While there was an exigentless entry into defendant's apartment finding child pornography, the government showed that it had an independent source and would have obtained a search warrant. Alternatively, the government showed inevitable discovery. United States v. Bonczek, 2008 U.S. Dist. LEXIS 87436 (S.D. N.Y. October 16, 2008)*:

The Government has met its burden to show that the NYPD would have obtained a warrant even without the information confirmed by the illegal entry. Sergeant Minca knew he had a viable complaint from Mr. Vega when he asked Detective Ryan to come into Manhattan from his home in Orange County, 55 miles away, in order to obtain a search warrant. Indeed, that was Sergeant Minca's sole purpose in calling Detective Ryan into work. He did not need Detective Ryan to look at the computer screen. Both Sergeant Minca and Detective Ryan recognized the need to obtain a warrant and took a step toward obtaining one by calling the Manhattan District Attorney's office before entering Mr. Bonczek's apartment. Accordingly, the Court finds that the Government has satisfied both elements of the independent source doctrine and that the evidence seized from Mr. Bonczek's apartment is not subject to the exclusionary rule.

Defendant was surrounded by police, but it was not so coercive that it was involuntary. United States v. Haeuser, 2008 U.S. Dist. LEXIS 87246 (E.D. Wis. October 17, 2008).*

Officer lacked reasonable suspicion for stop of defendant's vehicle at 4 a.m. in Atlantic City, where driving at that hour is not abnormal. The vehicle did accurately match the description. United States v. Brown, 2008 U.S. Dist. LEXIS 87119 (D. N.J. October 27, 2008):

Ultimately, the Court is essentially left with a loosely fitting match of the vehicles, a head turn by the driver that lasted a "couple of seconds", and a hand-off of some indescript object by the driver to the passenger in the rear seat. Despite giving the officers' experience and specialized knowledge the deference it deserves, the factors present in this case do not amount to the level required for reasonable suspicion.

Defendant's mother who was given his computer bag to use the computer could consent to its search by a law enforcement officer who was looking for a gun possessed by the defendant. United States v. Jackson, 2008 U.S. Dist. LEXIS 87648 (W.D. Wis. October 28, 2008).*

Officer could answer cellphone when defendant had been arrested and the telephone lawfully seized. State v. Carroll, 2008 WI App 161, 314 Wis. 2d 690, 762 N.W.2d 404 (2008):

B. The detective properly answered the incoming cell phone call.

P27 The State argues that Belsha was constitutionally permitted to answer Carroll's ringing cell phone. In his brief, Carroll did not address the State's argument, except to reason that because he was not under arrest, Belsha did not have lawful [*15] possession of the cell phone and, therefore, could not answer it. There are no reported decisions in Wisconsin that resolve this question. At oral argument, the State provided additional authority for its assertion that an officer can answer a ringing phone under certain circumstances, citing United States v. De La Paz, 43 F. Supp. 2d 370 (S.D.N.Y. 1999).

P28 In De La Paz, the court denied the defendant's motion to suppress evidence obtained after an FBI agent answered the defendant's ringing cell phone at FBI headquarters, without a warrant, while agents were processing the defendant's arrest. Id. at 371, 375-76. The court recognized that it was impracticable for the agents to get a warrant to answer the cell phone. Id. at 375-76. The court also observed that the defendant had been arrested for drug trafficking. Id. at 376. The court explained its holding:

Having arrested [the defendant] for narcotics conspiracy, the agents had probable cause to believe that calls to his cellular telephone--a common tool of the drug trade--would provide evidence of his criminal activity … and it was not unreasonable for the agents to "seize" that evidence without a warrant before it disappeared. Id. (citation omitted).

P29 We conclude that the rationale of De La Paz applies equally here. The detective was legally in possession of the cell phone when it rang because, as we have explained, it had been seized pursuant to a search incident to arrest. At the time it rang, the detective had probable cause to believe that Carroll may be involved in drug use because the detective had observed a photo of Carroll in plain view, smoking what appeared to be a marijuana blunt. Based on the detective's training and experience, the detective was aware (as he stated in his affidavit for the search warrant), that "[d]rug traffickers frequently take, or cause to be taken, photographs of themselves, their associates in the drug trade, property acquired from the distribution of drugs and such photographs are often … [used to] personalize cellular telephones with such information." It would have been impossible to obtain a warrant prior to answering the call. Under these circumstances, we conclude that it was not unreasonable for the detective to "'seize' that evidence [of the incoming call] without a warrant before it disappeared." See id.

DUI roadblock was constitutional. Suspension of the roadblock three times because of heavy traffic backing up was based on traffic flow and not tied to any one vehicle or driver. Commonwealth v. Worthy, 598 Pa. 470, 957 A.2d 720 (2008):

The officers on the scene must continually observe and evaluate the net effect of all the interacting influences on traffic volume and flow through the checkpoint. The officers on the scene are the only ones who can integrate the effect of all the conditions on the ground and make an informed and educated decision as to when traffic conditions require temporary suspension of a checkpoint to ensure that safety is paramount and delay is reasonable.

In a suit brought by the officers' union, a TRO is denied against NYPD's policy of drug and alcohol testing officers involved in a shooting. Likelihood of success on the merits not shown under Skinner. Palladino v. City of New York, 2008 U.S. Dist. LEXIS 86757 (S.D. N.Y. September 30, 2008):

At this stage in the proceedings, plaintiffs have not sufficiently shown, in contravention to defendants' assertions, that IO 52 and its enforcement likely does not constitute a special need. As in Skinner, the City of New York has a substantial interest in the safety of its citizens, visitors, and the police department. Defendants contend that a sober police force serves to further that interest and that IO 52 encourages sobriety. Morever, plaintiffs have proffered no evidence that IO 52 is a regulation primarily concerned with law enforcement. To date, there has been no evidence proffered that alcohol monitoring of police officers pursuant to the regulation has been used primarily for any other purpose than deterring alcohol consumption and increasing public confidence in police force action following a shooting. Moreover, plaintiffs have not argued, nor cited any evidence to conclude, that IO 52 has been applied in any particular manner that uniquely raises specific constitutional violations beyond their general challenge to the need for such a regulation.

Aspects of law enforcement, such as the use of police personnel to collect Breathalyzer samples, are undoubtedly involved in the administration of IO 52. However, at this juncture, plaintiffs have not shown that a primary purpose of the regulation is to generate evidence for prosecution. In fact, none of the four police officers cited, who have been subjected to Breathalyzer tests as a result of IO 52, were subject to prosecution or even found to be intoxicated.

Plaintiffs have not argued that the text of IO 52 and the safety and reputation rationales proffered by defendants were crafted as pretext to enable the gathering of evidence against police officers for criminal prosecution. Absent a persuasive showing that the NYPD's Breathalyzer testing is pretextual, it is to be initially assessed in light of its stated administrative purpose. No officer has been subject to criminal prosecution following an IO 52 search. At most, plaintiffs have alleged that criminal prosecution of offending officers may be an incidental purpose and future intended consequence of IO 52. The present record before this Court cannot support a conclusion that significant privacy concerns rise to an unconstitutionally prohibited level. On the record, as it presently exists, plaintiffs' allegations are insufficient to warrant a preliminary injunction.

Technically inaccurate warrant was not constitutionally deficient where the affiant was also one of the executing officers and they clearly found the right place. United States v. Johnson, 558 F. Supp. 2d 807 (E.D. Tenn. 2008):

The test for determining whether a search warrant describes the premises to be searched with sufficient particularity "is not whether the description is technically accurate in every detail," Prout, 526 F.2d at 387-88, but rather whether the description is sufficient "to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premises might be mistakenly searched." United States v. Gahagan, 865 F.2d 1490, 1496 (6th Cir.), cert. denied, 492 U.S. 918, 109 S. Ct. 3242, 106 L. Ed. 2d 590 (1989) (quoting United States v. Gitcho, 601 F.2d 369, 371 (8th Cir.1979)); and United States v. Pelayo-Landero, 285 F.3d 491, 495 -496 (6th Cir. 2002) quoting United States v. Dorrough, 927 F.2d 498, 500 (10th Cir.1991) (that the "requisite specificity of the description … depends heavily on the facts of each case").

Defendant's sticking closed fist into a police car which caused officer to grab his arm justified opening his hand for officer safety. United States v. Solomon, 2008 U.S. Dist. LEXIS 86607 (W.D. Pa. August 29, 2008).*

Defendant abandoned a safe in his girlfriend's apartment. He was kicked out and was moving his stuff and did not meet the deadline she gave him. He abandoned it by leaving and not safeguarding it. United States v. Davis, 2008 U.S. Dist. LEXIS 86756 (S.D. N.Y. October 10, 2008).

Although Davis did not discard the safe, Scriven conveyed the same basic message to him that the INS agents conveyed to the defendant in Abel. She asked him to pack his belongings and remove them from her apartment by June 2006. Following that request, Davis's conduct sufficiently evinces an intent to abandon the safe.

Defendant, a convicted felon, was not credible in his effort to show standing to contest a search. His connection to the property was pretty tenuous at best, and it was a stretch. United States v. Bryant, 2008 U.S. Dist. LEXIS 86861 (C.D. Ill. October 24, 2008).*

It is likely that a drug dealer will keep drugs in his house, so that gives nexus. United States v. Burton, 2008 U.S. Dist. LEXIS 86680 (E.D. Pa. October 27, 2008)*:

In drug-related cases, numerous courts of appeals have held evidence of drug crimes is likely to be found in drug dealers' residences. See Whitner, 219 F.3d at 298 (citing cases in accord from the United States Courts of Appeals for the First, Second, Fourth, Sixth, Seventh, Eighth, Ninth, and District of Columbia Circuits). The Third Circuit reasoned "evidence associated with drug dealing needs to be stored somewhere, and ... a dealer will have the opportunity to conceal it in his home." Id. at 297. In Whitner, the defendant was evasive about where he lived, leading to a "reasonable inference [he] was attempting to conceal the existence of the apartment and his association with the apartment. This attempt at concealment when combined with the other information ... set forth in [the] affidavit logically suggests [the defendant] was storing some evidence of illegal activity at the apartment." Id. at 299.

Jacket was a place where drugs could have been kept, so it could be searched under a search warrant. United States v. Deas, 2008 U.S. Dist. LEXIS 86725 (D. Conn. October 27, 2008).*

Fact defendant had been previously arrested by the officer was a factor in whether he was free to leave when he was being talked to by the officer. He was singled out of a group of five to be talked to. United States v. Williams, 2008 U.S. Dist. LEXIS 86910 (S.D. Ohio October 27, 2008).*

The mentally ill retain Fourth Amendment rights. The fact they are not permitted to possess firearms does not give the police the authority to make warrantless entries to confiscate them. Moreover, that does not even give grounds for a search warrant under Penal Code § 1524. People v. Sweig, 167 Cal. App. 4th 1145, 84 Cal. Rptr. 3d 705 (3d Dist. 2008):

In this case, a search warrant could not have been obtained despite the legislative mandate (§ 8102) that law enforcement shall confiscate and retain custody of any firearm or other deadly weapon that is owned, possessed, or under the control of a person detained for mental health treatment and evaluation because the person is suffering from a mental disorder causing the person to be gravely disabled or dangerous to himself, herself, or others (§ 5150).

(4) When a mentally disordered person is detained outside of his or her residence pursuant to section 5150, law enforcement cannot get a search warrant to confiscate a firearm or other deadly weapon inside the residence because, as the People acknowledge on appeal, the situation specified in section 8102, without more, does not fall within the limited grounds set forth in Penal Code section 1524 for the issuance of search warrants.

Plaintiff's complaint that search for a body that involved digging up property after an alert by a cadaver dog survived summary judgment on the reasonableness of the conduct of the digging. Spangler v. Wenninger, 2008 U.S. Dist. LEXIS 86369 (S.D. Ohio September 3, 2008).*

Search of defendant's car was preceded by a request for consent that was refused, then the officers said that they smelled marijuana, so they searched. They didn't find marijuana, but instead a gun. The search is suppressed for lack of justification. The video of the stop did not support the officers' version. United States v. Pearson, 2008 U.S. Dist. LEXIS 86304 (S.D. Ohio September 10, 2008):

It follows that because the Officers conceded that they were not in fear for their safety and that the marijuana odor was the sole justification for their search of Defendant and his vehicle, there existed no independent cause for the search. While the initial stop may have been legitimate, the Court does not find that something occurred during the traffic stop which generated the necessary reasonable suspicion to justify the search of Defendant's person and vehicle. Perez, 440 F.3d at 370.

Two 911 calls were received, the first anonymous, the second not, about an ongoing altercation. The police arrived and corroborated what they were told in the 911 calls, and this gave the officers cause to search defendant's car for a weapon. United States v. Whitaker, 546 F.3d 902 (7th Cir. 2008).*

Plaintiffs sufficiently alleged that they were unreasonably subjected to unreasonable group strip searches to survive a motion to dismiss. Streeter v. Sheriff of Cook County, 576 F. Supp. 2d 913 (N.D. Ill. 2008).*

State Electrical Board had the statutory authority to seek a judicially ordered administrative search warrant for inspections, the one here was not a final order that was appealable because there were still procedures available before the Board. N.D. State Elec. Bd. v. Boren, 2008 ND 182, 756 N.W.2d 784 (2008):

[*P12] Although Boren contends that there is a final order because nothing remains pending in the district court, the statutory scheme contemplates additional proceedings before the Board. Section 43-09-22, N.D.C.C., provides a right of appeal from an inspector's order. Furthermore, Boren has not established that he has exhausted his administrative remedies before the Board. Cf. Medical Arts Clinic, P.C. v. Franciscan Initiatives, Inc., 531 N.W.2d 289, 298 (N.D. 1995) (holding "if the impact of [a hearing officer's] order compelling disclosure of claimed trade secrets cannot be 'unmade' and, after exhaustion of administrative remedies, there is no other recourse . . . , a writ of prohibition may be sought for judicial review of the hearing officer's trade-secret decision[,]" but with limited scope of judicial review for that type of proceeding).

[*P13] We also observe that there is no specific right to appeal from an administrative search warrant provided in N.D.C.C. ch. 29-29.1. However, N.D.C.C. ch. 29-29.1 does provide procedural safeguards when a warrant is subsequently determined to be invalid. See N.D.C.C. § 29-29.1-05 (precluding use of facts discovered or evidence obtained as competent evidence in any action, or in imposing any sanctions, or as a basis for further seeking a warrant "if the warrant [issued under N.D.C.C. ch. 29-29.1] is invalid or if what is discovered or obtained is not a condition, object, activity, or circumstance which it was the legal purpose of the search or inspection to discover"). If the Legislature wanted to create a right of direct appeal to this Court from an administrative search warrant issued under this chapter, it could have written N.D.C.C. ch. 29-29.1 to do so.

