority. Does anyone know that they can object to a search under these circumstances, or are they just going along? The legal presumption is that every warrantless search is reasonable, and the proof here shows only that the defendant was "going along." Merely "going along" is not consent.

An officer pulled up next to the defendant's vehicle parked in a convenience store parking lot. No lights were turned on, and the vehicle was not blocked in. The officer ran the vehicle and approached the defendant and asked for his driver's license and asked for consent. After the defendant admitted possessing drug paraphernalia, the officer Mirandized the defendant. The stop was unlawful and the Miranda warning did not purge the taint. State v. La France, 219 Ore. App. 548, 184 P.3d 1169 (2008).*

An anonymous caller told police that known drug dealers, defendant and two others, were making methamphetamine in defendant's residence. Subsequently, two police officers stopped defendant and another suspect as they were leaving the residence. The officers obtained defendant's consent to search her residence, and drugs and other contraband were found. The sheriff's prior knowledge and his observations of defendant and the other suspect adequately corroborated the anonymous tip. Thus, the officers had the requisite reasonable suspicion that defendant and the other suspect were engaging in criminal activity. The sheriff was aware of the prior criminal activity of the individuals identified in the tip and believed that defendant and the other individual were trying to get away when the officers approached the residence. Commonwealth v. Morgan, 248 S.W.3d 538 (Ky. 2008), released for publication April 28, 2008) (2005-SC-000702-DG).*

Defendant waived on appeal his search issue by changing the issue, and it is important that trial courts get to rule on these issues first. To avoid an ineffective assistance claim, the court goes to the merits. Defendant's computer was lawfully seized under a search warrant for evidence of a homicide because it might have had evidence on it, even thought it was not listed in the search warrant and it was portable and found in defendant's car. A second search warrant was issued for the computer. People v. Varghese, 162 Cal. App. 4th 1084, 76 Cal. Rptr. 3d 449 (4th Dist. 2008).*

Officer had probable cause to believe defendant was selling drugs at the time of the arrest. It mattered not what drug the defendant was selling, just that he was selling drugs. Duncan v. State, 2008 Alas. App. LEXIS 47 (March 14, 2008).*

Initial entry into a car for an open beer bottle as "contraband" for violation of a local open container law was valid. Oldfield v. State, 291 Ga. App. 432, 662 S.E.2d 243 (2008).*

There was probable cause for defendant's arrest in his car, so the search was proper under the automobile exception. United States v. Noble, 2008 U.S. Dist. LEXIS 37184 (S.D. N.Y. May 7, 2008).*

Defendant's arrest in his home was not supported by exigent circumstances, and he opened the door on a command from the officers. Therefore, the entry and arrest violated Payton. United States v. Reeves, 524 F.3d 1161 (10th Cir. 2008).

The length of defendant's stop was not unreasonable. He consented while the officer was waiting for the computer check to come back, and the officer did not move him to the back of the patrol car until after he consented. United States v. Gonzalez, 275 Fed. Appx. 930 (11th Cir. 2008) (unpublished).*

It is irrelevant that the defendant was not charged with the trafffic offense that led to his stop as long as there is probable cause for the stop. Here there was, and a search incident was proper. United States v. Mitchell, 2008 U.S. Dist. LEXIS 37356 (S.D. Ga. May 7, 2008).*

Defendant was under surveillance and was seen retrieving a gun from behind bushes and getting into a taxicab which he had called. The cab changed lanes without signaling and the officer pulled it over. He got the passenger out and got consent from the driver. While defendant had a reasonable expectation of privacy in the cab, the court finds that Matlock on apparent authority to consent applies to taxicabs. The gun was found hidden under the floor mat. That showed defendant believed he had a reasonable expectation or privacy, but the cab driver had apparent authority to permit a search of the common interior. United States v. Harris, 526 F.3d 1334 (11th Cir. 2008) (Matlock previously applied to a vehicle in United States v. Dunkley, 911 F.2d 522, 525-26 (11th Cir. 1990)).

A Columbia University master's graduate and free lance reporter for the NY Post, through the NYCLU, has sued the NYPD claiming its stop-and-frisk practice promotes stops and frisks for "walking while black". Group's lawsuit challenges NYPD's stop-and-frisk policy, from AP:

A civil liberties group sued Wednesday in a challenge to the NYPD's practice of stopping hundreds of thousands of people each year for questioning, saying it is racially biased.

The New York Civil Liberties Union lawsuit lists New York Post reporter Leonardo Blair as the sole plaintiff, saying he was stopped and frisked by police officers as he walked from his car to his Bronx home last November.

He was taken to a police station, where officers expressed surprise that though he was black, he was not from "the projects," the lawsuit said. Blair, 28, has a master's degree from Columbia University.

The lawsuit, filed in U.S. District Court in Manhattan, said the NYPD has stopped people in New York nearly a million times over the past two years under the practice. It said more than half of the people targeted were black, even though blacks make up only about a quarter of the city's population.

NY Times article here.

Annhydrous ammonia leak is not exigent circumstances for a warrantless entry into defendant's garage. State v. Moore, 2008 NMCA 56, 144 N.M. 14, 183 P.3d 158 (App. 2008):

[*14] Our cases therefore establish that mere probable cause that a methamphetamine lab exists is not per se an exigent circumstance that will justify a warrantless entry into a home. Police officers must still have knowledge of specific, articulable facts that demonstrate that immediate action is necessary "to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence." Copeland, 105 N.M. at 31, 727 P.2d at 1346; see State v. Duffy, 1998 NMSC 14, P 70, 126 N.M. 132, 967 P.2d 807 ("[T]he presence of exigent circumstances must be supported by specific articulable facts."), modified on other grounds by State v. Gallegos, 2007 NMSC 7, P 17, 141 N.M. 185, 152 P.3d 828.

