Location of search was a drug processing house, not a residence, so defendant had no standing as a guest. State v. McCoy, 2008 Ohio 4947, 2008 Ohio App. LEXIS 4150 (9th Dist. September 29, 2008):

[*P10] It is obvious from the evidence that the house at 1114 W. 18th Street was a place for storing and trafficking drugs, and not a traditional place of residence. When asked to describe the inside of the house in question, one of the arresting police officers stated: "It appeared to be a place where they were bringing in marijuana, cocaine, [and] they were repackaging it for distribution." The nature of the house had been so converted by the lessee that it had lost its character as a residential dwelling and with it the heightened protection inherent in such property. Furthermore, McCoy presented no testimony or evidence outside of his own assertions that showed he actually had the permission required to receive protection as an "overnight guest". See Gulley at P25 ("Although social guests enjoy Fourth Amendment protection in certain instances, privacy does not attach per se upon a person's blanket assertion that [he is] a guest in another's home.").

Consenter who signed a consent form in Spanish had apparent authority to consent to search whole premises. United States v. Aragon-Ruiz, 551 F. Supp. 2d 904 (D. Minn. 2008).*

Actual renter of rental car was not present, but an authorized driver was the passenger, and he could consent to a search of the car. State v. Morgan, 2008 Ohio 4948, 2008 Ohio App. LEXIS 4154 (9th Dist. September 29, 2008).*

Defendant was in a high crime area at night and adjusted his waistband in a manner the officer said looked like he was checking a gun. None of the factors cited by the police was sufficient and collectively (as Arvizu requires) sufficient. United States v. Doughty, 2008 U.S. Dist. LEXIS 74248 (S.D. N.Y. September 18, 2008):

But Officer Rodriguez's impression of how he looked adjusting his weapon, without more, is insufficient grounds to provide "reasonable suspicion" of criminal activity. He did not testify that he relied on his professional experience as a police officer or on any particular training in the police academy or subsequently to identify Defendant's movement as consistent with movement of a person carrying a gun in the waistband. See Arvizu, 534 U.S. at 273-74 (in determining whether reasonable suspicion exists, Court stressed importance of allowing officers to draw upon "their own experience and specialized training"). Further, there are a myriad of innocent explanations for Defendant's conduct. He could have been simply hitching up his pants or tucking in his shirt. And the fact that neither officer saw a bulge -- a telltale sign of weapons possession -- makes it less likely that his suspicion was that of an objectively reasonable police officer. Cf. United States v. Scott, 250 Fed. Appx. 534, 535 (4th Cir. 2006) (explaining how a bulge or visible object underneath clothing provides reasonable suspicion); United States v. Roundtree, 596 F.2d 672, 674 (5th Cir. 1979) (reasonable suspicion established where defendant had bulge on inside of his calf which he was seen "adjusting"). Thus, this factor too would not, standing alone, sufficiently elevate a reasonable officer's suspicions to the level where the officer is permitted to stop and detain the suspect for questioning.

Unkempt yard in high crime area is not an exigent circumstance for a warrantless entry. United States v. Vurgess, 2008 U.S. Dist. LEXIS 74332 (S.D. Ga. September 26, 2008):

The Government also argues that the warrantless entry was justified by the exigency of the circumstances. In support of its argument, the Government cites the condition and appearance of the property, and its location in a high crime neighborhood, as creating a sufficient danger to the community to justify a warrantless entry in the home. This argument fails for two reasons. First, the Fourth Amendment would be rendered a virtual nullity if government agents could perform warrantless searches based merely on the location of a home and its unkempt appearance. Assuming that the property was in a state of disrepair and located in a high crime neighborhood, the government has failed to show that this created any specific emergency that would justify abandoning the warrant requirement. 6 Such a ruling would strip a large segment of the population of their Fourth Amendment protection simply because they have the misfortune of living in a high crime area and a disdain for performing work in the yard or on their house. In regards to the warrantless entry into an individual's home, the touchstone of Fourth Amendment protection is not the aesthetic quality of the property. This would place the applicability of an important constitutional protection in the eye of the beholder and remove crucial safeguards that operate to preserve our individual liberties.

Illegal stop was the cause of an inventory on defendant's arrest for driving on a suspended license so it was suppressed under Wong Sun. United States v. Blackburn, 2008 U.S. Dist. LEXIS 74333 (S.D. Ala. September 26, 2008).*

During a consent search, the consenter lifted the lid of a box exposing the contents to the officer which were then in plain view. State v. Best, 2008 Tenn. Crim. App. LEXIS 744 (September 25, 2008).*

The defendant's showing to get a Franks hearing was conclusory and no more than a desire to cross examine, so a hearing was denied. United States v. Longhi, 2008 U.S. Dist. LEXIS 74126 (D. Conn. September 26, 2008).*

FL1 distinguishes FL4 Rabb case: a dog sniff in a common hallway does not violate the Fourth Amendment. Stabler v. State, 990 So. 2d 1258 (Fla. App. 1st Dist. 2008).

Parole search was legitimate and occurred bacause defendant admitted marijuana use. People v. Johnson, 2008 NY Slip Op 7153, 54 A.D.3d 969, 864 N.Y.S.2d 132 (2d Dist. 2008).*

Probation search was justified by reasonable suspicion on information received from other law enforcement officers. United States v. Johnson, 2008 U.S. App. LEXIS 20405 (8th Cir. September 15, 2008) (unpublished).*

Pretrial release searches for child pornography must comply with the Fourth Amendment. Defendant here may be prevented from access to the Internet. United States v. Brown, 2008 U.S. Dist. LEXIS 73715 (D. Ariz. July 14, 2008):

This case is distinguishable from the Ninth Circuit's decision in United States v. Scott, 450 F.3d 863, 872 n. 11 (9th Cir. 2006), wherein the Ninth Circuit considered pretrial release conditions other than those designed to secure an accused's presence in court and the safety of the community. In Scott, the defendant was arrested on Nevada charges of drug possession and released on his own recognizance. Scott, 450 F.3d at 865. As a condition of his pretrial release, defendant was required to sign a form agreeing to comply with several conditions including "random" drug testing without a warrant and that his home be searched for drugs without a warrant. Scott, 450 F.3d at 865. Scott was a Fourth Amendment case concerning defendant's motion to suppress evidence found in a warrantless search of defendant's home. The issue in Scott was whether defendant waived his Fourth Amendment rights by consenting to pretrial release conditions allowing law enforcement officials to conduct warrantless searches of his home. Id. at 865. The Ninth Circuit concluded that defendants on pretrial release do not waive their Fourth Amendment rights through consent to pretrial release conditions; thus, searches must be supported by probable cause under the Fourth Amendment to be lawful. Id. at 868. In analyzing the disputed search in Scott, the court determined that defendants on pretrial release do not have reduced expectations of privacy like probationers and supervised releasees. Id. at 873. "[T]he assumption that [the defendant] was more likely to commit crimes than other members of the public," did not authorize the Government to "short-circuit" the search warrant process. Id. at 874. "Just as the government cannot detain an individual for dangerousness merely because he has been arrested, the government cannot order warrantless searches based on the assumption that the defendant will commit further crimes." United States v. Gardner, 523 F.Supp.2d 1025, 1034 (N.D.Cal. 2007) (discussing Scott, 450 F.3d at 874).

Unlike the district court in Scott, this Court is not assuming that merely with Defendant's arrest that he is more likely than the general public to commit sexually-related crimes while on release. Rather, the Court is relying upon expert testimony of an unchallenged expert on sexual deviancy, Mr. Robert Emerick, that "there is a relationship between viewing sexually explicit pornography depicting consenting adults in increasing severity ... and the potential for viewing child images and/or committing hands-on offenses against children." (docket # 23 at 29-30)

In summary, Defendant has been indicted for receiving and possessing child pornography; hence, probable cause exists that Defendant committed these sexually-related crimes. Mr. Emerick testified that "there is a relationship between viewing sexually explicit pornography depicting consenting adults ... and the potential for viewing child images and/or committing hands-on offenses against children." (docket # 23 at 29-30) In view of that relationship, the pretrial release condition that "[t]he defendant shall not access via computer or possess any photographs or videos of sexually explicit conduct as defined by 18 U.S.C. § 2256(2)," is a condition that will further protect the public from Defendant, while on pretrial release. (docket # 23 at 24-25) Such a condition directly serves the Government's "legitimate and compelling" pretrial goal of protecting the public, Salerno, 481 U.S. at 749, and constitutes only a limited abridgement of Defendant's First Amendment rights for a relatively short period of time. United States v. Bahe, 201 F.3d 1124, 1134 (9th Cir. 2000) (quoting United States v. Bee, 162 F.3d 1232, 1235 (9th Cir. 1998) (A defendant's right to free speech may be abridged to "'effectively address [his] [alleged] sexual deviance problem.'"); United States v. Murtari, 2008 U.S. Dist. LEXIS 18880, 2008 WL 687434 (N.D.N.Y. 2008) (pretrial release condition was reasonable and was limited to encroaching upon defendant's First Amendment rights only to the extent necessary based upon the magistrate judge's findings.)

Child pornography search warrant for defendant's premises failed to show probable cause under Second Circuit precedent.

Absent any allegation that Falso accessed the cpfreedom.com website, and with little or no weight attaching to his prior conviction, the question remains whether other allegations in the affidavit, considered as a whole, support a finding of probable cause. Generalized allegations about: (1) the propensity of collectors of child pornography to intentionally maintain illegal images; (2) law enforcement's ability to retrieve such images from a computer; and (3) the ability to view child pornography on the cpfreedom.com website, fail to establish the requisite nexus of illegal activity to Falso. Although Falso might hoard images of child pornography if he viewed and downloaded them, there is no allegation in the affidavit that he was in a position, or was otherwise inclined, to do so.

. . .

In the end, the district court's finding of probable cause in Falso's case required it to make at least two significant additional inferential leaps not required in Martin and like cases. First, in Falso's case there is no allegation that he in fact gained access to the cpfreedom.com website, much less that he was a member or subscriber of any child-pornography site. Second, there are no allegations to support an inference that the sole or principal purpose of the cpfreedom.com website was the viewing and sharing of child pornography, much less that images of child pornography were downloadable from the site. Thus, it is only after making the inferences that (1) Falso in fact accessed a website (2) whose principal purpose was the viewing and sharing of child pornography, that the district court could draw the ultimate inference, upheld in Martin, that those who become members of a child-pornography website are likely to collect such images. Putting aside the dangers of Martin's ultimate inference, see Martin, 426 F.3d at 81-83 (Pooler, J., dissenting); Coreas, 419 F.3d at 156-58, the dangers of coupling it with the inferences drawn in Falso's case are exponential.

We are not insensitive to "the need for law enforcement to have a certain amount of latitude in conducting criminal investigations." Martin, 426 F.3d at 76. But, as we explained in Coreas, requiring the government to gather "evidence particularized to the target of the search" before the warrant application is made "will simply focus law enforcement efforts on those who can reasonably be suspected of possessing child pornography." Id. at 158 (emphasis added). If this proves to be a hindrance, it is one the Fourth Amendment demands.

[A website named C[hild]P[ornography]Freedom? What could that mean?]

However, the good faith exception saved this search warrant (on a 2-1 vote). The showing of probable cause was not lacking that it was not reasonable to rely on it. United States v. Falso, 544 F.3d 110 (2d Cir. 2008).

Dissent: "An executing officer can hardly claim good-faith reliance on a warrant issued by a judge who was mis-directed by the officer himself: the same principle explains why, at a magic show, the credulity of the audience does not cause the magician to fear that the lady has been sawn in half."

“[A] law enforcement officer signaled by an anonymous citizen-driver in a manner obviously intended to invite the officer's intervention as to a third party--but without any indication as to the nature of the citizen's concern or any other information--does not have reasonable suspicion adequate to stop and seize the third party.” Blue lights are a stop. State v. Day, 263 S.W.3d 891 (Tenn. 2008).*

Officer must have reasonable suspicion before he turns on the blue lights of the patrol car. State v. Davidson, 2008 Tenn. Crim. App. LEXIS 737 (September 10, 2008).*

The evidence did not support the conclusion that defendant had abandoned leased premises because he was still around at the sufferance of his girlfriend who still had a legal connection to the premises. United States v. Carter, 2008 U.S. Dist. LEXIS 73737 (N.D. Ill. August 12, 2008):

This case is therefore distinguishable from Smith, in which an apartment was reasonably presumed to be abandoned when the tenant, who had a month-to-month oral lease, failed to pay his rent for two months, had removed the majority of his belongings, the power was turned off, and garbage and rotting food had been left within the house. 561 N.E.2d at 258. In the instant case, Carter's girlfriend had a still-valid lease to the apartment and Carter was known to cohabit with her, meaning that Carter had at least as much of an expectation of privacy as an overnight guest in the apartment. See Minnesota v. Olson, 495 U.S. 91, 98-99, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (overnight guest has a legitimate expectation of privacy in his host's home).