In a knock-and-talk, officer's going to the back door after smelling marijuana exceeded the authority given to the public to access the property. Quintana v. Commonwealth, 276 S.W.3d 753 (Ky. 2008):

A back yard is not normally an area that the general public would perceive as public access. While the back yard may not always enjoy the protection of the curtilage, it is a rare one that does not. See Daughenbaugh v. City of Tiffin, 150 F.3d 594, 601 (6th Cir. 1998) ("The backyard and area immediately surrounding the home are really extensions of the dwelling itself. This is not true simply in a mechanical sense because the areas are geographically proximate. It is true because people have both actual and reasonable expectations that many of the private experiences of home life often occur outside the house."). Under the four-factor analysis of Dunn, the back yard in this case satisfies proximity since it was immediately in back of the house; while not completely enclosed, home living items were in the yard; and a concrete patio was in the yard behind the house, as was a large gas tank which shielded part of the patio from view. Perhaps most telling about Appellant's expectation of privacy is the presence of a dog kennel and what appear to be other animal pens. Most importantly, the discovery made by the officer could not have been made by sight (or smell) from an area outside the yard; he had to be right under the window unit to perceive the smell. In short, the back yard was within the curtilage of the house and Appellant Quintana had a reasonable expectation of privacy in it. The officer did not have the right to be there absent a warrant, meaning any information he uncovered there (the "smell" of marijuana) was improper and thereby tainted the search warrant based on it. The evidence found as the result of the improperly obtained search warrant thus should have been suppressed.

Somebody who spent 20 minutes in a hotel room and did not have a key did not have standing to challenge its search as a guest. United States v. Arrington, 296 Fed. Appx. 646 (10th Cir. 2008)* (unpublished).

Knock-and-talk led to probable cause and exigent circumstances. United States v. Smalls, 617 F. Supp. 2d 1240 (S.D. Fla. 2008)*:

Based upon the analysis set forth below, the undersigned concludes that the Defendant voluntarily consented to open his door in response to the police knocking on the door; that once he opened the door the police had probable cause to arrest him and to believe that there was contraband inside the apartment; that exigent circumstances arose after the police presence at the Defendant's front door was known, and these circumstances justified the warrantless entry into the Defendant's apartment to effectuate his arrest and seize the evidence in plain view; and, the police were justified in conducting a protective sweep of the entire apartment incident to his arrest, since all areas of the apartment adjoined the area where he was arrested.

CI's 85 day old information was used to get a search warrant for guns in defendant's house. The warrant was not stale. United States v. Deering, 296 Fed. Appx. 894 (11th Cir. 2008)* (unpublished):

Here, the information contained in Agent Washington's affidavit was not too stale to provide probable cause. First, the CS's information indicated Deering's firearm possession was ongoing. Specifically, the affidavit stated that the CS had observed firearms and ammunition at Deering's residence "several times" within a three-month period, that there were three different guns in different locations of the house, and that the CS had heard Deering engage in target practice and seen shells scattered in the front and back yards. These facts support a finding that Deering's firearm possession was for his personal use and was ongoing. See United States v. Haimowitz, 706 F.2d 1549, 1555 (11th Cir. 1983) ("[I]f an affidavit recites activity indicating protracted or continuous conduct, time is of less significance.") (quotation marks omitted).

RapidScan search at a mental health prison that is a virtual strip search raised sufficient questions that they could not be resolved here on summary judgment, and a hearing would be held on whether the use here was reasonable under Bell v. Wolfish. From the FAQs on the maufacturer's website:

Q: How are persons scanned?

A: A person faces the Secure 1000 and a front scan is generated. The person turns around and a rear scan is generated. Within seconds, a computer-aided image of the subject appears on the monitor revealing any objects concealed under or within the subjects clothing.

Q: What is the operating principle of the Secure 1000?

A: A narrow, low energy X-ray beam is scanned over the body surface. The reflection or backscatter of the beam is detected, digitized and computer stored. The data is then enhanced, using state-of-the-art imaging techniques to create a display of the person and any concealed objects.

Zboralski v. Monahan, 616 F. Supp. 2d 792 (N.D. Ill. 2008):

While the foregoing gives us some basis upon which to rule regarding reasonableness, we do not believe that it is enough, given the fact that this issue has never before been addressed. Several important questions remain that cannot be answered on this record. For instance, we have very little evidence of how the Rapiscan actually works and the quality of images it produces. Examples and experts in the field would be helpful to better understand body scan technology. We would also appreciate testimony on how reasonable persons would feel being subjected to such a scan. Is it psychologically similar to, or even less intrusive than a pat-down because the person cannot view his or her own image and no touching is involved? Or is the thought that another person might be viewing a detailed naked image enough to make a person feel as violated as they would during a manual strip search? Finally, we are unsure whether the level of detail affects whether or not the search is closer to a pat-down or a strip search. Will every body scan search need to comport with the same standard of reasonableness regardless of the level of detail in the image? Or will factual determinations need to be made in each case depending on how the machine was calibrated at the time of the search? How was the machine calibrated in this case? We do not have that evidence. Because we do not believe the record is sufficiently developed to allow us to rule on this issue of first impression, we request that a hearing be held and the parties confer so that we may discuss the logistics of such a hearing.

A Miranda warning is not required before a blood draw for DNA testing. Robinson v. State, 2 So. 3d 708 (Miss. App. 2008).*

Initial encounter was consensual where officer walked up to defendant standing outside his car. The officer parked near but did not block the defendant. It escalated into reasonable suspicion of DUI. State v. McGinnis, 40 Kan. App. 2d 620, 194 P.3d 46 (2008).*

No standing in a motel room rented solely for manufacture of drugs which the defendant did not rent or keep any other personal belongings in. United States v. Robertson, 297 Fed. Appx. 722 (10th Cir. 2008)* (unpublished):

As noted by the district court, the suite was not registered to any of the occupants, and no personal items indicating an overnight stay were present. All the evidence indicated that the suite was used only to manufacture and distribute illegal drugs. Accordingly, the district court properly concluded that Robertson lacked a reasonable expectation of privacy in the motel suite and that he could not challenge the search of the suite.

Customs had an outgoing package interdiction program at the Fed Ex Oakland overseas shipping hub looking for cash in outgoing packages, and the search here was authorized by

31 U.S.C. § 5317(b), which provides: "For purposes of ensuring compliance with the requirements of section 5316, a customs officer may stop and search, at the border and without a search warrant, any vehicle, vessel, aircraft, or other conveyance, any envelope or other container, and any person entering or departing from the United States." Id. (emphasis added); see also United States v. Gomez-Osorio, 957 F.2d 636, 643 (9th Cir.1992).

The package search here revealed a letter and a sexual relationship with an 8 year old girl in the Phillipines. He challenged the reading of the letter.

Seljan argues that the search, regardless of its authorization, was unreasonably intrusive in its scope because it entailed reading his personal correspondence. Seljan further objects to the search because he contends that it should have been clear to the customs agent, without having to read the letter, that the FedEx package contained no undeclared currency or other contraband.

The concerns identified by the Supreme Court are not present here. The search did not involve the destruction of property, it was not conducted in a "particularly offensive manner," and it was not a "highly intrusive search[] of the person." Flores-Montano, 541 U.S. at 152, 154 n.2, 155-56 (internal quotation marks omitted). There was no destruction of property. The first FedEx package, the target of Seljan's motion to suppress, was returned to FedEx for delivery and presumably reached its destination in good order. Nor was the search conducted in a manner that could be categorized as "particularly offensive." See Ramsey, 431 U.S. at 618 n.13. Ramsey suggested that a border search might be unreasonable "because of the particularly offensive manner in which it is carried out," citing as examples searches that were held unreasonable in Kremen v. United States, 353 U.S. 346, 77 S. Ct. 828, 1 L. Ed. 2d 876 (1957) (officers, without a search warrant, seized the entire contents of a cabin and took the items 200 miles away to be examined), and Go-Bart Importing Co. v. United States, 282 U.S. 344, 356-58, 51 S. Ct. 153, 75 L. Ed. 374 (1931) (Officer falsely claimed to have a search warrant and then "made a general and apparently unlimited search, ransacking the desk, safe, filing cases, and other parts of the office. It was a lawless invasion of the premises and a general exploratory search in the hope that evidence of crime might be found."). There was nothing like that here.

The concern in this case is simply with how far the search went--whether it was too intrusive in scope. We agree with Seljan that there was intrusion into his privacy, but the degree of intrusion must be viewed in perspective. Seljan voluntarily gave the package containing the letter to FedEx for delivery to someone in the Philippines, with knowledge that it would have to cross the border and clear customs. The reasonable expectation of privacy for that package was necessarily tempered. When the Supreme Court spoke of "highly intrusive searches" in Flores-Montano, it expressly referred to "highly intrusive searches of the person" which raised concern based on the "dignity and privacy interests of the person being searched," and made the point that this concern was not triggered by a search of the person's vehicle. 541 U.S. at 152. The reference in Flores-Montano to "highly intrusive searches of the person" followed a discussion of Montoya de Hernandez, which involved an actual physical intrusion into a person's body to search the alimentary canal. In the latter case, the Court illustrated its reference to "nonroutine border searches" by citing "searches such as strip, body cavity, or involuntary x-ray searches." 473 U.S. at 541 n.4. The search of Seljan's FedEx package was substantially less intrusive than these examples.

. . .

Seljan also argues that the customs inspectors were required to stop their examination without reading the letter. Even if the inspectors were authorized to open the FedEx package and the sealed envelopes within the package, he contends that it should have been apparent to the customs agent that the letter was not currency or another monetary instrument, such that no reading was justified or permitted.

. . .

Moreover, the customs inspector's task here was not so simple. Although the bills turned out to be of small denominations, both of the sealed envelopes within the first FedEx parcel did in fact contain currency, so there was reason for the inspector to pause and look more carefully. In addition, many documents in addition to currency may qualify as "monetary instruments," as the definition reprinted above, at 15, demonstrates, and thus are subject to the reporting requirements of 31 U.S.C. § 5316. A simple sheet of paper could, for example, turn out to be a negotiable instrument, such as a promissory note in bearer form. The inspector could not determine that the folded paper found inside the envelope was not a monetary instrument without actually looking at what was printed there.

IV. Conclusion

We hold that customs officials acting under authority of 31 U.S.C. § 5317(b) may, at the functional equivalent of the border, search a package or container being shipped via FedEx across the border, without a warrant. The inspection may include smaller envelopes or other wrapped or sealed objects contained within the package. The search does not violate the Fourth Amendment simply because it may entail scanning of personal correspondence, or because the evidence of contraband or other criminal activity that is detected may not relate to the interdiction of undeclared currency. To unreasonably constrain customs inspectors from searching and seizing obviously incriminating materials would be imprudent and inconsistent with Fourth Amendment jurisprudence.

Reading it, he scanned the letter and quickly discerned its contents. Seljan was 87 years old and sentenced to 20 years for attempted travel to have sex with a minor. United States v. Seljan, 547 F.3d 993 (9th Cir. 2008) (en banc), aff'g United States v. Seljan, 497 F.3d 1035 (9th Cir. 2007), posted Aug. 15, 2007 here: FedEx's Oakland hub is functional equivalent of border for overseas shipments.

FL3 rejects FL4's Rabb and holds dog sniff at front door is lawful because a law enforcement officer has the authority to approach the front door, and a dog sniff is not a search, so the two together are not unconstitutional. If the officer smelled marijuana at the door, that already has been held constitutional. State v. Jardines, 9 So. 3d 1 (Fla. App. 3 DCA 2008), review granted 2009 Fla. LEXIS 218 (Fla. Feb. 4, 2009):

Also supporting our conclusion is State v. Pereira, 967 So. 2d 312, 313 (Fla. 3d DCA 2007). In Pereira, officers went to the defendant's home based on an anonymous tip that the defendant was growing marijuana. A detective walked toward the premises and, while standing in front of the premises, smelled marijuana. Officers returned the next day with a narcotics-search dog. Approaching the front door, the officer again smelled the marijuana, and the canine alerted.

While we chose not to address the legality of the dog sniff, we rested our decision on the officer's right to be on the defendant's front porch:

We disagree with the defendant's contention that the officers' detection of the odor of marijuana emanating from the defendant's home while standing on the sidewalk and front porch of the defendant's home is an invasion of the defendant's privacy protected by the Fourth Amendment. Admittedly, there was no evidence that the front yard or porch was enclosed by a fence or any other structure and was, in fact, open to public access. We follow those cases which hold that HN14there is no reasonable expectation of privacy at the entrance to property which is open to the public, including the front porch. See State v. Morsman, 394 So. 2d 408 (Fla. 1981); State v. E.D.R., 959 So. 2d 1225 (Fla. 5th DCA 2007), and cases cited; Ramize v. State, 954 So. 2d 754 (Fla. 3d DCA 2007); Potts v. Johnson, 654 So. 2d 596 (Fla. 3d DCA 1995); see, e.g., United States v. Cota-Lopez, 104 Fed.Appx. 931 (5th Cir. 2004). Compare State v. Rabb, 920 So. 2d at 1191.

Pereira, 967 So. 2d at 314 (footnote omitted); State v. E.D.R., 959 So. 2d 1225, 1226 (Fla. 5th DCA 2007) (concluding that defendant's porch "was not a constitutionally protected area"); see also State v. Garcia, 374 So. 2d 601, 602-03 (Fla. 3d DCA 1979) (concluding "[w]hen the lawful performance of his duty requires that an officer enter upon private property to make a general inquiry, such an entry is justifiable," and holding that officers smelling "the odor of marijuana smoke" at the front door of a residence was a factor supporting a finding of probable cause).

From these cases, it is clear that Officer Pedraja had a right to approach Jardines' front door. The fact that he waited for the dog and approached with the dog does not change this result, even if the dog alerted before the officer detected the scent. The officer's presence with the dog and their sniff of the odor of marijuana as well as the other facts identified in the probable cause affidavit was sufficient to establish probable cause for the warrant to issue. The trial court erred in concluding that the magistrate lacked probable cause to issue the warrant and erred in suppressing the evidence obtained as a result of the warrant.

Prior post of Rabb is here. FL1 distinguished Rabb a month ago here.

Use of handcuffs must be reasonable in a detention or it converts into an arrest. Here, the officers outnumbered the defendant and safety concerns were minimal. State v. Williams, 2008 Ohio 5511, 2008 Ohio App. LEXIS 4639 (2d Dist. October 24, 2008):

[*P19] The facts in this case are distinguishable from those in Carter. Here, there were at least four officers present at the point Williams was stopped. There is no indication in the record that any other individuals were near the officers at the time. In fact, the record indicates that even the "known crack addict" had left the area. Further, the record indicates that Williams did not make any threatening gestures and did not appear to be armed or attempting to arm himself. Also, there is no indication that Williams had failed to comply with the officers' requests.

[*P20] We conclude, based upon these facts, that the officers' use of restraints was not reasonably necessary as part of a brief, investigative stop, and that officers therefore converted the Terry stop into an arrest by handcuffing Williams.

