Search of bookbag during consent to search a car was reasonable and within the consent. Vaughan v. Commonwealth, 53 Va. App. 435, 672 S.E.2d 909 (2009).*

Officers had reasonable suspicion to pat-down defendant because the officers reasonably suspected that he was armed and dangerous since rumors of drug-trafficking by defendant and the driver were specific enough to be reliable, the information that defendant had brandished a gun 17 days earlier was not stale, and the manner in which defendant exited the car without facing the officer reasonably aroused suspicion. United States v. Lazos, 314 Fed. Appx. 127 (10th Cir. 2009) (unpublished).*

Third party consent after defendant's allegedly invalid arrest was valid. United States v. Sanders, 315 Fed. Appx. 819 (11th Cir. 2009) (unpublished).*

Probable cause existed for issuance of a search warrant for defendant's law offices in an honest services fraud case. Seizure of all electronic equipment for a later search was justified and not overbroad. The taint team found a file that was outside the scope of the warrant and segregated it, but that does not warrant suppression. United States v. Sutton, 2009 U.S. Dist. LEXIS 14542 (M.D. Ga. February 25, 2009):

Here, the Court finds that the warrant's authorization for agents to seize "any and all" electronic equipment does not render it insufficiently particular. The Affidavit established probable cause to believe that documentation of Sutton's representation of various Blitch family members and entities constituted evidence of a crime. The warrant thus authorized the agents to seize such documentation "in whatever format." (Grady Warrant Aff. p. 36.) The warrant goes on to list various formats of electronic data as being subject to seizure. It is well-established that "[a] lawful search of a fixed premises generally extends to the entire area in which the object of the search may be found." United States v. Ross, 456 U.S. 798, 820-21, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). The documentation sought by the warrant in this case could have been found in an electronic format in any one of the various devices that was listed as subject to seizure. Thus, it was not unreasonable for the warrant to authorize agents to seize the listed electronic devices during its search for evidence. Due to the nature of electronic devices, there is no way to know what data is contained in them without actually examining the devices' contents.

In addition, the warrant is not rendered insufficiently particular based on the lack of a search protocol for electronic data. The absence of a written search protocol for electronic data does not render a search per se unreasonable under the Fourth Amendment. Khanani, 502 F.3d at 1291; see also United States v. Cartier, 543 F.3d 442, 447 (8th Cir. 2008); United States v. Brooks, 427 F.3d 1246, 1251-52 (10th Cir. 2005). Rather, as with all searches, the touchstone is whether the search was reasonable under the totality of the circumstances. See Khanani, 502 F.3d at 1291 (analyzing circumstances surrounding computer search to determine whether it was reasonable); see also Cartier, 543 F.3d at 447 (holding that search of computer in absence of written protocol was reasonable under the Fourth Amendment where the defendant could not establish that he was prejudiced by a search of unrelated files or that unrelated files were actually searched). Sutton has not presented any facts that would lead this Court to conclude that the search of electronic data in this case was unreasonable under the totality of the circumstances. Thus, the Court finds that the absence of a written search protocol in this case does not render the warrant unconstitutional.

. . .

As to Sutton's client files that were outside the scope of the warrant, Dasher, the privilege prosecutor, submitted to the Court all evidence outside the scope of the warrant that was seized by the agents. This evidence, in addition to not being voluminous, does not contain a single client file that does not belong to a member of the Blitch family or an entity owned by the Blitches. At the hearing, Sutton's receptionist, Cason, did testify that it appeared agents opened "two or three" client files that did not belong to any of the Blitches, (Dec. 17 Hr'g Tr. 128); however, the agents' conduct in opening these files does not amount to a flagrant disregard for the terms of the warrant.

Last, Sutton argues that the agents' conduct constituted a flagrant disregard because Agent Cynthia Allard seized a printout of an email that Sutton sent to Withers, his defense attorney in this criminal case. Agent Allard's conduct in seizing the email is disturbing, and the Court does not condone her conduct; however, the Court cannot say that this one instance of inappropriate conduct renders the entire search unreasonable.

