The defendant was seen with a group of men by a bike cop who headed toward them in what the officer described was a "high crime area." The defendant walked 15' to his town house. This was not "headlong flight" as in Wardlow. The defendant had a right to walk away from the officer. Jones v. Commonwealth, 53 Va. App. 171, 670 S.E.2d 31 (December 23, 2008):

The facts of the instant case can hardly be equated to those of Wardlow. Unlike the facts in Wardlow, the officers in the instant case were on a routine patrol, not targeting participants in a drug transaction at a specific location where drug transactions were known to frequently occur. Furthermore, Jones carried no item, such as the opaque bag in Wardlow, which together with the other circumstances, would objectively indicate his involvement in criminal activity. Jones' "brisk" walk of some fifteen feet to a nearby townhouse upon seeing the officers can hardly be equated to the "headlong flight" of Wardlow. The Commonwealth also points to Jones' "[n]ervous, evasive behavior" to support its contention that the seizure was supported by reasonable suspicion. Specifically, that Jones refused to heed the officer's requests to stop. However, citizens who are not under arrest or otherwise detained have every right to refuse or ignore requests from law enforcement officers. "[W]hen an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business." Id. at 125 (citing Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983)). Moreover, a "'refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.'" Id. (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991)). That was precisely what occurred here. Under these circumstances, Jones' failure to obey the officer's instructions cannot serve as the justification for his seizure.

(Comment: The state's argument here proved too much. It wants to be able to say that a person had a right to refuse a purely consensual encounter with the officer, but then require the defendant to not walk away.)

While officers were investigating a sex crime, they saw wild animal parts, and they called a game officer to join in the search, and he questioned the defendant, too. That entry was outside the scope of the warrant, and the evidentiary value was not "immediately apparent" to the officers. He could object to the game officer as an extention of the search. State v. Moran, 2008 NMCA 160, 145 N.M. 297, 197 P.3d 1079 (2008):

[*13] Although Officer Jackson ultimately may have acquired information establishing probable cause to believe that some of the game animal parts were possessed unlawfully, the investigation during which Officer Jackson questioned Defendant and during which Defendant was unable to produce documentation of lawful possession occurred while Officer Jackson was present within Defendant's home without a warrant and over Defendant's objection. A search warrant does not completely nullify a homeowner's Fourth Amendment rights, allowing law enforcement officers executing a search warrant to declare a private residence a law enforcement open house. During the execution of a search warrant, a homeowner retains residual constitutional privacy rights, including the right to object to the presence of persons whose presence is not reasonably related to the purposes for which the warrant was issued. See United States v. Showalter, 858 F.2d 149, 152 (3rd Cir. 1988) (affirming order suppressing "plain smell" olfactory observations of state troopers and DEA agents who accompanied U.S. Marshals conducting inventory search incident to civil forfeiture proceeding; emphasizing evidence that presence of state troopers and DEA agents was not necessary to the taking of the inventory or for the security of the marshals conducting the inventory and that state troopers and DEA agents did not participate in inventory or deploy themselves in a manner consistent with a peacekeeping function); cf Wilson v. Layne, 526 U.S. 603, 609-11, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999) (holding that occupants' Fourth Amendment rights were violated when law enforcement officers brought media into home to observe and record attempted execution of warrant; noting that media were not present to assist the police in executing the warrant; emphasizing principle that police actions in execution of a warrant must be "related to the objectives of the authorized intrusion"). There is no dispute that Officer Jackson entered Defendant's home to investigate possible violations of game and fish laws, not to assist Deputy Brazil and the other officers in searching for the evidence of CSP described in the warrant. Officer Jackson was not authorized by the search warrant issued in the CSP case to conduct an investigation inside Defendant's home into possible violations of game and fish laws. Commonwealth v. Cruz, 53 Mass. App. Ct. 24, 756 N.E.2d 1175, 1182-83 (Mass. App. Ct. 2001) (rejecting Commonwealth's "plain view" argument; suppressing evidence of cellular telephone fraud seized by second team of detectives composed of members of specially trained cellular phone fraud unit who entered the defendant's apartment while narcotics investigators were executing a search warrant limited to evidence of drug crimes).

From NJL.com, is About those fuzzy dice hanging from your rearview mirror? They're safe. The article reports on United States v. Davis, 2008 U.S. App. LEXIS 25757, 2008 FED App. 0452P (6th Cir. December 19, 2008), posted here. Fuzzy dice may be safe for the time being, but Mr. Davis remains in jail.

Officer's qualifications to determine the smell of raw marijuana was not shown, so the search fails. State v. Holley, 899 N.E.2d 31 (Ind. App. December 23, 2008).

Where the officers did not enter the house, it could not be characterized as a knock and talk. The entry here was to a commercial part of the property. The "no trespassing" sign did not create an expectation that officers would not approach the property. Jones v. State, 407 Md. 33, 962 A.2d 393 (2008), affg Jones v. State, 178 Md. App. 454, 943 A.2d 1 (2008), posted here.

911 caller gave specific first hand information about a named and identified man with a gun who was threatening two women. The officer arrived and saw a man fitting the description who turned and walked away when he saw the officer. When the man was seen again, he was talking to two women, and this was sufficient corroboration[!]. Coupled with flight under Wardlow, there was reasonable suspicion. United States v. Robinson, 304 Fed. Appx. 746 (10th Cir. 2008) (unpublished).*

Officer's statement to the defendant who was coming out of a drug house that if she surrendered the dope she would not be arrested (but cited) was tantamount to an arrest because no reasonable person would feel free to leave. Since there was no reasonable suspicion, the stop was unreasonable. State v. Allen, 224 Ore. App. 524, 198 P.3d 466 (2008):

This case is akin to Terhear/Goemmel, not Baker. Brown's statements to defendant that he "knew she was coming from a dope house" and "that if she was honest and gave [him] the dope [he] would give her a citation" (emphasis added) are tantamount to the announcement in Terhear/Goemmel that the officer had just seen defendant break the law. Indeed, as Brown candidly acknowledged, his statement implicitly conveyed to defendant that, by surrendering "the dope," she could avoid arrest. That implied threat of arrest was--as the state does not dispute--unsupported by reasonable suspicion, much less by probable cause. Those circumstances stand in stark contrast to Baker, where the officer merely inquired whether the defendant had bought drugs.

Here, as in Terhear/Goemmel, "[a]n ordinary citizen, faced with such a statement by a uniformed police officer, would not believe that he or she was free to leave." 142 Or App at 458. Rather, a person in defendant's position "would reasonably believe that he or she was not free to go until the officer took some further action, such as issuing a citation or telling the individual that he or she could move on. Common experience and common sense admit no other answer." Id.; see generally State v. Holmes, 311 Or 400, 410, 813 P2d 28 (1991) ("The pivotal factor is whether the officer, even if making inquiries a private citizen would not, has otherwise conducted himself [or herself] in a manner that would be perceived as a nonoffensive contact if it had occurred between two ordinary citizens."). Accordingly, defendant was seized when Brown told her that he "knew she was coming from a dope house" and "that if she was honest and gave [him] the dope [he] would give her a citation."

Defendant's refusal to permit officer who felt a circular tin and asked what was in it to search could not form the basis of reasonable suspicion. State v. Foland, 224 Ore. App. 649, 199 P.3d 362 (2008):

A person's reaction to a request for consent to search is not sufficient as a matter of law to support an objectively reasonable belief of criminal activity. As here, where a person has the right to refuse consent, the

"refusal to give consent to a search undoubtedly caused the officer to have a healthy suspicion that defendant was probably in illegal possession of something; but such a suspicion, however well founded, having been aroused merely on the basis of an assertion of one's constitutional rights, can play no part in creating probable cause for a search."

State v. Gressel, 276 Or 333, 338-39, 554 P2d 1014 (1976). We view defendant's reaction to the inquiries concerning the patdown and the contents of the tin as "merely an unsophisticated attempt to assert his right of privacy." Id. at 338. Defendant's reaction to a request for consent that he is constitutionally entitled to refuse cannot form the basis of reasonable suspicion. To hold otherwise and "allow[ ] the police to use defendant's assertion of a privacy right as the basis for depriving him of that right would render the promise of Article I, section 9, illusory." State v. Brown, 110 Or App 604, 611-12, 825 P2d 282 (1992) (holding that defendant's "excited and belligerent" demeanor and his action of grabbing his car keys was a clumsy effort to assert his right to the privacy of his cars and refuse consent and could not be a basis for reasonable grounds to believe the cars contained evidence of a parole violation).

AUSA was entitled to qualified immunity on a claim of an overbroad search warrant in a fraud case. Slaey v. Adams, 2008 U.S. Dist. LEXIS 103903 (E.D. Va. December 23, 2008).*

Rental property inspection ordinance was constitutional because it provided for a warrant or consent, and there was no penalty for refusing consent. McLean v. City of Kingston, 2008 NY Slip Op 10088, 2008 N.Y. App. Div. LEXIS 9810 (3d Dept. December 24, 2008).*

Defendant would have felt free to leave, so he was not detained coercively when he consented to a search of his car. United States v. Crossley, 2008 U.S. App. LEXIS 26335 (11th Cir. December 23, 2008) (unpublished)* (I'm not convinced.)

Reopening the suppression hearing at the government's request would not change the outcome. Applying Brown v. Illinois attenuation analysis, the government still does not win. One officer was still out of breath after the illegal arrest. United States v. Valentine, 2008 U.S. Dist. LEXIS 103860 (E.D. N.Y. December 24, 2008):

The second and third factors--temporal proximity and intervening circumstances--weigh heavily in defendant's favor. The law enforcement officers arrested defendant on the street outside of his apartment. (H. 196.) When they initiated the arrest, Morales was asleep. She was awakened by a neighbor shouting to her that the police were arresting defendant. (H. 306.) One officer testified that he observed Morales nervously watching the struggle to arrest defendant through a window. (H. 221, 240-41.) Defendant struggled for several minutes with five or six officers of sizable stature before they subdued him. (H. 168, 194-95, 217, 257-59, 277-78.) As a result of this struggle, defendant suffered a wound to his head, which began bleeding and required emergency medical care. (H. 170, 194-95, 219, 236-37.)

Once the officers subdued defendant, they searched his car. (H. 169, 195-96.) Agent Yoos, along with other officers, proceeded to the apartment defendant shared with Morales. (H. 98, 136.) The officers immediately sought Morales's consent to conduct a security sweep; however, it is unclear whether that sweep occurred before or after Morales signed the consent form. (Compare H. 130, 242, 316-17, with H. 130, 136-37.) The officers described her as looking "concerned" when they entered the apartment (H. 101, 220, 240), but "calm" during the search (H. 205).

Based on the record, the court finds that the officers' request to enter the apartment followed immediately on the heels of defendant's illegal arrest. (H. 124, 128, 129, 220, 260, 322-23.) There is no evidence of any intervening events whatsoever in the record. In fact, one officer testified that he was out of breath from the struggle with defendant, immediately regained his composure, and then proceeded directly to the apartment to assist Agent Yoos. (H. 260, 278-79.) The government did not seek to present any additional evidence with respect to the timeline presented.