Mere trespasser to property who murdered the owners had no reasonable expectation of privacy in it to contest a search. Allen v. State, 893 N.E.2d 1092 (Ind. App. 2008):

Allen was a trespasser. He did not have the owners' permission to be on the premises. Any control and possession of the Linwood residence exercised by Allen was obtained by illegal means, i.e., the alleged murder of the rightful owners. He has made no showing that he had a legitimate right to control and possess the Linwood residence. See Peterson, 674 N.E.2d at 534-35. Any expectation of privacy he had is not one that society is prepared to recognize as reasonable, and therefore he did not have an objective expectation of privacy in the premises. See Campos, 885 N.E.2d at 598.

Drug dog's arrival within the time to conduct the normal DL check was a reasonable detention. State v. McDade, 2008 Ohio 4885, 2008 Ohio App. LEXIS 4094 (5th Dist. September 9, 2008).*

Law enforcement officers were present at defendant's probation search for protective purposes and not as a pretext. State v. Jones, 2008 WI App 154, 314 Wis. 2d 408, 762 N.W.2d 106 (2008).*

Odor of marijuana coming from defendant's backyard, the curtilage, did not negate the warrant requirement. The warrantless entry into the backyard had to be suppressed. State v. Crenshaw, 2008 Ohio 4859, 2008 Ohio App. LEXIS 4069 (8th Dist. September 25, 2008).*

Saying to the defendant "come here" is a seizure under Terry. United States v. Holcomb, 2008 U.S. Dist. LEXIS 73362 (W.D. Pa. August 29, 2008).*

Quarles public safety exception applies to a knife as well as a gun. People v. Allah, 2008 NY Slip Op 7068, 54 A.D.3d 632, 863 N.Y.S.2d 682 (1st Dept. 2008).*

M.R.E. 315(f)(1) search authorization for Air Force member's dorm room was presented by affidavit for a search warrant, and the base commander authorized the search which could be used in civilian court. The base commander's authority was sufficient under the Fourth Amendment. People v. Jasmin, 167 Cal. App. 4th 98, 84 Cal. Rptr. 3d 19 (1st Dist. 2008):

Although scant California authority exists discussing the constitutional legitimacy of military searches, cases from other jurisdictions indicate that it is hardly a novel proposition. (See Chapman, supra, 954 F.2d at pp. 1367–1371; United States v. Brown, supra, 784 F.2d at pp. 1036–1037; United States v. Banks (9th Cir. 1976) 539 F.2d 14, 16–17; Wallis v. O'Kier (10th Cir. 1974) 491 F.2d 1323, 1324–1325; United States v. Grisby (4th Cir. 1964) 335 F.2d 652, 656; U.S. v. Reppert, supra, 76 F.Supp.2d at p. 189; United States v. Rogers (E.D.Va. 1975) 388 F.Supp. 298, 302; People v. Coit (Colo.Ct.App. 1997) 961 P.2d 524, 527–528; State v. Long (1978) 37 N.C.App. 662, 667 [246 S.E.2d 846, 850].) Indeed, we are unaware of any cases holding military authorizations to search as unconstitutional. Since there is no evidence that the search was not supported by probable cause or that Colonel Patrick was so involved in the investigation of the crimes that his neutrality was compromised, the search complied with the Fourth Amendment.

Defendant injected himself into a homicide investigation, and the officers patted him down and found car keys, which they seized. "They acted reasonably in removing the car keys from Defendant's person to prevent him from compromising their investigation. The subsequent pat down of Defendant when he was placed in the police wagon while the premises were secured was also reasonable. Defendant had at that point intentionally injected himself into the homicide investigation, and based upon his behavior, the Detectives suspected that Defendant could be involved in the crime that they were investigating." United States v. Walker, 2008 U.S. Dist. LEXIS 72907 (E.D. Pa. September 23, 2008).*

DUI checkpoint on entrance to a Georgia Navy base was valid. It was governed by Sitz and not Edmond. "Moreover, despite the lack of signage announcing the inspection, there was a police-type vehicle at the Base's entry with its lights on, and security personnel were wearing brightly colored vests. Further, Defendant was attempting entry onto a military installation. Even if the gate through which he attempted entry was not on a 'closed' part of the Base, this Court must nonetheless respect the security needs inherent of a military installation." United States v. Howard, 2008 U.S. Dist. LEXIS 72916 (S.D. Ga. September 24, 2008).*

Defendant's driving too slow at night on a military reservation was not reasonable suspicion. Court's initial conclusion that it was is reversed and the stop suppressed. United States v. Pompa, 2008 U.S. Dist. LEXIS 72988 (S.D. Ga. September 24, 2008):

Again and again courts have recognized that driving well below the speed limit, even late at night, is in and of itself insufficient to furnish reasonable suspicion. See generally Johnson v. Sprynczynatyk, 2006 ND 137, 717 N.W.2d 586 (N.D. 2006) (no reasonable suspicion to stop driver traveling between eight and ten miles per hour in a 25 m.p.h. zone at 12:43 a.m.); Faunce v. State of Florida, 884 So.2d 504 (Fla. Dist. Ct. App. 2004) (no reasonable suspicion to stop truck traveling 10-15 m.p.h. in a 35 m.p.h. zone at 11:00 p.m.); Richardson v. State of Texas, 39 S.W.3d 634 (Tex. App. 2000) (no reasonable suspicion to stop vehicle traveling 45 m.p.h. in a 65 m.p.h. zone at 2:00 a.m.). Most courts recognize that some other indicia of impairment is necessary. See. e.g. State v. Hiatt, 184 N.C. App. 190, 645 S.E.2d 902, at *3 [published in full-text format at 2007 N.C. App. LEXIS 1292] (N.C. Ct. App. 2007) (unpublished table opinion) (finding reasonable suspicion where defendant "was driving 15 m.p.h. under the speed limit and weaving within the lane"); State of Iowa v. Miller, 682 N.W.2d 83, at *1, 3 [published in full-text format at 2004 Iowa App. LEXIS 527] (Iowa Ct. App. 2004) (unpublished opinion) (finding reasonable suspicion to stop defendant who was traveling below speed limit, stopped 15 feet away from stop line at a traffic light, made an abrupt stop that caused the front of the vehicle to dip, made an extremely slow left hand turn, failed to acknowledge the officer when he pulled up beside her, and was driving "immediately next to the curb of the road" and weaving to avoid parked vehicles); see United States v. Little, 178 F.3d 1297, at *4 [published in full-text format at 1999 U.S. App. LEXIS 5875] (6th Cir. 1999) (unpublished table opinion) (finding stop constitutional where driver had been traveling at "an unusually slow speed," had allowed her speed to fluctuate, and had twice crossed the highway's white shoulder line).

The Court initially concluded that, given the lateness of the hour, the exceptionally slow speed of the SUV and its pausing along (or perhaps in) the roadway for a minute or so pushed this case into the realm of reasonable suspicion. But after further reflection, the Court is now persuaded that defendant's driving pattern--while somewhat unusual--was not sufficiently anomalous or suspicious in character as to furnish justification for an investigatory seizure of this motorist. There is no evidence that the defendant violated any provision of the Georgia traffic laws prior to the stop.

The back deck of defendant's home was within the curtilage under the Dunn factors even though defendant's property backed up to a golf course that enabled officers to walk right up to the back fenceline. The court also finds that the officers could not even see inside the house from the back deck as they said they did. Also, the Seventh Circuit has not yet recognized knock-and-talk, so the court declines to do so here. United States v. Conrad, 578 F. Supp. 2d 1016 (N.D. Ill. 2008).*

A IAC claim of failure to advise a defendant of the possibility of a conditional plea to preserve a suppression issue is cognizable in a § 2255. He still, however, has to prove a failure of performance and prejudice, and here he cannot. United States v. Cedeno, 2008 U.S. Dist. LEXIS 73411 (M.D. Pa. September 25, 2008).*

Defendants' napping in somebody else's motel room without any explanation of their relationship to the renter of the room did not show an expectation of privacy in the motel room. Anderson v. State, 103 Ark. App. 137, 286 S.W.3d 763 (2008) (4-2):

Examining the facts of this case, the record shows only that appellants were napping during the afternoon in a motel room that was registered to another person and that they had no personal belongings with them in the room. Otherwise, the nature of appellants' presence in the room and their status vis-a-vis the registered occupant were completely unexplained. Appellants failed to offer any evidence revealing how they came to be present in someone else's motel room, or how long they had been there. Appellants did not pay for the room, and there was no evidence that they had a key to it. Unlike Owen v. State, supra, there was no evidence introduced to show that appellants knew the registered occupant of the motel room or that they had permission from the registered occupant to stay overnight in the room. And, we cannot assume, without any factual support, that appellants' presence was somehow authorized simply because they were asleep in the room, as the record could just as easily suggest that appellants surreptitiously gained entry to the room without the knowledge and invitation of the registered occupant.

Being Tasered is a seizure. Wilson v. City of Lafayette, 2008 U.S. Dist. LEXIS 72384 (D. Colo. September 10, 2008).*

Court finds that defendant's limited understanding of English was not an impediment to his consenting to a search of his vehicle. His actions showed he understood. United States v. Mendez, 2008 U.S. Dist. LEXIS 72393 (W.D. N.C. August 25, 2008).*

Officers' dealing with a meth lab and their belief immediate action was required entitled them to qualified immunity. Minton v. Shultz, 2008 U.S. Dist. LEXIS 72471 (E.D. Tenn. September 23, 2008).*

Strip search on arrest of the wrong man with the same name as the man named in a warrant stated a claim for relief because there were enough discrepancies between the identifiers and the person they had before them to put them on notice it was not the same man. Caceres v. Port Auth. of N.Y. & N.J., 2008 U.S. Dist. LEXIS 72507 (S.D. N.Y. September 23, 2008).*

Claim of arrest before probable cause existed stated a claim. Cruz v. City of Philadelphia, 2008 U.S. Dist. LEXIS 72581 (E.D. Pa. September 23, 2008).*

When a search incident is proper, it can also be considered a plain view because the officer has a right to be where he or she was. United States v. Small, 2008 U.S. Dist. LEXIS 71846 (D. Me. September 19, 2008).*

Defendant's getting upset when being questioned about what was found during a consent search is not a withdrawal of consent. Boone v. State, 2008 Ga. App. LEXIS 1041 (September 23, 2008).*

Landlord could not consent to a search of a trailer rented to a person the police were looking for. The arrest warrant was used as a search warrant. Looney v. State, 293 Ga. App. 639, 667 S.E.2d 893 (2008).*

Handcuffed suspect could consent to a search of his car. Here, it was within 15 seconds. Maloy v. State, 667 S.E.2d 688 (Ga. App. 2008).*

A consent to enter during a knock and talk is not a consent to search. United States v. Ellis, 2008 U.S. Dist. LEXIS 71177 (W.D. La. June 24, 2008).

DNA sample was taken from defendant under a ruse that anybody arrested for exposing himself in public needed to give a sample. It was matched to a murder. The taking of the DNA was not unreasonable. Holmes v. State, 2008 Ga. LEXIS 741 (September 22, 2008).

A consent to search by a Spanish speaking defendant was not voluntary on the totality. The officer's own testimony was the key. United States v. Vidal-Pina, 2008 U.S. Dist. LEXIS 71644 (D.N.J. September 22, 2008):

The government's theory is that Vidal-Pina was calculating and deceptive and that his answers about his work demonstrate proficiency in English that corroborates the officers' testimony that he understood the contents of the consent-to-search form and the verbal request to search the truck. But this simply doesn't square with Maroney's testimony that he was prepared to let Vidal-Pina go; it doesn't square with the testimony that reveals, when taken as a whole, that Vidal-Pina initially communicated with a store employee and apparently got the gist of the pedigree information Maroney wanted, had enough business dealings in this country to describe what he does for a living, and never went any further in his communications without assistance. The inconsistencies to be found do not relate to Vidal-Pina's conduct, but rather to the witnesses, who are at some odds about how much Spanish Turbett knew, or what precise answers Vidal-Pina gave to potentially explosive questions like "[w]hat were those counterfeit bills doing in your car?"; or why someone who knew he had identification documents in his car that could clear up Maroney's dilemma knowingly remained silent about them, and then knowingly permitted police to search the truck for anything they could find in it, including contraband that he knew was there.