Defendant stipulated (and there was) probable cause to believe that the defendant's car was involved in a crime and it was properly seized without a warrant. The search thereafter with a SW issued on that PC was valid. State v. Sells, 112 Conn. App. 775, 964 A.2d 97 (2009).*

The officer received a shots fired call without detail, and he responded and stopped the defendant based on the defendant's body language. The stop was without reasonable suspicion. People v. Linley, 328 Ill. Dec. 131, 903 N.E.2d 791 (Ill. App. 2009).*

Calling a pharmacist to find out what a pill was that was observed during an inventory was not a seizure. Opening the pill bottle was reasonable under the inventory policy as well under state law and the Fourth Amendment. The further step of finding out what it was was not unreasonable. George v. State, 2009 Ind. App. LEXIS 280 (February 24, 2009):

Analytically, we disagree with the Bastin court's description of subjecting the pill to laboratory analysis as a seizure. Within the meaning of the Fourth Amendment, a "seizure" occurs when a state actor meaningfully interferes with an individual's possessory interest in property, and a "search" occurs when an expectation of privacy that society is prepared to recognize as reasonable is infringed. United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984). Subjecting a lawfully seized item to testing is properly described, then, not by invoking the language of "seizure" (the item has already been seized, and it is therefore difficult to see how the individual's possessory interest could be further diminished), but by analyzing whether the testing constitutes a search; that is, whether the state actor has infringed on an objectively reasonable expectation of privacy.

Officers had information that defendant had received child porn, and they used a ruse that he was the victim of identity theft to get access to his computer. While they were looking at his computer with him there, the officers encountered a locked file, and he gave up the password. When a CP image was seen, he asked whether that was illegal to possess, and the officers said they weren't looking for that, which was false. The motion to suppress was granted. United States v. Parson, 599 F. Supp. 2d 592 (W.D. Pa. 2009):

The government claims that the identity theft introduction is defensible in that it was literally truthful and accurate. The Court disagrees, and disapproves of this "literal truth" defense. Given the function and purpose of verbally expressed language, a communicative phrase such as that uttered by Agent Stitzel simply cannot be defined absent its context. In this matter, the phrase was uttered by an ICE agent on the doorstep of a poor and intimidated senior citizen. Yet the government somehow claims that the phrase was not misleading because it is literally true. In essence, the government argues "who knows, after all, whether Parson was a victim of identity theft--we all might be?" This venture into abstraction is inappropriate.

Rather, the Court finds that this language must be assessed in its context, including its speaker, the setting, and the listener. Agent Stitzel spoke the phrase for one purpose: to convey to Parson that he was a victim of identity theft. Agent Stitzel did not convey to Parson that it was only a remote possibility that he was a victim of identity theft. Imagine a conversation in front of a soda machine, wherein Officer A asks Officer B: "Hey, do you have an extra quarter?" Under the government's reasoning, Officer B would interpret the phrase literally, respond "yes", and walk off. However, the remainder of society, and this Court, if responding for Officer B, would intuit from shared norms and the circumstances of the situation that Officer A, despite the literal meaning of the words within his query, is in fact asking to borrow a quarter.

In short, this Court concludes that the language used by the agents on the doorstep was deceptive and deliberately misleading. Hence, the visit became problematic from a Fourth Amendment perspective the moment that the agents misled Parson into believing that he was a victim of identity theft. Parson invited the officers into his home as a direct consequence of the representation that he was a victim of a crime. This invitation to entry, then, was certainly not the voluntary act of someone knowingly agreeing to concede privacy interests.

. . .

c. The Agents' Misrepresentations Violated Widely Shared Social Expectations

The agents' lies and trickery in this matter violated widely shared social expectations. The Supreme Court instructed that in assessing consent for Fourth Amendment purposes, great significance should be given to "widely shared social expectations." Georgia v. Randolph, 547 U.S. 103, 111, 126 S. Ct. 1515, 1521, 164 L. Ed. 2d 208, 220 (2006). Numerous cases establish that government misrepresentation as to the purpose of the visit, or the scope of the investigation violates widely shared social expectations.