Relationships can create a reasonable belief in apparent authority to consent. United States v. Almeida-Perez, 549 F.3d 1162 (8th Cir. 2008):

In the same vein, certain relationships between the occupants may give rise to the presumption that one has authority to consent to search of the other's property. For instance, in United States v. Wright, 564 F.2d 785, 790 (8th Cir. 1977), where the defendant was an adult living with his mother, the mother had authority to consent to the search of his dresser. In United States v. Clark, 409 F.3d 1039, 1044 (8th Cir. 2005), police reasonably relied on a wife's permission to search a closet in which the wife reported that the defendant often hid things; nothing in the circumstances showed that the defendant had exclusive access to the closet. The Seventh Circuit has held that "a spouse presumptively has authority to consent to a search of all areas of the homestead; the nonconsenting spouse may rebut this presumption only by showing that the consenting spouse was denied access to the particular area searched." United States v. Duran, 957 F.2d 499, 505 (7th Cir. 1992). It would be more accurate to say that the nonconsenting spouse must show that police had reason to know the area or container was off-limits to the consenting spouse.

In this case, the testimony of Raggs supported the Magistrate Judge's finding that Maria Juarez gave permission to enter the bedrooms. It was reasonable for Ortiz to rely on the words and gesture of Maria Juarez, the proprietress of the house and the wife of Porfirio, to conclude that he was authorized to push the doors open and step in the rooms in order to communicate with the people inside. The district court's legal conclusions in denying the suppression motion were sound.

A technical violation of the DEA's inventory policy did not justify suppression. United States v. Adames, 304 Fed. Appx. 129 (3d Cir. 2008) (unpublished).*

Knock and talk led to consent. United States v. Lowry, 315 Fed. Appx. 214 (11th Cir. 2008)* (unpublished).

Officers had PC to believe that there was marijuana in one truck and the vehicle driving along with it was a conspirator. United States v. Rodriguez-Rodriguez, 550 F.3d 1223 (10th Cir. 2008).*

Dog sniff outside the home on the curtilage did not violate the Fourth Amendment. All it revealed was a bag outside the house. United States v. Hayes, 551 F.3d 138 (2d Cir. December 24, 2008), aff'g United States v. Hayes, 2006 U.S. Dist. LEXIS 98101 (D. Vt. May 5, 2006) (posted on Lexis 1/1/09):

We reject Hayes's arguments and his reliance on Thomas and hold that the police canine's act of sniffing for narcotics here did not violate Hayes's "legitimate expectation that information about perfectly lawful activity will remain private." Caballes, 543 U.S. at 410. Thomas is clearly distinguishable from the facts of this case. The contents of the black bag that Kilo [the dog] smelled were not located inside Hayes's dwelling or residence but in brush outside the house, approximately 65 feet from the back door of the residence and bordering an adjoining property. A critical consideration in Thomas, one not present here, was that the canine there smelled the presence of narcotics located inside the defendant's home.

. . .

The sanctuary of the home simply does not extend to the front yard of Hayes's property, where the initial sniff occurred. See United States v. Titemore, 437 F.3d 251, 259 (2d Cir. 2006) (holding that a homeowner has no reasonable expectation of privacy in a patch of front lawn visible from the road and leading up to the front porch); see also United States v. Oliver, 466 U.S. 170, 179 (1984) ("[O]pen fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance .... Moreover, as a practical matter these lands usually are accessible to the public and the police in ways that a home, an office, or commercial structure would not be."); accord Esmont v. City of New York, 371 F. Supp. 2d 202, 212 (E.D.N.Y. 2005) ("Unobstructed, open areas in front of a residence are not entitled to Fourth Amendment protection.").

Informant's information was lacking corroboration, and the police here corroborated only neutral details. The affidavit was not so lacking in PC, however, that the good faith exception did not save it. State v. Nunez, 2008 Ohio 6806, 180 Ohio App. 3d 189 (6th Dist. December 19, 2008).*

Informant here satisfied Tennessee's Aguilar/Spinelli. State v. Currie, 2008 Tenn. Crim. App. LEXIS 986 (December 18, 2008).*

Defendant's new crime barred the exclusionary rule from applying in his case under Wong Sun. State v. Iduarte, 268 S.W.3d 544 (Tex. Crim. App. October 29, 2008), aff'g State v. Iduarte, 232 S.W.3d 133 (Tex. App.--Fort Worth 2007) (posted here):

The exclusionary rule was designed to protect individuals from the use at trial of evidence that was obtained in an unlawful manner. See Wong Sun, 371 U.S. at 486. It does not, however, provide limitless protection to one who chooses to react illegally to an unlawful act by a state agent. Id. If that were allowed, the genuine protection that the exclusionary rule provides would be undermined. Here, evidence of the charged offense did not exist before the officer's challenged actions because the charged offense had not yet occurred; the evidence showed a subsequent independent criminal act that was not causally connected to any unlawful entry by a state agent. Therefore, the exclusionary rule does not apply to this case.

Fireman had the authority to use an ax to open a locked door while putting out a fire, and he saw growing supplies. The following entry by a police officer was to investigate the crime and had nothing to do with the fire, and the search was properly suppressed under Clifford and Tyler. State v. Sutcliffe, 2008 Ohio 6782, 2008 Ohio App. LEXIS 5668 (11th Dist. December 19, 2008).*

Defendant kept putting his hands in his pockets and was extremely fidgety. The officer patted him down but did not remove anything. He asked [directed?] the defendant to empty his pockets, and this was within the scope of the patdown. State v. Riter, 2008 Ohio 6752, 2008 Ohio App. LEXIS 5647 (3d Dist. December 22, 2008).*

Defendant's traffic stop was based on at least reasonable suspicion. State v. Lewis, 2008 Ohio 6691, 2008 Ohio App. LEXIS 5597 (4th Dist. December 15, 2008).*

Locked safe in a vehicle should not have been opened and inventoried under Massachusetts law. Commonwealth v. Difalco, 73 Mass. App. Ct. 401, 897 N.E.2d 1287 (2008):

Reading the two policies together, we conclude, contrary to the judge's interpretation, that there is no explicit authority for the police to unlock a closed container and inventory the contents, and that the officer in this case could do no more than inventory a locked container as a single unit. "We have made it clear that, if police open a closed container during an inventory search in the absence of a specific written procedure requiring them to do so, then any evidence they discover [*8] in the container must be suppressed." Commonwealth v. Garcia, 409 Mass. 675, 684-685, 569 N.E.2d 385 (1991). See Commonwealth v. Muckle, 61 Mass. App. Ct. 678, 684, 814 N.E.2d 7 (2004) (police may open closed, but unlocked containers where written inventory search so provides) 6 For these reasons we conclude the defendant's motion to suppress should be allowed, and that it is unnecessary to examine in detail the reasons given by the judge in the second step of his decision (see note 3, supra).

Officers did not violate Franks where they did not know of the CI's firearms arrest until after the search warrant was applied for. And, it did not make a difference. United States v. McCoy, 303 Fed. Appx. 45 (2d Cir. 2008)* (unpublished).

Near reasonable suspicion existed when officer approached the defendant to ask him questions before he fled, and that was enough. United States v. Davenport, 303 Fed. Appx. 42 (2d Cir. 2008)* (unpublished).

Bivens and FTCA action was barred by Heck because it attacked the underlying conviction. Trupei v. United States, 304 Fed. Appx. 776 (11th Cir. 2008)* (unpublished).

There is no constitutional right to avoid a BAC test under the Kansas implied consent law. State v. Bussart-Savaloja, 40 Kan. App. 2d 916, 198 P.3d 163 (2008):

The United States Supreme Court has also rejected constitutional challenges to the admission of a defendant's refusal to submit to a blood alcohol test. See South Dakota v. Neville, 459 U.S. 553, 563, 74 L. Ed. 2d 748, 103 S. Ct. 916 (1983), where the Court upheld a statute against Fifth Amendment self-incrimination challenges and due process challenges. The Court's reasoning, however, is applicable to a Fourth Amendment challenge as well. The Court distinguished the case from a previous case in which the Court heard a Fifth Amendment challenge to the practice permitting prosecutors to comment on a criminal defendant's election not to testify. See Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229, reh. denied 381 U.S. 957 (1965). The Court reasoned that "[u]nlike the defendant's situation in Griffin, a person suspected of drunk driving has no constitutional right to refuse to take a blood-alcohol test." Neville, 459 U.S. at 560 n.10; see K.S.A. 8-1001(f)(B).

Because there is no constitutional right to refuse to be tested, there can be no constitutional bar to the admission of testing evidence. See Melilli, The Consequences of Refusing to Consent to a Search or Seizure: The Unfortunate Constitutionalization of an Evidentiary Issue, 75 S. Cal. L. Rev. 901, 922 (2002), arguing "[t]he end result is that, without a constitutionally effective right to block a search or seizure by refusing consent, the refusal of consent is constitutionally irrelevant. There can be no derivative constitutional right to bar evidence of an invocation of something that itself is not a constitutional right."

It was not shown that defendant revoked his consent after officers found an after market concealed compartment. The state bears the burden of proof on non-withdrawal of consent. State v. Petion, 992 So. 2d 889 (Fla. App. 2d Dist. October 24, 2008)*:

Thus, we conclude that HN7if a defendant raises the issue of withdrawal of consent by nonverbal communication, the State must prove by a preponderance of the evidence that the defendant did not engage in the type of nonverbal communication that an objectively reasonable officer would interpret as a withdrawal of consent. In this case, Mr. Petion's conduct can be fairly summarized as a passive failure to object. Reviewing this issue de novo and relying on the circuit court's historical findings, we conclude that he did not revoke or withdraw his consent by any nonverbal communication after the deputies found the secret compartment.

Knock and talk was valid. Credibility call here goes to the government because the officers' versions were consistent [and what about getting their stories together?], and the defendant's version is not believed. United States v. Maes, 2008 U.S. Dist. LEXIS 103676 (D. Utah December 17, 2008).*

Knowledge that defendant had a gun in the car justified a protective search of the car for more, which turned up more. United States v. Carico, 311 Fed. Appx. 572 (4th Cir. 2008) (unpublished).*

Defendants' slow lane change was not a violation of Tennessee law, so the traffic stop that led to alleged consent was without probable cause. United States v. Gross, 550 F.3d 578, 2008 FED App. 0454P (6th Cir. 2008).*

IRS summons appeal was wholly frivolous, based on name being in capital letters and his "special appearance" exempting him from participating in the case. Ford v. Pryor, 2008 U.S. App. LEXIS 25760 (10th Cir. December 19, 2008).*

The Michigan statute that would criminalize air fresheners hanging from rear view mirrors was unconstitutionally vague. A stop on that statute was still valid, and the court does not suppress under DeFillippo and Krull. United States v. Davis, 2008 U.S. App. LEXIS 25757 (6th Cir. December 19, 2008):

While we have held the Michigan statute unconstitutional, that does not end the matter of whether Davis's motion to suppress was improperly denied. The usual remedy when evidence is obtained through an unconstitutional search is exclusion; however, the good faith exception to the Exclusionary Rule applies to searches conducted in good faith reliance on a presumptively valid statute. Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987); Michigan v. De Fillippo, 443 U.S. 31, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979). In Michigan v. DeFillippo, the Supreme Court held that the Exclusionary Rule did not apply to a seizure performed pursuant to a Detroit statute that was later declared to be void for vagueness. In doing so, it explained that the Exclusionary Rule was a remedy designed to deter unlawful police conduct, and that exclusion of evidence obtained through a good faith search based upon a presumptively valid statute would have no deterrent effect. 443 U.S. at 38 n.3.

This logic applies equally here. United States v. Cardenas-Alatorre, 485 F.3d 1111, 1116 (10th Cir. 2007) (holding that DeFillippo "compel[s]" admission of evidence even though the statute at issue was arguably vague). As explained above, MICH. COMP. LAWS § 257.709(1)(c) is unconstitutionally vague. But, as the Supreme Court explained in DeFillippo, absent unusual circumstances, Westland police are not expected to know this. Indeed, police are under a duty to enforce all laws that are not obviously unconstitutional. 443 U. S. at 38. The statute at issue here is not so obviously vague that officers could reasonably be charged with knowledge of its unconstitutionality. And, given the breadth of the language of this enactment, it is difficult to say their reliance upon it was not "objectively reasonable." Krull, 480 U.S. at 349-50; cf. Whren v. United States, 517 U.S. 806, 810, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) ("As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.").