The right of access of the press to search warrant materials was discussed at length by the Western District of Texas at El Paso in United States v. Ketner, 566 F. Supp. 2d 568 (W.D. Tex. 2008). In this case, the court finds that protecting the informants was a greater interest and declined to unseal the search warrant materials:

This same compelling interest leads the Court to conclude that, although there may be a qualified common law right of access to these affidavits inasmuch as they are judicial records and presumptively open, it should exercise its discretion to maintain them under seal. There is no doubt that disclosure of these documents at this point would seriously interfere with an ongoing investigation. Specifically, the Court finds that disclosing these documents to public view would pose a significant risk to the life or welfare of the cooperating witnesses and defendants, and expose these same individuals to intimidation. Critical to this conclusion is that the information at issue in this investigation can be accurately described with the exact same language used by the Gunn court:

These documents describe in considerable detail the nature, scope and direction of the government's investigation and the individuals and specific projects involved. Many of the specific allegations in the documents are supported by verbatim excerpts of telephone conversations obtained through court-authorized electronic surveillance or information obtained from confidential informants or both. There is a substantial probability that the government's ongoing investigation would be severely compromised if the sealed documents were released. [Gunn, 855 F.2d at 574]

Thus, the Court finds the public's right of access to documents filed in support of search warrants should yield to such grave concerns.

Traffic stops may be based on reasonable suspicion, and dictum in Whren is just that. United States v. Johnson, 2008 U.S. Dist. LEXIS 71494 n. 4(M.D. Pa. September 17, 2008):

In light of language from Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), there has been some confusion regarding whether probable cause or reasonable suspicion is needed to effect a traffic stop. Compare id. at 810 (dictum) (decision to stop automobile is reasonable when police have probable cause) with Prouse, 440 U.S. at 663 (holding) (traffic stops require "at least" reasonable suspicion). The Third Circuit dispelled any such confusion in United States v. Delfin-Colina, 464 F.3d 392 (3d Cir. 2006), when it held that reasonable suspicion--and not probable cause--is required for a "routine" traffic stop, id. at 397. As the traffic stop at issue here was not "routine," the reasonableness of its scope is more fully addressed infra.

During a traffic stop with a drug dog in tow, the officer directed the defendant to close the windows and turn on the air blower to facilitate the dog sniff. This was not unreasonable. People v. Bartelt, 894 N.E.2d 482 (Ill. App. 2008):

The set-up procedure is quick and nonintrusive; thus, it does not impermissibly lengthen the duration of the stop. It also ensures the canine remains outside the vehicle during the sniff, as both the doors and windows are closed. This is a practical technique that balances a defendant's reasonable expectation of privacy with the opportunity to allow law enforcement to ferret out crime. No fourth-amendment violation occurs when an officer lawfully investigating a traffic violation orders the occupant to roll up the windows and turn on the blowers to facilitate a dog sniff.

Identified informant's statement against daughter's penal interest coupled with her highly specific information which showed it was first hand information was sufficient for probable cause for a SW. State v. Castilleja, 345 Ore. 255, 192 P.3d 1283 (2008).*

Defendant's gun was taken during a 2004 traffic stop and test-fired with the results going into IBIS (Integrated Ballistic Identification System) under a departmental policy of testing all guns in inventory. In 2006, the gun was linked to a murder and then back to the defendant. The 2004 test of the gun was not unreasonable. Engram v. State, 2008 Ind. App. LEXIS 2035 (September 19, 2008):

Engram also argues that the results of the 2004 ballistic test should have been suppressed because the test was performed without probable cause in violation of the Fourth Amendment. As noted above, the police department test-fired Engram's handgun pursuant to a department policy. That policy required test-firing on all handguns of specified calibers that are in police custody, as well as documentation of the results in a national database. The constitutionality of routine test-firing by law enforcement of firearms legitimately in its custody is a matter of first impression. From the record it appears that the routine testing of firearms in the custody of the Indianapolis Police Department (now the Indianapolis Metropolitan Police Department) was commonplace in 2004, and there is no indication that the policy has changed in the interim. Thus, we consider whether the routine test-firing of firearms that are legitimately in police custody violates the Fourth Amendment.

. . .

Here, Engram has not shown that he exhibited an actual expectation of privacy in the unique markings made by his handgun on bullets and casings fired from that weapon. Engram argues in his brief that he had an expectation of privacy, but he does not support that argument with citations to the record supporting that contention. As such, Engram has waived his claim that he had a subjective expectation of privacy in the unique markings made by his handgun.

Further, Engram has not shown that the markings made by his firearm on bullets and casings constitutes a privacy interest that society is prepared to recognize as reasonable. Indeed, society has a substantial interest in maintaining a record of firearms confiscated by law enforcement incident to a valid arrest. Carrying a handgun requires a license, which is obtained only after the applicant is cleared to carry a handgun pursuant to statutory criteria. See Ind. Code §§ 35-47-2-1, -3. Given the danger of firearms when improperly used and the connection between firearms and violent crime, we cannot conclude that society is willing to recognize a privacy interest in the markings made by firearms on bullets and casings.

"Official conduct that does not 'compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." Illinois v. Caballes, 543 U.S. 405, 408, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005). Because Engram had no subjective expectation of privacy in the unique markings made by his handgun and because society is not willing to recognize such a privacy interest, we hold that the police department's routine test-firing of weapons legitimately under its custody is not a search protected by the Fourth Amendment. See State v. Friedel, 714 N.E.2d 1231, 1236 (Ind. Ct. App. 1999) ("In order to challenge the constitutionality of a search, a defendant must have a legitimate expectation of privacy in that which is searched."). The test-firing of Engram's handgun revealed no private information but did provide an additional means to identify his weapon apart from its serial number. Engram's argument that the 2004 test-firing of his handgun violated his Fourth Amendment rights must fail.

Exclusionary rule does not apply to driver license suspension proceedings. Beller v. Rolfe, 2008 UT 68, 194 P.3d 949, 613 Utah Adv. Rep. 25 (2008).*

Anonymous tipster who briefly came forward and then disappeared after defendant's arrest was no more entitled to credibility than as an anonymous informant. Baptiste v. State, 995 So. 2d 285 (Fla. September 18, 2008).*

Defendant was approached by an officer and consented to a search of his person. State v. Corbett, 758 N.W.2d 237 (Iowa App. 2008).*

Preemptive civil suit against a criminal investigation to enjoin it is barred under Younger v. Harris. The defendant was charged with a crime after the suit was brought. Bernegger v. Haney, 2008 U.S. Dist. LEXIS 70740 (N.D. Miss. September 18, 2008):

Certain types of injury, such as the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution, could not by themselves be considered "irreparable" in the special legal sense of the term. Younger, 401 U.S. at 46. Rather, "the threat to the plaintiff's federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution." Id. "No citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized and hence unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid." Id. (citations omitted).

Indeed, it would produce illogical and untoward results, if a criminal defendant or suspect were allowed to interfere with or halt criminal proceedings by preemptively filing a civil suit. Like Younger and the long line of cases to follow, there "does not appear from the record that [the Plaintiff has] been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith." Douglas v. City of Jeanette, 319 U.S. 157, 164, 63 S.Ct. 877, 881, 87 L.Ed. 1324 (1943). There are no extraordinary circumstances present in this matter which would warrant enjoining the criminal proceedings. Compare Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965).

A traffic stop, even with PC to believe that a traffic offense occurred, is governed by Terry. People v. Cosby, 231 Ill. 2d 262, 898 N.E.2d 603325 Ill. Dec. 556 (2008):

Nonetheless, this court and many other courts have analyzed traffic stops under Terry principles, regardless of whether the initial stop was supported by probable cause or reasonable suspicion. See, e.g., People v. Gonzalez, 204 Ill. 2d 220, 789 N.E.2d 260, 273 Ill. Dec. 360 (2003) (and cases cited therein); People v. Bunch, 207 Ill. 2d 7, 796 N.E.2d 1024, 277 Ill. Dec. 658 (2003).

In Gonzalez, this court applied Terry principles to a traffic stop during which a police officer requested identification from the defendant, who was a passenger in the stopped vehicle. Citing Berkemer, we noted that, because the usual traffic stop is more analogous to a Terry investigative stop than to a formal arrest, a fourth amendment challenge to the reasonableness of a traffic stop is analyzed under Terry principles. A Terry analysis involves a dual inquiry: (1) whether the officer's action was justified at its inception, and (2) whether the action was reasonably related in scope to the circumstances that justified the interference in the first place. Gonzalez, 204 Ill. 2d at 228-29. We concluded that the officers' stop of the vehicle was supported by probable cause. Thereafter, we set forth an analytical framework to use in determining whether police questioning during a traffic stop violates the fourth amendment. First, with respect to Terry's scope requirement, a court must determine whether the questioning is related to the initial justification for the stop. If the questioning is so related, no fourth amendment violation occurs. If the questioning is not reasonably related to the purpose of the stop, the court must determine whether the officer had a reasonable, articulable suspicion that would justify the questioning. If so, there is no fourth amendment violation. In the absence of a reasonable, articulable suspicion, the court must consider whether, in light of the totality of the circumstances, the questioning impermissibly prolonged the detention or changed the fundamental nature of the stop. Gonzalez, 204 Ill. 2d at 235.

Search warrant in a money laundering case permitted the officers to look at documents involving businesses located on the premises not specifically named in the warrant. The affidavit and warrant contemplated that other businesses would be involved. "Since the warrant does not expressly name the third company involved in the scheme, the agents reasonably inferred that it was permissible to search the records for companies not expressly listed in the warrant, provided that these companies were connected to the alleged MBE fraud." United States v. Catapano, 2008 U.S. Dist. LEXIS 70460 (E.D. N.Y. August 26, 2008).

Consenter who lived with defendant for a year with their infant daughter could consent to a search of the premises. Defendant was concerned that she might consent when he was in jail, but he didn't do anything to revoke her authority since she was in control of the property. United States v. Ryerson, 545 F.3d 483 (7th Cir. 2008).*

District court's finding of consent was supported by the evidence and affirmed. United States v. Fristoe, 315 Fed. Appx. 40 (10th Cir. 2008) (unpublished)*; United States v. Mendoza, 293 Fed. Appx. 290 (5th Cir. 2008).*

Search warrant for a boat on a trailer permitted seizure of finger and palm prints in plain view even though they were not mentioned in the warrant. They was probable cause to believe it was evidence of a crime. United States v. Zaldivar, 292 Fed. Appx. 868 (11th Cir. 2008) (unpublished).*

Dog sniff during a traffic stop was valid under Caballes. United States v. Auris, 293 Fed. Appx. 188 (4th Cir. September 15, 2008) (unpublished).*

Officer had probable cause to stop defendant for robbery because the car he was driving matched the description of the one involved in the robbery. United States v. Tyree, 292 Fed. Appx. 207 (3d Cir. September 16, 2008) (unpublished).*

Plaintiff who alleged that she had a loaded gun pointed at her head during an arrest was excessive because she was unarmed was sufficient to state a claim. The law has been established at least since 2002. Hickman v. Marzec, 2008 U.S. Dist. LEXIS 70256 (D. Del. September 18, 2008).*

Defendant was accused of converting a FEMA trailer to his own use as a hunting lodge in Alabama. A picture of the hunting lodge from open fields violated no expectation of privacy of the defendant. United States v. Broome, 2008 U.S. Dist. LEXIS 70195 (M.D. Ala. September 3, 2008).*

Police conditioning entry into premises to get necessities for a baby by turning over a stun gun was not valid consent. United States v. Williams, 2008 U.S. Dist. LEXIS 70179 (W.D. Pa. September 2, 2008).*

Exclusionary rule applies in probation revocation proceedings because of defendant's allegation that the officer acted in bad faith. Logan v. Commonwealth, 276 Va. 533, 666 S.E.2d 346 (2008):

We conclude that the Court of Appeals' reliance on Scott is misplaced based upon three relevant distinctions between Scott and the present case. First, Scott involved a parolee, rather than a probationer, 524 U.S. at 360, and parolees "have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment," Samson v. California, 547 U.S. 843, 850, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006). Second, the parolee in Scott had explicitly consented to a search of the house and his person as a condition of parole. 524 U.S. at 360. Third, a parole revocation hearing is an administrative proceeding, and "[a]pplication of the exclusionary rule would ... alter the traditionally flexible, administrative nature of parole revocation proceedings." Id. at 364. Therefore, we reaffirm our holding in Anderson and rule that the Court of Appeals erred in holding that the exclusionary rule never applies in probation revocation proceedings and in failing to consider Logan's bad-faith argument.