Officers had information that defendants were selling marijuana to high schoolers. They came to the house and did a knock-and-talk and could smell burning marijuana, and that led to an admission that the occupants were just smoking marijuana inside. Officers could enter to secure the premises while a warrant was sought. They did a protective sweep on entry, but not a search until the warrant arrived. The situation was not manipulated by officers. United States v. Perez, 2009 U.S. Dist. LEXIS 15073 (D. Utah February 25, 2009):

The Court also concludes that entry was clearly supported by circumstances which were not abused or subject to manipulation. When Agents arrived at the residence they had no way of knowing that the encounter with Ms. Perez would proceed as it did. The odor of burnt marijuana and Ms. Perez's admissions about marijuana having been smoked in the house minutes earlier along with the possibility that marijuana or a drug pipe might be found in the residence are not indicators that were subject to manipulation or abuse. The Court also agrees with the United States that Ms. Perez created the exigency by refusing to comply with Agent Tribe's command to remain on the porch, retreating inside the house, and trying to close the door behind her, thus preventing Agent Tribe from monitoring her actions inside the house.

In sum, the Court is satisfied that the United States has met its burden of proof that the fear of evidence being imminently destroyed created an exigent circumstance justifying the warrantless entry into Defendant's residence. Having reached that conclusion, the Court need not, and does not, address the alternative exigency theories of children safety or hot pursuit argued by the United States.

The magistrate here had a substantial basis for probable cause to believe that a gun would be found in defendant's house based on defendant's admissions, police observations and investigation, and a CI's story that had a factual basis and basis of knowledge. United States v. Miller, 2009 U.S. Dist. LEXIS 15092 (E.D. Pa. February 24, 2009).*

Officers' split-second decision that led to a motorist's death was sufficiently reasonable under the circumstances that they were entitled to qualified immunity. McCullough v. Antolini, 559 F.3d 1201 (11th Cir. 2009)*:

In short, the sheriff's deputies used deadly force in a split-second situation where a suspect late at night refused to pull over, engaged in a high-speed chase, and then, after pulling over, repeatedly refused to show his hands or respond to officers, revved his engine, and then drove his truck toward the deputy standing nearby in a parking lot.

As in Pace, Robinson, and Long, McCullough used his vehicle in a dangerous and aggressive manner which provided the officers with probable cause to believe that McCullough, while driving his truck, posed a threat of serious physical harm or death to the officers, or other passersby, especially in light of the speed with which the incident unfolded. Specifically, McCullough's initial attempts to evade police, his failure to heed police warning of the potential use of deadly force, his later attempt to drive a truck towards an officer on foot, and his still later apparent attempt to drive away from the officers toward the exit of the parking lot provided the officers with sufficient reason to believe the use of deadly force was necessary.

Thus, on the particular facts of this case, especially in light of the deference we afford the split-second police judgments in the field and our prior precedent in this difficult area, we are constrained to conclude that deputies Antolini and DeLeon had probable cause to believe that the suspect posed a direct threat of serious physical harm or death, gave an adequate warning under the circumstances, and had powerful reason to believe that the use of deadly force was necessary to prevent escape. Simply put, the force used against McCullough was not excessive under the Fourth Amendment and the officers were entitled to qualified immunity. Because we can discern no constitutional violation, we need not address whether the constitutional right at issue had been clearly established when the incident arose.

Defendant was the subject of an anonymous call to a drug hotline. Officers checked and saw that he was on probation, so they conducted a probation search of his house when his mother was there. The search was not harassing and was founded on fact. Hess v. State, 296 Ga. App. 300, 674 S.E.2d 362 (2009).*

Officers pulled up beside the defendants who were walking on the street and said "What's up guys?" A baggie of crack fell between them. They were not seized by the inquiry. State v. Foster, 2009 Ohio 840, 2009 Ohio App. LEXIS 695 (9th Dist. February 25, 2009).*

Parents could not be ordered to undergo UAs as a condition of a juvenile's delinquency proceeding without specific evidence of wrongdoing. State v. Moreno, 2009 UT 15, 624 Utah Adv. Rep. 14, 203 P.3d 1000 (2009), rehearing denied 2009 Utah LEXIS 117 (Utah, Feb. 20, 2009):

[*P16] The second component of a test of a condition's reasonableness is whether there is a logical connection between the parent's conduct, the minor's conduct, and the court order. If the court order is premised on a belief that there may be drug use in the home, then there must be, at minimum, sufficient evidence to suggest that drug use is in fact occurring in the home. Finally, if the goal of the order is to reform the minor's drug use, the order must be related to drug use rather than to another aspect of the parent's behavior unrelated to drugs. By requiring that to be reasonable the conditions imposed by the court order bear some relationship to the behavior of both the minor and the adult, the test we announce today ensures that court-ordered restrictions and expectations conform to generally accepted parenting norms. A court order requiring a parent to complete drug testing that has no connection with the circumstances of the case would not be reasonable.