N.M. "misdemeanor arrest rule does not apply to investigatory stops. We further hold that, under the Fourth Amendment, the stop was reasonable because an officer may reasonably rely on information from another officer that a crime has been or is being committed. Because the Court of Appeals improperly relied on New Mexico's misdemeanor arrest rule, we reverse the Court of Appeals opinion and remand to the Court of Appeals to determine whether the stop was pretextual and, if so, whether article II, section 10 prohibits pretextual stops." This was a stop for a seatbelt violation. State v. Ochoa, 2008 NMSC 23, 143 N.M. 749, 182 P.3d 130 (2008).

Arresting plaintiff outside her house for the benefit of TV cameras obviated the need for a protective sweep. Milligan v. United States, 2008 U.S. Dist. LEXIS 36635 (M.D. Tenn. May 2, 2008).*

Factual disputes remain in question of excessive force in a tear gassing in going in for a barricaded suspect. Whether tear gassing was even required in this situation was questionable because negotiations were going on. Also, defendant was seized by surrounding his house. Estate of Rudy Escobedo v. City of Fort Wayne, 2008 U.S. Dist. LEXIS 36852 (N.D. Ind. May 5, 2008).*

Recognizing the presumption of unreasonableness of a search of a home, the officer here had defendant's consent to enter in a DUI case. Twp. of Bainbridge v. Kaseda, 2008 Ohio 2136, 2008 Ohio App. LEXIS 1843 (11th Cir. May 2, 2008).*

Computer check that produced an outstanding warrant on the owner is reasonable suspicion for a stop. State v. Dickson, 252 S.W.3d 216 (Mo. App. 2008).*

An appeals court can apply the inevitable discovery doctrine on its own motion. Inevitable discovery is similar to harmless error. State v. Dickinson, 2008 MT 159, 343 Mont. 301, 184 P.3d 305 (2008):

[*P20] As indicated above, the parties did not argue to the District Court or to this Court the "inevitable discovery" doctrine. And while we acknowledge that we do not traditionally address legal theories not raised by the parties, there are limited analyses in which this Court frequently engages, even if the parties have not urged us to do so. A classic example is the "harmless error" analysis, which is similar to the inevitable discovery exception. In the typical "harmless error" situation, a defendant argues that a claimed error requires reversal, and in response the State asserts that no error occurred. Even if the State fails to argue the fallback position that if error occurred, it was harmless, we will still engage in the harmless error analysis in the event we conclude that an error was made, for the simple reason that we have everything in the record we need to make that determination, and a refusal to make the analysis would unnecessarily multiply the proceedings (e.g., remand for determination of whether the error was harmless, followed by a second appeal). The situation before us is similar in that Dickinson argues the court erred in failing to suppress the evidence and the State maintains it did not.

[*P21] While we have no cases which categorically state that we will apply the "inevitable discovery" doctrine sua sponte, it appears we did so in Pearson. Pearson argued that a police officer performed an illegal search resulting in the discovery of marijuana. This gave the officer probable cause to obtain a warrant to search Pearson's car, at which time cocaine was discovered. Pearson sought to have evidence of the cocaine suppressed on the ground that the original search was unlawful and the subsequently-discovered evidence was tainted. However, we held that other "plain view" evidence of illegal drug activity provided probable cause for a warrant under which the cocaine would have been "inevitably discovered."

Officer's entry onto defendant's side yard to look through the slats in the blinds in the window was a search not justified by any exigency under Brigham City. People v. Gemmill, 162 Cal. App. 4th 958, 76 Cal. Rptr. 3d 410 (3d Dist. 2008):

Defendant contends Deputy Gassaway conducted a search within the meaning of the Fourth Amendment when he walked around the perimeter of the home and looked through the side window. We agree.

After Deputy Gassaway heard no response from his knocks and yells at the front door, he walked around the right (north) side of the house, continuing to knock on the windows and announce his presence. There was no sidewalk but no fence either. It was not uncommon for people to walk by the north side of the house. People would walk to residences from the north side, and there was a "little wooded area kids play[ed] in." A bedroom window was open. He continued to knock and announce but heard nothing. Deputy Gassaway walked around the back of the house until he came to a window on its left (south) side. The blinds were closed, but there was a five to six inch gap in the slats. He could see inside the living room, where he saw the situation that led him to enter the house without a warrant.

It is reasonable to expect privacy in the home; this includes side windows not accessed by parts of the yard to which the public is expressly or impliedly invited. (Lorenzana v. Superior Court (1973) 9 Cal.3d 626, 638.) In Lorenzana, police officers received a tip that drug dealing was taking place at Lorenzana's address and discovered evidence of drug dealing by looking through a side window without a warrant, leading to convictions of those in the house. (Id. at pp. 629-631.) The facts of Lorenzana are instructive: "The dwelling at the designated address, a single family house, was set back about 70 feet from the sidewalk. The front door to this dwelling did not face the public street on the north, but instead was on the west side of the building. A rear door opened on the south side. Officer Myers testified that access to the house was from the west. There were no doors or defined pathways on the east side of the house, and a strip of land covered with grass and dirt approximately six to ten feet in width separated the east side of the dwelling from an adjacent apartment driveway. [P] Upon arriving at the address, Sergeant Myers circled behind the apartment, walked down the adjacent driveway, crossed onto the strip of petitioner Lorenzana's property, and positioned himself at a window on the east side of the house. The window had been fully closed. The window glass was intact. The window shade had been drawn, but a gap of about two inches had been left between the window sill and the bottom of the shade. Gaps of about one inch or so had been left on each side of the shade, but a thin curtain also hung down on the sides of the window. [P] Sergeant Myers testified that he had trespassed onto petitioner Lorenzana's property because he could not see into the house from the adjacent driveway or from the street. In fact, he could not see into the dwelling until he was within five or six inches of the window. The officer further testified that he knew that the property onto which he trespassed was not a common-use area but belonged to the dwelling .... Sergeant Myers did not have permission to go upon the property." (Id. at p. 630.) No substantial evidence supported an implied invitation to be on the east side of the house where the officer looked through the window. (Id. at p. 636.) The court rejected the argument that openings in the window somehow reduced the expectation of privacy, reasoning that "by drawing the window shade petitioner Lorenzana exhibited a reasonable expectation to be free from surveillance conducted from a vantage point in the surrounding property not open to public or common use." (Ibid.) The court set aside the trial court's denial of the petitioners' motions to suppress. (Id. at pp. 640-641.)