Defendant's twice going over the white line was probable cause for a stop, and that led to defendant's arrest for DUI. State v. Mays, 2008 Ohio 4539, 119 Ohio St. 3d 406, 894 N.E.2d 1204 (2008).*

Officer had reasonable suspicion to stop defendant's car for cruising through the parking lot of a high school football stadium without stopping when it was apparent that the driver was not coming to attend the football game and officers expected a fight to occur. Esposito v. State, 293 Ga. App. 573, 667 S.E.2d 425 (2008).*

A child porn raid on a religious compound in Arkansas occurred within a hour of this post in the Western District of Arkansas after an e-mail between AUSAs on the case was accidentally sent to the press. The raid was to be in October. Texarkana Gazette story here. The Arkansas Democrat-Gazette e-mailed subscribers at 6:05 p.m., just after the raid started, apparently holding the story until the raid occurred.

Update: Sunday's TG article.

Search incident of the kitchen counter 6-8' from him when defendant was arrested face down on the living room floor was reasonable. State v. Williams, 110 Conn. App. 329, 954 A.2d 878 (2008):

The defendant argues that under the circumstances of this case, the kitchen counter was not within his immediate control because there was little or no probability that he could have launched an attack on the police from his position face down and handcuffed in the living room. This argument has been rejected under more dubious circumstances. See State v. Fletcher, 63 Conn. App. 476, 481-82, 777 A.2d 691 (valid search incident to arrest when police handcuffed defendant, then opened closet four feet next to where he was standing, moved pile of clothing to reveal floorboards, removed floorboards themselves and discovered hidden cavity containing contraband), cert. denied, 257 Conn. 902, 776 A.2d 1152 (2001). The defendant's argument seems to suggest that it was impossible for him to reach the kitchen counter from his location in the living room. The record and common sense suggest otherwise.

The defendant's apartment had an open area between the kitchen and the living room. The kitchen counter where Setzer searched was located six to eight feet from where the defendant was sitting. The short distance between the defendant and the kitchen counter, coupled with the contraband's location in a cup on top of the counter, does not allow us to conclude that it would have been impossible for the defendant to have reached items located in the area Setzer searched. Similarly, the fact that the defendant was handcuffed does not foreclose the possibility that he might have been able to reach a weapon located close by. See id., 482. Accordingly, we conclude that the court properly denied the defendant's motion to suppress.

Defendant's search was a true parole search with information from a phone call corroborated by the PO. Micheau v. State, 2008 Ind. App. LEXIS 2029 (September 16, 2008).*

Police got consent to enter defendant's apartment on a claim to the defendant that they had a report of a dead body being dragged rolled up in a carpet. Once inside, they did a search for drugs, and this was illegal. State v. Bartling, 989 So. 2d 757 (Fla. App. 4DCA 2008):

Based upon the reasoning of the supreme court in Wyche, we conclude that the trial court in the instant case was correct in granting the motion to suppress based upon the totality of the circumstances. As in McCord, the trial court in the instant case concluded that "the level of trickery went far beyond what law enforcement officers should utilize when trying to gain entry into a citizen's home in the wee hours of the morning." As the supreme court noted in Wyche, we recognize that Bartling's understandable desire to clear his name of the stigma of a murder accusation is a circumstance to consider. Additionally, the search clearly exceeded the scope of consent when the police searched for a dead body in a cigarette pack. As such, we conclude that, based upon the totality of the circumstances, the trial court was correct in granting the motion to suppress.

Object in defendant's pocket felt during a frisk was not immediately perceived as a weapon, so going in after it was not reasonable. Brown v. State, 293 Ga. App. 564, 667 S.E.2d 410 (2008)*:

The record shows that Bohannon lacked authority to intrude into Brown's pocket. We recognize that, while patting down the outside of that pocket, Bohannon detected the corner of a hard object. Nothing indicates, however, that the object felt like a gun or other weapon. On the contrary, Bohannon did not know what it was and decided to investigate further based only on the broad assumption that "anything can house a weapon." Moreover, when questioned at the suppression hearing, Bohannon pointed to no particularized facts that reasonably led him to believe that Brown might have a weapon. Although Bohannon was suspicious that no one knew Brown, he did not believe that Brown had committed a crime and was prepared to let Brown walk away from the scene.

Defendant's claim that he was subjected to an illegal warrantless arrest without probable cause so his DNA was improperly obtained on his arrest was not presented to the trial court so it is waived. He raised a Sixth Amendment claim against his arrest, not probable cause. State v. Foreman, 2008 Conn. LEXIS 353 (September 16, 2008).*

Officer acted as a potential buyer to access a home with a real estate agent to corroborate an informant, and this entry did not violate the Fourth Amendment because the entry never exceeded the extent of the consent given by the defendant to entries with the real estate agent. People v. Lucatero, 166 Cal. App. 4th 1110, 83 Cal. Rptr. 3d 364 (5th Dist. 2008):

In these limited circumstances, there is no constitutional violation undermining the validity and authority of the search warrant issued. We believe an investigating officer may pose as a potential buyer and enter a home under this misrepresentation, assuming the officer's actions do not exceed the scope of the consent. The officer must act as a potential buyer and do nothing that would violate the homeowner's legitimately held privacy expectations, as defined in the context of the homeowner's general invitation to members of the public to view the interior of the home for purposes of marketing the home.

We find support for our conclusion in a long line of cases beginning with Lewis v. United States, supra, 385 U.S. 206. In Lewis, a federal narcotics agent, by misrepresenting his identity as a potential buyer of narcotics, was invited into the defendant's home. The Lewis court acknowledged that the invitation to enter would not have been extended had the defendant been told the potential buyer was in fact an undercover officer. The court rejected as a general rule that law enforcement must never constitutionally use ruse or trick during the investigation of criminal offenses. Instead, the court repeated the general rule governing Fourth Amendment challenges: “[T]he particular circumstances of each case govern the admissibility of evidence obtained by stratagem or deception.” (Lewis v. United States, supra, at p. 208.)

While the facts are close, the officers had reasonable suspicion that defendant's car was involved in a robbery, and the driver when he was stopped acted guilty to them. United States v. Drake, 543 F.3d 1080 (9th Cir. 2008).*

Trained narcotics officers had reasonable suspicion that defendant was involved in drugs before his flight from them. State v. Dick, 181 Md. App. 693, 957 A.2d 150 (2008):

In our opinion, prior to Dick's flight and at the time of the stop, the police had reasonable suspicion that he was involved in illegal drug activity. The police officers were specialists in drug enforcement. The area and the specific location under surveillance were known for illegal drug activity and, in fact, two of the officers had previously arrested persons at the gas station for such crimes. Contrast Lemmon, supra, 318 Md. at 380. The location was not a recreational area or meeting place, so that Hoffman's persistent bicycle riding and apparent wait for someone was out of the ordinary. The quick hand-to-hand transaction in an area more remote than the gas station, although not positively identified as a drug sale, was more than two men talking. Contrast Lemmon, supra, 318 Md. at 379-80. It was recognized by the officers as characteristic of such illegal activity. Although Ward and Stricklin did not see the transaction themselves, they were not acting upon an anonymous tip, but upon eye-witness information received from fellow officers, who also knew the hallmarks of drug activity. Contrast Lemmon, supra, 318 Md. at 379. In addition, there were reasons to make a stop. Ward and Stricklin did not know which of the two suspects was the buyer or seller or whether either displayed signs of using drugs, and a brief delay, while the other officers confronted Hoffman, could have provided vital information. Clearly, the police were acting "in a swiftly developing situation." United States v. Sharpe, supra, 470 U.S. at 686. Finally, the stop itself was for the briefest of periods.

Officer confronting citizen on the street expects citizen to be detained, but a knock and talk can be refused. State v. Jarrell, 994 So. 2d 620 (La. App. 4th Cir. 2008):

There is a clear distinction between the police detaining a suspect on the street as authorized by Article 215.1 of the Code of Criminal Procedure and the police knocking on a suspect's door. When stopped on the street, a suspect has no choice but to submit to the authority of the police. When the door is opened in response to a knock, it is the consent of the occupant to confront the caller. There is no compulsion, force or coercion involved in the latter situation. State v. Sanders, 374 So.2d 1186, 1188 (La. 1979). HN4A search conducted pursuant to consent is an exception to the requirements of both warrant and probable cause. State v. Johnson, 98-0264, p. 5 (La. App. 1 Cir. 12/28/98), 728 So.2d 885, 887.

Officer's mistake as to what type of weapon did not make unreasonable looking for the weapon. Whether it was brass knuckles or a gun was not material. United States v. Murph, 2008 U.S. Dist. LEXIS 69324 (D. Neb. August 26, 2008):

Moreover, even taking into account Officer Gordon's mistake in believing that the object was brass knuckles rather than a gun, officers had reasonable suspicion for the searches under Terry. United States v. Bailey, 417 F.3d 873, 877 (8th Cir. 2005) (a mistaken belief suffices, if officers do not know that it is mistaken and act reasonably). Officer Gordon testified that he believed he saw a weapon, and his mistake related to the type of weapon. No case law has been cited indicating that this type of mistake cannot support an otherwise legal Terry stop or search.

NYS started two days ago issuing RFID (radio frequency ID) chip enhanced driver's licenses (EDL). The State's official statement off its website is here. It's press release is here. Story on Switched.com here. The system is designed to faciliate travel to and from Canada, but it also can be used for travelers to Mexico, the Carribean, and Bermuda.

On September 16, 2008, NYS began to issue WHTI-Compliant Enhanced driver licenses (EDL) (includes Enhanced learner permits) and Enhanced non-driver photo ID cards (ENDID) to applicants who can prove U.S. citizenship and NYS residency. An EDL or ENDID can be used instead of a passport at U.S. land and sea border crossings between Canada, Mexico, Bermuda and the Caribbean.

WHTI is a federal law that regulates which documents U.S. citizens can use when they travel in the Western Hemisphere. You can read more about this initiative at the web site of the U.S. Department of Homeland Security (DHS).

There are plans for the State Department to produce "enhanced" cards for such travel.

If they can monitor your movements at the border, they can monitor your movements anywhere there is a chip reader.

Oil supply boat working off the Louisiana coast who was in international waters could be subjected to a border search when he arrived back in port. ICE suspected him of downloading child porn to his computer, and they searched the computer as a part of the border search. United States v. Pickett, 2008 U.S. Dist. LEXIS 69710 (E.D. La. September 16, 2008), aff'd United States v. Pickett, 598 F.3d 231 (5th Cir. 2010).

The police did not need a search warrant to search a computer disk that was turned over voluntarily by somebody with authority to do so. United States v. Nichols, 2008 U.S. Dist. LEXIS 69193 (W.D. Ark. September 12, 2008)* (Comment: This wasn't even close.)

Search warrant for defendant's cellphone for pictures of a minor was with probable cause. United States v. Hexon, 2008 U.S. Dist. LEXIS 69628 (D. Ore. September 12, 2008).*

Defendant could be stopped when he was entering the security perimeter of a search just as a nighttime search was about to occur. Officers approached him with guns drawn and saw drugs in plain view. United States v. Jennings, 544 F.3d 815 (7th Cir. 2008):

It is a logical extension of the rule of Summers and the reasoning in Bohannon and Baker to hold here that it was reasonable for the officers to briefly detain Jennings after he entered the security perimeter surrounding the apartment where the narcotics search was underway. Although Jennings never stepped onto the property being searched, he entered the officers' security perimeter just as a SWAT team armed with high-powered rifles entered the apartment from the rear. His arrival took the officers by surprise, and given the elevated risk of violence during a search for narcotics, they were reasonably concerned for their own and for Jennings's safety, as well as for any activity that might compromise the search. Had it become necessary for the officers to apprehend anyone trying to escape through the front door of the apartment, Jennings and his passenger would have been in their path. Under these circumstances, it was reasonable for the officers to "exercise unquestioned command of the situation" by detaining Jennings long enough to ensure that he was unarmed and uninvolved in criminal activity. Summers, 452 U.S. at 702-03.