Defendant cannot argue on appeal a ground not presented to the trial court that the prosecution can respond to. State v. McKee, 2008 Ohio 5464, 2008 Ohio App. LEXIS 4582 (2d Dist. October 17, 2008.*

Protective sweep under Buie cannot be justified where there was already an entry in violation of Payton. United States v. Montgomery, 2008 U.S. Dist. LEXIS 84975 (M.D. Pa. October 22, 2008):

Nor can the subsequent search of Montgomery's apartment be justified as a protective sweep. In Maryland v. Buie, the Supreme Court held that police may conduct a protective sweep--"a quick and limited search of premises" that is "narrowly confined to a cursory visual inspection of those places in which a person might be hiding"--incident to a lawful arrest. 494 U.S. 325, 328, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990). Such a search is only permitted, however, "if the searching officer possessed a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing that the area swept harbored an individual posing a danger to the officer or others." Id. at 334; Sharrar, 128 F.3d at 822-23. Here, Buie is inapplicable because the seizure was clearly unlawful--as noted above, the agents violated Payton when they seized Montgomery at his home without a warrant and in the absence of exigent circumstances.

Defendant did not demontrate that he abandoned his rental property because the rent was unpaid. The evidence demonstrates that he did not abandon it. A computer was taken and checked by the government for child porn. As soon as he realized it was gone, he made a theft report. There was a private search of the computer, and the police exceeded that in substantial part. United States v. Crist, 627 F. Supp. 2d 575 (M.D. Pa. 2008)*:

Here, the evidence does not support a finding of unequivocal intent by Crist to abandon the computer. Crist returned to the house on August 10, twenty six days after his rent became overdue. No eviction proceedings had begun. Nor had Crist received notice that his property would be removed. In fact, when the Sells were hired to clean out his house, Crist was in the process of "sorting through things." Tr. 54. He returned to the premises in the midst of the Sells' removal of his belongings and proceeded to search for certain items. His strong reaction to the missing computer and nearly contemporaneous filing of a police report to retrieve his missing property, demonstrate anything but a "clear and unequivocal" intent to abandon the property. From this evidence, the Court finds that there is insufficient evidence to conclude that Crist intended to abandon his computer.

. . .

This reasoning requires the Court to find that the Government's post-EnCase search of Crist's computer violated the Fourth Amendment. The Government's warrantless search of Crist's computer exceeded the scope of the private search because the Government was not substantially certain the computer contained only contraband. The Government only had substantial certainty that five files on Crist's computer were contraband; Crist's expectation of privacy was not extinguished as to the contents of the thousands of other files unseen by Hipple. Thus, even if the initial EnCase analysis had not violated the Fourth Amendment, the evidence found on Crist's computer must be suppressed because the further search of Crist's computer exceeded the scope of the private search in violation of the Fourth Amendment.

A student accidently brought a utility knife to school that had been left in his book bag. When the school administrators later found out about it, they took him home to recover it. The parents and student sued over the search of the house, which could not be entered on alleged consent of the student. D'Allesandro v. Brumbaugh, 2008 U.S. Dist. LEXIS 84914 (N.D. Ill. October 22, 2008)

However, such considerations are not pertinent in light of the unique facts in the instant action. None of the cases cited by Defendants involved a situation where the purported consenting party was a minor under the supervision and control of a government official. The undisputed record indicates that it was not Tyler that took Brumbaugh to the Residence to retrieve the Knife, but it was Brumbaugh who placed Tyler in his car and drove him to the Residence in order to retrieve the Knife, and during all this time, Tyler was "under defendant Brumbaugh's supervision and control. ..." (Ans. PSJ 5).

The informant gave information about the defendant in two calls and a face to face meeting, and he could have been subject to prosecution for false information. The police partially corroborated the informant with innocent details. The defendant got in a car and left when he saw officers. This was all reasonable suspicion for a stop. United States v. Carstarphen, 298 Fed. Appx. 151 (3d Cir. 2008) (unpublished).*

Prison cell search and seizure of UCC related materials and copyrighting names which was contraband under prison policy was not unreasonable. Edmonds v. Sobina, 296 Fed. Appx. 214 (3d Cir. 2008) (unpublished).*

A case Lexis didn't send to me, but reported by a colleague:

Defendant's being an alleged child molester in an interstate traveler case did not give probable cause to believe that child pornography would be found in his house. Even Leon did not save it. United States v. Hodson, 2008 U.S. App. LEXIS 20240, 2008 FED App. 0348P (6th Cir. September 19, 2008):

We opined in United States v. Adkins, 169 F. App'x 961, 967 (6th Cir. 2006), that "[s]tanding alone, a high incidence of child molestation by persons convicted of child pornography crimes may not demonstrate that a child molester is likely to possess child pornography." We adhere to that view and conclude that it was unreasonable for the magistrate judge in this case, when confronted with the request for the warrant, to infer such a nexus without further evidence to support that inference. It is similarly unreasonable for the officer executing the warrant either to infer that nexus herself or to rely on her own subjective knowledge to claim reasonable reliance on the warrant. 5 HN4An officer seeking a warrant must produce adequate supporting facts about the underlying circumstances to show that probable cause exists to support the particular search requested. United States v. Weaver, 99 F.3d 1372, 1377 (6th Cir 1996) (citing Whiteley v. Warden, 401 U.S. 560, 564, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971), and Nathanson v. United States, 290 U.S. 41, 47, 54 S. Ct. 11, 78 L. Ed. 159 (1933)).

Protective sweep was justified at the time of arrest beause of others potentially being present. United States v. Best, 2008 U.S. Dist. LEXIS 84984 (M.D. Pa. October 22, 2008).*

Without an intervening change in the law, defendant cannot relitigate on post-conviction his search and seizure claim already denied by the court and affirmed on appeal. Dumas v. United States, 2008 U.S. Dist. LEXIS 84772 (W.D. N.C. August 8, 2008).*

Forfeiture claimant sought to show he had an exclusionary rule claim as a defense to a forfeiture to show his excusable neglect. Here, the search was consented to, so he loses on that claim. United States v. One Piece of Real Property Located at 15010 S.W. 168th Street, Miami, FL, 2008 U.S. Dist. LEXIS 84542 (S.D. Fla. March 6, 2008).*

ICE agents conducted an inventory of defendant's vehicle under standardized procedures under Florida v. Wells. Here, a gun was found with an illegal alien, as well as photographs of him holding the gun. United States v. Boffil-Rivera, 2008 U.S. Dist. LEXIS 84632 (S.D. Fla. August 12, 2008):

The government need not present evidence of an agency's written procedures for an inventory search to be valid; an officer's testimony regarding his reliance on standardized procedures is sufficient as is his "unrebutted testimony that he acted in accordance with standard inventory procedures." United States v. Lage, 183 F.3d 374, 380 (5th Cir. 1999); United States v. Lowe, 9 F.3d 43, 45-46 (8th Cir. 1993) (rejecting defendant's argument that the government was required to submit a written version of the procedures governing inventory searches); Laing, 708 F.2d at 1570 (uncontroverted testimony of DEA agent as to his inspection of the contents of the defendant's car "sufficiently established the routine nature of the procedure, thereby eliminating the possibility that the inventory check was conducted as a subterfuge for an investigatory search.").

We find in this case that the government has met its burden of showing that ICE has a routine, standardized procedure governing inventory searches. The agents credibly testified that ICE mandates an inventory of every vehicle and vessel that comes into its custody. The agents articulated the rationale behind that policy: to safeguard the owner's property and to protect ICE from liability claims. They discussed the necessity of completing ICE's standardized inventory form and of documenting, in writing and through photographs, everything found inside the vehicle at the time an inventory occurred. They also mentioned processing items of evidentiary value through use of evidence bags that were turned over to a case agent at the conclusion of the inventory.

Civil case for unlawful search and seizure after the claims had been denied in plaintiff's criminal case and affirmed on appeal cannot form the basis of a civil case. Also, the statute of limitations ran. Groves v. Battani, 2008 U.S. Dist. LEXIS 84813 (N.D. Ind. October 20, 2008).*

TRO denied on use of Indiana voter photo ID law. Terry has no application here. Stewart v. Marion County, 2008 U.S. Dist. LEXIS 84817 (S.D. Ind. October 21, 2008):

Plaintiff next argues that the Voter ID Law violates his right to be free from unreasonable search and seizure under the Fourth Amendment. Plaintiff claims that he cannot be asked for identification in the absence of probable cause that would support a warrant. However, Plaintiff cites only Terry stop case law to support his assertion. Plaintiff does not cite a single case that holds poll workers must have probable cause before they can require the voter to produce valid photographic identification. The Court concludes that the case law Plaintiff cites is not relevant to whether the State of Indiana may require voters to present valid photographic identification. Therefore, Plaintiff has failed to demonstrate a reasonable likelihood of success on the merits.

Entry into plaintiffs' home looking for another who also lived there and named in a bench warrant resulted in summary judgment for the defendants. They received a call from a CI that he was there, and they saw his car there when they arrived. Merring v. City of Carbondale, 2008 U.S. Dist. LEXIS 84989 (M.D. Pa. October 22, 2008).*

District court erred in granting the government's motion to dismiss under the FTCA for plaintiff's false arrest and malicious prosecution action. He got a judgment of $1.8M from a jury. Nguyen v. United States, 545 F.3d 1282 (11th Cir. 2008), on reconsideration Nguyen v. United States, 2009 U.S. App. LEXIS 2127 (11th Cir. February 4, 2009) (Comment: This case is compelling reading, as the court intended. Dr. Nguyen is a North Vietmanese born doctor who fled Vietnam after having been imprisoned repeatedly there. Here, he was targetted by the DEA and state officers for wrongfully prescribing valium and hydrocodone, his case made the headlines, his patients defected, and then the case evaporated and was nolle prossed in a mere 55 days.).

Factual dispute as to the underlying constitutional claim over decedent's death in custody precluded qualified immunity. Weigel v. Broad, 544 F.3d 1143 (10th Cir. 2008) (2-1).*

Wildlife poaching checkpoint led to defendant's arrest for DUI. The checkpoint was legitimately set up and reasonably conducted. United States v. Fraire, 2008 U.S. Dist. LEXIS 84382 (E.D. Cal. October 8, 2008):

The Government argues that the checkpoint's "special law enforcement concern" (poaching) entitled Ranger Felix to stop Mr. Fraire "without individualized suspicion." The Government points to Illinois v. Lidster, 540 U.S. 419, 423, 124 S.Ct. 885 (2004), where the U.S. Supreme Court held that the Fourth Amendment forbids stops without individualized suspicion for general "crime control" purposes "in the absence of special circumstances." The fact that a vehicle stops "normally lack individualized suspicion cannot by itself determine the constitutional outcome" in that the "Fourth Amendment does not treat a motorist's car as his castle" and "special law enforcement concerns will sometimes justify highway stops without individualized suspicion." Lidster, 540 U.S. at 424, 124 S.Ct. 885. The "practice of stopping automobiles briefly for questioning has a long history evidencing its utility and is accepted by motorists as incident to highway use." Martinez-Fuerte, 428 U.S. at 561, n. 14, 96 S.Ct. 3074. A person's "expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectations of privacy." Martinez-Fuerte, 428 U.S. at 561, 96 S.Ct. 3074 (border patrol stops for illegal aliens "may be made in the absence of any individualized suspicion at reasonably located checkpoints").

Mr. Fraire appears to contend that the Park checkpoint is per se illegal as a general crime control device. However, the record reflects the Park Service's special law enforcement concerns to protect Park wildlife and visitors, to mitigate poaching and to educate on prohibition of Park hunting. Although Mr. Fraire questions the Park Service's motives, nothing suggests that they are less than legitimate. As such, the focus turns to the checkpoint's reasonableness.

Heck bars a civil case against plaintiff's arrest because the conviction had not been set aside. Reed v. Cleveland, 2008 U.S. Dist. LEXIS 83993 (E.D. Ky. October 20, 2008).*

A landlord has no reasonable expectation of privacy in his rental property zoning violation which was found when officers responded to an assault call at the apartment and saw and photographed it. City of Marion v. Brewer, 2008 Ohio 5401, 2008 Ohio App. LEXIS 4550 (3d Dist. October 20, 2008).

Traffic stop for a suspended license led to the officer seeing something peeking out of the defendant's fanny pack that could have been the handle of a knife or gun. That justified a frisk, and meth was found. Eaton v. State, 294 Ga. App. 124, 668 S.E.2d 770 (2008).*

A pouch defendant handed to officers as he was being arrest was subject to search incident. State v. Gagaris, 2008 Ohio 5418, 2008 Ohio App. LEXIS 4536 (12th Dist. October 20, 2008).*

Defendant's truck was validly stopped for a mudflap violation and that led to the officer looking at the log book which was out of date. The stop was valid [albeit almost absurd sounding when considering whether the mudflap was 8" or 12" off the ground (and how could the officer determine that while following him?)]. United States v. Pauyo, 2008 U.S. Dist. LEXIS 83194 (N.D. Tex. August 29, 2008).*

Powell makes it clear that probable cause is not required for an IRS summons. All that is required is a "legitimate purpose." United States v. Schlabach, 2008 U.S. Dist. LEXIS 83410 (E.D. Wash. May 7, 2008).*

In two habeas cases, federal courts considered not only the trial court's consideration of the Fourth Amendment claim, but also the state appeals court's ability to consider the issues. Neri v. Hornbeak, 550 F. Supp. 2d 1143 (C.D. Cal. 2008)*; James v. Norris, 2008 U.S. Dist. LEXIS 83906 (E.D. Ark. October 16, 2008).*

Defense counsel was not ineffective for not filing a motion to suppress a third party consent search that would have failed. Cowans v. Bagley, 2008 U.S. Dist. LEXIS 83040 (S.D. Ohio September 30, 2008)* (one issue in a 324 page habeas denial in a death case).

Entry into third party's property for a parole search for a person who did not live there stated a claim for relief in a civil case. Perez v. City of Placerville, 2008 U.S. Dist. LEXIS 83172 (E.D. Cal. September 9, 2008):

Ultimately, nothing in the law justifies the entry into and search of a third person's house to search for a parolee. Cuevas v. De Roco, 531 F.3d 726, 2008 WL 2552572, *4 (9th Cir. 2008). The Fourth Amendment's protection against unreasonable searches of a person's home is not diminished by the mere presence of a guest in the home. Id. Therefore, officers must be "reasonably sure that they are at the right house" before relying on a parolee's search condition to search a person's home. Motley, 432 F.3d at 1079 (emphasis in original). A parole condition indicates "only the parolee's acquiescence to a warrantless search of his own residence." Id. (emphasis added).

The defendant had no objective reasonable expectation of privacy in premises where he would not have been allowed to stay if he had asked. United States v. Dent, 2008 U.S. Dist. LEXIS 83385 (D. Me. September 26, 2008)*:

In this case, the defendant never asked the homeowners' permission to store belongings in their house; would not have been granted such permission had he asked; and, in my view, was well aware that such permission would not be forthcoming. To the extent that Jaime had become aware that the defendant had made use of her residence for purposes other than casual daytime visitation, for example, staying overnight or using 81 Marble as his mailing address, she had expressly forbidden him to do so. He could not have harbored any reasonable belief that it was permissible for him to store his belongings there. Further, as Jaime testified, 81 Marble was a home in which every resident had equal access to all rooms within. In leaving his bag unattended in Meagan's first-floor bedroom, without the knowledge or permission of the homeowners, whom he knew would have denied such permission, the defendant took the risk that the homeowners would invade the privacy of his closed but unlocked bag. He thereby forfeited whatever expectation of privacy he otherwise might have harbored in its contents.