Defendant stayed in the house of another person and he paid rent of $100 a month. While a landlord cannot consent to a search of a tenant under Chapman, this was not a traditional landlord-tenant relationship, and he let the other person have entry into his room when he was not there. Therefore, this was a case of common authority under Matlock. United States v. Thompson, 524 F.3d 1126 (10th Cir. 2008).

Receiving permission to drive a rental car from a person who himself was an authorized driver under the rental contract confers no standing on the driver. United States v. Aispuro, 2008 U.S. Dist. LEXIS 36306 (N.D. Ill. May 2, 2008).*

Defendant secreted personal property on somebody else's property, so he had no reasonable expectation of privacy. State v. Smith, 983 So. 2d 65 (La. 2008):

Even assuming, arguendo, that defendant's consent to search his home and vehicle did not encompass personal effects located elsewhere on or off his property, defendant surrendered any reasonable expectation of privacy in the contents of the closed and locked bag containing precursor materials for the clandestine production of methamphetamine by concealing the bag, wrapped inside a plastic garbage bag, in the woods on land belonging to someone else and accessed by an unfenced footpath at the back of his own property, apparently without the knowledge and consent of his neighbor. [citations omitted]

The defendant succeeding in making his "substantial preliminary showing" under Franks that the officer omitted significant facts from the affidavit that undermined the probable cause because of an apparently illegal entry into the curtilage to gain the information that made it into the application for the search warrant. United States v. Tate, 524 F.3d 449 (4th Cir. 2008):

Tate's showing reduces to the claim that in order for Agent Manners to have investigated Tate's trash, which provided the essential basis for demonstrating probable cause, Agent Manners would have had to jump the fence which enclosed Tate's backyard, trespass on Tate's property, and search trash that was stored in a container that had not been abandoned for pickup. He supports these claims with the following proffered facts: (1) the trash investigation took place, according to Agent Manners, on a Thursday; (2) the trash was not to be picked up until the following Saturday; (3) on non-trash-pick-up days, the practice followed at Tate's residence was to store trash in a trash container near the rear steps of the house which was not accessible from public areas without trespassing; (4) the backyard of Tate's residence, in which the trash container was kept on non-trash-pick-up days, was fenced with a gate that was always locked; (5) Agent Manners stated in a similar affidavit to obtain a search warrant offered in another case two months earlier that he had seized "two trash bags easily accessible from the rear yard" and that the trash bags were found in "a typical location for trash pickups and consistent to the location of neighbors"; (6) in the affidavit in this case, the language was similar but did not include the last clause that the bags were found in "a typical location for trash pickups and consistent to the location of neighbors"; and (7) the result of Agent Manners' trash search was necessary to a showing of probable cause in this case.

If Tate is correct about his proffered facts, Agent Manners did not omit only insignificant details of the trash investigation. He omitted important facts and circumstances that, if true, were essential to the constitutionality of the trash investigation. The proffered facts tend to show that Agent Manners may have violated Tate's reasonable expectation of privacy because the trash was not out at the curb for collection on the date of Agent Manners' search but rather in a container near the rear steps of the home. Also, based on Agent Manners' affidavit from another case involving a trash search, where he described the trash as being at the typical location for pickup, Agent Manners may have deliberately omitted that language from his affidavit in this case. Tate argues that the inclusion of the statement in the previous affidavit that the trash was found in "a typical location for trash pickups and consistent to the location of neighbors" reveals that Agent Manners knew the requirements for a trash search and therefore that his omission of this information from the current affidavit, when coupled with the evidence that the trash was likely not out at the curb for pickup at the relevant time, indicates an intentional and knowing falsehood on the part of Agent Manners that was designed to mislead the issuing judge.

Although it is certainly true that the trash bags at issue here may in fact have been in a location consistent with their having been abandoned for collection or that Agent Manners may not have included the more descriptive sentence he used in the earlier affidavit out of an exercise of caution resulting from not knowing the "typical location" for trash collection in the area, Tate's evidence at this stage is sufficient to constitute a "substantial preliminary showing" of a deceptive omission, as required by Franks. 438 U.S. at 155 (emphasis added). (emphasis added)

The Iowa Supreme Court holds that a magistrate-lawyer with a conflict of interest in issuing a search warrant for an adverse party in a private case was not a "neutral and detached magistrate" under the Fourth Amendment. State v. Fremont, 749 N.W.2d 234 (Iowa Sup. 2008). The court discussed the due process cases from SCOTUS and the Canons of Judicial Ethics, too:

D. Application of Fourth Amendment Principles. In light of the above, we must now consider whether the facts of this case establish a Fourth Amendment violation. The magistrate in this case was simultaneously representing the putative father against one of the targets of the search in a child custody proceeding. A successful search of the home, which sought to find evidence of drug offenses, could make the position of the mother more difficult in the child custody matter and advance the position of the father. There was therefore a clear nexus between the magistrate's private representation and his official action in this case.

The case is thus similar to Ward, where the mayor did not receive a direct benefit when he engaged in judicial acts adverse to defendants, but the city that the mayor served was benefited by the mayor's actions. Ward, 409 U.S. at 57, 93 S. Ct. at 80, 34 L. Ed. 2d at 267. Moreover, this case contrasts with situations where the magistrate was involved in past representations of parties affected by the warrant decision, and thus the decision could have no impact on the outcome of the prior proceedings or where a challenge is based upon the mere acquaintance of judge with the accused. Guthrie, 184 Fed. App'X. at 804; Outler, 659 F.2d at 1312; Mandravelis, 325 A.2d at 794.