The Fourth Amendment's reasonableness requirement strikes a balance between an individual's interest in being left alone and the public's interest in community safety, crime control, and the safety of law enforcement officers engaged in the work of protecting the public and investigating crime. See McArthur, 531 U.S. at 331; United States v. Burton, 441 F.3d 509, 511-12 (7th Cir. 2006). Here, the officers' interest in maintaining control inside their security perimeter until the SWAT team secured the targeted apartment for the search far outweighed Jennings's interest in being left alone for the few moments that he was detained. Seconds passed between the moment the officers blocked in the Cadillac and the moment they saw the bag of crack in plain view through Jennings's window, giving them probable cause for arrest. In light of the limited nature of the intrusion and the officers' compelling need to maintain control within the security perimeter, Jennings's detention was reasonable. See McArthur, 531 U.S. at 332; Burton, 441 F.3d at 511-12. Accordingly, the district court properly denied Jennings's motion to suppress the crack.

Possession of cash is not probable cause for a vehicle search, but it is a factor to consider in the totality of circumstances. State v. Fitzgerald, 286 Kan. 1124, 192 P.3d 171 (2008). After going through all the factors of the totality and finding them weak:

When the totality of all of these circumstances is considered, as it must be, we conclude that the State did not carry its burden of demonstrating the existence of probable cause to support Thatcher's initial search of the truck. Of the factors it cites, most are neutral or helpful to the defense, tending to diffuse suspicion rather than enhance it. Those factors that do contribute to probable cause are weak. The district court should not have relied on the probable cause plus exigent circumstances exception to the warrant requirement to admit the evidence derived from the initial search of the truck.

Officer at least had reasonable suspicion that the defendant was violating the traffic laws, even though it turned out that the defendant didn't. The stop being justified, everything else flowed from that. State v. Applegate, 2008 UT 63, 194 P.3d 925, 612 Utah Adv. Rep. 28 (2008).*

"Although much of the [warrant] application was tainted and, therefore, not relevant to this analysis, the untainted portions nevertheless are sufficient to support a finding of probable cause. ... These circumstances show 'a fair probability that contraband or similar evidence will be found in the targeted place.' ... As the redacted application demonstrates probable cause, Murray's second prong is satisfied." United States v. Swope, 542 F.3d 609 (8th Cir. 2008):

Swope urges a strictly literal interpretation of the second Murray prong, asking whether the tainted information in any way "affected [the magistrate's] decision to issue the warrant." Murray, 487 U.S. at 542. However, no circuit has adopted such a reading, and we decline to do so here. "Invalidating a search warrant because the magistrate was affected in some minor way by tainted information, when the warrant would have been granted even without the tainted information," United States v. Jenkins, 396 F.3d 751, 758-59 (6th Cir.), cert. denied, 546 U.S. 813, 126 S. Ct. 336, 163 L. Ed. 2d 48 (2005), "would work against the principle that the fruit of the poisonous tree doctrine not be used to place the government in a worse position than it would have been in absent its illegal conduct," United States v. Dessesaure, 429 F.3d 359, 366 (1st Cir. 2005) (internal marks omitted). Swope's approach would constitute a per se rule in favor of suppression when the supporting affidavits contain tainted information, thereby undermining the independent source doctrine's foundational goal of "putting the police in the same, not a worse, position than they would have been in if no police error or misconduct had occurred." Nix, 467 U.S. at 443. We therefore read the second prong to "signify affect in a substantive manner," United States v. Herrold, 962 F.2d 1131, 1141 (3rd Cir.), cert. denied, 506 U.S. 958, 113 S. Ct. 421, 121 L. Ed. 2d 344 (1992), i.e., whether removing the tainted information also removes the basis for probable cause.

We note that the phrase from Murray relied upon by Swope was peripheral to Murray's holding. Other circuits have reasoned that the offhand nature of the phrase-and its easy characterization as dicta-suggests that the Court did not intend for that phrase to displace the practice of redacting problematic information from search warrant application affidavits and analyzing the remainder for probable cause under Franks. See United States v. Markling, 7 F.3d 1309, 1316-17 (7th Cir. 1993); United States v. Restrepo, 966 F.2d 964, 970 (5th Cir. 1992), cert. denied, 506 U.S. 1049, 113 S. Ct. 968, 122 L. Ed. 2d 124 (1993). Although the context in Franks differs from the present context--the affidavit in Franks did not include information derived from a Fourth Amendment violation, but instead included facts that the police fabricated--other circuits have found that difference to be insufficient to justify a departure from the traditional Franks-based redaction analysis. See Dessesaure, 429 F.3d at 366-67 ("Every circuit to consider the question has held that the Court's instruction in Murray to analyze whether the tainted information affected the magistrate's decision to issue the warrant did not mean to change the dominant pre-existing approach under Franks.") (citing cases). Even after Murray, probable cause continues to be the benchmark for evaluating tainted affidavits. See United States v. Hernandez Leon, 379 F.3d 1024, 1027 (8th Cir. 2004) (stating that "[t]he sufficiency of a warrant affidavit which contains information from an unlawful search is evaluated after deleting that information"); United States v. Johnston, 876 F.2d 589, 594 (7th Cir.) (Posner, J., concurring), cert. denied, 493 U.S. 953, 110 S. Ct. 364, 107 L. Ed. 2d 350 (1989) (citing cases and stating that "[l]oads of court[s] of appeals cases" have held that a redaction analysis is the proper test for affidavits containing tainted information).

Tasering plaintiff after he was repeatedly warned was justified because plaintiff was not cooperating in his arrest. Buckley v. Haddock, 292 Fed. Appx. 791 (11th Cir. 2008) (unpublished)*:

In the light of the undisputed facts established in the record, we conclude that Defendant's use of force in this particular situation was not outside the range of reasonable conduct under the Fourth Amendment. Of particular importance are three facts. First, the incident occurred at night on the side of a highway with considerable passing traffic. Second, the deputy could not complete the arrest--that is, truly control Plaintiff--because Plaintiff was resisting. Third, the deputy resorted to using the taser only after trying to persuade Plaintiff to cease resisting, after attempting to lift Plaintiff, and after repeatedly and plainly warning Plaintiff that a taser would be used and then giving Plaintiff some time to comply.

Defendant's arrest five weeks after he was seen driving while barred under state law and the search incident that it occasioned was not shown to be pretextual. It was constitutional. State v. Christopher, 757 N.W.2d 247 (Iowa Sup. 2008):

Christopher argues officers should not be allowed to "save up an arrest" in order to "conduct an otherwise illegal search under the guise of search incident to arrest." There is nothing in the record to suggest Butler arrested Christopher under pretext--i.e., there is no suggestion Butler had ulterior motives for making the arrest when he did. In any event, whether a Fourth Amendment violation has occurred does not turn on the officer's actual state of mind or subjective motives. See State v. Kubit, 627 N.W.2d 914, 918-19 (Iowa 2001) (citing Maryland v. Macon, 472 U.S. 463, 470, 105 S. Ct. 2778, 2783, 86 L. Ed. 2d 370, 378 (1985)). Moreover, pretext is more appropriately addressed under due process. "[I]f the government delays filing charges to intentionally 'gain [a] tactical advantage over the accused,' the defendant's due process rights under the Fifth Amendment are implicated." State v. Edwards, 571 N.W.2d 497, 501 (Iowa Ct. App. 1997) (quoting State v. Trompeter, 555 N.W.2d 468, 470 (Iowa 1996)). Christopher does not contend the government acted intentionally to gain such tactical advantage.

Tenant's voluntarily bringing weapons outside the house for inspection by BATF was not a violation of an expectation of privacy. United States v. Noe, 2008 U.S. Dist. LEXIS 69112 (E.D. Pa. September 12, 2008).*

Good faith exception saved a search warrant that lacked probable cause for documents [at least the court decided probable cause] because there were no factual inaccuracies and the officer reasonably relied on it. United States v. Rodriguez, 291 Fed. Appx. 989 (11th Cir. 2008) (unpublished)*:

Though the warrant used to search Contreras's residence was not supported by probable cause, the evidence seized from the residence is still admissible under the Leon good faith exception, since the officers acted in reasonable reliance upon the warrant. Contreras does not allege any of the information in the warrant affidavit was factually inaccurate, and there is no evidence that the affiant officer was reckless or dishonest in preparing the affidavit. While the affidavit may have lacked the specificity needed to establish a connection between Contreras's residence and evidence of the alleged crimes committed by Patino and Baird, it did establish that Patino and Baird owned Contreras's residence and illegal aliens were residing in at least some of the residences on their property. Officers executing the warrant could have reasonably believed the presence of illegal aliens at nearby residences owned by Patino and Baird was sufficient to establish probable cause to search Contreras's residence. Because the affidavit contained at least some information suggesting evidence might be found at Contreras's residence, the executing officers could have reasonably believed the warrant was supported by probable cause. Thus, the district court did not err in admitting the evidence found during the search of Contreras's residence.

Agent accessed defendant's computer with peer-to-peer software looking for child pornography that was available for sharing. There was no expectation of privacy in the computer files. United States v. Borowy, 2008 U.S. Dist. LEXIS 68936 (D. Nev. August 28, 2008).*

Defendant called his alleged victim while police and a social worker were there. She put it on speakerphone and they recorded it. He had no expectation of privacy in the call. Bankston v. State, 4 So. 3d 377 (Miss. App. 2008).*

Officer lacked probable cause for a blood draw after a fatal accident because there was no objective evidence that defendant was intoxicated. Alleged consent at the hospital was not voluntary because defendant was told a blood draw was going to occur. Case v. State, 2008 Tenn. Crim. App. LEXIS 720 (August 26, 2008):

The facts of the case lead us to conclude that consent was neither validly given, nor, in fact, given at all. Officer Griffith, under a mistaken belief that he had the right to require the Defendant to submit to a blood test, seized him and placed him in the patrol car against the Defendant's parents' wishes. He informed the Defendant that he was required to submit to a blood test, and the Defendant, understandably, did not attempt to refuse. When the two arrived at the hospital, Officer Griffith remained at his side throughout the procedure. Officer Griffith never asked the Defendant if he was willing to consent to a blood test; he merely informed him one was to take place.

Search incident of vehicle for driving on a suspended license that produced drugs was invalid under state constitution because it was not calculated to recover evidence of driving on a suspended license. Baniaga v. State, 2008 Ind. App. LEXIS 2013 (August 6, 2008):

We conclude that Officer Ball's search of Baniaga's vehicle was not reasonable in light of the totality of the circumstances. Although Baniaga was under arrest for driving while suspended, the officer did not fear for his safety and there was no indication that Baniaga had engaged in drug activity. Moreover, Officer Ball admitted that he did not need to search the vehicle to preserve further evidence of Baniaga's licensure offense. Thus, we conclude that the search of Baniaga's vehicle violated the protections provided by Article I, section 11 of the Indiana Constitution. Consequently, the trial court abused its discretion by admitting evidence stemming from the vehicle search. Thus, we reverse Baniaga's conviction for possession of cocaine and remand with instructions for the trial court to vacate the conviction and sentence imposed thereon.

Note: This was decided six weeks ago and just appeared on Lexis.

Massachusetts holds that the comtemporaniety requirement of the search incident doctrine requires that the search occur reasonably close to the time of the arrest. Where the search of a bag on the defendant was more than 30 minutes after the arrest, it was not contemporaneous. "The case law interpreting the Fourth Amendment demonstrates, however, that the contemporaneity requirement continues to have meaning. Accordingly, this case, where the search did not occur at the time or at the place of arrest, has surely crossed that line." Commonwealth v. Pierre, 72 Mass. App. Ct. 580 (2008):

The bounds of the temporal requirement of contemporaneity of the search with the arrest were tested in United States v. Chadwick, supra. There, at a Federal detention facility an hour and one half after the defendants' arrests, Federal agents searched a footlocker that had been found in the trunk of an automobile near the defendants when they were arrested. Id. at 4-5. Although the government argued that the search was "reasonable because the footlocker was seized contemporaneously with respondents' arrests and was searched as soon thereafter as was practicable," the Supreme Court invalidated the search because of the time delay. Id. at 14, 15.