Opinion ordered withdrawn December 31, 2008.

Defendant made a sufficient showing to get access to procedural and policy manuals relative to his search claim to prepare for suppression motion. United States v. Charles, 2008 U.S. Dist. LEXIS 102918 (W.D. La. December 9, 2008):

It is undisputed that the policy and procedure manuals requested are not "investigative files in an ongoing criminal investigation," as the Fifth Circuit recognizes the contours of the law enforcement privilege. In the absence of controlling authority, the undersigned will not recognize an expansion of the law enforcement privilege to include documents or manuals containing law enforcement policies and procedures. Therefore, the undersigned finds that the requested policy and procedure documents and manuals may not be withheld on the basis of the law enforcement privilege.

The government's assertion that the manuals are irrelevant in a suppression hearing is also without merit. In U.S. v. Doe, 801 F.Supp. 1562 (E.D.Tex. 1992), cited by defendant, the policies of the police department regarding inventory searches was critical during a suppression hearing to whether or not the government would have inevitably discovered the evidence sought to be suppressed. Similarly, in the case at hand, where the credibility of the defendant and police officers must necessarily be assessed, the court can well envision that the occurrence of certain actions may be denied as against, or asserted and affirmed as in accordance with, departmental policy and procedure. Therefore, the undersigned finds that the subpoenaed policy and procedure manuals are relevant and necessary for effective representation by counsel.

Officers had reasonable suspicion for a patdown of two men who arrived at the ER to check on the condition of two gang members who had been shot and were dying. United States v. McGregor, 2008 U.S. Dist. LEXIS 102999 (D. Mass. December 17, 2008):

In light of the double homicide earlier in the evening and the officers' observations in surveillance of the Boston Medical Center, they acted with reasonable caution in removing the occupants from the vehicle and pat-frisking them individually. The defendant did not resist those actions at the time and does not contest their permissibility now.

Court finds that defendant consented to entry for a protective sweep, and plain view supported the seizure. United States v. Aguado-Garcia, 2008 U.S. Dist. LEXIS 102960 (D. Utah December 17, 2008).*

How to tell that the government is going to win: The first line of the opinion starts out "On June 7, 2006, Detective Jason Cebuhar, a 12-year veteran of the Rockford, Illinois, police department, received information ...." Defense counsel's not filing a more "elaborate" motion to suppress would not have changed the outcome. The consent question turned on credibility. The officers, of course, had no motive to lie. United States v. Dean, 550 F.3d 626 (7th Cir. 2008) (this opinion was hardly worth publishing).*

Assuming that the police violated the Fourth Amendment by holding for 48 days defendant's computer seized from the computer repair guys after the shop found child pornography, defendant's admissions when he was called in to talk about it and his consent to search his house for another hard drive was an independent source. This was merely "but for" causation without exploitation of an illegality. United States v. Budd, 549 F.3d 1140 (7th Cir. 2008).* Also, defendant's claim that he would have destroyed the evidence had he gotten access to it but for the illegal seizure was speculative and violated the principle that he had no constitutional right to destroy evidence, citing Segura v. United States, 468 U.S. 796, 815-16 & n.10 (1984)):

In this case, Budd demonstrated nothing more than but for causation. There is no evidence that the government exploited the illegal seizure of the computer; the government did nothing more than place the unsearched computer into an evidence room and leave it there. It was Budd who called the police, volunteered that he had "pretty graphic" files on his computer, and agreed to come down for questioning at the police station. It was Budd who called Detective Teshak the day after Budd's first interview to clarify some of his previous statements. Budd chose to make this second phone call, not because of police exploitation of the illegal seizure, but, as he told Detective Teshak, because he felt that in order to start the "healing" process, he needed to be truthful about the files on his computer. The illegal seizure indirectly prompted Budd's first phone call to the Moline Police Department; however, the seizure was not exploited, nor did it compel Budd to incriminate himself. Budd's statements to the police were not derivative of the seizure.

A search incident of a cellphone is not justified. United States v. Wall, 2008 U.S. Dist. LEXIS 103058 (S.D. Fla. December 22, 2008):

The Seventh Circuit has permitted the admission of phone numbers found on a pager during a warrantless search at the time of the arrest. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996). The court reasoned that pagers have a finite memory, and new incoming pages can potentially destroy previously stored numbers. Id. Thus, the court there found it necessary for law enforcement to immediately search pagers to prevent the destruction of evidence. Id. The Fifth Circuit has extended the holding of Ortiz to searches of cell phones. United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007). However, the Finley court did not explain why cell phones should be treated the same as pagers for purposes of the Fourth Amendment.

After the Finley opinion was entered, a court in the Northern District of California distinguished cell phones from pagers and suppressed the information retrieved from the cell phones. United States v. Park, 2007 WL 1521573 (N.D. Cal. 2007). In Park, the court found that cell phones can store a great quantity of information, and the government made no showing that the search was necessary to prevent the destruction of evidence. Id. at *9. The court further found that the search of the cell phones could not be considered an inventory search, because such searches are used to document possessions of a person in custody, not as a "ruse for a general rummaging in order to discover incriminating evidence." Id. at *10 (quoting Florida v. Wells, 495 U.S. 1, 4 (1990)).

To determine if the search was valid, the Court has considered whether a search incident to an arrest, an inventory search, or exigent circumstances provide an exception to the warrant requirement in this case. Further, the Court has taken into account the testimony Agent Mitchell gave at the evidentiary hearing regarding his reasons for searching the cell phones for text messages: 1) he regularly performs searches as an investigative measure because it is common to find evidence of a crime in text messages; 2) it is a standard practice of the DEA and is authorized by the DEA Legal Department so long as the search is performed during the booking process; 3) he was concerned that the text messages might expire after a certain amount of time; and 4) the cell phone battery may die.

The Court declines to adopt the reasoning of Finley and extend law to provide an exception to the warrant requirement for searches of cell phones. The search of the cell phone cannot be justified as a search incident to lawful arrest. First, Agent Mitchell accessed the text messages when Wall was being booked at the stationhouse. Thus, it was not contemporaneous with the arrest. Kucynda, 321 F.3d at 1082. Also, the justification for this exception to the warrant requirement is the need for officer safety and to preserve evidence. Agnello v. United States, 269 U.S. 20, 30 (1925) (recognizing the long-held right of law enforcement "to find and seize things connected with the crime ... as well as weapons and other things to effect an escape from custody"). The content of a text message on a cell phone presents no danger of physical harm to the arresting officers or others. Further, searching through information stored on a cell phone is analogous to a search of a sealed letter, which requires a warrant. See United States v. Jacobsen, 466 U.S. 109, 114 (1984).

Search of defendant’s house after his arrest outside his house for violation of bail, the search authorized as a condition of bail, was reasonable. United States v. Gates, 2008 U.S. Dist. LEXIS 102989 (D. Maine December 19, 2008), citing State v. Ullring, 1999 ME 183, PP 26-27, 741 A.2d 1063, 1073 (1999).

Defendant walking away from the police knelt down and hid a gun under a block in an alley. He had no reasonable expectation of privacy where he left the gun. The officer could see the gun sticking out from under the block, too. United States v. Harris, 2008 U.S. Dist. LEXIS 102976 (D. Del. December 22, 2008).*

Court finds that there was no traffic violation from a purported license plate light being out to justify the stop. United States v. Babarovic, 2008 U.S. Dist. LEXIS 103001 (S.D. Tex. December 22, 2008).

Protective sweep under Buie was justified by belief there were two felons present. Plain view of gun was valid. State v. Hicks, 3 So. 3d 539 (La. App. 5th Cir. 2008).*

Record supports the trial court's conclusion defendant consented to the search of his car. People v. Visich, 57 A.D.3d 804, 870 N.Y.S.2d 376 (2d Dept. 2008).*

Officers watched defendant purchase psuedo three times and then he committed a traffic violation. PC for a search of the car was present by the plain view of the psuedo he saw on the dashboard. Vafaiyan v. State, 279 S.W.3d 374 (Tex. App. – Ft. Worth 2008).*

"[T]he trash pulls of April 17, 2008 and April 24, 2008 revealed drug paraphernalia and residue of both cocaine and marijuana suggesting an ongoing packaging, storing or distribution pattern. The search warrant was obtained on May 7, 2008, almost two weeks after the last trash pull, and executed on May 14, 2008, within three weeks of the last trash pull. Under these circumstances the information was not stale." United States v. Robinson, 2008 U.S. Dist. LEXIS 102689 (S.D. Fla. December 19, 2008).*

Landlords had no standing to challenge rental unit inspections of their tenants. Steinhauser v. City of St. Paul, 595 F. Supp. 2d 987 (D. Minn. 2008).*

The omitted information in the affidavit was material, but it was not intentionally omitted because it would have aided in showing that the information was not stale. Even if alleged false information was omitted and the affidavit reconsidered as reformed, PC would still exist. United States v. Holt, 2008 U.S. Dist. LEXIS 102769 (M.D. Fla. December 10, 2008).*

Patdown was justified by reasonable suspicion, but opening pill bottle in pocket was not justified by plain feel because it was obvious it was not a weapon. State v. Dickerson, 2008 Ohio 6544, 179 Ohio App. 3d 754, 903 N.E.2d 697 (2d Dist. 2008):

[*P22] Applying that standard, the Supreme Court pointed out that "once the officer determines from his sense of touch that an object is not a weapon, the pat-down frisk must stop. The officer, having satisfied himself or herself that the suspect has no weapon, is not justified in employing Terry as a pretext for a search for contraband." Evans, 67 Ohio St.3d at 414.

[*P23] Officer Blackburn's testimony indicates that upon patting down Dickerson's clothing, he felt something hard in his coat pocket and that he did not know what it was. He could not testify that it felt like a weapon or that it was contraband; his testimony was that "[i]t could have been anything." He also testified that he could not determine that the pill bottle that he retrieved from this pocket contained contraband until he opened it. And, at the point of opening it, it was apparent that it was not a weapon.

Private security guard was not a state actor when he approached defendant in apartment complex to question what he was doing there. Even if he was, the conduct hardly rose to the level of a seizure. State v. Branch, 2008 Ohio 6721, 2008 Ohio App. LEXIS 5594 (2d Dist. December 19, 2008).*

Freezing defendant's home until a search warrant could be obtained was justified by probable cause and fear that the house might be accessed and drugs disposed of. State v. Prater, 2008 Ohio 6730, 2008 Ohio App. LEXIS 5625 (2d Dist. December 19, 2008).*

Defendant's stop and arrest for DUI was based on trial court's finding that she did not dim her lights for oncoming traffic. State v. Graves, 2008 Tenn. Crim. App. LEXIS 976 (December 17, 2008).*

Defense counsel was not ineffective for not moving to suppress a patdown just to put him in a patrol car that produced drugs by plain feel. State v. Rippy, 2008 Ohio 6680, 2008 Ohio App. LEXIS 5562 (10th Dist. December 18, 2008).*

Defendant's investigative stop in response to a radio call of a shooting was justified. His actions justified handcuffing, and he was constitutionally removed for a show up without it being an arrest. Commonwealth v. Phillips, 453 Mass. 203, 897 N.E.2d 31 (2008):

Phillips's claims that the description of him given by Echols (a black male wearing a green jacket) was insufficient to justify his stop. He ignores the entire circumstances surrounding his stop, namely, the temporal proximity of the stop to the reported crime, his geographical proximity to the scene of the reported crime, his presence in a location that matched the reported direction in which the suspects had fled, and his bizarre conduct of crouching behind a tree in front of a house. Based on all these facts, as well as Phillips's match to a general description of one of the suspects, the police possessed the requisite reasonable suspicion to justify Phillips's stop. See Commonwealth v. Mercado, 422 Mass. 367, 371 (1996).