Defendant showed sufficient error in the search warrant affidavit to get a Franks hearing. United States v. Billian, 2008 U.S. Dist. LEXIS 83401 (N.D. Ind. October 17, 2008):

In this case, the defendants have raised issues the significance of which ultimately can only be resolved in an evidentiary hearing. Whether some or all of the alleged misrepresentations the defendants claim were present in Detective Smith's affidavit were deliberate, or included with reckless disregard as to their truth, or whether, as the government claims, any such errors were simply harmless mistakes and immaterial to a finding of probable cause, can only be determined following an evidentiary hearing that will enable the court to hear and assess the testimony of relevant witnesses, including but perhaps not limited to Detective Smith, who drafted and submitted the affidavit to the state court magistrate. Therefore, the court concludes that any ruling on the defendants' motion to suppress will be deferred pending further proceedings and that their motion for an evidentiary hearing should be granted.

Defendant's searching cross examination at a Franks hearing was alleged to have a chilling effect on his testimony at trial. He did not show, however, that the cross exceeded the scope of direct. United States v. Vaughn, 2008 U.S. Dist. LEXIS 82950 (E.D. Cal. September 2, 2008):

The defendant has failed to identify any particular subjects or questions inquired into by government counsel during the suppression hearing that were allegedly beyond the scope of the testimony he willingly gave or were not otherwise relevant to Defendant's credibility at the Franks hearing. Arredondo v. Ortiz, 365 F.3d 778, 783 (9th Cir. 2004) "There is no question that a witness's credibility is properly subject to exploration once he takes the stand."). As the Ninth Circuit explained in United States v. Vasquez, 858 F.2d 1387, 1392 (9th Cir. 1988):

Federal Rule of Evidence 611(b) commits the scope of cross-examination to the trial judge's discretion. See United States v. Miranda-Uriarte, 649 F.2d 1345, 1353 (9th Cir. 1981); United States v. Green, 648 F.2d 587, 594 (9th Cir. 1981). In exercising this discretion, the trial court may permit cross-examination "as to all matters reasonably related to the issues [the defendant] put in dispute by his testimony on direct." Miranda-Uriarte, 649 F.2d at 1353; Green, 648 F.2d at 594 (same).

In Vasquez, the defendant argued that because his direct testimony addressed only the events surrounding his delivery of five kilograms of cocaine to the undercover officer, it was an abuse of the court's discretion to permit cross-examination concerning the 25 kilograms of cocaine, paraphernalia and $85,000 in cash found in his apartment. Vasquez, 858 F.2d at 1392. The Ninth Circuit disagreed, finding instead that because the defendant's testimony addressed the events leading up to his arrest, including the time he left his apartment and whether he was accompanied at the time, the items found in his apartment were "reasonably related" to Vasquez's direct testimony. Vasquez, 858 F.2d at 1392.

The court finds reasonable suspicion for a probation search based on a shooting of the probationer and another resident of his house while he was violating curfew. United States v. Webster, 2008 U.S. Dist. LEXIS 82911 (D. Del. October 17, 2008).*

Officers were following the defendant and saw a hand to hand drug deal and then stopped him for an apparent traffic violation. He gave a false name, and, when his real name was determined, they found a warrant for him. A search of the car produced a joint. He was strip searched and a plastic bag was taken that was protruding from his anus. The strip search was reasonable. United States v. Broadway, 580 F. Supp. 2d 1179 (D. Colo 2008):

Whether a strip search or body cavity search is "reasonable" under the Fourth Amendment "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell, supra, 441 U.S. at 559.

The alleged body cavity search in this case--if it occurred at all--could only have been fleeting and superficial. A review of the videotape shows a combative Defendant. The video shows Detective Gassman attempted a visual inspection of Defendant's buttocks area, but does not at any time reveal any actual touching, penetration, attempted touching, or attempted penetration of Defendant's anus or anal cavity. Accordingly, the scope of the search and the manner in which the search was conducted was reasonable.

The seizure of a bag of cocaine from defendant's buttocks was valid as a search incident and not as a Terry frisk. State v. Muse, 2008 Tenn. Crim. App. LEXIS 831 (October 17, 2008):

The evidence does not preponderate against the trial court's finding that the challenged search and seizure of the Appellant by police occurred incidentally to his arrest for sale of cocaine. We agree with the trial court's determination that the Appellant's reliance on Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), is misplaced. Under the Terry stop exception to the search warrant requirement, a law enforcement officer may temporarily seize a citizen if the officer has a reasonable suspicion, based upon specific and articulable facts, that a criminal offense has been, is being, or is about to be committed. See Terry, 392 U.S. at 21, 88 S. Ct. at 1880; State v. Keith, 978 S.W.2d 861, 865 (Tenn. 1998). In the present case, a warrantless arrest occurred lawfully pursuant to Tennessee Code Annotated section 40-7-103, and was clearly based upon probable cause. The police lawfully seized the bag containing cocaine from the Appellant's buttocks area as it became visible, contemporaneously with his arrest. This search was permitted under a different exception to the warrant requirement, a search incident to arrest. See Crutcher, 989 S.W.2d at 300.

Police were called because defendant allegedly took pictures of children while he was in a library with his computer. They asked him to come with them, and he packed up his computer and stuff and went with them. When defendant denied taking pictures, the officers called in for further instructions. The court rejects "police speak" in the report that defendant was detained at that point. United States v. Cameron, 2008 U.S. Dist. LEXIS 82375 (N.D. W. Va. April 18, 2008).*

In a suit brought by the officers' union, a TRO is denied against NYPD's policy of drug and alcohol testing officer's involved in a shooting. Likelihood of success on the merits not shown under Skinner. Palladino v. City of New York, 2008 U.S. Dist. LEXIS 86757 (S.D. N.Y. September 30, 2008):

At this stage in the proceedings, plaintiffs have not sufficiently shown, in contravention to defendants' assertions, that IO 52 and its enforcement likely does not constitute a special need. As in Skinner, the City of New York has a substantial interest in the safety of its citizens, visitors, and the police department. Defendants contend that a sober police force serves to further that interest and that IO 52 encourages sobriety. Morever, plaintiffs have proffered no evidence that IO 52 is a regulation primarily concerned with law enforcement. To date, there has been no evidence proffered that alcohol monitoring of police officers pursuant to the regulation has been used primarily for any other purpose than deterring alcohol consumption and increasing public confidence in police force action following a shooting. Moreover, plaintiffs have not argued, nor cited any evidence to conclude, that IO 52 has been applied in any particular manner that uniquely raises specific constitutional violations beyond their general challenge to the need for such a regulation.

Aspects of law enforcement, such as the use of police personnel to collect Breathalyzer samples, are undoubtedly involved in the administration of IO 52. However, at this juncture, plaintiffs have not shown that a primary purpose of the regulation is to generate evidence for prosecution. In fact, none of the four police officers cited, who have been subjected to Breathalyzer tests as a result of IO 52, were subject to prosecution or even found to be intoxicated.

Plaintiffs have not argued that the text of IO 52 and the safety and reputation rationales proffered by defendants were crafted as pretext to enable the gathering of evidence against police officers for criminal prosecution. Absent a persuasive showing that the NYPD's Breathalyzer testing is pretextual, it is to be initially assessed in light of its stated administrative purpose. No officer has been subject to criminal prosecution following an IO 52 search. At most, plaintiffs have alleged that criminal prosecution of offending officers may be an incidental purpose and future intended consequence of IO 52. The present record before this Court cannot support a conclusion that significant privacy concerns rise to an unconstitutionally prohibited level. On the record, as it presently exists, plaintiffs' allegations are insufficient to warrant a preliminary injunction.

Officer came to a house on a complaint of animal abuse and breeding dogs for fighting. The house was partially boarded up and could have been abandoned, but he had no information. At the front door, he knocked. It was already open about six inches, and he signed his flashlight inside and saw clothes on the floor. He entered (under department policy) with his gun drawn and flashlight shining to see if anything was amiss. It wasn't, but he found and seized "for safekeeping" an assault rifle. The entry was illegal, but a second entry was not, so the second entry supported seizure. United States v. Vurgess, 2008 U.S. Dist. LEXIS 82293 (S.D. Ga. August 20, 2008).*

Drug dog arrived and did its business within nine minutes of start of stop, so the stop was not unreasonably extended. United States v. Jones, 296 Fed. Appx. 473, 2008 FED App. 0611N (6th Cir. 2008)* (unpublished).

Younger absention applies to a § 1983 case filed while plaintiff's criminal case is pending. Skidmore v. Henley, 2008 U.S. Dist. LEXIS 82180 (E.D. Ky. October 15, 2008).*

Officer saw a man on the street leaning against a car run from him as he approached. He knocked on the door of the house ran into. The trial court's findings of consent were supported by the evidence. State v. Woolridge, 996 So. 2d 618 (La. App. 5th Cir. 2008).*

The encounter with defendant was consensual, and it led to a patdown with the officer asking if he had anything on him, and he admitted to cocaine. Police were called to a gun store because a man with a warrant was trying to buy a gun, so they came to check him out. Defendant's claim of language being a barrier was something that he had to prove and did not. People v. Marujo, 192 P.3d 1003 (Colo. 2008)*:

This court has enumerated a list of factors that may demonstrate that "a reasonable, innocent person would not feel free to decline the officers' requests or otherwise terminate the encounter." Jackson, 39 P.3d at 1184. The factors include but are not limited to:

(1) whether there is a display of authority or control over the defendant by activating the siren or any patrol car overhead lights;
(2) the number of officers present;
(3) whether the officer approaches in a non-threatening manner;
(4) whether the officer displays a weapon;
(5) whether the officer requests or demands information;
(6) whether the officer's tone of voice is conversational or whether it indicates that compliance with the request for information might be compelled;
(7) whether the officer physically touches the person of the citizen;
(8) whether an officer's show of authority or exercise of control over an individual impedes that individual's ability to terminate the encounter;
(9) the duration of the encounter; and
(10) whether the officer retains the citizen's identification or travel documents.

Id. For a police-citizen encounter to rise to the level of a seizure, the obligation to comply must be greater than the obligation an innocent citizen would normally feel to cooperate with the police. Johnson, 865 P.2d at 842-43.

Ripping out plaintiff's penis piercing during a second unnecessary strip search made jailers liable for his injury. The second strip search was unreasonable and excessive force was applied. Alvarez v. Iniguez, 2008 U.S. Dist. LEXIS 82113 (C.D. Cal. September 5, 2008).*

Common sense dictates that ordinary objects, innocent in themselves, are tools of burglars. Direct proof of crime not needed, and probable cause can be inferred. United States v. Brooks, 2008 U.S. Dist. LEXIS 82067 (E.D. Pa. October 15, 2008):

Defense counsel emphasizes that the items taken or seen during the arrest that did not actually represent unambiguously illegal conduct (even if Mr. Brooks's driving was illegal). However, it was not necessary that all the facts recounted in the probable cause affidavit constitute direct proof of a crime; it can be sufficient for purposes of finding probable cause to infer probable cause by "considering the type of crime, the nature of the items sought, the suspect's opportunity for concealment and normal inferences about where a criminal might hide [evidence]." Jones, 994 F.2d at 1056 .... Likewise, common sense permits the acknowledgment that a limitless list of everyday "harmless" objects can, in the wrong circumstances, become handy "tools of the trade" of a criminal. Indeed, it is hard to imagine a nighttime burglar who would try to break into a dark house without some means of creating limited but focused light (to wit, a small flashlight) and some means to poke, pry, or unfasten (to wit, a screwdriver and/or knife) and to do so without his hands slipping or leaving prints (to wit, with gloves). That these tools are often used for good works does not mean they cannot be, or were not, used for the commission of a crime. The Court concludes that, looking at the "four corners" of Det. Harris's affidavit, the issuance of the search warrant in this case meets the Gates test.

"[C]ontinuing and related illegal firearm activity" showed nexus to the defendant's house. It was a logical inference, not a direct fact. United States v. Williams, 544 F.3d 683, 2008 FED App. 0378P (6th Cir. 2008):

While Williams correctly asserts that the warrant affidavit never tied the .25 and .45 caliber handguns to the Tarnow Street residence, he overlooks the Government's logical, and indeed legally correct, assertion that "it is reasonable to suppose that some criminals store evidence of their crimes in their homes, even though no criminal activity or contraband is observed there." Here, the warrant application demonstrated "continuing and related illegal firearm activity," from which the issuing judge could infer that evidence pertaining to the handguns would be found in Williams's residence.

A magistrate may infer a nexus between a suspect and his residence, depending upon "the type of crime being investigated, the nature of things to be seized, the extent of an opportunity to conceal the evidence elsewhere and the normal inferences that may be drawn as to likely hiding places." United States v. Savoca, 761 F.2d 292, 298 (6th Cir. 1985); see United States v. Hodge, 246 F.3d 301, 305-06 (3d Cir. 2001) (noting that a court "is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense," and holding that it was reasonable to infer that a suspected drug dealer would keep evidence of his crime at his residence (citation omitted)); United States v. Jackson, 756 F.2d 703, 705 (9th Cir. 1985) (holding that it was a reasonable inference that a bank robber would keep stolen currency in his residence despite the passage of more than two months between the time of the robbery and the search).

When two men enter a restroom stall together, here to do drugs, they have no reasonable expectation of privacy, and officers could look over the partition. State v. Powers, 991 So. 2d 1040 (Fla. App. 4th Dist. 2008):

Clearly, a person in a closed stall in a public restroom is entitled to be free from unwarranted intrusion. E.g. Katz v. United States, 389 U.S. 347, 360, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). However, this expectation gives way where two persons enter a stall together under circumstances reasonably indicating that they are doing drugs. See State v. Orta, 2003 WI App 93, 264 Wis. 2d 765, 663 N.W.2d 358, 362 (Wis. Ct. App. 2003); State v. Tanner, 42 Ohio App. 3d 196, 537 N.E.2d 702, 705 (Ohio Ct. App. 1988); Manning v. State, 957 So. 2d 111 (Fla. 4th DCA 2007); Lee v. State, 868 So. 2d 577 (Fla. 4th DCA 2004).

Defendant's supervised release condition under Adam Walsh Act of 2006 for searches on reasonable suspicion was, of course, constitutional. United States v. Rosenthal, 295 Fed. Appx. 985 (11th Cir. 2008)* (unpublished).

Defendant abandoned a satchel while fleeing, and in it was a gun. United States v. Johnson, 295 Fed. Appx. 342 (11th Cir. October 3, 2008)* (unpublished).