We also believe this case is distinguishable from Slaughter, 315 S.E.2d at 865. Here, there is a very clear nexus between the current representation and the issuance of a search warrant. The issuance of the warrant could lead to a drug charge against Destiny Fremont. A drug charge in a child custody dispute is a very serious matter and goes to the core of the fundamental question in child custody matters---the best interests of the child. Further, unlike in Slaughter, the magistrate in this case was aware of his representation adverse to one of the accused.

Under the unusual circumstances of this case, we conclude that the magistrate had a nonpecuniary personal interest in the matter that objectively cast doubt on his ability to hold the balance, nice, clear, and true, between the state and the accused. Tumey, 273 U.S. at 532, 47 S. Ct. at 444, 71 L. Ed. at 758. A probable cause determination must be made by a person unfettered by other potentially conflicting professional commitments. Cf. People v. Payne, 424 Mich. 475, 381 N.W.2d 391, 395 (Mich. 1985) (holding that magistrate's status as a deputy sheriff rendered him incapable of satisfying the neutral-and-detached requirement). The magistrate's simultaneous and conflicting dual roles rendered him unable to meet the requirements of a neutral and detached magistrate under the Fourth Amendment. Id. As the court in Tumey emphasized, a situation where one person "occupies two practically and seriously inconsistent positions, one partisan and the other judicial, necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him." Tumey, 273 U.S. at 534, 47 S. Ct. at 445, 71 L. Ed. at 759.

We agree with the State that the defendant has made no showing of actual prejudice in this case. In Tumey, Connally, and Murchison, however, the Supreme Court did not require such a showing. These cases stand for the proposition that some conflicts are just so fraught with danger that a showing of actual prejudice is not required. We hold that the facts in this case present such an occasion.

Because of this Fourth Amendment violation, the evidence seized as a result of the execution of the warrant is subject to suppression. Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 453 (1963); State v. Leto, 305 N.W.2d 482, 484 (Iowa 1981).

Defendant consented to a search of his residence after police searched his business under a warrant. They patted him down and took his car keys and searched his car, and that exceeded his consent. State v. Torres, 2008 Ohio 2090, 2008 Ohio App. LEXIS 1796 (6th Dist. May 2, 2008).

Officer found defendant walking soaking wet in the rain in a high crime area known for thefts from cars carrying a duffle bag. The officer was justifed in approaching him. United States v. Labelle, 2008 U.S. Dist. LEXIS 35999 (E.D. Tex. May 2, 2008).*

Defendant was arrested outside his house and he wanted to put on a shirt. The officer could follow him in to put on a shirt, and the officer saw the unregistered firearm in plain view under Chrisman. United States v. Hall, 2008 U.S. Dist. LEXIS 36089 (D. Haw. April 30, 2008).*

A case "remarkably similar on its facts to that faced by the Fourth Circuit in Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007)," involved a handcuffed arrestee who the defendant officer was attempting to Taser and shot with a Glock instead. Here, however, the arrestee died. The inquiry is reasonableness, but that question was not decided by the district court, so the case is remanded. Torres v. City of Madera, 524 F.3d 1053 (9th Cir. 2008):

Henry concluded, and we agree, that five factors were relevant to the reasonableness determination: (1) the nature of the training the officer had received to prevent incidents like this from happening; (2) whether the officer acted in accordance with that training; (3) whether following that training would have alerted the officer that he was holding a handgun; (4) whether the defendant's conduct heightened the officer's sense of danger; and (5) whether the defendant's conduct caused the officer to act with undue haste and inconsistently with that training. Henry, 501 F.3d at 383.

While these factors are relevant to the determination of whether Officer Noriega acted reasonably, we also stress that "the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments." Graham, 490 U.S. at 396-97. Since the parties did not brief the issue of whether Officer Noriega's mistake was a reasonable one, the factual record is insufficiently developed for this court to make this determination, and we remand to the district court to determine in the first instance whether Noriega's conduct was unreasonable under Graham, 490 U.S. at 396-97, and to otherwise proceed with the matter.

Officer's mistake of fact in transposing numbers on a license plate when submitting them to be run created a Fourth Amendment violation when the defendant's stop occurred. McDonald v. State, 947 A.2d 1073 (Del. 2008).*

Plain feel did not apply to a folded dollar bill that was touched and moved past in a search. Going back to it violated Dickerson. Perkins v. State, 979 So. 2d 409 (Ill. 1 DCA 2008).*

Detaining a "person of interest" without probable cause two days after a homicide that led to a search producing a gun was unreasonable. The seriousness of the crime under investigation did not matter. Buckley v. State, 2008 Ind. App. LEXIS 958 (May 1, 2008):

In the instant case, the State essentially argues that its actions were reasonable because Buckley was a prime suspect in a recent homicide. While we certainly understand the seriousness of the crime being investigated, such does not in and of itself constitute an exigent circumstance or any other exception to the warrant requirement. A review of the totality of the circumstances reveals that the police acted too hastily in seizing Buckley and Buckley's vehicle before any warrants had been issued.

Comment: The sliding scale of exigency often (but not constitutionally) favors a finding of exigency when the crime is more serious. Here it did not.

A city rental housing inspection program was constitutional under the Fourth Amendment because there was a process for issuance of administrative warrants when the landlord would not consent. Stewart v. City of Red Wing, 554 F. Supp. 2d 924 (D. Minn. 2008):

Nor have plaintiffs demonstrated that injury to their Fourth Amendment rights is imminent. If landlords refuse consent to the City's request for an inspection, the RDLC requires the City to seek an administrative search warrant. The reviewing judge is specifically authorized to condition or limit the scope of the warrant as appropriate. Plaintiffs' argument that the inspection ordinance creates an imminent constitutional injury presumes that a state court judge, with the benefit of a full adversarial hearing, will be unable to condition or limit the scope of the warrant in a manner that complies with the Fourth Amendment. The Court finds the possibility of such injury to be highly speculative.

The use of blue lights is a stop, but defendant's flight was a new crime, and that would not be suppressed. State v. Nelson, 275 S.W.3d 851 (Tenn. Crim. App. 2008).