We reject Phillips's contention that, by handcuffing him and placing him in a police wagon (until Echols made the identification), the detention constituted an arrest. A "justifiable threshold inquiry permits a limited restraint of the individuals involved as long as their detention is commensurate with the purpose of the stop." Commonwealth v. Feyenord, 445 Mass. 72, 77 (2005), cert. denied, 546 U.S. 1187 (2006), quoting Commonwealth v. Torres, 424 Mass. 153, 162 (1997). "The degree of suspicion the police reasonably harbor must be proportional to the level of intrusiveness of the police conduct." Commonwealth v. Feyenord, supra, quoting Commonwealth v. Sinforoso, 434 Mass. 320, 323 (2001). As conceded by Phillips, he acted "evasively" when stopped. The police reasonably could have viewed Phillips's movement to the front porch of the house, and noncompliance with police commands, as an attempt to flee, and physically restrained him. The fact that they also handcuffed Phillips is not dispositive. See Commonwealth v. Williams, supra at 118, and cases cited. Because of the violent nature of the reported crimes, his attempt to flee, and the possible danger to the safety of the officers as well as the potential occupants of the house, the scope of Phillips's detention was permissible. Id. at 118-119. He was handcuffed and placed in the patrol wagon for only ten minutes until Echols made his positive identification. The brief detention was made with the permissible purpose of completing the identification. We add that Phillips's short detention in this manner, and for this purpose, was further justified when, minutes after he was handcuffed, the officers who had detained him learned that other officers had found two handguns nearby. The police did not exceed the scope of a lawful investigatory stop when they handcuffed and detained Phillips. See id. at 117-119.

Quarles public safety exception is consonant with the Kentucky Constitution. Defendant was questioned about a discarded gun. Henry v. Commonwealth, 275 S.W.3d 194 (Ky. 2008), aff'g unpublished opinion of Court of Appeals.*

An anonymous tip of DUI does not support a stop unless the officer sees something that supports the conclusion the driver is under the influence. Here there was none. Harris v. Commonwealth, 276 Va. 689, 668 S.E.2d 141 (2008).*

Defendant had no expectation of privacy in his city owned computer that child porn was found on. United States v. Zimmerman, 303 Fed. Appx. 207 (5th Cir. 2008) (unpublished).*

Fourth Circuit holds, in light of its prior authority, that a driver not authorized by the rental company has no reasonable expectation of privacy in the rental car, recognizing a conflict in the circuits. United States v. Mincey, 2008 U.S. App. LEXIS 25508 (4th Cir. November 24, 2008) (unpublished).*

In responding to a 911 call, it was reasonable for the police to walk up to the one vehicle in the vicinity to see what was going on. United States v. Fields, 2008 U.S. Dist. LEXIS 102625 (N.D. Ind. December 18, 2008).*

Defendant IRS agents were sued under Bivens for $2,000 that disappeared between the seizure in plaintiff's house and the bank where it was deposited. The motion to dismiss was denied because plaintiff was not obligated to pursue a Federal Tort Claims Act action first. Springer v. Horn, 2008 U.S. Dist. LEXIS 102548 (N.D. Okla. December 17, 2008).*

Search of plaintiff's vagina for possibly hidden drugs was based on reasonable suspicion from another officer, and it was thus justified on plaintiff's arrest under Schmerber. Rogers v. Phoenix Police Dep't, 2008 U.S. Dist. LEXIS 102559 (D. Ariz. December 8, 2008).*

Handcuffing defendant after his flight was permissible under Terry. Plain feel justified search. United States v. Watson, 2008 U.S. Dist. LEXIS 101918 (N.D. Cal. December 5, 2008).*

The court credits the dog's training, in the face of an expert which did not show that the dog did not properly alert, but the officer testified that the dog did. United States v. Brooks, 589 F. Supp. 2d 618 (E.D. Va. 2008).*

The officer "was presented with a visibly nervous driver and passenger, numerous air fresheners, and a single key in the ignition. The court also does not discount [his] knowledge and experience gleaned from his employment as a DPS trooper." United States v. Alexander, 589 F. Supp. 2d 777 (E.D. Tex. 2008).*

The consenter had no apparent authority to consent to a search of defendant's shoe box because there was no common control. United States v. Taylor, 2008 U.S. Dist. LEXIS 102085 (N.D. Ohio December 9, 2008):

Here, as in Waller, Fultz, and Purcell, the court finds that Arnett lacked actual authority to consent to the search of Taylor's closed shoe box because: (1) none of Arnett's personal effects were contained in Taylor's shoe box; (2) the evidence shows that Taylor exercised exclusive control over the shoe box; and (3) the evidence shows that Taylor never gave Arnett permission to open the shoe box. The government's attempt to argue that Arnett had actual authority to consent to the search of the closed shoe box because some of Arnett's personal effects were stored in the closet where the shoe box was found is unavailing. Significantly, "what matters is not whether [Arnett] had access to the [closet], but whether she had mutual use and joint access to or control over [the shoe box]." Fultz, 146 F.3d at 1106. Accordingly, in light of Waller, Purcell, and Fultz, the court finds that the government did not meet its burden of showing that Arnett had actual authority to consent to the search of Taylor's closed shoe box.

It is not clear whether Samson applies to New York parolees for a suspicionless search. Here, however, there was suspicion, so that question does not have to be decided. United States v. White, 2008 U.S. Dist. LEXIS 102015 (S.D. N.Y. December 16, 2008)

Courts disagree as to whether or not the relevant parole regulation in New York is similar to the California statute at issue in Samson, and thus there is no consensus on whether or not Samson applies to cases involving New York parolees. Several courts have noted in dicta that New York does not have a statute similar to the California statute at issue in Samson, and they declined to decide whether the parole regulation and waiver signed by parolees in New York are sufficiently similar to the California statute for Samson to apply, instead finding the searches lawful on other grounds. See Alvarado v. City of New York, 482 F. Supp. 2d 332, 336 ("Samson specifically addressed a California parole statute that explicitly allowed for a search without cause by a parole officer. New York does not have an analogous provision.") (internal citation omitted); Gathers v. White, 2007 U.S. Dist. LEXIS 9054, at *9, fn. 4 (E.D.N.Y Feb. 8, 2007) (noting that New York does not have parole-specific statutory search provisions and declining to decide whether the features of "New York's parole landscape mean that New York allows the sort of suspicionless search of parolees that California does"); United States v. Justiniano, 2008 U.S. Dist. LEXIS 27709, *14-*15 (W.D.N.Y. May 29, 2008) (declining to apply Samson standard of suspicionless searches of parolees because "New York has no analogous statute" to the one at issue in Samson). However, opinions by other judges have suggested that the New York parole regulation and waiver are similar to the California statute in Samson. See United States v. Massey, 461 F.3d 177, 180 (2d Cir. 2006) (Miner, J. concurring) (finding the "waiver" signed by parolees authorizing searches in New York to be, "for all practical purposes, indistinguishable from the 'waiver' apparently signed in Samson in the form prescribed by California law"); United States v. Stuckey, 2006 U.S. Dist. LEXIS 58173, *8 (S.D.N.Y. 2006) (finding that the relevant parole regulation in New York is "[s]imilar to the California statute at issue in Samson" and holding that Samson may be dispositive, and in any case, the search was rationally and reasonably related to the parole officer's duties).

In addition to the open question of whether or not Samson applies to cases involving New York parolees, the scope of Samson's holding is unclear. The suspicionless search at issue in Samson was a search of the parolee's person. At no point in the opinion does the Supreme Court address the issue of whether a suspicionless search of a parolee's residence is permitted by the Fourth Amendment, under the California statute or otherwise.

A hypothetical possibility defendant might have had a gun in the house is not an exigent circumstance. United States v. Risner, 2008 U.S. Dist. LEXIS 102170 (N.D. Ind. December 17, 2008):

No exigent circumstances justified the officers' entry into the residence. The government notes that Mr. Risner was known to have a firearm and could have begun firing at those outside the residence; Mr. Risner was known to drive while intoxicated in the past, was known to be intoxicated, and so might have taken to the road. It's true that nothing absolutely prevented these possibilities, but they were no more than hypothetical possibilities, not an apparent urgency that justified making what would have been an unreasonable search for Mr. Risner under other circumstances. There was no risk of destruction of evidence; there was no need (as distinguished from an outside chance) to protect life or prevent serious injury. Compare United States v. Dukes, 2008 WL 56017 (N.D. Ind. 2008). Ms. Dean didn't tell Deputy Dulin that she needed to get back into the house because she had no place else to go. Compare United States v. Henderson, 536 F.3d 776, 785 (7th Cir. 2008).

Defendant's failure to object to the Magistrate's R&R was a waiver except for plain error review, and, on Anders review, there was no plain error. On the record, the search was plainly by consent. United States v. Macias, 306 Fed. Appx. 409 (10th Cir. 2008).*

Defendant consented to officers entering his house to look for others that might have been involved in a fight, and that necessarily permitted them to look in the cellar. State v. Uran, 2008 ND 223, 758 N.W.2d 727 (December 16, 2008).*

Under implied consent law, the defendant does not have to consent [but he can refuse]. State v. Salter, 2008 ND 230, 758 N.W.2d 702 (December 16, 2008).*

Defendant was not detained when the officer approached him to talk to him while defendant was parked in his car. There were no lights and the car was not blocked. State v. Isenhour, 194 N.C. App. 539, 670 S.E.2d 264 (2008).*

Officer's patdown for weapons before a "courtesy" police car ride did not justify a search of the person because the officer did not feel any weapons and it became an exploratory search. The court considers the split of authority on the propriety of a patdown as a matter of course whenever anybody gets into a police car and does not have to enter the fray. State v. Harlan, 2008 ND 220, 758 N.W.2d 706 (December 16, 2008).*

Defendant abandoned the house he was living in it. The proof showed he had no intention of returning. State v. McKinney, 2008 N.C. App. LEXIS 2271 (December 16, 2008).

It is not required under Franks for a CI who was already described as an admitted burglar and drug abuser to be described as under the influence at the time he gave the information. State v. McGrane, 2008 Iowa App. LEXIS 1247 (December 17, 2008).*

A person who borrows a car with consent of the owner has standing. Here, the state put on nothing to show no standing. [Isn't the question of standing the defendant's burden?] Brown v. State, 19 So. 3d 85 (Miss. App. 2008).

Search incident can go to the defendant's buttocks when there was concern he still had drugs on him, which would have meant the drugs would come into the jail. Court refuses to adopt the minority rule that the defendant cannot complain on appeal of an alleged illegal search unless he also testified at trial. Hendricks v. State, 897 N.E.2d 1208 (Ind. App. December 12, 2008).*

Bell v. Wolfish factors applies to all jail searches and not just strip searches. Powell v. State, 898 N.E.2d 328 (Ind. App. 2008).