[*P17] An example of the connection required can be found in child welfare cases. In those cases, before a parent's parental rights may be terminated, sufficient record facts must be presented to satisfy the statutory elements for termination, including that termination of parental rights is in the best interest of the minor. M.G. v. M.S.H. (In re T.H.), 2007 UT App 341, P 11, 171 P.3d 480. In M.T.M. v. State (State ex rel. T.M.), the court determined that a father's parental rights were correctly terminated because there was a connection between the court order terminating his rights and facts material to his relationship with the child, such as his past incidents of domestic violence that occurred in front of the children, his use of methamphetamine in the presence of the children that caused the children to test positive for methamphetamine residue, his failure to stay in drug treatment, and his refusal to stop leaving the children in the care of their mother, who was a habitual methamphetamine user. 2006 UT App 435, P 18, 147 P.3d 529. An analogous standard can be applied in child delinquency cases. The greater the nexus between the order and reformatory goal, the more likely an order and the conditions it imposes will be reasonable.

[*P18] While a connection between the facts of the case, the court order, and the rehabilitative goal is necessary for an order imposing conditions on the parent to be reasonable, this does not mean that court orders directed at parents require probable cause to believe that the parent is engaging in undesirable behavior in order to be reasonable. Nor does it require that there be probable cause to believe that the parent's alleged behavior caused the delinquent behavior of the child for the order to be reasonable. Rather, where the condition imposed by the juvenile court does not impair the parent's constitutional rights, an order will be reasonable if it is based on a more than wholly speculative belief that the parent is engaging in behavior that is likely contributing materially to the minor's delinquent behavior.

Officers received an anonymous report of drug dealing on a city street, and they responded. They got inside to talk to defendant about it and ran warrants on him. The stop and entry were all without reasonable suspicion and suppressed. People v. Martinez, 200 P.3d 1053 (Colo. 2009).*

Plaintiff who was detained under an order to serve 135 day sentence was lawfully detained, and fingerprinting and processing did not violate the Fourth Amendment. Wormley v. United States, 601 F. Supp. 2d 27 (D. D.C. 2009).*

The All Writs Act, 28 U.S.C. § 1651, permits the government to seek fingerprints from the defendant, and probable cause is not required, although it is present. United States v. Davis, 2009 U.S. Dist. LEXIS 13965 (N.D. Ind. February 20, 2009).*

Defendant's crossing the fog line while being followed justified the stop. The dog sniff was reasonable within the time of a normal stop. United States v. Carrasco-Ruiz, 2008 U.S. Dist. LEXIS 107394 (D. S.D. August 8, 2008).*

Defendant failed to show that he had a reasonable expectation of privacy in a common hallway of an apartment building. Officers were there to arrest him, and they knocked on the apartment door without announcing their presence, which was reasonable under the circumstances because of the risk of use of a gun. The officers' plain view when the door was opened was reasonable. United States v. Bedell, 311 Fed. Appx. 461 (2d Cir. 2009) (unpublished).*

Search incident of a car for driving on a suspended license, the stop for failing to dim lights, was valid. State v. Davison, 41 Kan. App. 2d 140, 202 P.3d 44 (2009).*

Defendant's failing a probation UA justified a probation search of his premises. United States v. Crews, 2009 U.S. Dist. LEXIS 13360 (W.D. Pa. February 20, 2009).