When a gun was recovered from defendant in a shooting investigation, it was a reasonable conclusion that ammunition for the gun would be found in the defendant's house, so that showed nexus for a search warrant for the house. The shooting was recent. Defendant was arguing against what would become a bright line rule. State v. Casarez, 2008 WI App 166, 314 Wis. 2d 661, 762 N.W.2d 385 (2008):

P18 There are several factors that distinguish this case from Sloan. First, Casarez's connection to the residence to be searched did not come from a return address on a package as in Sloan; rather, it came from Casarez himself (and his wife). Second, unlike Sloan, who reported he was leaving the state for Florida the next day, making it "unlikely that contraband would be found at the residence," id., P32, there is no suggestion here that Casarez was going anywhere (except to jail). Third, the search warrant in Sloan sought evidence of items to show who was in control of the premises, relating to the crime of maintaining a drug house, but the affidavit in support did not present evidence to show the premises was. Id., P35. Whereas in the instant case, the search warrant was considerably narrower: "The objects of the search … may constitute evidence of crimes, to wit: 1st degree reckless endangering safety while armed and felon in possession of a firearm." Fourth, unlike the failure in the Sloan affidavit to justify a search for evidence of a drug house, the affidavit here shows substantial probable cause tending to show that Casarez was involved in those particular crimes named, hours before his arrest. Finally, Sloan is distinguishable from the instant case because it addressed the good faith exception. We do not reach the good faith doctrine in the instant case because we have concluded that the affidavit in support of the search warrant supports a finding of probable cause. In the instant case, unlike in Sloan, the affidavit contained a reasonable inference to connect the items sought with the residence searched. Based on all of these factors, we conclude that Sloan does not control.

Videotape of defendant's traffic stop would not be suppressed just because he had not been Mirandized at the time of the FST. He was stopped for a traffic infraction and reasonable suspicion permitted the FST. State v. Summers, 2008 Tenn. Crim. App. LEXIS 807 (October 13, 2008).*

Inventory search law does not require less intrusive measures be applied. Even so, there was no evidence that the defendant even requested that the vehicle go to his house, which was just blocks away. United States v. Sandifer, 2008 U.S. Dist. LEXIS 80668 (S.D. Miss. August 11, 2008).*

Eyewitness called and gave her name. She was not an anonymous tipster. State v. Nowden, 2008 Ohio 5383, 2008 Ohio App. LEXIS 4529 (2d Dist. October 10, 2008):

[*P25] The call the police received was not an "anonymous tip" that lacked any apparent basis for the information the caller related. Adams v. Williams. The caller identified herself as Starlina Gevedon and gave a first-hand, eyewitness account of shootings that took place at a specific address. She also identified the shooter and the vehicle he used to drive away. That information provided the police agency a reasonable suspicion necessary for the stop of Defendant's vehicle.

Anonymous informant's tip was not corroborated, and there was no showing of reliability. But, the officer's experience with this defendant's drug trafficking history was sufficient to show probable cause. State v. Shepherd, 2008 Ohio 5355, 2008 Ohio App. LEXIS 4519 (4th Dist. September 26, 2008).* (Comment: This case borders on the pathetic. The anonymous informant can be corroborated by the officer's experience? There is no a word in this opinion that protects against the possibility [probability?] that this informant does not even exist or that it was the informant version of what we jokingly referred to in the early 70's as a "Mississippi Search Warrant".FN1)

1. One cop goes to the front door and another goes to the back. The officer at the front door knocks and says: "Police; we want to talk to you." The officer at the back door says: "Come on in."

Internet police: Internet service providers. See MSNBC.com: ISPs are pressed to become child porn cops / New law, new monitoring technology raise concerns about privacy. It encourages it, but does not require it.

The state right to warnings before a consent entry of a home does not apply to a shed near the home. State v. Overholt, 147 Wn. App. 92, 193 P.3d 1100 (2008).*

Sixth Amendment right of confrontation does not apply at suppression hearings. State v. Rivera, 2008 NMSC 56, 144 N.M. 836, 192 P.3d 1213 (2008).*

While the issue was close, the court finds reasonable suspicion from an informant's tip because it showed first hand knowledge without an apparent motive to lie. United States v. William, 2008 U.S. Dist. LEXIS 81295 (D. V.I. October 10, 2008).*

Railroad employees' union stated a claim for relief for a DUI test of locomotive engineers without probable cause to believe they are under the influence. Skinner does not apply to governmental actors. United Transp. Union v. Perdue, 2008 U.S. Dist. LEXIS 80991 (S.D. W.Va. September 30, 2008):

Furthermore, the facts presented in the instant complaint describe a situation that falls outside the purview of Skinner. In Skinner, the railroad was searching its own employee to determine the cause of an accident; here, local law enforcement performed the search. While Skinner stands for the proposition that administrative searches in the wake of railroad accidents may be performed without probable cause, there is little to suggest that Skinner extended to local law enforcement. The Court in Skinner stated, "The FRA has prescribed toxicological tests, not to assist in the prosecution of employees, but rather to prevent accidents." Skinner, 489 U.S. at 615. Therefore, this Court finds that Skinner does not apply to local law enforcement.

Nothing in the instant complaint suggests that the police had anything approaching probable cause. In the absence of probable cause, and assuming that the facts alleged in the complaint are true, the application of the breathalyzer to Chapman is a sufficient factual allegation to support a § 1983 claim.

Defendant did not challenge the officer's [self-serving] assertion that a standardized inventory policy existed. Under Bertine, less intrusive measures were not required, so the officer did not just have to let the vehicle go with somebody else. United States v. Sandifer, 2008 U.S. Dist. LEXIS 80668 (S.D. Miss. August 11, 2008).*

Information from an unnamed state DOJ employee that defendant violated his probation did not satisfy the reasonable suspicion standard. It did not show that he had personal information of illegal activity. Sierra v. State, 958 A.2d 825 (Del. 2008).*

State showed that the DUI roadblock in this case satisfied the high state standard. The approval that was challenged as merely being a rubberstamp approval by superiors was still an approval. State v. Nevels, 2008 Tenn. Crim. App. LEXIS 811 (September 3, 2008).*

Officer had authority to make a community caretaking entry into the defendant's home because of child inside who was left alone after his parents were arrested outside [how convenient]. United States v. Johnson, 2008 U.S. Dist. LEXIS 80945 (E.D. Cal. August 20, 2008)*:

Here, Officer Gonzales was confronted with a hazardous and uninhabitable dwelling occupied by a 14 year old, both of whose parents had been placed under arrest and were being transported to jail. Due to deplorable living conditions and the risk to the health of the child, the Officer had to call Child Protective Services. The Officers' normal practice is to review the residence to determine whether it is habitable, and whether or not, if an appropriate guardian is available, the child can be maintained in the residence or has to be placed in foster care.

Further, Mrs. Johnson had consented to the protective sweep by authorizing the Officers to look for her daughter to assure that her daughter was not left with Junior.

Plain clothes and armed ICE officers came to defendant's house to do a knock-and-talk about his subscribing to child porn websites. The officers were able to coax the defendant into letting them look at his computer, and the court finds this was voluntary consent. United States v. Bach, 2008 U.S. Dist. LEXIS 80711 (D. Me. August 25, 2008)* (Comment: This is similar to innumerable cases I've read and a few I've handled. With patience, the police can often get consent to look at a computer. I won't say "usually" because we never know how many times the police do not get consent. Once the police do the knock and talk, they would admit that everything would likely disappear if they got a warrant to come back. But, I'm not so sure that that would happen even the majority of the time.).

"Viewed objectively, Keiper's statement concerning the firearm's presence under the porch and the need for a shovel to retrieve it, and her later indication of which tire the firearm was in and her request that the officers return it to Larry, communicated not merely a statement of the firearm's present location, but also her voluntary consent to its removal." United States v. Keiper, 2008 U.S. Dist. LEXIS 80710 (D. Maine September 30, 2008).*

Defendant was an overnight guest at a couple's house. The lady of the house could consent to a search of the entire premises, including the room that defendant was staying in. United States v. Oswalt, 2008 U.S. Dist. LEXIS 80564 (S.D. Ind. October 10, 2008).*

911 call is quintessentially an emergency that has to at least be checked out, and it justifies an entry onto the curtilage to go to the door. Nail v. Gutierrez, 2008 U.S. Dist. LEXIS 80691 (N.D. Ind. October 10, 2008):

Dialing 911 is a common way to convey to the police that there is an emergency at hand. As the Seventh Circuit has noted:

A 911 call is one of the most common--and universally recognized--means through which police and other emergency personnel learn that there is someone in a dangerous situation who urgently needs help. This fits neatly with a central purpose of the exigent circumstances (or emergency) exception to the warrant requirement, namely, to ensure that the police or other government agents are able to assist persons in danger or otherwise in need of assistance.

United States v. Richardson, 208 F.3d 626, 630 (7th Cir. 2000). Anonymous 911 hangup calls often present an even higher need for police investigation. "Many 911 calls are brief, and anonymous, precisely because the speaker is at risk and must conceal the call. These persons are more rather than less in need of assistance." United States v. Elder, 466 F.3d 1090, 1091 (7th Cir. 2006). Therefore, the fact that an anonymous 911 hangup was received from Nail's residence more than justified entry onto his property for purposes of investigation. It is true, as Nail contends, that the 911 call could have been as benign as a child playing with the phone. But that possibility is not enough to quell the reasonable fear that an officer might have for occupants of the residence.

Based on the credibility of witnesses, the court finds that defendant's girlfriend had apparent authority to consent to entry. "The Court also finds the implicit consent was particularly logical in the context of the fact that Defendant had just beaten her a short time earlier." United States v. Stiner, 551 F. Supp. 2d 1350 (M.D. Fla. 2008), Accepted by, Adopted by United States v. Stiner, 551 F. Supp. 2d 1350 (M.D. Fla., 2008)
.*

Officer's parking near defendant and walking up to the car was not a seizure because the defendant was not blocked in and the officer did not demonstrate such a show of authority that defendant was compelled to stay. State v. Wilkes, 756 N.W.2d 838 (Iowa Sup. 2008):

We conclude under all the facts and circumstances that no seizure occurred under the Fourth Amendment when Wood approached the vehicle. Simply put, neither of the officers displayed coercive or authoritative behavior to transform this encounter into a seizure for Fourth Amendment purposes. Prior to smelling alcohol on Wilkes' person, the stop was consensual. Once Wood smelled the alcohol, he had a reasonable and articulable suspicion of criminal activity to detain Wilkes and administer sobriety tests. See Mark A. Bross, The Impact of Ornelas v. United States on the Appellate Standard of Review for Seizure Under the Fourth Amendment, 9 U. Pa. J. Const. L. 871, 881 (2007) (noting that a voluntary encounter may turn into seizure supported by reasonable suspicion or probable cause). As a result of our determination that a seizure did not occur until after Wood had a reasonable suspicion sufficient to restrain Wilkes, it is not necessary to consider whether the encounter was within the "community caretaking" exception to the Fourth Amendment.

Defendant claimed he was lost and drove up to the gate of the Pensacola Naval Air Station for directions. The guard at the gate detected alcohol and got the defendant out for a field sobriety test. Defendant may not have intended to enter the base, but, by presenting himself at the gate after having passed several signs saying that cars were subject to search as he approached, he was subject to being searched at that point. United States v. Rountree, 2008 U.S. Dist. LEXIS 80456 (N.D. Fla. September 17, 2008).*

Plaintiff who had been barred from a county courthouse had limited permission to enter, this time for a police union meeting. He was briefly detained at the door until his ability to enter was verified, and this did not violate his Fourth Amendment rights. Graham v. Hoffer, 2008 U.S. Dist. LEXIS 80421 (M.D. Pa. October 10, 2008).*

Defendant was subjected to a wideranging cross-examination at his suppression hearing, but it was all legitimate and went to his credibility. Also, he knew it was going to be extensive before he testified. Some of that ended up being used to impeach him when he testified at trial. It was not a violation of the Simmons rule and did not unconstitutionally impede his right to testify. United States v. Vaughn, 2008 U.S. Dist. LEXIS 79830 (E.D. Cal. September 2, 2008):

The defendant was warned, by one of the prosecutors, the day before taking the stand that government counsel anticipated extensive cross-examination. When defense counsel questioned how the government's cross-examination could possibly span hours longer than his direct, the prosecutor explained, and the Court agreed, that matters relevant to the defendant's credibility would be proper subjects of inquiry. Despite this warning, the defendant chose to take the stand knowing that, although his testimony in support of the suppression motion would not be admitted against him at trial on the issue of guilt, Simmons v. United States, 390 U.S. 377, 394 (1968), it would be admissible to impeach his credibility if he offered testimony inconsistent with his prior testimony. As the Ninth Circuit explained in United States v. Beltran-Gutierrez, 19 F.3d 1287 (9th Cir. 1994), Defendant:

[W]as not forced to testify at his suppression hearing. He did so voluntarily in order to preclude the use of incriminating evidence at his trial. Thus, he did not face 'the cruel trilemma of self-accusation, perjury or contempt.' Murphy v. Waterfront Comm'n, 378 U.S. 52, 55 ... (1964). [Defendant] cites no authority to support the proposition that a defendant's decision to take the stand to protect a constitutional right precludes the use of his testimony for purposes of impeachment. The Supreme Court has instructed us that "every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury." Harris v. New York, 401 U.S. 222, 225 ... (1971).

Beltran-Gutierrez, 19 F.3d at 1291. Contrary to his assertion, the defendant's right to testify at trial was not impeded by the answers he gave under oath in support of his motion to suppress. Instead, those answers merely exposed him to impeachment if his trial testimony was inconsistent with his testimony at the suppression hearing. The defendant cannot complain that his strategic choice to testify at the suppression hearing enabled the government to obtain "information that tended to incriminate" him or "prejudice his defense for trial." Defendant's Motion at p. 13:10-11.

On Tuesday, the Supreme Court hears argument in Pearson v. Callahan, 07-751. SCOTUS Blog entry here.

The issue:

Whether, for qualified immunity purposes, police officers may enter a home without a warrant on the theory that the owner consented to the entry by previously permitting an undercover informant into the home.

In addition to the questions presented, the Court directed the parties to brief and argue the following question: “Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?” Qualified immunity is a separate question from the merits of the Fourth Amendment claim, and it can lead to odd results on whether the Fourth Amendment was violated.

Petitioner's brief here, Respondent's brief here, and reply brief here.

"[A] threat to officer safety is a prerequisite for a search of a vehicle subject to an investigatory detention" under Long. United States v. Ogle, 2008 U.S. Dist. LEXIS 80102 (E.D. Tenn. October 9, 2008)*:

The evidence demonstrates that a full custodial arrest had not taken place prior to the arrest of the vehicle. [See, e.g., Doc. 17 at 14 (indicating that defendant was arrested subject to the investigation); id. at 22 (indicating that defendant was secured but not under full arrest)]. Accordingly Terry and Long are apposite. Under these standards, the court finds that the search of the vehicle was lawful. When the defendant initially exited his car and approached Officer Romer, Officer Romer observed blood on defendant's pants and that defendant was wearing a knife sheath. Indeed, Officer Romer testified that defendant had blood "all over him." [Doc. 17 at 32]. These facts clearly gave Officer Romer at a minimum reasonable suspicion that defendant was armed and dangerous, such that a Terry patdown of defendant was warranted.