Vermont upholds its DNA collection statute, over a vigorous dissent, which the majority criticizes. State v. Martin, 2008 VT 53, 184 Vt. 23, 955 A.2d 1144 (2008).*

"Even assuming the deputy seized Mr. Olivares-Campos within the meaning of the Fourth Amendment when he retained his license and registration, we hold that reasonable suspicion of criminal activity existed at that time sufficient to justify a lawful investigative detention. Mr. Olivares-Campos's subsequent consent to the search of his truck therefore was not tainted by an illegal seizure, and neither does it bear any other indicia of unlawful coercion." United States v. Olivares-Campos, 276 Fed. Appx. 816 (10th Cir. 2008) (unpublished).*

Defendant was a police officer, so he "cannot reasonably argue that he was vulnerable in any way or did not understand the rights he was giving up. He was fully aware that he could force the officers to obtain a warrant before they searched his home, but he chose not to." The mere fact of a gun on the premises is not cause for a protective sweep because it is limited to looking for people. State v. Evans, 2008 Ohio 2032, 2008 Ohio App. LEXIS 1735 (8th Dist. May 1, 2008).

"[A] method of drug delivery described by the confidential informant" was sufficient to show a nexus to defendant's property to support a search warrant. Commonwealth v. Pina, 71 Mass. App. Ct. 653, 885 N.E.2d 157 (2008).*

Miranda violation under Oregon law compels suppression of everything that results from it. State v. Vondehn, 219 Ore. App. 492, 184 P.3d 567 (2008):

The issue in this case is whether the analysis that the Supreme Court described in Hall applies when the police obtain voluntary consent to a search by exploiting a previous interrogation that violated Article I, section 12, because of a failure to give Miranda warnings. We conclude that it does.

The foundation of the analysis in Hall is that Article I, section 9, creates a constitutional right to be protected against unreasonable searches and seizures and that the purpose of the exclusionary rule is to vindicate that right. In the same way, Article I, section 12, creates a constitutional right not to be compelled to provide testimony or furnish evidence against oneself, a right that applies in any kind of judicial or nonjudicial procedure, including police interrogation. State v. Fish, 321 Ore. 48, 53, 893 P.2d 1023 (1995). The right by its express terms constitutes an exclusionary rule that prohibits the use of testimonial evidence acquired as a result of its violation, but it also protects a person from being compelled in the first instance to furnish evidence. State v. Soriano, 68 Ore. App. 642, 646 n 4, 684 P.2d 1220, aff'd and opinion adopted, 298 Ore. 392, 693 P.2d 26. Again, under the Oregon Constitution, the right is based not on deterring police misconduct but on preserving a person's freedom to decide whether to speak. The Miranda warnings are an essential part of protecting that freedom of decision and thus of protecting the constitutional right. Excluding testimony that violates the Miranda rule, thus, is necessary to vindicate the constitutional right.

Pretrial detainee had no expectation of privacy in her outgoing mail because of the reduced expectation of privacy of inmates. Hawkins v. State, 2008 Ind. App. LEXIS 949 (April 29, 2008).

Both defendants' statements they had permission to use the car searched was sufficient to confer standing. The state did not counter that testimony. Campos v. State, 885 N.E.2d 590 (Ind. 2008).*

The Indiana statute on announcement does not always prohibit a no knock entry. Under the facts of this case, the police had reasonable suspicion that announcement would frustrate their purpose or potentially lead to violence, so they did not have to announce here. Beer v. State, 885 N.E.2d 33 (Ind. App. 2008).*

Court determines that a passenger in a validly stopped rented SUV had no standing to challenge the search of the vehicle which led to finding interior panels that had been tampered with, which, when opened, revealed meth. United States v. Resa, 552 F. Supp. 2d 720 (E.D. Tenn. 2008):

In Smith, the Sixth Circuit considered five factors which it found to militate, under the facts of that case, against application of the general rule depriving an unauthorized driver of a rental vehicle from asserting a privacy interest in the vehicle. Those factors were: (1) whether the defendant was a properly licensed driver, who could legally drive the vehicle in question; (2) whether the defendant was able to present the officer with a rental agreement and provide the officer with sufficient information regarding the vehicle; (3) whether the driver can identify some related individual who gave him possession of the vehicle (in Smith, it was the defendant's wife) or whether the purported authorized driver is "some unrelated third party;" (4) whether the defendant's related party had given him permission to drive the vehicle; and (5) most significantly, whether the defendant had a business relationship with the rental company such as having made a reservation, or presented it with a credit card number. Smith, 263 F.3d at 586.

Applying the factors identified in Smith in the order enumerated in the preceding paragraph against the facts of the instant case, only the first clearly militates in favor of according to Mr. Resa standing to challenge the search of the vehicle. Analysis of the second, third and fourth factors requires the Court to weigh the testimony of Officer Choate regarding his assessment of the adequacy of the Defendants' responses to his questions against the sufficiency of those responses as suggested by Mr. Resa's counsel on cross-examination. The fifth factor, which the Sixth Circuit identified as the most significant, clearly militates against Mr. Resa being accorded standing to challenge the search.

In balancing Officer Choate's testimony regarding the second, third, and fourth factors against defense counsel's suggestions, the Court is left with the fact that Officer Choate's evaluation of the Defendants' responses, was reasonable, if not clearly beyond question. This being the case, and given that the Smith court makes clear that a defendant seeking to suppress a search bears the evidentiary burden of establishing his standing to challenge the search, the Court is left to the conclusion that Mr. Resa has not sustained his evidentiary burden of establishing that he had a legitimate expectation of privacy in the subject rental vehicle so as to afford him what has been referred to as "standing" to challenge its search.

Plaintiffs § 1983 claim failed as to digging holes on their property under a search warrant for evidence from a 30 year old homicide because it was reasonable to believe some of the evidence sought would be buried. Other interpersonal actions undertaken by the police in conducting the search were sufficient to survive summary judgment. Lykken v. Brady, 2008 U.S. Dist. LEXIS 35479 (D. S.D. April 30, 2008).