Disorderly conduct arrest supports search incident. State v. Hansen, 2008 Iowa App. LEXIS 1251 (December 17, 2008).*

There is no requirement under the collective knowledge doctrine of Hensley and Whiteley that all the information be spread to the others. United States v. Olmedo, 552 F. Supp. 2d 1347 (S.D. Fla. March 20, 2008).*

Traffic stop was justified, and the gun protruding from defendant's pocket was in plain view when he got out of the car. United States v. Cintron, 2008 U.S. Dist. LEXIS 101677 (D. Mass. December 15, 2008).*

Defense counsel was not ineffective for not filing a motion to suppress that would have failed as a matter of law. United States v. Perez-Luna, 2008 U.S. Dist. LEXIS 101516 (S.D. N.Y. December 10, 2008).*

Voting rights case Fourth Amendment claim unsupported by any allegation of unlawful search and seizure was dismissed. Oh v. Phila. County Bd. of Elections, 2008 U.S. Dist. LEXIS 101656 (E.D. Pa. October 31, 2008).*

Plaintiff's Fourth Amendment illegal search claim accrued at the time of the occurrence, and there was no Heck bar at the time. Kirkland v. Doe, 2008 U.S. Dist. LEXIS 101472 (D. N.J. December 15, 2008):

Although Wallace only directly addressed the issue of whether the Heck bar applied to a false arrest claim, its reasoning is equally applicable to a claim for illegal search and seizure. See Dominguez v. Hendley, 545 F.3d 585, 589 (7th Cir. 2008) (citing Wallace for the proposition that "Fourth Amendment claims as a group do not necessarily imply the invalidity of a criminal conviction, and so such claims are not suspended under the Heck bar to suit."); see also Mallard v. Potenza, No. 94-cv-222, 2007 WL 4198246, at *3 (E.D.N.Y. Nov. 21, 2007) (noting that courts have found it a "rather modest leap" to extend Wallace's holding to search and seizure claims). Here, as in Wallace, there was no conviction in existence at the time the illegal search and seizure took place. Hence, the Heck bar does not apply and the two-year statute of limitations has long expired for that claim. This Court agrees with other courts in finding that Wallace supersedes the Third Circuit's analysis in Gibson of § 1983 claims for Fourth Amendment violations. Kirkland concedes that Wallace applies to his Fourth Amendment claims (Pl.'s Br. 5) and that the Heck bar does not defer accrual of those claims. Because Kirkland did not file his Complaint until after the two-year statute of limitations on his Fourth Amendment claims expired, those claims are dismissed.

(Comment: They get you coming and going. Heck led people to not file claims while they awaited the outcome of the Fourth Amendment claim, then Wallace holds it accrued in the beginning. Gotcha.)

Defendant showed sufficient doubt about counsel's performance in failing to file a motion to suppress and urging a guilty plea before the videotape of the stop was even made available to the defense. The videotape of the defendant's stop was reason
to fire defense counsel and hire another lawyer, and the pleadings and the video were sufficient to show a likelihood of success as to consent not being voluntary. On the merits of the stop, it was based on a traffic violation, but the record is devoid of anything showing reasonable suspicion. On the merits of the search, the defendant was asked to follow the police officer to another location for the writing of his warning, but the officer retained the paperwork during this "decamp[ment]." The court does not decide the merits of the consent issue because there was no suppression hearing, but it is outlined for the District Court. Remanded for a full hearing on the merits of the search claim and counsel's strategy for the guilty plea rather than a conditional plea. United States v. Cavitt, 550 F.3d 430 (5th Cir. 2008).*

A Michigan v. Long protective sweep of defendant's car was based on reasonable suspicion based on defendant's actions and the location of the stop. United States v. Walker, 2008 U.S. Dist. LEXIS 101545 (E.D. Va. December 16, 2008)*:

The incident occurred just after 12:00 a.m. in an area known by the police to be a high crime, high narcotics, and high violence area; Walker jumped out of the car when the police approached the vehicle to ask him a question; he appeared nervous, his voice was shaky, and he began to look around nervously; and he gave inconsistent information about his place of residence. Based on these circumstances, this Court finds that the officers had a reason to detain and conduct a protective sweep of the vehicle so as to protect themselves and the public. Therefore, the seizure and protective sweep of the vehicle was constitutionally justified.

(Comment: The use of "protective sweep," originally a look for persons in a building under Buie, now includes a look for weapons, too.)

An officer with an anonymous report of drug activity in a parked car could approach the car to inquire, but that was it. Corroboration here was only to the extent of the fact the car was where it was said to be and two people were in it. Nothing else was learned from talking to the people in the car to justify further detention, and the motion to suppress was properly granted. State v. Wilson, 2008 Tenn. Crim. App. LEXIS 962 (December 11, 2008).*

Police officer's conduct of a knock-and-talk looking for a person involved in a rollover accident were engaged in a criminal investigation, and the occupant was entitled to warnings of a right to refuse entry. State v. Freepons, 147 Wn. App. 689, 197 P.3d 682 (2008):

The Washington Supreme Court has noted that "there is a fundamental difference between requesting consent to search a home and requesting consent to enter a home for other legitimate investigatory purposes." Khounvichai, 149 Wn.2d at 564 (emphasis added). Here, the deputies' intention to search the residence for evidence of a crime was clear.

Plaintiff's call to the fire department for assistance is consent to their entry, and a plain view after that was valid. Rose v. Julliano, 2008 U.S. Dist. LEXIS 101094 (E.D. N.Y. December 8, 2008).*

Stop of vehicle was justified based on report of a domestic distrubance in it. State v. Clark, 2008 MT 419, 347 Mont. 354, 198 P.3d 809 (December 16, 2008)*; State v. Lewis, 2008 Tenn. Crim. App. LEXIS 956 (December 9, 2008).*

Defendant who was on the premises for 15 minutes before the police arrived, and who was a regular social guest at the house, but not an overnight guest did not have standing. United States v. Johnson, 2008 U.S. Dist. LEXIS 101396 (S.D. Ill. December 16, 2008):

Here, Defendant's 15-minute "drop in" visit would hardly be recognized as a valuable societal institution where one seeks out shelter and privacy away from the public, as would an overnight guest. The Court will not construe and extend Olson and Carter to warrant Defendant's claim to Fourth Amendment protection in this situation.

Plaintiff had no standing to challenge the seizure of an incriminating letter he mailed from jail when it was seized from the recipient. Lazore v. Immigration and Customs Enforcement, 2008 U.S. Dist. LEXIS 101101 (N.D. N.Y. December 15, 2008).*

Officer's practice of patting down every person he puts in his patrol car while a ticket is being written was unreasonable when the patdown is not based on articulable suspicion the defendant is armed. The state's consent argument is unavailing because no reasonable person would feel he could not comply. State v. Thomas, 2008 Ohio 6595, 2008 Ohio App. LEXIS 5491 (7th Dist. December 11, 2008):

[*P29] Based on this evidence alone, it seems clear that Sergeant Timberlake acted in violation of Lozada. There were no dangerous conditions facing Sergeant Timberlake or appellant which would have necessitated that they leave the roadside and enter the police cruiser. Per Sergeant Timberlake's own testimony, the only reason he wanted to place appellant in his cruiser was for his own convenience. Thus, pursuant to Lozada, it would appear that Sergeant Timberlake's search for weapons before placing appellant in the cruiser was unreasonable.

. . .

[*P39] But in addition to these facts, before asking if appellant would consent to a pat down, Sergeant Timberlake told appellant that he was going to take him back to the cruiser and issue him a citation. If the officer makes a show of authority sufficient to communicate to a reasonable person that he was not free to leave, the consent to search is not voluntarily given. State v. Ingram (1992), 82 Ohio App.3d 341, 344, 612 N.E.2d 454, citing Florida v. Bostick (1991), 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389. This is a factual determination for the trial court to make. Id.

[*P40] A reasonable person in appellant's position would not feel free to leave at the point in time when Sergeant Timberlake requested permission to conduct a pat down. At this time, Sergeant Timberlake told appellant that he was going to issue him a citation and told him that he was going to place him in the cruiser. It was entirely reasonable for appellant to feel that he was not free to leave at this point. A reasonable person would likely feel that he was required to accompany the officer to his cruiser and await the issuance of the citation. "The potentially coercive effect of the roadside detention is far more compelling when the officer requests permission to search before completing the citation." (Emphasis sic.) State v. Bickel, 5th Dist. No. 2006-COA-034, 2007 Ohio 3517, at P26. "Once the detention is ended by the issuance of the citation a reasonable person would at least inquire as to whether or not he is free to go on his way." (Emphasis added.) Id. at P33.

Hot pursuit into defendant's home on suspicion of merely being intoxicated violated Payton and Welsh and was not supported by Santana. State v. Lala, 1 So. 3d 606 (La. App. 4th Cir. 2008):

Turning to the circumstances at hand, we find that Officer Sullivan's pursuit of the defendant into her home was unreasonable. While we are not prepared to say that [Santana]'s rationale cannot be extended beyond the context of probable cause to arrest, given the special protections of the home, the State must present a strong interest in conducting a warrantless entry into the home. Here, the defendant's actions would certainly have appeared perplexing to an observer, and were sufficient to warrant further investigation by Officer Sullivan and his partner; however, once the defendant retreated into the home, any concern for public safety was alleviated, and any concern for Lala's personal safety could have been addressed by other measures short of forcible entry into the home. Given the limited severity of Lala's suspected offense, the State's interest would have been well served by first knocking on the defendant's door. Accordingly, we reverse the denial of defendant's motion to suppress the evidence.

Search of defendant's car was justified by the automobile exception because there was probable cause to believe it contained contraband. Therefore, the court did not have to reach search incident or inventory as an alternative. State v. Wilson, 111 Conn. App. 614, 960 A.2d 1056 (December 16, 2008).*

The California Supreme Court holds that a police officer cannot stop an older vehicle with a temporary tag just because statistically they are more likely to be invalid tags. This would be an unreasonable use of police discretion. People v. Hernandez, 45 Cal. 4th 295, 86 Cal. Rptr. 3d 105, 196 P.3d 806
(2008); In re Raymond C., 45 Cal. 4th 303, 86 Cal. Rptr. 3d 110, 196 P.3d 810 (2008):

To accept the Attorney General's argument would be to depart from settled California and federal precedent requiring particularized suspicion. This we decline to do. Courts from other jurisdictions also seem uniformly to have concluded that permitting officers to stop any car with temporary permits would be to countenance the exercise of the unbridled discretion condemned in Delaware v. Prouse, supra, 440 U.S. at page 663. (See United States v. Wilson (4th Cir. 2000) 205 F.3d 720; Bius v. State (Ga.Ct.App. 2002) 563 S.E.2d 527; State v. Childs (Neb. 1993) 495 N.W.2d 475; State v. Aguilar (N.M.Ct.App. 2007) 155 P.3d 769; State v. Chatton (Ohio 1984) 463 N.E.2d 1237; State v. Butler (S.C.Ct.App. 2000) 539 S.E.2d 414; State v. Lord (Wis. 2006) 723 N.W.2d 425; see also People v. Nabong (2004) 115 Cal.App.4th Supp. 1.)

A window tint stop led to reasonable suspicion of crime. State v. Jolly, 2008 Ohio 6547, 2008 Ohio App. LEXIS 5463 (2d Dist. December 12, 2008)*:

[*P18] Here, having approached Jolly's vehicle, Abney and Coleman, experienced officers, observed conduct that they were able to articulate that raised concerns for their safety. Jolly refused to look at Abney, Jolly was in obvious distress, Abney could not understand Jolly's responses to his routine questions, and most importantly, Jolly ignored Abney's order to stop reaching for the bag. For their safety, the officers were entitled to remove Jolly from the car and pat him down. Placing Jolly in the cruiser did not render his detention custody nor exceed the scope of Abney's legitimate investigation of the window tint violation.