In Nellums v. Nevens, 2008 U.S. Dist. LEXIS 80044 (D. Nev. September 5, 2008)*, a habeas case on a failure to raise a Fourth Amendment claim, the court applies AEDPA and Strickland and never cites Stone to deny relief.

Smell of marijuana on a person did not justify a search of the house defendant was staying in as a guest. State v. Evans, 2008 Ohio 5253, 2008 Ohio App. LEXIS 4402 (8th Dist. October 9, 2008).*

IAC claim fails where defendant cannot show that the suppression motion not filed would fail. State v. Taylor, 2008 Ohio 5238, 2008 Ohio App. LEXIS 4412 (9th Dist. October 8, 2008).*

Affidavit did not just show that defendant was a drug dealer and relying on that alone to show nexus. Here, there was more. United States v. Feagan, 2008 U.S. Dist. LEXIS 80014 (E.D. Tenn. July 1, 2008)*:

It is not necessary for this Court to conclude that the Sixth Circuit has established a firm rule that if reliable information indicates a defendant is a drug dealer, then probable cause always exists to search the drug dealer's residence. The affidavit in this case presents more. The affidavit establishes Defendant's involvement in an ongoing and continual operation, not a discrete drug transaction. Defendant's argument that there is no evidence of a connection between his residence and his "generalized drug dealing" also fails because the argument minimizes the additional fact that a law enforcement officer articulated his belief, based on experience and training about the trends, methods and habits of drug dealers, that certain evidence of drug trafficking is typically maintained in the homes of drug dealers. Given the background and experience of TFO Wigley, and the information provided in his affidavit about the trends, habits and methods of drug dealers, it was entirely reasonable for the issuing magistrate to conclude Defendant, as a drug dealer engaged in continual and ongoing illegal drug operations, would possess fruits or instrumentalities of drug trafficking in his residence.

The city argues that motels are "closely regulated businesses" under Burger, but it probably is not, and the court does not have to reach that. The real issue is whether there is a reasonable expectation of privacy in a hotel register that was shown to the police under a city ordinance, and there is not. Patel v. City of Los Angeles, 2008 U.S. Dist. LEXIS 78914 (C.D. Cal. September 5, 2008).*

Plaintiff's strip search followed the USMS policy on strip searches. The court declines to adopt a per se rule because of Second Circuit precedent that a person charged with a violent crime may be strip searched. It is, however, relevant. Here, the strip search was reasonable under the circumstances. Harriston v. Mead, 2008 U.S. Dist. LEXIS 79001 (E.D. N.Y. September 30, 2008).*

Franks claim fails because the officer received information and sought to corroborate it before putting it in the affidavit. [That is what he is supposed to do.] United States v. Sherman, 2008 U.S. Dist. LEXIS 79073 (E.D. Mo. October 7, 2008):

Because suppression pursuant to Franks typically deals with reckless or intentional omissions from an affidavit, the Court is not convinced that Officer Buehrle's underlying investigation can provide a legal basis for suppression of evidence under Franks. See United States v. Curtis, 965 F.2d 610, 613 (8th Cir. 1992) ("Where a criminal defendant seeks suppression of evidence by challenging the veracity of information contained in the warrant affidavit, the only relevant inquiry for the district court is whether the warrant affiant knowingly, deliberately or recklessly included false statements in the warrant affidavit.") (emphasis added) (citing Franks, 438 U.S. at 171). Nevertheless, even assuming that an officer's underlying investigation can serve as a basis for a Franks violation, both before and after receiving information about Ms. Schellert, Officer Buehrle made considerable efforts to corroborate her allegations and, in fact, did corroborate much of it. The Court finds that Officer Buehrle was not reckless and did not act in bad faith during his investigation. (emphasis in original)

So, the end result is the focus; how it got there might have some relevance, but it is not determinative.

Case of police officer's assistance in a forced catheterization at a doctor's request entitled the officer to qualified immunity. Meyer v. Woodward, 2008 U.S. Dist. LEXIS 79358 (E.D. Mich. October 9, 2008).*

Search warrant in a gambling case that was limited to computers used to register bets was sufficiently particular and not overbroad. United States v. Gianelli, 2008 U.S. Dist. LEXIS 79460 (D. Mass. October 8, 2008).*

Plaintiff adult establishment challenged entries, sort of viewing them as administrative searches which they may not be. Here, however, plaintiff did not show his standing. Garter Belt, Inc. v. Buren, 2008 U.S. Dist. LEXIS 79227 (E.D. Mich. October 8, 2008):

Although the Supreme Court has recognized an exception to the warrant requirement when the target of the search is a "closely regulated" industry, warrantless searches of even closely regulated businesses must be "carefully limited in time, place, and scope." New York v. Burger, 482 U.S. 691, 700-03, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987). One district court has held that while there is a "narrow exception to the warrant requirement for administrative searches conducted in 'closely regulated' industries, sexually oriented businesses do not quality as highly regulated industries." J.L. Spoons, Inc. v. City of Brunswick, 49 F. Supp. 2d 1032, 1040 (N.D. Ohio 1999). "[B]ecause sexually oriented businesses enjoy a degree of First Amendment protection, the government probably could not 'closely regulate' them ... without running afoul of the First Amendment." Id. A court in this district has recently held that one city's cabaret ordinance "is likely to violate the Fourth Amendment due to the requirement that an owner 'open every portion of any cabaret or club cabaret for inspection." Top Flight, Inc. v. City of Inkster, 2007 U.S. Dist. LEXIS 12892, 2007 WL 643897 (E.D. Mich. 2007) (emphasis added by the court) (quoting Inkster, Mich., Cabaret Ordinance § 113.202 (2006)).

Nevertheless, "a plaintiff is required to establish injury in fact as to each provision challenged." Prime Media, 485 F.3d at 350. Garter Belt is bringing a Fourth Amendment challenge to section 22-404(d). The Spoons court "assume[d]" standing, 49 F. Supp. at 1040, and the Top Flight court did not address the question of standing. But Garter Belt has shown no injury or imminent threat of injury under section 22-404(d) and therefore has no standing to challenge it. The Court will dismiss Garter Belt's Fourth Amendment challenge.

Police had already searched defendant's attic and determined that they may have missed something. They procured a warrant to go back, and an informant gave them information that they likely missed something in the attic. It was not a Franks violation that the police did not disclose that they previously searched the attic and found nothing since they had an independent belief there was still something there, which there was. United States v. Fletcher, 295 Fed. Appx. 749 (6th Cir. 2008) (unpublished).*

Quarles public safety exception does not apply where the police were looking for a gun and it was inside a house that nobody could get to. United States v. Jackson, 544 F.3d 351 (1st Cir. 2008).*

The National Security Agency routinely spied on soldiers', aid workers', and journalists' intimate calls back home while they were in Iraq.See NYTimes, Washington Post, and LATimes. From WaPo:

The allegations, by two former military intercept officers assigned to the National Security Agency, include claims that U.S. spies routinely listened in on intimate conversations and sometimes shared the recordings with each other. At least some of the snooping was done under relaxed eavesdropping rules approved by the Bush administration to facilitate spying on terrorists.

And nobody thought that this would not happen if the NSA were allowed to spy on American's telephone calls? When I was in West Africa in trial, I just assumed I was being listened to when I called home. You had to. Now we see why.

WV parole agreements are governed by Samson, so defendant agreed to the parole search ahead of time. United States v. Pickens, 295 Fed. Appx. 556 (4th Cir. 2008) (unpublished)* ("Pickens signed a copy of the rules and regulations which included the provisions requiring him to permit his parole officer to visit his residence without obstruction and to submit to a warrantless search of his person and home for supervision purposes at any time.").

Defendant in jail did not show a reasonable expectation of privacy in a document he had in his jail cell. It was otherwise relevant. State v. Kalican, 2008 Conn. App.LEXIS 477 (October 7, 2008).*

The "four corners" rule of an affidavit for a search warrant does not apply to a citation for arrest. The contents of the citation are relevant, but not even determinative under the totality of circumstances. Smith v. State, 182 Md. App. 444, 957 A.2d 1139 (2008).*

Officers had probable cause for defendant's arrest based on his description and the fact witnesses saw his car at the scene of the crime and then it was seen at his house. Jordan v. State, 995 So. 2d 94 (Miss. 2008).*

There was probable cause and the good faith exception should not be applied. State v. Cobb, 2008 Ohio 5210, 2008 Ohio App. LEXIS 4389 (12th Dist. October 6, 2008).* Of more significance is this radical comment: "[*P23] However, the exclusionary rule need not be employed when police properly execute a legal warrant issued by a detached magistrate which is supported by probable cause. State v. George (1989), 45 Ohio St.3d 325." So, the exclusionary rule will not be applied if there is probable cause? I'm dumbfounded. How will we cope?

Search incident under a mattress revealing a gun, where the defendant was handcuffed face down on the floor and after his arrest, was unreasonable under a realistic application of Chimel. United States v. Julius, 577 F. Supp. 2d 588 (D. Conn. 2008):

Under the principles of Chimel, as applied in Blue and Hernandez, the search in this case can be sustained only if the evidence permits a finding that there was some risk the defendant could reach into the area where the gun was located after he was taken away in handcuffs by Officer Barry. The Government urges that a reasonably prudent officer in Deputy Wood's position would believe that the area under the mattress was within the defendant's grab area after he was arrested. Govt.'s Supp. Mem. at 11. In support of this contention, the Government states that "the search through the clothing and underneath the mattress began instantaneously with the defendant's removal from the bed to the corner of the room where the firearm was found and lasted only a few seconds as the defendant was being escorted around the bed by Officer Barry." Id. at 12. I do not agree with the Government's statement of the facts. Deputy Wood began the search after the defendant was handcuffed. See Tr. 149-50. His search through the clothing and other items on the floor took more than a few seconds. By his own estimate, the cursory search took nearly a minute. Tr. 147. By the time Deputy Wood lifted the mattress, the defendant was on the opposite side of the bed near the doorway. The defendant was securely under the control of Officer Barry the entire time. On these facts, it cannot be said that the area under the mattress was within the defendant's immediate control as defined in Chimel.

Comment: It is refreshing to see a court actually apply Chimel without being seduced by the government's argument that anything goes during a search incident, which is exactly where the cases have been going for the last decade. This is one of the issues in Arizona v. Gant, argued Tuesday in the Supremes.

Cracked windshield in violation of city ordinance justifies a stop and search incident under Belton. United States v. Britton, 2008 U.S. Dist. LEXIS 78387 (W.D. Tenn. October 3, 2008).

The record supported the district court's conclusion that the officer did not intentionally provide false information in support of the search warrant. United States v. Worjloh, 546 F.3d 104 (2d Cir. 2008)* (per curiam) [but not unpublished].

Commercial trucking is a closely regulated industry in Missouri [where this case in the Ninth Circuit started, but the court cites law from elsewhere to conclude that]. So, asking for the log book was a reasonable start to a stop of a commercial truck, and the log book being incomplete and inconsistent with other paperwork was reasonable suspicion. United States v. Delgado, 545 F.3d 1195 (9th Cir. 2008):

We similarly conclude that commercial trucking is a pervasively regulated industry. Commercial trucking is subject to extensive federal regulation. See, e.g., 49 U.S.C. § 31142; 49 C.F.R. § 391.11; 49 C.F.R. § 391.15; 49 C.F.R. § 395.3; 49 C.F.R. § 395.8. Numerous states also impose substantial regulatory and inspection standards for commercial vehicles. See, e.g., Ariz. Rev. Stat. Ann. § 41-2066(A)(4); Cal. Veh. Code § 2813; Haw. Rev. Stat. § 286-209(a); Mont. Code Ann. § 61-10-141(1)(a); Nev. Rev. Stat. § 581.057(4); Or. Rev. Stat. § 825.250(1); Wash. Rev. Code § 46.32.010(2). Thus, Burger provides the appropriate analytical framework because "the myriad federal and state statutes that govern commercial trucking place it squarely within the class of industries to which Burger applies." Castelo, 415 F.3d at 410 (citation omitted).

Yesterday's cases, from SCOTUSBlog:

The transcript of today’s argument in Herring v. United States (07-513) with links to the briefs, is now available here. The issue in Herring: Whether the exclusionary rule should apply to evidence seized incident to an arrest unlawful under the Fourth Amendment due to erroneous information negligently provided by another law enforcement agency.

The transcript of today’s argument in Arizona v. Gant (07-542) with links to the briefs, is now available here. The issue in Gant: Whether, under New York v. Belton (1981), police may conduct a warrantless search of a car if its recently arrested occupant poses no threat to officer safety or preservation of evidence.

More to follow...

Massachusetts explains the relationship between the Franks doctrine and dog reliability. Here, the dog's false positives in the past militated against probable cause. "Nonetheless, the cumulative subtractions from the trustworthiness of the alert brought the corrected affidavit information below the level of probable cause." French v. Hines, 182 Md. App. 201, 957 A.2d 1000 (2008):

Another corollary of the Franks doctrine is that the motion and hearing judges will inspect an affidavit not only for positive misstatements but also for material omissions of fact. See United States v. Hall, 113 F.3d 157, 158-159 (9th Cir. 1997) (at warrant hearing a police officer withheld important knowledge of a sole informant's tainted credibility; probable cause lacking, warrant invalidated). See also Commonwealth v. Dion, 31 Mass. App. Ct. 168, 173 (1991) (excluding a harmful misstatement of the defendant's criminal record and including a favorable but omitted laboratory test of white powder found in the defendant's apartment; sufficient facts remain to support finding of probable cause). In the present circumstance in which the positive alert of a drug-detection dog furnishes the essential support for the probable cause finding, the hearing judge will consider information withheld from the warrant judge or magistrate which tends to subtract from the reliability of the dog's performance. United States v. Ludwig, 10 F.3d 1523, 1528 (10th Cir. 1993) (dictum; a dog alert could fall short of probable cause if the dog had a "poor accuracy record"); United States v. Sundby, 186 F.3d 873, 876 (8th Cir. 1999) (dictum; a court may look behind a search warrant for omitted information undermining a dog's reliability); and United States v. Donnelly, 475 F.3d 946, 955 (8th Cir.), cert. denied, 127 S. Ct. 2954 (2007) (dictum; police affiants cannot withhold negative history casting doubt upon a dog's reliability).FN5 See Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 10-6[c][l][i] (2008-2009 ed.) ("Omissions may be as bad as commissions"); 1 LaFave, Search & Seizure: A Treatise on the Fourth Amendment § 2.2(g) at 527 n. 357 (4th ed. 2004) (issuance of warrant should require demonstration of dog's reliability).