Tip in an anonymous 911 call that defendant had a gun was not sufficiently predictive under J.L. to justify a stop and frisk. Describing clothing is essentially nothing, and possession of a gun is not illegal under Delaware law. United States v. Waterman, 549 F. Supp. 2d 593 (D. Del. 2008).*

The traffic stop was executed reasonably quickly such that defendant was not unreasonably detained. While the officer never said that the defendant was free to go, the stop became consensual. United States v. Velazquez, 2008 U.S. Dist. LEXIS 35378 (D. Kan. April 28, 2008):

An encounter does not become non-consensual merely because an officer fails to advise a driver that he was free to go. It was only after the trooper told defendant to take care and stepped away from the vehicle towards the patrol vehicle that defendant was asked if he had any illegal drugs in the vehicle, followed by a request to search the vehicle. After reviewing the video of the stop, the Court finds there is no indication that Trooper Ranieri made any "coercive show of authority" such that a reasonable person would not have felt free to leave.

Repeated sexual assaults of plaintiff's children were exigent circumstances for their seizure and removal from the home. Canter v. Reeves, 2008 U.S. Dist. LEXIS 35667 (E.D. Mich. May 1, 2008):

The Court finds that the factual circumstances underlying this case amounted to exigent circumstances. Ro.C. was an 11-year-old girl who revealed that she had been sexually molested by her nephew by adoption and sexually assaulted by her adopted brother on multiple occasions, as recently as the previous evening. In light of the frequency of the assaults and their unwanted nature, the case presents a situation in which "real immediate and serious consequences ... would certainly occur were a police officer to postpone[] action to get a warrant." O'Brien, 23 F.3d at 997 (internal quotations omitted).

A ticket is not itself a Fourth Amendment violation, assuming it was issued based on probable cause. Idahosa v. Despines, 275 Fed. Appx. 545 (7th Cir. 2008) (unpublished):

The ticket was neither a search nor a seizure; a ticket is just the complaint that initiates litigation. A ticket might have led to a seizure, as in Atwater v. Lago Vista, 532 U.S. 318, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001), but Despines did not take Idahosa to the stationhouse for booking. So there is no problem under the fourth amendment--and there was in any event probable cause for the ticket. Cf. Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996).

Suspicionless parole search of defendant's house after a traffic stop and a search of her car that produced nothing was invalid. Samson applies California law which is different than Tennessee law. State v. Turner, 2008 Tenn. Crim. App. LEXIS 321 (April 29, 2008). Comment: This case falls squarely under the "parole search for the hell of it" doctrine, and it is invalid.

"Stop, I need to talk to you" is a seizure. State v. Gatewood, 163 Wn.2d 534, 182 P.3d 426 (2008):

The State concedes that when Longley said "'Stop, I need to talk to you,'" it was a seizure. Resp't's Br. at 13 n.7 (citing State v. Friederick, 34 Wn. App. 537, 541, 663 P.2d 122 (1983)); see State v. O'Neill, 148 Wn.2d 564, 577, 62 P.3d 489 (2003) (holding that commanding a person to stop is a seizure). Thus, we only need to analyze the facts known to the officers up to this point: (1) Gatewood's widened eyes upon seeing the patrol car, (2) his twist to the left like he was trying to hide something, (3) his departure from the bus shelter, and (4) his crossing the street mid-block.

These facts are insufficient for a Terry stop. Startled reactions to seeing the police do not amount to reasonable suspicion. State v. Henry, 80 Wn. App. 544, 552, 910 P.2d 1290 (1995) (nervousness is not sufficient for Terry stop). Although Gatewood twisted to the side, Longley did not see what, if anything, Gatewood was hiding. Flight from police officers may be considered along with other factors in determining whether officers had a reasonable suspicion of criminal activity, State v. Little, 116 Wn.2d 488, 496, 806 P.2d 749 (1991), but Gatewood did not flee from the police.

Written proof of an inventory policy is not required for the state to sustain its burden of proving an inventory valid. State v. Chatman, 2008 La. App. LEXIS 619 (2d Cir. April 30, 2008) (Also, this specific issue was not addressed to the trial court, so it was waived.) Comment: I have never been able to agree with this rationale, at all. Everybody has computers, and all police agencies have SOPs. If they have no written inventory policy, they should be held to have no policy. Official policy should be in writing, not part of an oral history. Subpoena the inventory policy and see if it complies with Florida v. Wells.

Defendant's girlfriend had sufficient common authority, without regard to whether she was the actual lessee, to consent to a search. State v. Thomas, 981 So. 2d 850 (La. App. 2d Cir. 2008).*

The defendant was arrested at a homeless shelter for an aggravated sexual assault, and his bags were seized with him because others could have appropriated them or gotten into them in the shelter. They were properly searched two days later with a search warrant. State v. Drewry, 2008 ME 76, 946 A.2d 981 (2008).*

There is no higher standard for search of computer than anything else, and the DoJ computer search protocol carries no constitutional imprimatur. United States v. Burns, 2008 U.S. Dist. LEXIS 35312 (N.D. Ill. April 29, 2008).

Administrative search that involved a breaking of a door was unreasonable under Colonade. Club Retro v. Hilton, 2008 U.S. Dist. LEXIS 35231 (W.D. La. April 4, 2008):

Since defendants purportedly were only conducting an administrative search and had no probable cause to believe a crime was being committed by any persons in Club Retro, defendants' warrantless and dramatic entry into Club Retro was not the type of entry contemplated under the statutes for an administrative search, and their forcible entry into the private office area of Club Retro was not justified. Therefore, to the extent defendants are attempting to re-characterize their warrantless searches for narcotics as an administrative search for illegal alcohol sales, that argument is unavailing to exempt defendants from the requirements of the Fourth Amendment.