A radio call about a theft and ID'ing the suspect justified defendant's stop when he was the only person in the vicinity at the time. He was cooperative and consented to the show up. He was not handcuffed or directed to go anywhere. State v. Walker, 2008 Ohio 6551, 2008 Ohio App. LEXIS 5450 (2d Dist. December 12, 2008).*

"[A]n outstanding arrest warrant deprives its subject of the reasonable expectation of privacy the Fourth Amendment protects, the exclusionary rule does not apply to a search and seizure of the subject that would otherwise be illegal because of a Terry violation. State v. Walker-Stokes, 2008 Ohio 6552, 180 Ohio App. 3d 36 (2d Dist. December 12, 2008) (overruling two cases).

Arrest warrant issued after judge reviewed "the file" which included sufficient facts to find probable cause was valid. State v. Wenke, 276 Neb. 901, 758 N.W.2d 405 (2008).*

Handcuffing the defendant on mere speculation to check for warrants was an unreasonable seizure. Defendant was otherwise cooperative and did not try to flee, and there was no suspicion there was a weapon on him. State v. Palmer, 1 So. 3d 689 (La. App. 3d Cir. 2008).*

Mistake in SW that stated it was issued July 21 was actually December 21st because the investigation did not even start until December 19th. This was just a typographical error. [Makes one wonder if the issuing judge ever read the warrant or affidavit, doesn't it?] State v. E. J. F., 999 So. 2d 224 (La. App. 3d Cir. 2008).*

A peeling inspection sticker is not reason for a stop. Moore v. Commonwealth, 276 Va. 747, 668 S.E.2d 150 (2008).*

In a knock-and-talk, responding to a request to search the premises, the defendant said “Come on in” and opened the door further and stepped back. This was consent. Payton v. Commonwealth, 2008 Ky. App. LEXIS 370 (December 5, 2008).*

Trial court suppressed as a Fourth Amendment violation defendant's cellphone call that was overheard on the Intoxilyzer room surveillance camera with sound. Since the defendant did not raise that ground in the trial court, the order is vacated and remanded. State v. Dominique, 2008 ME 180, 960 A.2d 1160 (December 9, 2008).*

Defendant's handcuffing was not per se an arrest. The trial court erred in so concluding. State v. Sheppard, 271 S.W.3d 281 (Tex. Crim. App. 2008):

Indeed, appellee was not free to leave at that point; he was being temporarily detained while Officer Smith conducted his investigation. That is precisely what Terry permits-a temporary detention, in which the person is not free to leave, while the police officer investigates whether a crime has been committed. But a Fourth Amendment Terry detention is not a custodial arrest, and the use of handcuffs does not automatically convert a temporary detention into a Fourth Amendment arrest. As Professor LaFave explains, handcuffing a person who has been temporarily detained "is not ordinarily proper, but yet may be resorted to in special circumstances, such as when to thwart the suspect's attempt to 'frustrate further inquiry.'"

Defendant was stopped and arrested for custodial traffic offenses, so his vehicle could be searched incident to that arrest, and the question of consent does not have to be resolved. United States v. Gray, 2008 U.S. Dist. LEXIS 99995 (N.D. Ill. December 11, 2008).*

Call from CI to defendant that officer was listening to setting up drug deal was PC when the defendant showed up. United States v. Diaz-Delgado, 2008 U.S. Dist. LEXIS 100427 (S.D. Cal. December 10, 2008).*

Search of a passenger's purse incident to the driver's arrest on a parole violation was unlawful. United States v. Mataafa, 2008 U.S. Dist. LEXIS 100419 (E.D. Cal. December 1, 2008)* (citing United States v. Welch, 4 F.3d 761, 764 (9th Cir. 1993) (consent does not reach to passenger's purse), United States v. Vaughan, 718 F.2d 332 (9th Cir. 1983) (search incident of passenger's briefcase unlawful).

Defendant had no reasonable expectation of privacy in jail telephone calls to persons other than his lawyer. United States v. Morris, 2008 U.S. Dist. LEXIS 100296 (W.D. Pa. December 8, 2008).*

Officer had reasonable suspicion: "(1) she had received information that gunshots had been fired in the 200 block area of Dinwiddie St., a high crime area; (2) moments later she observed Defendant proceeding from that same area to 5th Ave. in close proximity both in time and location to the sound of the shots; and (3) the late hour on Christmas Eve or Christmas morning." Plus, the defendant was evasive when he saw the officer. United States v. Sewell, 2008 U.S. Dist. LEXIS 100289 (W.D. Pa. December 11, 2008).*

Video surveillance in a police locker room to look for vandalism was not clearly established to be a constitutional violation, particularly here where the video camera did not work. State action was also not clear. [Case is interesting because it summarizes the caselaw of locker room video surveillance.] Devittorio v. Hall, 589 F. Supp. 2d 247 (S.D. N.Y. 2008).*

Evidence supported the district court's conclusion that defendant's consent during his traffic stop was consensual. United States v. Gurrola, 301 Fed. Appx. 337 (5th Cir. 2008)* (unpublished).

Defendant consented to a search of his car which produced nothing. He first consented then revoked consent to search his person, and the officer believed he was secreting drugs under an Ace bandage wrapped around his midsection. Defendant was arrested for felon in possession of a firearm and then validly searched incident to that. United States v. Sims, 302 Fed. Appx. 195 (4th Cir. 2008)* (unpublished).

Deputy sheriff who did not enter during raid was still liable because he organized the raid and did not read the warrant. Hunt v. Tomplait, 301 Fed. Appx. 355 (5th Cir. 2008)* (unpublished):

Deputy Tomplait was not a mere bystander in the execution of the search warrant. He actively led the search team at Chief Hunter's request to the only "Hunt residence" that he was aware of, without reading the search warrant or pursuing additional information about the residence described in the search warrant. The fact that Deputy Tomplait did not enter the house does not relieve him of liability as a matter of law; his identification of the Hunt residence as the residence to be searched--and subsequent leadership of the search team to the residence--was a direct cause of the Fourth Amendment violation.

Defendant's consent after an illegal entry into his home was coerced. United States v. Long, 2008 U.S. Dist. LEXIS 99762 (E.D. Pa. December 9, 2008):

When Agent Curran asked for permission to enter Long's residence, Long reasonably believed his only choice was to cooperate. The officers did not attempt to obtain Long's written consent. Agent Curran, in demanding to seize the contraband, implied Long had no right to refuse. The officers remained inside Long's residence for approximately two hours and subjected him to prolonged questioning. Long's consent was the product of the officers' show of authority, not his free will. The government has not met its burden of proving that Long's consent was voluntary. If anything, the events following Long's admissions outside the residence suggest his consent was coerced, not voluntary. The presence of coercion rendered Long's abandonment of the contraband firearms involuntary.

Search incident of a car after an armed robbery produced a six page print out: "How To Commit Armed Robbery In Six Easy Steps." The printout was done eleven hours before the robbery. What is apparent from reading the "Six Easy Steps" is that it apparently is a joke.

A violation of the Electronic Communications Privacy Act (ECPA), 18 U.S.C. §§ 2702-2703, in obtaining provider information is not remedied by suppression of evidence, just a damages action. United States v. Beckett, 544 F. Supp. 2d 1346 (S.D. Fla. February 19, 2008).*

Consent justified protective sweep here, so there is no need to determine whether an arrest is required first. United States v. Toledo, 2008 U.S. Dist. LEXIS 99669 (D. Utah December 9, 2008).*

"Year-old information suggestive of drug trafficking, freshened by same-day corroboration of the same, is not stale." United States v. Jenkins, 2008 U.S. Dist. LEXIS 99366 (D. Maine September 29, 2008) (I hate the use of "the same" this way.).

Article: Does the Fourth Amendment Follow the Flag? On Findlaw.com by Prof. Michael Dorf, discussing In re Terrorist Bombings of U.S. Embassies in East Africa (Fourth Amendment Challenges), posted here on Nov. 27.

[FYI: U.S. District Court cases on Lexis passed last year's total about a week ago. They will pass 100,000 for the first time next week.]

Defendant's confederate was nabbed inside a bank for forgery. Officers saw defendant in the getaway car outside and went to arrest him. They could investigate a bulge on the floormat when the officer was told defendant had a gun. State v. Chang, 147 Wn. App. 490 (November 17, 2008).*

Defense counsel was not ineffective for not arguing all defendant's post-conviction theories about how the search was invalid since none were capable of reversing. Consent after an unlawful entry was sufficiently attenuated to purge the taint under Brown v. Illinois. State v. Artic, 2009 WI App 12, 762 N.W.2d 436 (2008).*

Conversations over commercially available hand held radios that were monitored by police had no reasonable expectation of privacy under the Montana Constitution or Fourth Amendment. State v. Cotterell, 2008 MT 409, 347 Mont. 231, 198 P.3d 254 (2008):

[*P52] In the case sub judice, Cotterell asserts that he had a reasonable expectation of privacy in the conversations he had with his son over their hand-held radios. On the facts of this case, we reject Cotterell's position. Cotterell and his son engaged in their communications using widely available hand-held radios over a public channel that can be monitored by anyone using similar equipment. Contrary to Cotterell's assertions, these sorts of conversations cannot be considered "private." "Where a person has gone to considerable trouble to keep activities and property away from prying eyes, the person evinces a subjective expectation of privacy in those activities and that property." Goetz, P 29 (citing State v. 1993 Chevrolet Pickup, 2005 MT 180, P 12, 328 Mont. 10, P 12, 116 P.3d 800, P 12). In this case, rather than keeping his "activities and property away from prying eyes"--or ears, as the case may be--Cotterell actually went to "considerable trouble" to announce his activities using a media that is accessible to any member of the public with commonly available technology.

Jail telephone calls were validly made and introduced into evidence. The fact the phone was handed to others after the recorded voice said that calls may be recorded was not determinative. Commonwealth v. Boyarsky, 452 Mass. 700, 897 N.E.2d 574 (2008).*

There is no heightened Fourth Amendment standard for a consensual recording by a wired CI sent into defendant's house to record him. Having let the CI in, the expectation of privacy "vanished," and the Third Circuit has already decided that. United States v. Caple, 2008 U.S. Dist. LEXIS 98966 (M.D. Pa. December 8, 2008):

Defendant attempts to distinguish these cases by pointing out that the conversation here occurred in plaintiff's home, where he had a heightened expectation of privacy. The defendant in Lee raised a similar argument. In that case, the confidential informant's recording took place in the defendant's hotel suite. Defendant argued that the recording should be suppressed, because it "occurred in [his] hotel room, a place where a person has a heightened expectation of privacy." Lee, 359 F.3d at 200. The Third Circuit Court of Appeals rejected this argument, finding that "[w]hat is significant is not the type of room in which surveillance occurred but [defendant's] action in admitting [the confidential informant] to the room." Id. at 201. The expectation of privacy that defendant had while alone in his room "vanished" when he invited the informant into the room. Id. The court concludes that the same reasoning applies here: defendant invited the informant into his home and spoke freely with him. He did not have an expectation of privacy for the conversation in that setting and his recorded conversation with the informant is not protected by the Fourth Amendment. The informant could testify to the contents of this conversation in court, and the court will not prevent the government from supplying the jury an accurate recording of that conversation.