5. Each of the cited decisions observes that a positive alert by a properly trained and reliable dog can, by itself, furnish probable cause for issuance of a search warrant. Each adds that the dog's reliability is impeachable by demonstrated misstatements in, or omissions from, an affidavit. Massachusetts decisions, also, have treated the alert of a trained narcotics-detection dog in combination with other indicia as sufficient support of probable cause to search. Commonwealth v. Sinforoso, 434 Mass. 320, 324 (2001). Commonwealth v. Feyenord, 445 Mass. 72, 83 (2005), cert. denied, 546 U.S. 1187 (2006). Commonwealth v. Pinto, 45 Mass. App. Ct. 790, 793 (1998). However none of those decisions addressed circumstances in which a search warrant affiant allegedly embellished or concealed facts bearing upon the reliability of the dog's performance under the lens of the Franks standard.

Police arrived at a domestic disturbance with reports of a gun fired inside a FEMA trailer. They waited to enter until the children came out, which took quite awhile. Nevertheless, the delayed entry was still with exigent circumstances. State v. Berry, 989 So. 2d 120 (La. App. 5th Cir. 2008):

On review, we find that the entry was justified by exigent circumstances. Although the officers were prepared to and did wait hours after the other family members exited the trailer, the circumstances were exigent from the moment of their arrival. The officers were trying to avoid a violent confrontation that could have injured them and others at the scene. Deputy Williams testified regarding the danger they faced in walking into a trailer in this situation, since they believed Berry was armed. The officers were simply forming strategies and waiting for an opportunity to detain Berry in the safest manner possible. Viewing the scene through the open door, Deputy Williams reacted to Berry's movement in the kitchen cabinet immediately, hurriedly entering the trailer to detain him. The record also supports the conclusion that the officers feared for Berry's escape, as he was hiding from them, refusing to come out.

We further find that probable cause was also present to justify the intrusion into the trailer. The police had information that Berry was seen earlier in possession of a firearm and had, in fact, discharged a firearm, causing damage to Mr. and Mrs. Armstrong's trailer. Although it is unclear as to whether the children were in the trailer at the time the firearm was discharged, the record shows that they were present in the trailer when Mrs. Armstrong went to the trailer after hearing the gunshot. Further, Mr. Armstrong was outside at the time he heard the gunshot. The trailer was on his property. When the officers responded, Berry created a situation where he barricaded himself in the trailer for hours, refusing to respond to the officers' attempts to contact him.

A warrant for "illegal pictures" justifies a search of a laptop computer because "a laptop computer is as likely a place to find photographs as a photo album." United States v. Pontefract, 2008 U.S. Dist. LEXIS 78084 (W.D. La. October 1, 2008):

Whether it was proper or not for the state court judge to issue the state search warrant, based on the information contained in the application and affidavits before her, is not an issue before this Court. What is before this Court is the issue of whether the state search warrant was sufficiently particularized to include the laptop computer as an item to be searched and seized. This Court agrees with the magistrate judge that it was. This Court finds that, in today's digital world, a laptop computer is as likely a place to find photographs as a photo album. Indeed, had the officers conducting the search located a photo album in the trailer from which photographs could not be removed without damaging or destroying the photo album or the photos themselves, seizure of the photo album and a subsequent search would have been permissible. United States v. Pontefract, 2008 U.S. Dist. LEXIS 78084 (W.D. La. October 1, 2008):

Moreover, defendant is not arguing the officers impermissibly searched, say, defendant's email or financial information, which might also have been contained on the lap top files. Indeed, under the state search warrant, such a search would not have been permissible. Rather, the officers conducting the search were searching for photographs, and they accessed that portion of the defendant's computer -- the drives and/or folders where such photographs were stored -- in executing the warrant. Defendant has cited no statutory or jurisprudential authority for the contention that a warrant authorizing a search of a home or trailer for photographs of child pornography, otherwise supported by probable case, must distinguish between digital and paper photographs in order to satisfy the particularity requirement for the issuance of the warrant.

Warrant for search of the home was not limited, and search of a dictionary safe was permissible because the objects being sought could have been secreted there. United States v. Santiago, 2008 U.S. Dist. LEXIS 77960 (E.D. Pa. October 3, 2008).* Also, "[t]he failure to anticipate the presence of other contraband ... is not a legal defect and does not render the search unreasonable under the Fourth Amendment." Sostre v. County of Suffolk, 2008 U.S. Dist. LEXIS 77849 (E.D. N.Y. September 11, 2008).*

That driver may have been nervous because he was being tailgated by a police officer was not a defense to moving out of the lane and he was validly subjected to a stop. United States v. Bravo-Ortega, 621 F. Supp. 2d 1159 (D. Utah 2008).* See also United States v. Rocha, 2008 U.S. Dist. LEXIS 77973 (D. Kan. October 2, 2008) (weaving justified stop of defendant's vehicle, even though he might have been swerving because he was followed.)

Reasonable suspicion is all that is required for a stop, and the officer had it. Hill v. Crete, 2008 U.S. Dist. LEXIS 78265 (N.D. Ill. October 6, 2008).*

Existence of a search warrant is not an automatic defense to trespass for wrongful execution of the warrant. Brutsche v. City of Kent, 164
Wn.2d 664, 193 P.3d 110 (2008):

Thus, under the Restatement (Second) of Torts § 210, section 214(1) applies even if the entry onto the property is initially lawful for purposes of a search pursuant to a valid warrant.fn8 The fact that a valid warrant exists is not an automatic bar to a trespass claim.

8. One court has stated that the presence of a valid search warrant is a complete defense to a suit for trespass. Wright v. United States, 963 F. Supp. 7, 19 (D.D.C. 1997). But the authority cited in Wright for this proposition does not support the conclusion. The court relied on Hammel v. Little, 66 App. D.C. 356, 87 F.2d 907, 912 (D.C. Cir. 1936). In Hammel property was seized for violation of the internal revenue laws, and upon acquittal of the owner, the property was returned. He brought a claim of trespass, claiming that probable cause is never justification for an illegal seizure. Id. at 908. The court rejected this argument, reasoning that the relevant question is whether the seizure was lawful and proper, and under civil rules of evidence this question had been resolved against the plaintiff even though he had been acquitted. Id. at 912. The court also said, however, that it has "never been the law that trespass will lie for an act of seizure unless it appears that the act was tortious or unauthorized." Id. Given this explanation, Hammel cannot be said to support a blanket defense because of the presence of a valid warrant.

. . .

CONCLUSION

We adopt Restatement (Second) of Torts § 214 and conclude that liability in trespass may arise if by intentionally doing an act that a reasonable person would not regard as necessary to execute the warrant and thereby damage the property, or by executing the warrant in a negligent manner and thereby damaging the property, law enforcement officers exceed the scope of their privilege to be on the land to execute a search warrant. Although a trespass action is a permissible cause of action, summary judgment was properly granted in this case because, as a matter of law, on the evidence submitted, the officers did not exceed the scope of their privilege to be on the property to execute the search warrant.

Trial counsel's affidavit in response to a 2255 pleading that there was no basis for a motion to suppress went unanswered, so the 2255 was denied on that ground. United States v. Pryor, 2008 U.S. Dist. LEXIS 77709 (S.D. Tex. October 3, 2008).*

"It is well-established that 'the Fourth Amendment is not implicated simply because an individual violates state law.' Armstead v. Township of Upper Dublin, 347 F. Supp. 2d 188, 194 (E.D. Pa. 2004) (discussing an arrest outside the officer's jurisdiction in apparent violation of the MPJA). See also, Baker v. McCollan, 442 U.S. 137, 144 (1979). McDonald v. Darby Borough, 2008 U.S. Dist. LEXIS 77774 (E.D. Pa. October 2, 2008).*

Evidence supported the conclusion that the consenter had apparent authority to consent. United States v. Torres, 294 Fed. Appx. 940 (5th Cir. October 2, 2008) (unpublished).*

In ruling on all motions pending in a case, the defendant filed a motion to suppress a warrantless search, but the government contended it was with a warrant and provided it, and no further explanation was filed. So, the motion is denied. United States v. Glover, 583 F. Supp. 2d 21 (D. D.C. October 3, 2008).*

Nonmutual collateral estoppel did not apply to defendant's case where his co-defendant won a motion to suppress after defendant's was denied. Because of a lack of record or findings of fact and conclusions of law from the other proceeding, nonmutual collateral estoppel apply to defendant motion. Perez-Grahovac v. State, 894 N.E.2d 578 (Ind. App. 2008).*

Defendant's answers to basic questions during his traffic stop gave the officer reasonable suspicion for a further detention. People v. McCarley, 2008 NY Slip Op 7455, 55 A.D.3d 1396, 865 N.Y.S.2d 459 (4th Dept. 2008).*

Defendant who stayed some at the place searched and actually got some mail there had an expectation of privacy in the premises. Commonwealth v. Bostick, 2008 PA Super 233, 958 A.2d 543 (2008):

Appellant was more than a casual visitor to 3018 N. 8th Street and had an objectively reasonable expectation of privacy there. At the suppression hearing, Appellant's attorney presented the testimony of Darlene Cooper, the woman who was arrested in the house. N.T. Hearing at 13. Ms. Cooper testified that she leased the property at 3018 N. 18th Street. Id. at 14-15. She indicated that Appellant stayed there "[s]ometimes, not regularly, he came through and spend [sic] the night sometimes." Id. at 15. Her testimony continued as follows:

[Appellant's counsel]: Did [Appellant] ever have mail sent to that particular residence?

[Ms. Cooper]: Yes.

The burden of proof and persuasion in the suppression hearing was not shifted against the defendant. While the defense called all the witnesses, the state retained the burden. The defense concession that the defendant was still on probation (indefinite with a three year minimum) at the time of the search made the state's case. State v. Marshall, 239 P.3d 1286 (Ida. App. 2008), Review denied 2008 Ida. LEXIS 213 (Idaho, Dec. 12, 2008), later proceeding at State v. Marshall, 149 Idaho 725, 239 P.3d 1286 (App. 2008).*

Plaintiff stated a claim for relief for defendants' failure to have a warrant that was particular enough. Halliday v. Spjute, 2008 U.S. Dist. LEXIS 77080 (E.D. Cal. September 23, 2008)*; Booth v. Spjute, 2008 U.S. Dist. LEXIS 77141 (E.D. Cal. September 23, 2008).*

DUI roadblock was validly set up by the police. Officer's testimony at the suppression hearing that they were there also to generally "enforce the law" was neither adverse to this conclusion nor determinative. Britt v. State, 294 Ga. App. 142, 668 S.E.2d 461 (2008).*

Defendant was not stopped, and the encounter was consensual. He did not have to be told he was free to leave. United States v. White, 295 Fed. Appx. 186 (9th Cir. September 29, 2008) (unpublished):

Here, the encounter between White and the officer was not a seizure, but rather a consensual encounter, wherein the officer merely asked questions and White was free to leave the encounter at any time. The officer approached White alone and in an non-threatening manner. Additionally, the encounter occurred in the open public space of a motel parking lot. Although the police officer did not explicitly tell White that White was free to leave, the officer's failure to do so does not render the encounter a seizure. See Orman, 486 F.3d at 1176. Further, there was no evidence that White attempted to terminate the encounter but was unable to do so. See United States v. Cormier, 220 F.3d 1103, 1110 (9th Cir. 2000).

Informant's information was specific and corroborated. It showed that he had inside information. United States v. Schmidt, 2008 U.S. Dist. LEXIS 77482 (D. Kan. September 29, 2008).*

Officer had reasonable suspicion of a vehicle which the driver had no apparent authority to be driving while it was being checked out. A drug dog came and did not alert. The lack of a dog alert was not conclusive on the stop having to end. State v. Pacheco, 2008 NMCA 131, 145 N.M. 40, 193 P.3d 587 (2008):

[*25] In summary, viewing the evidence in the light most favorable to the State, and considering the totality of circumstances, the law enforcement officers conducted a diligent, minimally intrusive investigation, based on a reasonable, articulable suspicion of criminal activity. On balance, "the government's interest in deterring methamphetamine use, coupled with its general interest in effective crime prevention and detection, substantially outweigh[ed] the minimal intrusion on Defendant's liberty" in this case. Robbs, 2006 NMCA 61, P 22. Because the investigation was conducted in an appropriately circumscribed and diligent fashion, the ensuing consensual search of the vehicle was not tainted by prior illegality. See Duran, 2005 NMSC 34, P 42. We therefore conclude that Defendant's motion to suppress was properly denied.

The evidence justified the district court's conclusion that defendant consented to a search as shown by his hand gestures. United States v. Patterson, 295 Fed. Appx. 100 (8th Cir. September 23, 2008) (unpublished).*

Maps of border towns on the front seat inconsistent with defendant's travel plans, coupled with everything else, was reasonable suspicion. United States v. Sierra, 294 Fed. Appx. 884 (5th Cir. September 30, 2008) (unpublished) ("We agree that the presence of maps of popular drug trafficking border towns not included in a driver's expressed itinerary coupled with nervousness creates reasonable suspicion of criminal activity. Accordingly, based on the collective knowledge of Deputy Womack and TFA Newman, we conclude that there was reasonable suspicion to continue Sierra's detention and that Sierra's Fourth Amendment rights were not violated.").

Officer during an inventory of a car shook an apparent aerosol can because cans with false bottoms were commonly used to hide things. The officer felt something moving inside this one that was not liquid, so he opened it. The can was not being subjected to an inventory search when it was searched; it was a criminal evidentiary search. State v. Seals, 2008 Ohio 5117, 2008 Ohio App. LEXIS 4318 (8th Dist. October 2, 2008):

[*P15] In Hathman, officers arrested Hathman and conducted an inventory search of his vehicle. During the inventory search, an officer opened and searched the vehicle's trunk and discovered a plastic bag. The bag contained several smaller bags and a pill bottle. These containers were then opened and found to contain contraband. The officer testified his department's standard policy permitted him to inventory all "accessible" areas of the car.

[*P16] The Supreme Court held that the search of the trunk itself was reasonable because the trunk is part of an automobile that is normally included in the scope of an inventory search, and that testimony established that it was standard procedure to search such areas. However, the Court concluded that the evidence discovered in the containers should be suppressed because, in accordance with Bertine and Wells, supra," the existence of a reasonable policy or procedure governing inventory searches in general is insufficient to justify the opening of closed containers encountered" during the inventory search. Rather, some articulated policy must also exist which regulates the opening of containers found during the authorized inventory search."

Defendant's probation agreement validly agreed to submit only his computer to suspicionless searches. He retained an expectation of privacy in his house. People v. Thornburg, 2008 Ill. App. LEXIS 814 (August 12, 2008), released for publication September 26, 2008).*

Additional motion to suppress denied without a hearing for defendant not showing a factual dispute that he had an expectation of privacy in the place searched. This was a separate challenge to one heard by the USMJ. United States v. Troya, 2008 U.S. Dist. LEXIS 76995 (S.D. Fla. October 2, 2008) ("'[A] motion to suppress must in every critical respect, including allegations of standing, be "sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that a substantial claim is presented."'").