This principle in Chadwick has survived related rulings in New York v. Belton, supra, and California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991). In Belton, the Court held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Id. at 460. This standard notably still requires contemporaneity of the search; it simply loosens the spatial restrictions announced in Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969) (area within arrestee's "immediate control"), to include as a per se rule the passenger compartment of an automobile in which a person is arrested. See Belton, supra. The Court in Belton explicitly distinguished Chadwick, noting that Chadwick involved a time delay between the arrest and the search, a factual circumstance not present in Belton. Id. at 461-462. Thus, although Belton relaxed the spatial requirement in circumstances where an arrest takes place in an automobile, it did not relax the temporal requirement of a lawful search incident to arrest.

Acevedo, although overruling Chadwick in part, affected only the automobile exception to the warrant requirement and the legality of searches of closed containers therein. See Acevedo, supra at 571. It did not, therefore, alter the central tenet of Chadwick regarding search incident to arrest. See United States v. $639,558 U.S. Currency, 293 U.S. App. D.C. 384, 955 F.2d 712, 717-718 (D.C. Cir. 1992).

Nor has the contemporaneity requirement been diminished by the Supreme Court's recent decision in Thornton v. United States, 541 U.S. 615, 623-624, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004), where the search of the passenger compartment of an automobile was upheld even though the arrestee was a "recent occupant" of the vehicle rather than actually occupying the vehicle when arrested. This extension of Belton once again dealt only with the spatial aspect of a search incident to a lawful arrest; that is, only the distance between the arrestee and the search was at issue. See Thornton, supra at 620-621. That the search took place contemporaneously with the arrest was not in dispute. See id. at 618.

Indeed, Massachusetts courts, interpreting Federal law, still afford considerable significance to the requirement of contemporaneity. In Commonwealth v. Alvarado, 420 Mass. at 546-547, the defendant was arrested in his car, taken to the station for booking, and the car was towed to the same station where it was searched. Relying on New York v. Belton, supra, and its preservation of the contemporaneity requirement, the Supreme Judicial Court found the two-hour delay to be fatal to the Commonwealth's claim that the search was incident to arrest. Id. at 554.

Officer walking up to an illegally parked car is not a stop. State v. Good, 2008 Ohio 4502, 2008 Ohio App. LEXIS 3831 (12th Dist. September 8, 2008).*

Officer received a tip in-person about a man with a gun, and the officer approached a group the man was in, and they disbursed. The defendant had a bulge and walked with a limp like he had a gun. The tip was detailed and corroborated by action, but the observation was what justified the stop. State v. Vaughn, 2008 Ohio 4585, 2008 Ohio App. LEXIS 3868 (8th Dist. September 11, 2008).*

The facts of a communal living arrangement may be that of a home sufficient to give a person standing in a common area. The court has to look to the realities of the living arrangement. United States v. Werra, 2008 U.S. Dist. LEXIS 68790 (D. Minn. September 11, 2008):

The parties have not identified, and I have not found, any reported decisions that have, with sustained reasoning, expressly examined the distinction between traditional family homes and multi-unit apartment buildings. Determining whether a person has a reasonable expectation of privacy in an area or an item is, of course, a fact-specific inquiry. Before turning to the details of 63 Menlo Street, however, it may be useful to identify several illustrative factors for analyzing whether a residence is more akin to a traditional home or a multi-unit apartment building.

The most important factor is whether or not the building contains recognizably separate living units. Distinct, complete living spaces indicate that the dwelling is more like an apartment building because each tenant's functional home is not shared by others in the building. While each tenant would have a reasonable expectation of privacy in his or her personal living space within that kind of building, that expectation would not extend to common areas shared with other tenants. By contrast, if the building did not contain compartmentalized living spaces, the residents would effectively be living together in a single, shared unit. This might occur, for example, where all tenants shared essential parts of the living space, such as bathrooms and kitchens. In that circumstance, each tenant would presumably have a reasonable expectation of privacy throughout the entire interior of the building.

A related factor is the legal right of a resident to exclude others from certain parts of the building. See United States v. Anderson, 154 F.3d 1225, 1232 n.3 (10th Cir. 1998), cert. denied, 526 U.S. 1159 (1999) ("The right to exclude others is an important consideration in determining whether an individual has [a reasonable expectation of privacy]."). The presence or absence of locks may be a factor in making this determination, because it could be a manifestation of a resident's belief that he had the right to exclude others from a particular part of a building. However, the presence or absence of locks is not a dispositive factor. It is, for example, conceivable that an apartment building could contain five distinct units and no locks, because the tenants of each unit were friends or the building was located in a safe area. In that situation each tenant would still presumably have the legal right to exclude others from the unit he or she personally occupied.

The number of people living in a building can also be relevant in categorizing the building. For example, if 30 people lived in a large building, then it most likely would be characterized as a multi-unit apartment building. But if three people lived in the same building, it could be either a multi-unit apartment building or a home, depending on how the space was divided and what rights each individual had with respect to that space.

I also note that the formal legal relationship among the residents of a building is not necessarily determinative in classifying the residence as either a traditional home or a multi-unit apartment building. For example, if two people living together as a couple each had access to all spaces in the dwelling, then it would be considered a traditional home, whether or not they were legally married. See, e.g., United States v. Paradis, 351 F.3d at 27 (holding that the apartment of defendant's girlfriend was his "home" for purposes of the Fourth Amendment).

Here, the defendant did not satisfy the court's requirements.

Officers had RS for a frisk associated with a traffic stop but before the frisk a bag of drugs fell out of the defendant's sleeve. Then, the search incident doctrine applied. United States v. Howard, 2008 U.S. Dist. LEXIS 68166 (N.D. W.Va. September 8, 2008).*

Defendant had no standing in property searched adjacent to his own to claim fruit of the poisonous tree doctrine for his own search. United States v. Chandler, 2008 U.S. Dist. LEXIS 68310 (E.D. Ark. August 26, 2008):

Furthermore, a defendant can prevail on a fruit of the poisonous tree claim only if he has standing regarding the violation which constitutes the poisonous tree. Here, Chandler concedes that he did not own the property searched, and he states that he had no authority or control over who accessed the property. Chandler alleges no facts indicating that he had a socially recognized reasonable expectation of privacy in his neighbor's property. See United States v. Schroeder, 129 F.3d 439, 442 (8th Cir. 1997)(citations omitted) ("This legitimate expectation is based not solely on ownership, nor on positive law, but on what is socially recognized as reasonable.").

A seizure did not occur here until defendant was ordered to put his hands on the car. A momentary detention to talk to a suspect is not a stop. United States v. Terril, 2008 U.S. Dist. LEXIS 68280 (E.D. Pa. September 9, 2008)*:

Accordingly, at the earliest, the seizure of Defendant occurred when the officers ordered the three individuals to place their hands on the car, and Defendant moved to do so. Brown, 448 F.3d at 246 (recognizing that momentary compliance is not sufficient to consummate a seizure, but noting that a defendant demonstrates more than momentary compliance when he yields to an officer's authority by "turning to face [a] car and placing (or moving to place) his hands on the vehicle."); cf. United States v. Valentine, 232 F.3d 350, 359 (3d Cir. 2000) (recognizing that momentary compliance with an officer's orders does not constitute a seizure).

There was PC for defendant's arrest based on wiretap information that linked him to the vehicle parked in his driveway that was not his. United States v. Omari, 2008 U.S. App. LEXIS 19212 (3d Cir. September 5, 2008) (unpublished).*

USMJ's violation of jurisdictional limitations of Rule 41(b) did not warrant suppression of evidence because it is not a constitutional requirement. Here, the USMJ sought ISP information out of state, and that was permitted by 18 U.S.C. § 2703(a). United States v. Berkos, 543 F.3d 392 (7th Cir. 2008).*

Officers had a warrant for arrest for defendant's boyfriend for failure to report for deportation, and they went to their house and had evidence of her harboring him. After several attempts to locate him at home, they encountered her on a car ferry with an empty front passenger seat, and two non-English speaking passengers who were obviously nervous. The officers had probable cause to search the car to look for him. United States v. Silveus, 542 F.3d 993 (3d Cir. 2008).*

Defendant was stopped for pulling to the curb without signaling, and this provided an objective basis for the stop, albeit arguably pretextual, that produced a plain view of rocks of crack on the floorboard. State v. Brunner, 2008 Ohio 4519, 2008 Ohio App. LEXIS 3804 (5th Dist. August 29, 2008):

[*P19] Officer Diels reasonably believed that appellant had violated the traffic ordinance based upon his interpretation of the traffic code. He observed appellant pull to the curb on Second Street without signaling. The evidence was undisputed that appellant moved from his lane of travel to the curb without activating a turn signal. We find that although the traffic citation was minimal and perhaps pretextual, Officer Diels had reasonable suspicion to make the traffic stop. Accordingly, appellant's sole assignment of error is overruled.

Portable breath test is a search. Here, there was reasonable suspicion for it because defendant was 50 miles off his stated course and apparently under the influence. State v. McGuigan, 2008 VT 111, 184 Vt. 441, 965 A.2d 511 (2008).*

Defendant was validly stopped for trespassing, and the officer could ask him about drugs without violating the Fourth Amendment or state constitution. State v. Hendon, 222 Ore. App. 97, 194 P.3d 149 (2008).

Typographical error (4311 v. 4511) in affidavit was just that. There was a photograph of 4511, the officer had been to 4511 with the CI, and there was no 4311. This was in handwritten additions made to the affidavit at the request of the magistrate after the officer expanded on the showing of probable cause. United States v. Johnson, 2008 U.S. Dist. LEXIS 67429 (D. D.C. September 5, 2008):

Detective Sepeck's handwritten additions to his affidavit were clearly made "in the midst and haste of a criminal investigation." Ventresca, 380 U.S. at 108. Those additions were made in front of the Superior Court judge and at her request, after Detective Sepeck had described these further efforts at corroboration by law enforcement. The simple error in the address numbers was not noted and had no effect on the fundamentals of the affidavit -- or, more importantly, the facial validity of the Search Warrant itself upon which the executing officers relied.

Comment: Unspoken with the citation to Ventresca is the fact that the magistrate requested the officer to add detail to the affidavit to further support the probable cause. This is what a magistrate should do. If there is additional information, add it in. Slight mistakes should be overlooked as long as there is no reasonable mistake about the place to be searched. And, under Ventresca, at 109, "Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants."

At least reasonable suspicion is required for a traffic stop (surveying the cases). State v. Styles, 362 N.C. 412, 665 S.E.2d 438 (2008).

There was no apparent authority for an owner of premises to consent to a duffle bag of a guest. When she said it was somebody else's, the officers were on notice. Motion to suppress should have been granted. Evans v. State, 989 So. 2d 1219 (Fla. App. 5DCA 2008):

Authority cannot be inferred merely from ownership of the house when the searching officer knows the suitcase belongs to the defendant. Salinas-Cano, 959 F.2d at 865-66. When a third party informs the officer that a closed container belongs to another person, it is not objectively reasonable for the officer, without making further inquiry, to search the container. We conclude that Dorsey's comment to the officers that the duffle bag belonged to Evans put them on notice to make further inquiry sufficient to establish that she had both common control over the property and mutual use of it. See Marganet, 927 So. 2d at 58 (citing Salinas-Cano, 959 F.2d 861).

Community caretaking function cannot be used to enter a house (noting that Cady involved a car). The emergency exception would apply instead. State v. Gill, 2008 ND 152, 755 N.W.2d 454 (2008):

[*P20] We have said that the emergency exception may be applied when the following requirements are met:

(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.

(2) The search must not be primarily motivated by intent to arrest and seize evidence.

(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.

Nelson, 2005 ND 11, 691 N.W.2d 218, P 12. An objective standard is used to determine whether an officer reasonably believed an emergency existed. Id. Whether an objective officer would believe an emergency existed is a question of fact. See id. at P 15.