Reasonable suspicion for continued detention in a traffic stop was not present, but it became consensual. What is important here is what was not reasonable suspicion that was quickly dispatched by the court. United States v. Morales, 2008 U.S. Dist. LEXIS 99043 (D. Utah December 8, 2008):

The government points to the following facts to support Sergeant Nixon's claim of reasonable suspicion: (1) Mr. Morales' extreme nervousness from the inception of the stop to the end; (2) Defendants had only stayed one night in California before traveling back to Michigan, yet they had "quite a bit of luggage;" (3) the person to whom the vehicle was registered was not present; (4) the vehicle was already registered and licensed in the state of Michigan (carrying a Michigan license plate), although it had been purchased in California just two days before; and (5) the Defendants were traveling on a known drug pipeline.

The facts and circumstances of this case, however, when taken in their totality, "describe a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure." Reid v. Georgia, 448 U.S. 438, 441, 100 S. Ct. 2752, 65 L. Ed. 2d 890 (1980). Mr. Morales' nervousness describes most persons when stopped by the police. And although told that "probably" only a warning will be issued, the nervousness will often not subside until the warning is actually in hand. With regard to the luggage, Defendants were traveling across the country, which is at best a three to four day trip, in addition to the one to two days already spent in California. Furthermore, it was Christmas time, and much of the baggage in the Defendants' vehicle appeared to be shopping bags (perhaps Christmas gifts).FN4

4 It is not lost on the court that time and time again officers cite as a factor supporting their reasonable suspicion of criminal activity the fact that very little luggage was present in the car when the defendant was allegedly traveling a long distance. Apparently the luggage factor cuts both ways.

The government also finds support for Sergeant Nixon's claim of reasonable suspicion in the fact that the vehicle was properly registered on the date of purchase. But extended detentions must be justified by a reasonable articulable suspicion of criminal activity, not lawful behavior. Citizens should be encouraged to properly register their vehicles, not penalized for it. One can only imagine the suspicions that would have arisen and been articulated by Sergeant Nixon had Elaine Bailey not transferred ownership of the vehicle to her name prior to having her daughter and her daughter's boyfriend drive it back to Michigan.

With regard to traveling on a drug pipeline, Sergeant Nixon testified that virtually every highway in Utah is considered a drug pipeline. Therefore, this is a non-factor.

The facts relied on by Sergeant Nixon to find reasonable suspicion of criminal activity in this case, encompass far too much innocent behavior. Accordingly, the court finds the evidence insufficient to justify Defendants' continued detention based on reasonable suspicion. Therefore, in order for Mr. Morales' continued detention to be lawful, it must have become a "consensual encounter."

When a vehicle is stopped, a request for ID from the passenger is legally the same as a request of a pedestrian. State v. Afana, 147 Wn. App. 843, 196 P.3d 770 (December 4, 2008) (here the court is having to discuss five prior cases to see where this case lies; it is controlled by the Washington constitution, so those details are important only to Washington practitioners).

State showed sufficient nexus to places to be searched from information developed that showed that defendant had multiple stash houses. State v. Harry, 2008 Ohio 6380, 2008 Ohio App. LEXIS 5301 (12th Dist. December 8, 2008).*

Delaware finally adopts community caretaking exception, in an interesting opinion with an overview of the entire exception. Williams v. State, 962 A.2d 210 (Del. December 2, 2008):

In order to balance this caretaking function with the fundamental protections guaranteed by the Delaware and United States Constitutions, we must ascertain that the encounter was part of the police officer's community caretaker function; that the officer's actions during it remained within the caretaking function; and that once the caretaking function had ceased, either the encounter was terminated, or some other justification existed for its continuance. We find that the test promulgated by the Montana Supreme Court in State v. Lovegren, properly balances these concerns. Following an in-depth analysis of various concerns informing the community caretaker doctrine, the Supreme Court of Montana adopted the following three-part test to ensure its proper application:

First, as long as there are objective, specific and articulable facts from which an experienced officer would suspect that a citizen is in need of help or is in peril, then that officer has the right to stop and investigate. Second, if the citizen is in need of aid, then the officer may take appropriate action to render assistance or mitigate the peril. Third, once, however, the officer is assured that the citizen is not in peril or is no longer in need of assistance or that the peril has been mitigated, then any actions beyond that constitute a seizure implicating … the protections provided by the Fourth Amendment, but more importantly, those greater guarantees afforded under [state law].

We adopt this test to ensure that investigations conducted in Delaware under the community caretaker doctrine are reasonable.

The stalking astronaut's statement is invalid, but the search of her car is valid. While her statement to the police was suppressed, the location of her car with all the paraphernalia for the abduction was given in her statement, but the prosecution proved that their investigation would have led them to the car. Therefore, inevitable discovery applied. State v. Nowak, 1 So. 3d 215 (Fla. App. 5th DCA 2008):

Nowak disclosed the location of her car to police, as part of her illegally obtained statement. However, the trial court found that law enforcement would have found the vehicle legally, even if Nowak had not led them to it. This finding is supported by competent, substantial evidence. The investigating officer testified about the normal investigative measures that he would have employed to find out what vehicles Nowak regularly drove (starting with a call to her employer, NASA) and also testified that his agency would have searched the hotel parking lot where the vehicle was found based upon a document in Nowak's possession at the time of her arrest (which contained directions to this hotel). Accepting the trial court's factual finding on this issue, we conclude that any evidence seized from Nowak's car is admissible under the inevitable discovery doctrine, as long as law enforcement had a legal basis to search the car when they found it. See McDonnell v. State, 981 So. 2d 585, 591 (Fla. 1st DCA 2008) ("For the inevitable discovery doctrine to apply, the state must establish by a preponderance of the evidence that the police ultimately would have discovered the evidence independently of the improper police conduct by 'means of normal investigative measures that inevitably would have been set in motion as a matter of routine police procedure.'") (quoting Hatcher v. State, 834 So. 2d 314, 317-18 (Fla. 5th DCA 2003)).

. . .

Applying this standard, as long as law enforcement had a practical, common-sense basis to conclude that Nowak's car likely contained additional evidence of her alleged criminal conduct, they had probable cause to search the car. Id.

In this case, the items already lawfully seized from Nowak, along with the victim's statement to police, clearly indicated prior planning (Nowak knew of the victim and had traveled all the way from Texas to accost her with pepper spray, while wearing a disguise and carrying a CO2 powered BB pistol, a steel mallet, a buck knife, rubber tubing, and several large plastic bags). These facts and items also evidence a plan that likely extended beyond the airport parking lot. Given the backward-looking (prior planning) and forward-looking (future plan) nature of the facts known to law enforcement, separate and apart from any information illegally obtained from Nowak herself, it was simply a practical, common-sense conclusion that evidence of Nowak's planning and plan would likely be found in the vehicle that brought her to the encounter, and to which she would return. This is all that was required to show probable cause. Id. Accordingly, we find that the trial court erred in its conclusion that law enforcement lacked probable cause to search the car and reverse that portion of the order that required suppression of the evidence seized from the car.

Officer stopped defendant for being in a high crime area known for prostitution after he stopped and talked to two women on the street and one got in the car. That was just a hunch for a stop. DUI arrest suppressed. State v. Priester, 2008 Ohio 6285, 2008 Ohio App. LEXIS 5232 (8th Dist. December 4, 2008).*

Trial court properly denied defendant's motion to suppress where a CI arranged a buy which occurred with police surveillance, defendant left the buy and dropped an envelope in a trash can on the street with marijuana in it, and officers approached his car and saw marijuana in plain view. People v. Henderson, 2008 NY Slip Op 9618, 2008 N.Y. App. Div. LEXIS 9251 (2d Dept. December 2, 2008).*

On RawStory.com, by 'KopBusters' investigators bait Odessa police to illegally raid house: Video, by Stephen C. Webster. There is YouTube video with it.

For former drug interdiction officer Barry Cooper, the media storm is just beginning.

His upcoming reality show, 'KopBusters,' a 'To Catch A Predator' style crusade against dirty officers, sparked an immediate response after RAW STORY covered a news brief of their first sting.

Cooper has now released footage from the initial episode of 'KopBusters,' in which the Odessa, TX police department raids a suspected marijuana grow house, only to discover they played right into the filmmaker's hands. As surveillance cameras roll, the police slowly figure out they've been had, seemingly caught red-handed of illegally overreaching in a first-of-its-kind operation.

On his Web site, KopBusters.com, Cooper describes how the sting took place.

Police received a domestic disturbance call. At the scene, they were told that the defendant had people held inside against their will. When he finally came out, the police were permitted by exigent circumstances to enter to check for others who might have been held or other suspects. Plain view supported the seizure. United States v. Adkins, 2008 U.S. Dist. LEXIS 97934 (W.D. Mo. December 2, 2008).*

Defendant's arrest for a drug offense while on parole justified this parole search. (Application of Samson saved for another day.) United States v. Watts, 301 Fed. Appx. 39 (2d Cir. 2008)* (unpublished).

Baggage on an airplane from St. Croix VI to NYC can be subjected to a border search, even though there is no traditional customs. Defendant had drugs that were so well sealed that a dog did not alert, but the search was conducted anyway after the plane was boarded, and the bags removed for a search. United States v. Stevens, 2008 U.S. Dist. LEXIS 97904 (D. V.I. April 16, 2008):

The Virgin Islands, acquired from the Kingdom of Denmark in 1917, is an unincorporated territory of the United States. Congress has the power under Article IV, § 3, cl. 2 of the Constitution to make "all needful Rules and Regulations respecting the Territory … belonging to the United States." Pursuant to this power, Congress has created a border for customs purposes between the Virgin Islands and the continental United States. 19 U.S.C. §§ 1401(h) and 1467; United States v. Hyde, 37 F.3d 116, 121 (3d Cir. 1994). Our Court of Appeals has explained, "[A]s far as the interests of the sovereign are concerned, we perceive the interest of the United States in warrantless searches without probable cause at this "internal" border to be little different from its interest in such searches at its international borders." Id. at 122. Accordingly, the search of Stevens' luggage at the airport in St. Croix did not require a warrant or probable cause, and it survives any constitutional challenge. The drugs found in her luggage supply the necessary probable cause for her detention and subsequent arrest.

Defendant was stopped on a bicycle after he was observed near a computer report to a police car of a crime. He fit the description. After the stop, it was apparent that he was not doing anything wrong, and the suspicion for the stop was dispelled. When defendant dropped his arm to his side, the officer grabbed his arm and put it behind his back because the officer claimed to fear a weapon. Cocaine was found. The seizure was unjustified, and the motion to suppress is granted. United States v. Veltri, 2008 U.S. Dist. LEXIS 97897 (S.D. W.Va. December 2, 2008).*

Statement in affidavit that vehicle was "Hine's vehicle" is not a false statement that he owned it because it could mean a way of describing the vehicle. In any event, ownership is immaterial here. United States v. Kelso, 2008 U.S. Dist. LEXIS 98235 (E.D. Tenn. December 3, 2008).*

Defendant's reliance on the video and audio of his stop was unavailing here. "The Court disagrees with defendant's argument that there are discrepancies between the officers' testimony and the content of the tape which prevent the officers' testimony from being considered credible. To the contrary, the testimony of the officers is largely consistent with the contents of the video/audiotape." United States v. McIlwaine, 2008 U.S. Dist. LEXIS 98236 (E.D. Tenn. December 3, 2008).*

Defendant's consent to search his apartment in a stalking investigation was general. "Furthermore, the form referred generally to 'letters, papers, or other property.' This boilerplate language, unmodified, indicates an intention to go well beyond a mere computer search." He contended that he thought they were looking for letters to the stalking victim. Cash in a briefcase and desk drawer and business records showing defendant sold used computer equipment under a pseudonym was used to prosecute him for tax evasion, and they were within the scope of consent. United States v. Stierhoff, 549 F.3d 19 (1st Cir. 2008).* (Comment: There was a significant claim of waiver that the defendant changed the argument from the District Court and the Court of Appeals. The court here dealt with the issue on the merits.)