Defendant would not have prevailed on any search claim that defense counsel supposedly should have pursued, so he was not prejudiced. State v. Hoskins, 2008 Iowa App. LEXIS 259 (April 30, 2008).*

Running a publicly displayed license plate which comes back as expired, even though erroneous, justifies a stop. United States v. Crooks, 2008 U.S. Dist. LEXIS 35189 (D. Del. April 29, 2008):

31. That the information Officer Breslin obtained from the computer system tag check was later proven to be inaccurate does not render the stop illegal. As the Third Circuit has recognized:

an officer need not be factually accurate in her belief that a traffic law had been violated but instead, need only produce facts establishing that she reasonably believed that a violation had taken place. Consequently, a reasonable mistake of fact "does not violate the Fourth Amendment."

United States v. Delfin-Colina, 464 F.3d 392, 396 (3d Cir. 2006) (quoting United States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003)).

32. Based on the CJIS information, the Court concludes that Officer Breslin initiated a lawful traffic stop for expired tags. Once legally stopped, Officer Breslin was then permitted to obtain Mr. Crooks' driver's license. See e.g., United States v. Roberts, 77 Fed. Appx. 561, 562 (3d Cir. 2003). Because a check of Mr. Crooks' driver's license revealed that the license was suspended and Mr. Crooks was wanted on three outstanding capiases, the Court further concludes that Officer Breslin had sufficient probable cause to justify the arrest of Mr. Crooks.

Officer lacked reasonable suspicion for stop, and trial court's finding of fact was clearly erroneous. The fact he left a drug house and had handed something to another alone was not reasonable suspicion. United States v. Blair, 524 F.3d 740 (6th Cir. 2008):

a. Terry Stop Based on Time, Area, and Known Drug House

The question remains whether the late hour and high-crime area justify a Terry stop. We hold they do not. That a given locale is well known for criminal activity will not by itself justify a Terry stop, although it may be taken into account with other factors. Martin, 289 F.3d at 397 (citing Wardlow, 528 U.S. at 123). The only other factor to consider here is that the stop occurred at night. A late hour can contribute to reasonable suspicion; however, our cases so holding typically involve a much later hour than that involved here. See United States v. Caruthers, 458 F.3d 459, 467 (6th Cir. 2006) (discussing a stop that took place at 1:20 a.m.); United States v. Bailey, 302 F.3d 652, 659 (6th Cir. 2002) (addressing a stop that took place at 1:00 a.m.). Blair was stopped at approximately 10:30 p.m., an hour not late enough to arouse suspicion of criminal activity. Accordingly, Officer Holmes did not have reasonable suspicion to suspect Blair of criminal activity simply because he was driving in a bad neighborhood at 10:30 at night.

b. Terry Stop Based on Hand-to-Hand Transaction

The district court also found that Officer Holmes had reasonable suspicion that Blair was involved in drug activity based on “some evidence that Officer Holmes knew of the hand-to-hand transaction prior to the traffic stop.” This Court finds the district court’s conclusion of fact on this issue clearly erroneous.

Officers Munday and Holmes offered contradictory testimony regarding when Officer Holmes learned of the hand-to-hand transaction. Officer Munday testified that as soon as he saw
the transaction, he informed Officer Holmes. Officer Holmes, on the other hand, testified that he did not hear of the hand-to-hand transaction until after the stop occurred. Although Officer Holmes suggested that he and Officer Munday were communicating before the stop, Officer Holmes was unequivocal regarding when he learned of the hand-to-hand transaction: after the stop. Therefore, even viewing the evidence in the light most favorable to the government, this Court finds that Officer Holmes did not know of the hand-to-hand transaction prior to the traffic stop. Consequently, the transaction could not provide reasonable suspicion for Officer Holmes to stop Blair.

Uncorroborated details left affidavit based on informant hearsay wanting, and probable cause was lacking. State v. Whittington, 2008 Tenn. Crim. App. LEXIS 320 (April 29, 2008)*:

In the instant case, the informant was a member of the criminal milieu. Therefore, in order for the information to be credible, the factors of Aguilar-Spinelli must be satisfied. The "basis of knowledge" prong is satisfied by the informant's representation that he was present at 56 Mount Pinson Road and saw large bags of marijuana at the residence. This information is listed in the search warrant affidavit; however, there is no information as to the credibility of the informant contained in the search warrant.

. . .

Identification of the presence of the three vehicles located at a house where three people reside is a "non-suspect" event. While an outstanding summons for the violation of the bad check law indicates at least probable cause of a misdemeanor theft related offense, it has little, if any, corroborative value as to corroborating the possession of marijuana. It is also "non-suspect" behavior for it to be established that a person has been in jail for an unspecified offense.

That leaves two facts uncovered by independent police investigation and submitted to establish that the informant's information in this particular case is reliable. First, one resident was arrested in 2001 for a narcotics offense, and, secondly, another resident was arrested in 2002 and again in 2004 for the sale and delivery of cocaine. This knowledge alone does not constitute probable cause. If there had been other factors corroborated by the police outside of the "non-suspect" behavior, the discovery of the prior arrests could have provided a basis for probable cause in addition to the other factors. See State v. Hennings, 975 S.W.2d 290, 295 (Tenn. 1998). In this instant case, however, that did not occur. While everything the informant told the police was found to be true, it was information that anyone could have obtained and did not pertain to any criminal activity. The only specific information provided by the informant and corroborated by the police was presence of the cars in the driveway and the residents of the home. This is all non-suspect activity and is, therefore, insufficient to negate the deficiency in the search warrant. Because there is no information given in the search warrant as to the credibility of the informant and because of the lack of police corroboration to establish the reliability of the informant's information of criminal activity, the search warrant did not meet the standards of Aguilar/Spinelli. Accordingly, the judgment of the circuit court is reversed and the indictment against Defendant is dismissed.