Defendant's stop for DUI was with reasonable suspicion but not probable cause. Defendant was arrested and removed from the scene without probable cause, so his test is suppressed. City of Devils Lake v. Grove, 2008 ND 155, 755 N.W.2d 485 (2008).*

Police received a call from room 110 of a motel that there was a strong odor of a meth lab, so they came to the motel and found the smell coming from room 109, and it was overpowering, not just strong. Exigent circumstances justified the entry. State v. Meeks, 262 S.W.3d 710 (Tenn. 2008):

The hazards posed by an actively operating methamphetamine laboratory are so significant that a number of state and federal courts have determined that the discovery of an actively operating methamphetamine laboratory, in and of itself, creates an exigent circumstance justifying immediate action without the attendant delays that accompany obtaining a search warrant. See, e.g., United States v. Lloyd, 396 F.3d 948, 954 (8th Cir. 2005); Williams v. State, No. CR-06-1752, 2008 Ala. Crim. App. LEXIS 103, 2008 WL 2223068, at *6 (Ala. Crim. App. May 30, 2008); Barth v. State, 955 So.2d at 1118; State v. White, 175 Ohio App. 3d 302, 2008 Ohio 657, 886 N.E.2d 904, 911 (Ohio Ct. App. 2008). Other courts that have recognized the dangers of actively operating methamphetamine laboratories have stopped short of adopting a per se rule. Rather, they have based their finding of exigency on the location of the particular laboratory. United States v. Atchley, 474 F.3d 840, 851 n.6 (6th Cir. 2007); State v. Chapman, 107 Ore. App. 325, 813 P.2d 557, 560-61 (Or. Ct. App. 1991). These courts have focused on whether there were people in the vicinity of the actively operating methamphetamine laboratory, notably neighbors, law enforcement officials, and those manufacturing the methamphetamine. United States v. Atchley, 474 F.3d at 851; State v. Simmons, 714 N.W.2d 264, 273-74 (Iowa 2006); Bishop v. Commonwealth, 237 S.W.3d 567, 570 (Ky. Ct. App. 2007). Regardless of the approach taken, whether a per se rule or a determination based upon the presence of others in the vicinity, the scope of a permissible warrantless search remains limited to the scope of the exigency. United States v. Layman, 244 Fed. Appx. at 211; State v. Bilynsky, 2007 ME 107, 932 A.2d 1169, 1176 (Me. 2007); Coffey v. State, 2004 OK CR 30, 99 P.3d 249, 252 (Okla. Crim. App. 2004).

Fact that some defendants might have been involved in money laundering did not lead to the conclusion that evidence would be found in the homes of other defendants. United States v. Orozco, 575 F. Supp. 2d 1191 (D. Colo. 2008):

While such evidence might suggest that 11538 Nucla was purchased with drug trafficking proceeds that had been laundered through various bank accounts, or that Defendants Evaristo, Martha, and Cynthia Orosco had engaged in money laundering, I find it would not "lead a prudent person to believe there is a fair probability contraband or evidence of a crime would be found" at this address. Eidson, 515 F.3d at 1146; see also Gonzales, 399 F.3d at 1228 (requiring a nexus between the contraband to be seized or the suspected criminal activity and the place to be searched). With respect to potential evidence of drug trafficking, no evidence suggests that Defendants Evaristo, Martha, or Cynthia Orosco were involved in such activities, and no evidence suggests that 11538 Nucla was used for such purposes. No evidence links Defendant Samuel Orozco's Mercedes Benz CL 600 to such trafficking, and the affidavit merely indicates that this vehicle had been purchased with drug trafficking proceeds.

Officer saw cocaine on the console when defendant got out of the vehicle, and that is a classic plain view. United States v. Gill, 290 Fed. Appx. 965 (8th Cir. 2008) (unpublished).*

While a search warrant is considered within the four corners of the affidavit, the protective sweep conducted here obviously is not. United States v. Lawson, 2008 U.S. Dist. LEXIS 67124 (D. Kan. August 15, 2008).*

Officer was permitted to open defendant's car door after pulling him over because of defendant's furtive movements. United States v. King, 2008 U.S. Dist. LEXIS 67351 (N.D. Ind. September 2, 2008):

In sum, the circumstances of the traffic stop and the specific actions of the Defendant (unusual, furtive movement and refusal to obey the commands) formed a reasonable basis for Lichtsinn's belief that the Defendant was dangerous and may have possessed or was retrieving a weapon. As a consequence, the protective search that took the form of opening the passenger door was justified, and the act of opening the door was properly limited in time and scope. The Defendant has not established a basis to suppress the evidence recovered.

Defendant's mother had apparent authority to use the computer in a computer bag, so she had apparent authority to open the pockets of the computer bag. United States v. Jackson, 2008 U.S. Dist. LEXIS 67392 (W.D. Wis. September 3, 2008).*

Airplane stop at the Kent State University airport was justified by reasonable suspicion of either drug or alien smuggling. It was more than a "ramp check" when six police cars with sirens blocked its path. It was, however, with reasonable suspicion, and then a drug dog was brought in. United States v. Gonzales, 2008 U.S. Dist. LEXIS 67073 (N.D. Ohio August 21, 2008).*

Search of defendant's car under a search warrant was not justified, and there was no exception to the warrant requirement permitting the search of the car. United States v. Pointer, 2008 U.S. Dist. LEXIS 67144 (N.D. Okla.September 3, 2008).*

Blanket suppression of search for records was unwarranted. The critical records sought were fairly within the search warrant and should have not been suppressed. United States v. Srivastava, 2008 U.S. App. LEXIS 18817 (4th Cir. September 3, 2008), reversing United States v. Srivastava, 444 F. Supp. 2d 385 (D. Md. 2006), reconsideration denied, United States v. Srivastava, 476 F. Supp. 2d 509 (D. Md. 2007):

Finally, having determined that the Potomac Documents and the Bank of India Transfers were within the ambit of the search warrants for the Potomac residence and the Greenbelt office, we assess the government's challenge to the blanket suppression of all the seized evidence. In that respect, the district court found that the warrants had been so flagrantly and unconstitutionally executed that a blanket suppression was justified. We have consistently recognized, however, that, "[a]s a general rule, if officers executing a search warrant exceed the scope of the warrant, only the improperly-seized evidence will be suppressed; the properly-seized evidence remains admissible." United States v. Squillacote, 221 F.3d 542, 556 (4th Cir. 2000); see also United States v. Shilling, 826 F.2d 1365, 1369 (4th Cir. 1987) (holding that "[t]he exclusionary rule does not compel suppression of evidence properly covered by a warrant merely because other material not covered by the warrant was taken during the same search"). We have also recognized that only extraordinary circumstances--such as when "the warrant application merely serves as a subterfuge masking the officers' lack of probable cause," or if "the officers flagrantly disregard [] the terms of the warrant" by "engag[ing] in a fishing expedition for the discovery of incriminating evidence" -- will justify the suppression of lawfully seized evidence. United States v. Uzenski, 434 F.3d 690, 706 (4th Cir. 2006) (internal quotation marks omitted).

Fulton County Jail strip search case en banc: Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc), panel opinion Powell v. Barrett, 496 F.3d 1288 (11th Cir. 2007). Analyzing Bell v. Wolfish in detail, the court concludes that reasonable suspicion is not always required before putting arrestees into general population.

Smelling and seeing marijuana during a traffic stop was probable cause, so the consent issue was moot. United States v. Mosby, 2008 U.S. App. LEXIS 18913 (7th Cir. September 4, 2008).*

Defendant's actions in loitering in an apartment complex known for open drug deals was suspicious. Add to it his standing around [isn't that loitering] and looking for others and refusing to remove his hands from his pockets when confronted is reasonable suspicion. United States v. Johnson, 2008 U.S. Dist. LEXIS 66836 (D. Kan. July 31, 2008)* (Comment: This is really thin.)

Border search of a cruise cabin intrudes into an expectation of privacy, and it requires reasonable suspicion. [Following the weight of authority, but analyzing in detail on its own.] United States v. Whitted, 541 F.3d 480 (3d Cir. 2008):

We believe that these courts correctly recognize that the search of private living quarters aboard a ship at the functional equivalent of a border is a nonroutine border search and must be supported by reasonable suspicion of criminal conduct. The cruise ship cabin is both living quarters and located at the national border. As a result, one principle underlying the caselaw on border searches--namely, that "a port of entry is not a traveler's home," United States v. Thirty-Seven Photographs, 402 U.S. 363 (1971)--runs headlong into the "overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic," foremost in our nation's Fourth Amendment jurisprudence, Payton v. New York, 445 U.S. 573, 601 (1980) (quoting United States v. Watson, 423 U.S. 411, 429 (1976) (Powell, J., concurring)). We find that requiring reasonable suspicion strikes the proper balance between the interests of the government and the privacy rights of the individual. It also best comports with the case law, which treats border searches permissively but gives special protection to an individual's dwelling place, however temporary. We, therefore, join those courts that require reasonable suspicion to search of a passenger cabin aboard a ship.

As an initial matter, we have little trouble concluding that a passenger cabin is more like an individual's home than an automobile. Whereas the "dignity and privacy interests of the person" do not carry over to border searches of an automobile, Flores-Montano, 541 U.S. at 152, the privacy interests of an individual in his or her living quarters are significantly greater and compel more rigorous Fourth Amendment protection. The sanctity of private dwellings, whether temporary or permanent, ordinarily gives rise to "the most stringent Fourth Amendment protection." United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976); see also Minnesota v. Carter, 525 U.S. 83, 89 (1998) (acknowledging that "in some circumstances a person may have a legitimate expectation of privacy in the house of someone else"); Minnesota v. Olson, 495 U.S. 91, 98-99 (1990) (holding that overnight guests in the house of someone else have a reasonable expectation of privacy); Stoner v. California, 376 U.S. 483, 490 (1964) (hotel room); McDonald v. United States, 335 U.S. 451 (1946) (living quarters in rooming house). We believe that "one's expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one's residence," Martinez-Fuerte, 428 U.S. at 561, even where one's residence is aboard a ship.

Officers investigating a shooting who arrested defendant could conduct a protective sweep of an adjacent building where the officers had facts that justified the conclusion that somebody could be there to "launch an attack" as in Buie. United States v. Dutchie, 2008 U.S. Dist. LEXIS 66823 (D. Utah September 2, 2008).*

Class certification denied for an Iowa strip search lawsuit because, inter alia, the questions do not sufficiently predominate to resolve the action. Rattray v. Woodbury County, 253 F.R.D. 444 (N.D. Iowa 2008).*

Defendant should have filed his motion to suppress before trial because the material he needed to file the motions was present then, not later as contended. Also, the fact the trial court ruled on the motion does not obviate the waiver question. United States v. Musick, 291 Fed. Appx. 706, 2008 FED App. 0536N (6th Cir. 2008) (unpublished).*

Defendant's cellphone call as he was being stopped with probable cause created exigent circumstances. The officers had no cause to go into the premises until they discovered he made a call to a confederate and that something was going on inside. United States v. Moses, 540 F.3d 263 (4th Cir. 2008):

It is true that the officers initially had no evidence suggesting that another person was present in 407-A North Cedar Street. When, however, Moses made a telephone call during the course of the traffic stop to his cousin at 407-B North Cedar Street -- the residence adjacent to unit 407-A from which Moses was seen to have emerged -- Sergeant Kroh became concerned that Moses had warned someone back at Cedar Street about the police so that evidence at 407-A could be removed or destroyed. Moreover, when the officers reacted to this suspicion and returned to 407-B North Cedar Street to interrogate the cousin, her behavior in causing a loud and unprovoked commotion added to the officers' suspicions that someone else was present inside unit A and that her outburst was calculated as a warning to that person. See United States v. Vasquez, 638 F.2d 507, 531-32 (2d Cir. 1980) (upholding an exigent-circumstances search of a fourth-floor apartment where suspects deceived officers into investigating a second-floor apartment whose occupants created a loud commotion that officers reasonably believed might have warned persons on the fourth floor to the police's presence). The officers also observed that the windows of unit A were blocked and that a gold vehicle was parked outside the house, suggesting the possibility that someone else might be present. Moses' argument simply ignores these highly relevant facts.