Defendant was not in custody at the scene of an accident when he made admissions to the officer that led to his arrest. Turner v. State, 12 So. 3d 1 (Miss. App. 2008).*

Evidence suppressed in a prior case could be used in sentencing in another case. The exclusionary rule should not be applied to prevent evidence from being used in a subsequent sentencing. People v. Rose, 2008 Ill. App. LEXIS 861 (August 13, 2008), released for publication September 26, 2008:

We now discuss defendant's rights regarding the suppressed evidence. The judicially created exclusionary rule generally serves to prevent evidence obtained in violation of the fourth amendment from being used in a criminal proceeding against the individual whose constitutional rights were violated. Illinois v. Krull, 480 U.S. 340, 347, 94 L. Ed. 2d 364, 373, 107 S. Ct. 1160, 1165 (1987). The central purpose of the exclusionary rule is to deter the police from acting unlawfully in the future, thereby effectuating the fourth amendment guarantee against unreasonable searches and seizures. Krull, 480 U.S. at 347, 94 L. Ed. 2d at 373, 107 S. Ct. at 1165. The exclusionary rule is not a personal constitutional right of the aggrieved party, and its application is not intended or able to act as a remedy for the invasion of the party's rights that has already taken place. Krull, 480 U.S. at 347, 94 L. Ed. 2d at 373, 107 S. Ct. at 1165-66. The exclusionary rule is not designed to prevent the use of suppressed evidence in all types of proceedings or against all people. People v. Dowery, 62 Ill. 2d 200, 204, 340 N.E.2d 529 (1975). "[I]n determining whether the 'exclusionary rule' should be extended to certain proceedings a balancing test has been utilized to limit application of the rule 'to those areas where its remedial objectives are thought most efficaciously served.'" Dowery, 62 Ill. 2d at 204, quoting United States v. Calandra, 414 U.S. 338, 348, 38 L. Ed. 2d 561, 571, 94 S. Ct. 613, 620 (1974).

Our research has not revealed any Illinois case addressing the specific question of whether evidence suppressed on fourth amendment grounds in a prior case nonetheless may be considered at a sentencing hearing on a future charge. One case, People v. Evans, 125 Ill. 2d 50, 530 N.E.2d 1360, 125 Ill. Dec. 790 (1988), discusses a sentencing court's consideration of previously suppressed evidence, but that case is distinguishable. In Evans, the defendant argued on appeal that the sentencing court erred in considering the testimony of an alleged prior rape victim, because during the defendant's trial for that offense the trial court granted his motion to suppress the victim's identification of him. Evans, 125 Ill. 2d at 90. The defendant claimed that this prior suppression made the evidence unreliable at sentencing. Evans, 125 Ill. 2d at 91. Our supreme court held that the defendant's argument was without merit because the defendant failed to inform the sentencing court that the identification had been suppressed and because the victim's testimony was cumulative of the large amount of evidence in aggravation. Evans, 125 Ill. 2d at 91-92. The instant case, unlike Evans, involves evidence suppressed under the fourth amendment, so the mere fact that the evidence was suppressed does not equate to a finding that it was unreliable. Moreover, defendant preserved his argument in the trial court, and the introduction of the suppressed evidence would not amount to harmless error here.

While there is no Illinois law directly on point, we note that all but one of the federal appellate courts have resolved the issue at hand, and they have all concluded that the exclusionary rule generally does not apply to sentencing hearings. United States v. Acosta, 303 F.3d 78, 86 (1st Cir. 2002); United States v. Ryan, 236 F.3d 1268, 1271-72 (10th Cir. 2001); United States v. Brimah, 214 F.3d 854, 858 (7th Cir. 2000); United States v. Tauil-Hernandez, 88 F.3d 576, 581 (8th Cir. 1996); United States v. Kim, 25 F.3d 1426, 1435 (9th Cir. 1994); United States v. Montoya-Ortiz, 7 F.3d 1171, 1181-82 (5th Cir. 1993); United States v. Jenkins, 4 F.3d 1338, 1344-45 (6th Cir. 1993); United States v. Tejada, 956 F.2d 1256, 1263 (2d Cir. 1992); United States v. Lynch, 934 F.2d 1226, 1236-37 (11th Cir. 1991); United States v. McCrory, 289 U.S. App. D.C. 178, 930 F.2d 63, 69 (D.C. Cir. 1991); United States v. Torres, 926 F.2d 321, 325 (3rd Cir. 1991); see also United States v. Nichols, 438 F.3d 437, 441 (4th Cir. 2006) (citing Acosta and cases cited therein with approval). Though we are not required to follow decisions of federal courts other than the United States Supreme Court (People v. Calvert, 326 Ill. App. 3d 414, 424, 760 N.E.2d 1024, 260 Ill. Dec. 251 (2001)), we may use such decisions as guidance (People v. Criss, 307 Ill. App. 3d 888, 900, 719 N.E.2d 776, 241 Ill. Dec. 647 (1999)). The aforementioned federal appellate courts have noted that a sentencing court may conduct a very broad inquiry into the defendant's background, character, and conduct in order to have the largest range of information available to determine the appropriate punishment. Acosta, 303 F.3d at 85-86. They have recognized that evidence that has been illegally seized is not inherently unreliable (see, e.g., Brimah, 214 F.3d at 858) and concluded that "the deterrent effect of the exclusionary rule does not outweigh the detrimental effects of excluding reliable evidence on the court's ability to meet its goal of proper sentencing." Acosta, 303 F.3d at 85. Still, some of the federal courts have indicated that the exclusionary rule will apply at sentencing if there is evidence that the police violated the defendant's fourth amendment rights with the purpose of obtaining a greater sentence. See Acosta, 303 F.3d at 85 (cases cited therein).

Comment: To say that the police are not deterred by the ability to use illegally seize evidence is either manifestly false or incredibly niave. They seize it to use it; that simple. If they can't use it in the case at hand, it can come back to bite the defendant later.

The validity of a 911 caller's tip was assessed when the officer met the caller. That provided reasonable suspicion for defendant's later stop. United States v. Bland, 2008 U.S. Dist. LEXIS 76992 (D. Del. September 30, 2008).*

General consent to search a room includes moving a towel that revealed drugs. United States v. Gordon, 294 Fed. Appx. 579 (11th Cir. September 26, 2008) (unpublished).*

Defendant consented to continue to talk to the officer after the stop was technically complete. Suppression order reversed. State v. Ford, 992 So. 2d 360 (Fla. App. 1st Dist. 2008).*

No Fourth Amendment claim for a broken door from pursuing a fleeing man otherwise reasonably under the Fourth Amendment. Heckenswiler v. K. McLaughlin, 2008 U.S. Dist. LEXIS 76771 (E.D. Pa. September 29, 2008).*

Defendant's hand to hand drug deal from his car five days earlier was reasonable suspicion to detain the car for a dog sniff. United States v. Ferrell, 293 Fed. Appx. 934 (3d Cir. September 29, 2008) (unpublished).

Defendant's live in girlfriend obviously had authority to consent to a search of their shared property. United States v. Nichols, 2008 U.S. Dist. LEXIS 76549 (W.D. Ark. August 26, 2008).*

Defense counsel's failure to file a suppression motion was not ineffective assistance where the motion was groundless. Hillary v. Sec'y for the Dep't of Corr., 294 Fed. Appx. 569 (11th Cir. September 26, 2008) (unpublished).*

Plaintiff's civil search claim here necessarily attacked the underlying basis for his conviction, so it was barred under Heck. Weaver v. Geiger, 294 Fed. Appx. 529 (11th Cir. September 24, 2008) (unpublished).*

Driver of a rental car not on the contract, and thus "unauthorized" still had standing to challenge an inventory of the car. To hold otherwise would subject a huge number of people to unauthorized searches. State v. Henderson, 2008 Ohio 5007, 2008 Ohio App. LEXIS 4219 (5th Dist. September 26, 2008):

[*P29] In this case, appellant was operating a rented vehicle, and was not an authorized driver of the vehicle. No one present at the stop was an authorized driver of the vehicle.

[*P30] Therefore, the issue is whether appellant's mere possessionary use, though unlawful use, can bootstrap the issue of standing. Under the very strict interpretation of the facts sub judice, we find appellant had standing to challenge the search. Appellant's possession may have been contractually unauthorized, but this was a civil wrong, not a criminal wrong. To permit the issue of standing to be a bar to all of the million of individuals who cannot establish a right to drive another's vehicle would be beyond the pale. Appellant's possession of the vehicle may be challengeable civilly, but it does not render his expectation of privacy null and void.

Untimely motion to suppress was properly denied, and whether to entertain it late is within the discretion of the trial court. State v. Skorvanek, 2008 Ohio 4937, 2008 Ohio App. LEXIS 4155 (9th Dist. September 29, 2008).*

During a stand off, defendant claimed in a post-conviction proceeding that he was seized because he could not come out, and his defense counsel was ineffective for not filing a motion to suppress the seizure. Defendant was threatening the SWAT team with guns during the stand off. Defense counsel was not ineffective. State v. Suiste, 2008 Ohio 5012, 2008 Ohio App. LEXIS 4214 (5th Dist. September 29, 2008) (Comment: The court does not specifically hold that the stand off was a seizure, but reading between the lines, it seems so. At least it would be a seizure with probable cause.)

State search warrant is not governed by Rule 41 in a federal prosecution. United States v. Morgan, 2008 U.S. Dist. LEXIS 76185 (N.D. N.Y. September 15, 2008).*

Plaintiff stated a claim that he was detained and subjected to a dog sniff when he refused to consent to a vehicle search. Conwill v. Sheriff of Lowndes County, 2008 U.S. Dist. LEXIS 75851 (N.D. Miss. September 29, 2008):

Moreover, it seems that the decision to detain Plaintiffs and to call the canine unit was based on Jeff Conwill's refusal to consent to a search of the vehicle. Jeff Conwill testified that Deputy Bell threatened to retrieve a drug dog if Conwill did not allow him to search the vehicle. The police cannot base their decision to prolong a traffic stop on the detainee's refusal to consent to a search. United States v. Williams, 271 F.3d 1262, 1271 (10th Cir. 2001) (holding that the officer could choose to detain plaintiff after he refused to consent to a search of his car "if the officer already had sufficient reasonable suspicion to detain [the plaintiffs] for the purpose of the canine drug search."). In this case, as already discussed, Deputy Bell had not observed facts sufficient to raise a reasonable suspicion when he asked for consent. Therefore, Deputy Bell could not consider Jeff Conwill's refusal to consent in making his decision to detain Plaintiffs. Because the detention of Plaintiffs beyond the time of the initial investigation was not supported by reasonable suspicion, the detention exceeded the permissible scope of the investigatory stop.

Stop for obviously fake temporary tag was justified, and officer approaching vehicle could smell marijuana, and that justified a search of the vehicle. State v. Smith, 192 N.C. App. 690, 666 S.E.2d 191 (2008), review denied 363 N.C. 380, 680 S.E.2d 206 (2009).*

Defendant was transferred from jail to a competency evaluation, and his belongings were searched, finding unauthorized discovery materials, which were seized. He had a reduced expectation of privacy as an inmate. State v. Puapuaga, 164 Wn.2d 515, 192 P.3d 360 (2008).*

Man running in a gang stronghold area was stopped by the police, and, while that is not reasonable suspicion, the fact that the officers knew a crime had occurred makes it reasonable to believe that he was running from it. In re H.M., 167 Cal. App. 4th 136, 83 Cal. Rptr. 3d 850 (2d Dist. 2008):

Similarly, here, it was reasonable for Magallon to assume that a crime committed in a gang stronghold would involve a weapon, and that a person fleeing from such a crime would likely be armed. As explained in Souza, “we must allow those we hire to maintain our peace as well as to apprehend criminals after the fact, to give appropriate consideration to their surroundings and to draw rational inferences therefrom, unless we are prepared to insist that they cease to exercise their senses and their reasoning abilities the moment they venture forth on patrol.' [Citation.]” (People v. Souza, supra, 9 Cal.4th at p. 241, citing People v. Holloway (1985) 176 Cal.App.3d 150, 155 [221 Cal. Rptr. 394].) “Failure to cursorily search suspects for weapons in a confrontation situation in an area where gang activity and weapon usage is known from the officers' past experience would be most careless.” (In re Stephen L. (1984) 162 Cal.App.3d 257, 260 [208 Cal. Rptr. 453].)

Admission of possession of a knife during a traffic stop coupled with defendant's nervousness justified frisk. Hicks v. State, 293 Ga. App. 745, 667 S.E.2d 715 (2008).*

Search of a computer for child pornography was conducted within a reasonable time, and it does not have to be within the time provided for in the warrant. United States v. Mutschelknaus, 564 F. Supp. 2d 1072 (D. N.D. 2008):

In this case, the computer and electronic storage media were seized within the ten (10) day time limit established in the search warrant and the forensic analysis took place within the sixty (60) days granted by the magistrate judge. As set forth above, the Federal Rules of Criminal Procedure do not require that the forensic analysis of computers and other electronic equipment take place within a specific time limit. Any subsequent search only needs to be conducted within a reasonable time. The Court finds that the forensic analysis conducted on the computer and electronic storage media by February 12, 2008, was done so within a reasonable amount of time after the execution of the search warrant and, therefore, the evidence shall not be suppressed.

Insurance policy's exclusion for governmental action prevented coverage for damage caused during execution of a search warrant. Spangler v. Wenninger, 2008 U.S. Dist. LEXIS 75571 (S.D. Ohio September 9, 2008).*

Adult establishment had standing to litigate the Fourth Amendment claims of patrons stopped at a roadblock leaving the property. Mia Luna, Inc. v. Hill, 2008 U.S. Dist. LEXIS 74950 (N.D. Ga. September 22, 2008). (Comment: This is an interesting case on the rights of a store to pursue claims of patrons who either could not be found or would not want to pursue the claims on their own.)

Officers had reasonable suspicion to handcuff defendant during an investigative stop. A drug dog then gave probable cause. United States v. Roberts, 572 F. Supp. 2d 1240 (D. Kan. 2008).*

Use of 20 SWAT officers and 3 K-9 officers to execute a search warrant was reasonable for purposes of civil liability. Walker v. City of Wilmington, 579 F. Supp. 2d 563 (D. Del. 2008):

Based on the record, the court holds that defendants' use of force was objectively reasonable under the circumstances. The employment of a 20-member SWAT team was objectively reasonable because, as the police had learned from surveillance, 118 Dutton Drive had multiple floors to cover and multiple occupants to detain. (D.I. 51 at 56) Using K9 officers was objectively reasonable because police believed suspect Walker to be preparing to flee. (D.I. 46 at 169) Using weapons was objectively reasonable because suspect Walker [*26] was wanted for murder, had a criminal history, and was believed to be armed with at least a knife; police did not know whether the other occupants had weapons.

Defendant's claim of consent by trickery was not presented to the district court, so it was waived. United States v. Vanvliet, 542 F.3d 259 (1st Cir. 2008).*