The four corners of the affidavit for the search warrant showed probable cause for issuance of the warrant. Commonwealth v. Otterson, 2008 PA Super 85, 947 A.2d 1239 (2008).*

Officer had reasonable suspicion that defendant's vehicle was the one driving the wrong way on an interstate highway when he found a vehicle parked on a lot with flashers on that matched the description of the vehicle in the radio call. State v. Hanning, 2008 Tenn. Crim. App. LEXIS 319 (April 29, 2008).*

Implied consent is valid. The need for advice as to consequences serves a purpose beyond consent. State v. Dewitt, 145 Idaho 709, 184 P.3d 215 (App. 2008):

Informing a suspect about the consequences of refusing an evidentiary test is not intended to be an opportunity for a defendant to withdraw his consent; rather, it is an administrative tool designed to increase the likelihood that the suspect will peaceably submit to testing that he has no legal right to refuse. Even if the officer did not notify the defendant of the consequences of the refusal as required by I.C. § 18-8002(3), the results of the evidentiary test are admissible in a criminal prosecution. State v. Harmon, 131 Idaho 80, 85, 952 P.2d 402, 407 (Ct. App. 1998).

Plaintiff knew or should have known he had been subjected to a search by a date certain, so his civil case was barred by the statute of limitations. Santiago v. Davis, 2008 U.S. Dist. LEXIS 34965 (E.D. Pa. April 25, 2008).*

The officer's observation of items changing hands, late at night, at a specific intersection he knew had high levels of drug-related activity, and the precipitous departure of one of the parties to the transaction when he saw the officer, was sufficient to justify the vehicle stop that led to defendant's arrest and the discovery of the cocaine on her person. The search incident was valid. State v. Fornof, 218 Ariz. 74, 179 P.3d 954 (2008).*

Strip searches of inmates moving from one part of the jail to another without regard to what the inmate is in for do not violate the Fourth Amendment. Jackson v. Herrington, 2008 U.S. Dist. LEXIS 34677 (W.D. Ky. April 28, 2008):

Finally, in Sutton v. Hopkins County, this Court held that a detention center's policy of strip-searching all transferred detainees was constitutional because it was reasonable under the circumstances. 2007 U.S. Dist. LEXIS 3150. Specifically, the Court observed:

A detainee who has been incarcerated in another facility has potentially been exposed to contraband, especially if the facility has lenient procedures with respect to court appearances, contact visits, medical programs, and work programs. Additionally, just as in Richerson, detainees that are transported from one facility to another are transported through areas to which the public may have access. Therefore, these contacts outside of the jail provide opportunities for transferees, even those charged with non-violent, non-drug related offenses, to obtain contraband before they enter the…[j]ail.

Sutton, 2007 U.S. Dist. LEXIS 3150 at *15. The Court further noted that "[i]n the case of a transferred detainee, [a] detention facility is unaware of the security practices of the other facility and has absolutely no control over the transporting officer who supervised the detainee during transport." 2007 U.S. Dist. LEXIS 3150 at *16.

The Court finds no meaningful distinction between the HCDC policy at issue here and the policies upheld by the Sixth Circuit in Watsy and by this Court in Sutton. The objective circumstances surrounding the transfer of every inmate from one detention facility to another give HCDC officials the reasonable suspicion necessary to conduct intake strip-searches on inmates transferred into HCDC. HCDC's legitimate security interests outweigh the privacy rights of these inmates. Thus, the Court holds that the Defendants are entitled to summary judgment on the Plaintiff's Fourth Amendment claim.

Seizure and search of the contents of a cellphone, despite its high expectation of privacy, can be proper under the automobile exception. United States v. James, 2008 U.S. Dist. LEXIS 34864 (E.D. Mo. April 29, 2008):

Judge Noce correctly held that Meador had a reasonable expectation of privacy in the data contained in the cell phone. Meador had a possessory interest in the cell phone and it is reasonable for a person to expect the information contained in a cell phone -- especially information such as that contained in the address book, which is not available even to the service provider -- will be "free from intrusion from both the government and the general public." United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007). As one court has noted, "cell phones are capable of storing immense amounts of highly personal information." United States v. Park, 2007 WL 1521573 (N. D. Cal. May 23, 2007). Because of this reasonable expectation of privacy, law enforcement officers must obtain a search warrant before viewing the contents of a cell phone, unless one of the exceptions to the warrant requirement exist.

Judge Noce also correctly concluded that the automobile exception to the warrant requirement, as recognized in Chambers v. Maroney, 399 U.S. 42 (1970) and refined in California v. Acevedo, 500 U.S. 565 (1991) applies here. Because probable cause existed to believe that evidence of a crime would be found in the cell phone call records and address book, the automobile exception allows the search of the cell phone just as it allows a search of other closed containers found in vehicles. I agree with Judge Noce's conclusion, and note that at least one district court has recently reached the same conclusion under very similar facts. See United States v. Fierros-Alvarez, 2008 WL 1826188 (D. Kan. April 23, 2008) (automobile exception justified search of cell phone found in vehicle).

It readily became apparent that plaintiff was not the person wanted on the arrest warrant when processing at the jail began and she had no tattoos or moles as described in their paperwork. Nonetheless, they processed her, strip searched her, and mocked her when she was standing there naked and began lactating. She satisfied overcoming qualified immunity. Her initial arrest was for having too many of her nine children in the car with her. Archuleta v. Wagner, 523 F.3d 1278 (10th Cir. 2008):

Deputy Mandelko also could not have had reasonable suspicion that Ms. Archuleta had a weapon under these circumstances. Reasonable suspicion for a search is a minimum level of objective justification "based on the totality of the circumstances, taking into account an officer's reasonable inferences based on training, experience, and common sense." United States v. Rice, 483 F.3d 1079, 1083 (10th Cir. 2007). "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that [her] safety or that of others was in danger." Id. at 1082-83 (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). In this case, based upon the clothing Ms. Archuleta was wearing, the three "pat downs" she endured prior to being booked, and the absence of any tattoos or moles indicating she was the culprit, Deputy Mandelko could not reasonably suspect that Ms. Archuleta had a weapon on her person. See Foote, 118 F.3d at 1425.