Defendant disclaimed interest in the premises searched, which included its trash, in which he would have no expectation of privacy anyway. United States v. Jones, 2008 U.S. Dist. LEXIS 66744 (E.D. Mo. May 21, 2008).*

Defendant's search incident of his person was valid even though it occurred before formal arrest because of defendant's strange actions and informant's statement that was corroborated by the police. State v. Chapman, 146 Idaho 346, 194 P.3d 550 (App. 2008).*

Shortly after the Madrid train bombing, a Boston officer just trained in terrorism investigation saw a van parked outside an MBTA station that was of interest. Another officer drove up and approached the defendant in his van. The stop and questions were valid. When investigating potential terrorism, a sliding scale of reasonable suspicion exists. United States v. Ramos, 2008 U.S. Dist. LEXIS 66465 (D. Mass. August 29, 2008):

The location where conduct occurs also bears on whether it is sufficiently suspicious to justify further investigation. For example, the Supreme Court has stated that in the vicinity of the Mexican border "'the likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor' .... Different considerations would arise if, for example, reliance were put on apparent Mexican ancestry at a checkpoint operated near the Canadian border." United States v. Martinez-Fuerte, 428 U.S. 543, 564 n. 17, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 886-87, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975)). Similarly, the First Circuit has held that "police are permitted to take the character of the neighborhood into account in deciding whether a stop is appropriate ...." ... As these cases recognize, particular conduct may reasonably arouse suspicion in one place when it would not be suspicious in another place. Thus, in the instant case, common sense indicates that it was permissible for the police to consider that the conduct in question was occurring at a public transportation facility which, as the then recent Madrid bombing suggested, might be a particularly attractive target for a terrorist attack.

Common sense and case law also indicate that the assessment of whether conduct is reasonable for Fourth Amendment purposes may properly be influenced by the degree of danger that is being investigated. In other words, the gravity of the potential danger being addressed is one of the totality of the circumstances to be considered. For example, in Florida v. J.L., 529 U.S. 266, 273-74, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000), the Supreme Court stated, "[w]e do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk." Similarly, in finding that checkpoints established to stop vehicles to search for drugs were unconstitutional, the Supreme Court stated, before 9/11, that "the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route." City of Indianapolis v. Edmond, 531 U.S. 32, 44, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000).fn4

4. The Supreme Court's statement in Edmond echoes Justice Robert Jackson's observation in 1949 that:

If . . . a child is kidnaped and the officers throw a road block about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.

Brinegar v. United States, 338 U.S. 160, 183, 69 S. Ct. 1302, 93 L. Ed. 1879 (Jackson, J., dissenting).

Comment: The 9/11 mantra slides the scale.

Defendant's employer could consent to a search of company computer with defendant's personal files on it. Defendant had no reasonable expectation of privacy in the computer files. Defendant was suspected of theft from the company, and he was locked out of the office and computer. State v. M.A., 402 N.J. Super. 353, 954 A.2d 503 (2008):

We emphasize that the record is devoid of evidence that defendant claimed ownership or sought return of the computers before the search. To be sure, defendant instituted no legal action for the return of what he claimed was his lawful property. Simply put, he did not do so because he did not own the computers. Braun owned them. Because Braun owned the computers, he had the authority to consent to their search; and because Braun voluntarily consented to the search, the search was valid. ...

Our inquiry does not end here. Defendant contends that he had a reasonable expectation of privacy in the personal information he stored in the computers because he had a private office and placed confidential passwords on the computers to block third party access to that information. ...

The evidence establishes that defendant abandoned the computers before the search. Thus, he had no expectation of privacy in them. Nevertheless, we extend our inquiry to consider the merits of his contention. ...

When the IRS satisfies Powell's minimal requirements for enforcement of a summons for records, there is no Fourth Amendment claim. United States v. Clark, 2008 U.S. Dist. LEXIS 66358 (D. Conn. August 29, 2008):

Mr. Clark's final argument is that complying with the summons would deprive him of his Fourth Amendment right to be free from unreasonable searches and seizures and his Fifth Amendment right against self-incrimination. The Court adopts Magistrate Judge Margolis' recommended ruling that enforcement of the IRS summons does not violate Mr. Clark's Fourth Amendment rights. Courts have repeatedly recognized that "enforcement of an IRS summons does not violate the fourth amendment as long as the IRS has complied with the Powell requirements." United States v. Reis, 765 F.2d 1094, 1096 (11th Cir. 1985); see also Fisher v. United States, 425 U.S. 391, 401 n.7 (1976) (stating that although taxpayers had not raised any Fourth Amendment arguments, they "could not be successful if they had. The summonses are narrowly drawn and seek only documents of unquestionable relevance to the tax investigation"); United States v. Abrahams, 905 F.2d 1276, 1282 (9th Cir. 1990) ("[S]atisfaction of the Powell requirements serve[s] to ensure that the summons d[oes] not violate the fourth amendment by lacking sufficient cause."), overruled on other grounds by United States v. Jose, F.3d 1325, 1329 (9th Cir. 1997) (en banc); United States v. Theep, 502 F.2d 797, 798 (9th Cir. 1974) ("the unlawful search and seizure provisions of the Fourth Amendment do not protect the taxpayer from an IRS summons"); .... Here, because the Court finds that the IRS has satisfied the Powell requirements, there is no Fourth Amendment violation.

A reporter and producer with Democracy Now!, including Amy Goodman, were arrested for, as they say, no apparent reason at the RNC in St. Paul yesterday. How ironic.

The transcript of their story is here. Their website also has video, audio, and MP3 downloads.

Kansas holds that Muehler v. Mena cannot be applied to a traffic stop, following State v. Smith, 286 Kan. 402, Syl. P 2, 184 P.3d 890 (2008). Questions of the passenger about their travel plans were too intrusive. State v. Morlock, 40 Kan. App. 2d 216, 190 P.3d 1002 (August 29, 2008):

We are persuaded by the substantial legal authority from other jurisdictions that Cocking was permitted to ask O'Kelly where he was traveling from. This routine question was reasonably related to the scope of the traffic stop, and the inquiry did not unreasonably alter the nature or the duration of the stop. Although the question was not directly related to the original reason for the stop, i.e., failing to signal when changing lanes, the question allowed Cocking to determine if O'Kelly was on the proper course, and the question did not unreasonably delay O'Kelly or infringe upon his rights.

However, we disagree with the State that Cocking was permitted to ask O'Kelly how long he had been in Phoenix and what he was doing there. We acknowledge that similar questioning has been upheld by courts in other jurisdictions. However, we conclude these were not routine questions about O'Kelly's travel plans, and the questions were not reasonably related to the scope of the traffic stop. Instead, the questions were designed to allow Cocking to probe into O'Kelly's personal business in the hope of uncovering suspicious activity.

Such an intrusion cannot be justified by reasoning that the motorist is not legally obligated to answer the questions. This analysis blurs the distinction between a voluntary encounter and a traffic stop, which is an investigatory detention. In a voluntary encounter, a law enforcement officer may approach an individual and ask questions without constituting a seizure provided the individual is free to leave, but the officer cannot force the individual to answer. Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991); McKeown, 249 Kan. at 509. However, a traffic stop constitutes a seizure, and the motorist is not free to leave while he or she is being temporarily detained and questioned. The motorist is not allowed to pick and choose which questions must be answered. Until the law enforcement officer conveys to the motorist that he or she is free to refuse the requests or otherwise end the encounter, the motorist is expected to cooperate with the investigation and to answer all questions posed by the law enforcement officer. This is why it is essential that law enforcement questioning during a traffic stop be reasonably related in scope to the circumstances which justified the initial interference.

No suppression hearing was held and the trial court did not rule on the question of defendant's stop. Nevertheless, the testimony at trial supported it. State v. Ford, 2008 Ohio 4373, 2008 Ohio App. LEXIS 3667 (10th Dist. August 28, 2008)* (shooting call at 4:30 am, and defendant and another were the only people around; defendant was holding something to secrete it and was acting nervous; that was reasonable suspicion).

Defendant was a bystander to a drug operation, and there was no reasonable suspicion tying him to the operation to justify his detention. Lopez-Vazquez v. State, 956 A.2d 1280 (Del. 2008):

The observed nervous behavior by an unknown person standing next to and conversing with a known drug suspect gave police a "hunch" that the unknown person might be involved with the target of their investigation. Nothing in the record, however, provides concrete reasons why the remainder of the wholly innocent events that occurred before the seizure (for example, entering into a multi-unit apartment building after Hernandez, spotting Lopez-Vazquez outside of the building--and alone--an hour later by himself) combine into a "suspicious conglomeration" which supports a Terry stop. We do not find the totality of the circumstances to give rise to the requisite reasonable and articulable suspicion of criminal activity by Lopez-Vazquez required under Terry to justify seizing him.

Investigative detention was justified by defendant providing an obviously false ID, he was fidgeting with furtive movements, his passenger had a felony warrant out for her, and the officer was alone and backup would not arrive for a while. Grissom v. State, 262 S.W.3d 549 (Tex.App.—Texarakana 2008).*

Officers saw a juvenile smoking a joint, and he discarded it as they approached. It was retrieved and the juvenile and his companion were handcuffed and arrested. The companion was searched, finding marijuana. The arrest of the companion was unjustified. In re Antonio B., 166 Cal. App. 4th 435 (2d Dist. 2008):

Detective Cepeida's “policy” of handcuffing any suspect he detains for further investigation regardless of the circumstances of the stop ignores the constitutional directive that a detention based upon reasonable suspicion of criminal activity must be conducted using the least intrusive means reasonably available under the circumstances of that particular detention. (People v. Celis, supra, 33 Cal.4th at pp. 674–675.) Because the use of handcuffs on appellant during the stop was not warranted under the circumstances, the seizure constituted an arrest rather than a detention. As there was no probable cause to arrest appellant at the time he was handcuffed, the arrest was illegal, and the consent to be searched, which on this record flowed directly from the illegal arrest, was not voluntary. Therefore, the evidence discovered must be suppressed. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 783–784, 791 [195 Cal. Rptr. 671, 670 P.2d 325] [evidence found in search must be suppressed when defendant consented to search during illegal detention]; People v. Valenzuela (1994) 28 Cal.App.4th 817, 833 [33 Cal. Rptr. 2d 802] [“it is axiomatic that a consent to search produced by an illegal arrest or detention is not voluntary”].)

Odor of marijuana is probable cause, but it has to be directed to a particular person. State v. Guzman, 2008 VT 116, 184 Vt. 518, 965 A.2d 544 (2008):

We agree that the odor of marijuana, detected by a trained and experienced police officer, can provide a reasonable basis to believe that marijuana is present. We also agree that the odor alone may not always be sufficient to arrest an individual. The facts of this case, however, fall well within the reasonable standard enunciated by the Wisconsin Supreme Court:

the odor of a controlled substance may provide probable cause to arrest when the odor is unmistakable and may be linked to a specific person or persons because of the particular circumstances in which it is discovered or because other evidence at the scene or elsewhere links the odor to the person or persons.

State v. Secrist, 589 N.W.2d 387, 394 (Wis. 1999).

Owner and operator of a boat off Puerto Rico had the ability to consent to toolbox on the boat that was given to one of the passengers to deliver in PR. This was apparent authority. "The containers were not locked, nor were they identified as Carrasco's personal property." Defendant's suppressed confession could be used to impeach him when he testified. United States v. Carrasco, 540 F.3d 43 (1st Cir. 2008).*

Tip received by the officer did not specify any criminality, and only innocent details were corroborated. Defendant's later consent did not purge the taint. United States v. Benavides, 291 Fed. Appx. 603 (5th Cir. August 27, 2008) (unpublished):

The anonymous tip that Joe Benavides received alleged no criminal activity. It merely described the truck, the truck's location, and the fact that the truck was being loaded with unknown cargo. Although the government relies heavily on the specificity and accuracy of the tip, it can point to no specific assertion of illegality, much less a verifiable assertion of illegality. The only further articulation of reasonable suspicion made by Benavides was that the area in which the truck was loaded was not a warehouse district. Thus, the facts alleged by the government to support its claim of reasonable suspicion show that Oscar Benavides and another man put unidentified bundles into crates and carried out these activities at an address that was not located in a warehouse district. 2 The tip alone therefore alleges only identifying information, insufficient under J.L. for a finding of reasonable suspicion. See 529 U.S. at 271-72 (finding no reasonable suspicion for seizure where anonymous tip accurately identifying a person further alleged only that the identified person was illegally carrying a gun). And the police did not improve on these bare facts in order to find reasonable suspicion before the traffic stop was made.