Officers had reasonable suspicion to stop defendant and have him lie on the ground for a patdown when he was seen fleeing the scene of an unannounced visit of a defendant on home detention. United States v. Carlisle, 2008 U.S. Dist. LEXIS 98075 (N.D. Ind. December 3, 2008).*

Baseless plaintiff's motion to remand in a civil rights case removed to federal court that was clearly barred by Heck results in show cause order for Rule 11 sanctions against plaintiff. King v. Farris, 2008 U.S. Dist. LEXIS 98044 (M.D. Ga. December 3, 2008).*

Court chooses not to believe the defendant's version. Officers' testimony was consistent, but defendant lied to the officers going in to this case, and that affects his credibility with the court. United States v. Govan, 2008 U.S. Dist. LEXIS 97442 (N.D. Ind. December 1, 2008).*

Detention was based on PC and not unreasonably extended. United States v. Dixie, 2008 U.S. Dist. LEXIS 97567 (N.D. Ind. December 1, 2008):

Asking the Defendant to exit the truck did not turn the reasonable detention into an unreasonable one. In fact, a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle. Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977). Additionally, the fact that Officer Nicklow's inquiry about weapons was unrelated to the purpose of the stop does not, by itself, render the detention unreasonable.

Probable cause was lacking, but not so lacking that the search was invalid under the good faith exception. Defendant was handcuffed and removed to a police station, and this was an arrest despite the officer's not believing it was. The fact the search incident was two hours later did not void the search. United States v. Smith, 549 F.3d 355, 2008 FED App. 0435P (6th Cir. 2008).*

Defendant's stop was valid under Terry for two apparent traffic violations. He consented after that. United States v. Ferrying, 2008 U.S. Dist. LEXIS 97694 (N.D. Okla. December 2, 2008).*

Plaintiff's civil case was barred by Heck. "Wilson's version of the incident necessarily implies that her convictions were unlawful. In essence, Wilson claims that she was not behaving in any manner that would justify the use of force by either officer." Wilson v. Gilbert, 2008 U.S. Dist. LEXIS 97777 (S.D. Ind. December 2, 2008).*

Probable cause existed to stop and search defendant's vehicle because police consensual wire surveillance indicated that defendant would be delivering 2 kilograms of cocaine that day. The state showed a necessity for the state overhear order. People v. Stroud, 2008 Ill. App. LEXIS 1183 (November 19, 2008).*

Defendant consented to a search of his person. He was confronted by the victim of a robbery who saw him wearing the victim's watch. State v. Banks, 999 So. 2d 808 (La. App. 2d Cir. 2008).*

Clothing not named in the search warrant could be seized as plain view under the search warrant because it was apparent it had evidentiary value. State v. Allen, 274 S.W.3d 514 (Mo. App. 2008).*

The plaintiff was an undercover FBI agent working at a motorcycle rally in New Jersey. He was stopped by local officers while in character, and he was arrested and hurt during the arrest when he was manhandled and handcuffed. He identified himself as an FBI agent and produced his credentials, and, after one telephone call to somebody who did not and would not know, he was arrested for impersonating an FBI agent. Defendant's motion for summary judgment denied. Plaintiff presented a fact question for trial. Frohner v. City of Wildwood, 2008 U.S. Dist. LEXIS 97536 (D. N.J. December 1, 2008).*

Officer's involvement in a landlord tenant dispute where there was no court order for removal that led to removal of plaintiff from the premises stated a Fourth Amendment claim. Bridgeforth v. Khadijah, 584 F. Supp. 2d 108 (D.D.C. November 3, 2008).*

Brendlin does not afford a defendant standing to challenge a search by consent of the vehicle he was stopped in. He denied any connection to the vehicle and the gun in the front seat. Therefore, the case is controlled by Rakas. United States v. Allison, 2008 U.S. Dist. LEXIS 97270 (W.D. N.C. November 12, 2008).*

Private armed security guards in Virginia are heavily regulated by the state, and their arrests are accordingly not private action. United States v. Day, 590 F. Supp. 2d 796 (E.D. Va. December 1, 2008):

For the purposes of our analysis, it is enough to observe that the Virginia legislature specifically granted Officers Slader and Costa the power to arrest as armed security officers. These officers were vetted, trained, and continue to be subject to disciplinary action under the aegis of the state's Criminal Justice Services Board. In this context, the state is not a mere passive participant; rather, it affirmatively encouraged and enabled these officers to engage in the complained-of conduct, for without their state-granted authority, these officers could not have acted as de facto police. In short, the state was the genesis of their power and activities rather than a mere passive recipient of the largess of their actions. Cf., e.g., United States v. Kinney, 953 F.2d 863 (4th Cir. 1992)(officers' mere presence insufficient to turn privately initiated search into government conduct).

Clearly Officers Slader and Costa were operating as de facto police on the night in question. The officers were "patrolling" the area in their unmarked sedan (a car of sufficient similarity to the stereotypical image of an unmarked police car that a Chesterfield officer "assumed" it must be the security officers' vehicle); noticing a potentially disorderly gathering in their rounds, the officers returned to this area, parking where they could observe the burgeoning situation. Observing a "verbal altercation" that escalated to Day's retrieval of a gun from a nearby car, the officers exited their vehicle, drawing their weapons and yelling "freeze" as they ran towards Day. Both officers were wearing black uniforms with gold emblems on the sleeves, displaying a gold badge virtually identical to a police shield, and bearing handguns; in short, they were the quintessential image of law enforcement as they ran with weapons drawn towards Day. The officers placed Day in restraints, "terried" him, and began questioning him about the gun and whether he had "anything illegal" on his person. Clearly the officers acted with the intent of deterring crime and assisting law enforcement.

Plaintiff's motion to suppress had been granted by the state trial court, and he sued under § 1983. He lost on summary judgment because there was PC for the stop and he failed to show that it was based on racial profiling. Ballard v. Heineman, 548 F.3d 1132 (8th Cir. 2008).*

Car was suspicious in high crime area where it was parked with lights off and engine running, people inside, license plate that was bogus, and it moved as police car approached. United States v. Campbell, 549 F.3d 364, 2008 FED App. 0434P (6th Cir. 2008).*

Officers responding to a 911 call about threats to kill people had probable cause to believe that the person inside was the person who made the threats. Glenn v. City of Columbus, 2008 U.S. Dist. LEXIS 97458 (M.D. Ga. December 2, 2008).*

Suspicious conduct in a low crime rural area was worthy of looking into, and that quickly developed into reasonable suspicion. State v. Noteboom, 2008 SD 114, 758 N.W.2d 457 (2008).

The fact the D.C. jail permitted U.S. Marshals to take custody of plaintiff and serve an arrest warrant on him is not a Fourth Amendment claim. Bailey v. United States Marshal Serv., 584 F. Supp. 2d 128 (D.D.C. November 3, 2008)*:

Bailey cannot derive a personal constitutional tort from an issue of comity between two sovereigns. Bailey cites several cases which involved a dispute between two sovereigns regarding personal jurisdiction of one in custody. But here, there was no dispute between two sovereigns. According to the complaint, Bailey's custodian, the District of Columbia, willingly relinquished custody upon request of the federal marshals presenting a facially valid arrest warrant. The conduct of the D.C. jail officials and the federal marshals did not run afoul of the Fourth Amendment or common law prohibitions on false arrest and false imprisonment.

A protective sweep was justified by hearing somebody inside yell "flush it!" and seeing a receiver to an M-16 rifle during an entry. Officer safety was an issue. United States v. Valladares, 2008 U.S. Dist. LEXIS 96936 (C.D. Cal. November 5, 2008).*

Under Milwaukee's trash collection "winter rules," residents are not required to put their trash containers at the curb and city trash collectors are expected to enter upon a householder's property to retrieve it. Therefore, defendant did not have a reasonable expectation of privacy in trash on the curtilage on trash day. United States v. Simms, 2008 U.S. Dist. LEXIS 96883 (E.D. Wis. August 26, 2008).*

Conflict in the government's own witness's testimony made the court unable to conclude that the defendant consented to seizure of papers off his person or any other exception to the warrant requirement. United States v. Angelov, 2008 U.S. Dist. LEXIS 96908 (S.D. Fla. October 14, 2008).*

Reasonable suspicion is all that is required for a stop of a vehicle, not probable cause (surveying the circuits). Commonwealth v. Chase, 599 Pa. 80, 960 A.2d 108 (2008).

Officer's looking into a burglarized storage building that had already been entered by the storage building operator's employees was not an expansion of the private search. United States v. Richards, 301 Fed. Appx. 480 (6th Cir. 2008) (unpublished).*

Directing a motorist to move away from a vehicle and over to the police vehicle in such a way as to express a requirement of compliance is a seizure. Strange v. Commonwealth, 269 S.W.3d 847 (Ky. 2008).*

Defendant proved that he was a guest and had standing to contest a search of the apartment he was visiting. He had spent two or three nights there, had a key, and had stuff there when the entry occurred. His cocaine conviction is reversed, but his assault of the officers is not. State v. Keith, 2008 Ohio 6122, 2008 Ohio App. LEXIS 5115 (10th Dist. November 25, 2008).*

Officers who had a 911 report that the decedent was mentally ill and was a danger to himself or others, verified at the scene, had qualified immunity from suit for their entry and re-entry into the premises, establishing a perimeter around the premises (not itself a seizure), and seizure of the premises. Estate of Bennett v. Wainwright, 2008 U.S. App. LEXIS 24217 (1st Cir. November 26, 2008).*

Defendant who "stayed the weekend" sometimes and helped out the occupant with her bills had standing to challenge a search of the premises. The fact he had not spent the night before was not determinative. It was apparent he could come and go at will. The warrantless entry, however, was based on exigent circumstances. Commonwealth v. Bostick, 2008 PA Super 233, 958 A.2d 543 (2008):

[*P18] It is apparent from the court's remarks that it accepted the Commonwealth's argument that Appellant had to establish that he was staying on the premises as an overnight guest at the time the incident occurred in order to establish a reasonable expectation of privacy. However, we can find no Pennsylvania case that supports this proposition. Instead, it appears that in several federal cases (e.g., Fields, Rhiger, and Pollard), the court did not find this factor, i.e., whether Appellant was an overnight guest at the time of the incident, to be dispositive of the issue of a reasonable expectation of privacy. 8 Even in Ferretti, where we determined that the defendant had no reasonable expectation of privacy, we found it relevant that the appellant had not "in the past or recently" stayed overnight on the premises, Ferretti, 577 A.2d at 1381, thereby giving rise to the implication that in Pennsylvania, staying overnight at the time of the search or arrests is not a dispositive factor in establishing a reasonable expectation of privacy. Rather, it is incumbent on the suppression court to consider the totality of the circumstances in each case when addressing the issue of a reasonable expectation of privacy in the searched premises.

[*P19] We conclude that the totality of the circumstances of record in this case reveal that, although Appellant may not have been staying at the residence on the day of the arrests, he stayed overnight there on the weekends, contributed to the household bills (albeit a small amount), received mail there, ate meals there, and had laundry done there on occasion. Police surveillance on the day of the incident also gives rise to the inference that Appellant had free entry into the residence as he "had been going in and out of the property the entire time of the surveillance." N.T. Hearing at 31. Certainly, Appellant was also involved in illegal activities conducted on the premises. See Govens, 632 A.2d at 1319. Under these circumstances, we conclude that Appellant was more than a "casual visitor" who had both a subjectively and objectively reasonable expectation of privacy in the searched premises.