Seventh Circuit jail strip search law is well settled, and the fact the Eleventh Circuit questioned in 2008 one of the Seventh Circuit's leading case does not mean that the Seventh Circuit will change its position. Young v. County of Cook, 598 F. Supp. 2d 854 (N.D. Ill. 2009).*

Defendant's girlfriend having the security code to get into defendant's storage building showed that she had apparent authority to consent to a search. United States v. Burcham, 2009 U.S. Dist. LEXIS 13619 (W.D. Tenn. February 19, 2009).*

Officers investigating a shooting call and seeing a vehicle leave which matched the description given had authority to enter to check on others. United States v. Thomas, 2009 U.S. Dist. LEXIS 13395 (D. V.I. February 18, 2009)*:

The Court notes that there exists an expectation of privacy as to the area surrounding a residence or home. Chun Yen Chiu, 857 F. Supp. at 359; see Payton v. New York, 445 U.S. 573, 589-90, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); Oliver v. United States, 466 U.S. 170, 180, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984); United States v. Velasquez, 626 F.2d. 314, 316-317 (3d Cir. 1980). However, police officers were justified in conducting a protective sweep around the outside of the residence at 6-6 Catherine's Rest during which they saw the marijuana plants and firearm in plain view. The Supreme Court established that officers may conduct a protective sweep when “the searching officer ‘possessed a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warranted the officer in believing’ that the area swept harbored an individual posing a danger to the officer or others.” Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990); see United States v. Morgan, 2000 U.S. Dist. LEXIS 15905 at *21 (E.D. Pa. Oct. 20, 2000).

Considering the facts that one individual had been shot and another had come running from behind the house, it was reasonable for officers to believe that another person may be located around the residence and may either pose an additional threat or be in need of assistance. Because the officers' protective sweep of the area outside of the residence was a reasonable means of ensuring that no potentially dangerous and unknown individuals were in the vicinity, the Court finds it permissible under the Fourth Amendment. Morgan, 2000 U.S. Dist. LEXIS 15905 at 22; see Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971).

While a gym bag may have been subject to a Terry patdown for a weapon based on the defendant's conduct, it was incumbent on the state to produce it and show why a search of the bag was necessary instead. McDowell v. State, 407 Md. 327, 965 A.2d 877 (2009), rev'g McDowell v. State, 179 Md. App. 666, 947 A.2d 582 (2008):

Having concluded that Trooper Gussoni was justified in examining the gym bag to determine whether it contained a weapon, we now must determine whether the method he used to make that determination was, under the circumstances, a permissible one -- whether he was authorized to open the bag, or demand that McDowell do so, so that he could view its contents, without articulating why a pat-down of the bag would not have sufficed to achieve his purpose.

So far as we can tell, this issue has arisen before in only two reported cases, both in the Federal system. In United States v. Vaughan, 718 F.2d 332 (9th Cir. 1983), the police stopped a car containing three men. The car was stopped because there were arrest warrants outstanding for two of the men. When the car was stopped, the third man, Vaughan, exited the vehicle carrying a soft vinyl briefcase and started to walk away. The police had no idea who Vaughan was and had no reason to suspect that he was or had been engaged in any criminal activity. Nonetheless, they brought him back, took the briefcase, and handcuffed him, all of which the court found permissible under Michigan v. Summers, 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed.2d 340 (1981). An officer then opened the briefcase and found in it some documents that were later referenced in an affidavit to support a search warrant for a hard cover briefcase and a suitcase also found in the car. The issue was the validity of the warrant, which hinged on the validity of the search of Vaughan's vinyl briefcase. Although the court agreed that the police had the right to detain Vaughan and frisk him for weapons, it held that they had no right to open the vinyl brief case: "The briefcase was soft and thin. Any weapons could have been felt through the cover. Thus, the officers had no reason to open it to protect their safety." Id. at 335.

Nearly two years ago, officers pled guilty in the botched Atlanta drug raid that led to the death of Kathryn Johnston. Sentencing approaches and Ex-cops apologize for deadly drug raid ahead of sentencing. Proceedings continue today. From CNN.com which paints an ugly picture of false affidavits for search warrants:

Smith, Junnier and Tesler pleaded guilty to federal charges of conspiracy to violate civil rights resulting in death. Smith and Junnier also pleaded guilty to state charges of voluntary manslaughter and making false statements, and Smith admitted to planting bags of marijuana in Johnston's house after her death.

Tesler was convicted on one state count of making false statements for filling out an affidavit stating that an informant had purchased crack cocaine at Johnston's home in a crime-plagued neighborhood near downtown Atlanta. The informant denied having been to Johnston's home, leading to investigations by local authorities and the FBI, and the breakup and reorganization of the Atlanta police narcotics unit.

Police said Johnston fired at them with an old pistol during the raid, and they shot back in self-defense. Johnston's one shot went through her front door and over the officers' heads; they responded with 39 shots, hitting Johnston five times.

"Her death was the foreseeable culmination of a long-standing conspiracy in which the officers violated their oaths of office," Assistant U.S. Attorney Jon-Peter Kelly said, according to CNN affiliate WSB. The officers "regularly swore falsely" to get warrants and make cases, he said.

Federal prosecutors said officers cut corners to make more time for lucrative side jobs providing additional security to businesses, often while on duty and for cash payments.

From a reader: The Palm Beach County Sheriff's Office plans to draw blood from DUI suspects who refuse a breath test at checkpoint stops. PBSO Plans To Draw Blood At DUI Checkpoints.

PBSO deputies plan to set up driving under the influence checkpoints. If they suspect a driver is under the influence, they'll offer an on-the-spot Breathalyzer. If drivers refuse, deputies will ask to draw blood from their arms.

Officers plan on having a judge on stand by to get a warrant for blood.

Attorney David Olson said that "would only be lawful if a warrant is issued by a judge."

That's just what deputies plan to do. They'll actually drive to a judge's home for a signature and return to the checkpoint.

Olson said drawing blood from drivers is usually done in extreme cases like homicides and fatal collisions. Olson said he's not sure a judge would actually sign a warrant.

"I admire and respect the sheriff's intention to investigate driving under the influence cases, but I am glad that they apparently are going to go to judges before they independently exercise what they believe would be a valuable tool in conducting these kinds of investigations," Olson said.

This elevates "checkpoints" to a new level.

Officers reacted reasonably to their belief that there were explosives in a storage unit. While they talked to the storage company operator and he opened it, they could look inside without entering and they saw boxes marked "explosives." A dog was called to sniff for explosives, and drugs were found. A warrant was obtained. Under the circumstances, once they had reason to believe their were explosives inside, the owner could do what he wanted. "Indeed, the owner testified that 'I have the right to go into that unit if there's any--you know, if there's any emergency or anything of that nature or if there's any reason to believe that there's something, I guess, there that shouldn't be there.' In our view, the exigencies of the circumstances in fact would seem to require it." United States v. Gregory, 311 Fed. Appx. 848 (6th Cir. 2009)* (unpublished).

Violation of the city noise ordinance justified defendant's stop, and that led to the defendant's arrest. The inventory search of defendant's zippered bag was not unreasonable. United States v. Jemison, 310 Fed. Appx. 866 (6th Cir. 2009)* (unpublished).

Defendant's version of events that included highly improbable things led to the District Court not believing the defense version of the stop. United States v. Yancy, 2009 U.S. Dist. LEXIS 13021 (E.D. Ark. February 13, 2009).*

Defendant's cell phones were seized under a search warrant, and the delay in searching them was reasonable. "'Suppression of evidence ... has always been our last resort, not our first impulse.' Hudson v. Michigan, 547 U.S. 586, 591 (2006)." United States v. Thompson, 2009 U.S. Dist. LEXIS 13153 (S.D. Fla. February 6, 2009).*

Court finds that officers could not have seen into the apartment from the hallway as they alleged, so their claim in the search warrant affidavit was false and it issued without probable cause. United States v. Norwood, 2008 U.S. Dist. LEXIS 107318 (E.D. Mich. December 19, 2008).*

Surveillance in a marijuana trafficking case provided probable cause and exigent circumstances to justify entry into a motel room to seize the marijuana. Surveillance had to close in, and the co-conspirators would realize they were made. United States v. Granados, 587 F. Supp. 2d 1112 (D. S.D. September 19, 2008).*

Officer was required by DMV to retain defendant's license, but not detain him, and that did not convert the stop into a detention of the defendant. United States v. Gamez, 311 Fed. Appx. 671 (4th Cir. 2009)* (unpublished):

Moreover, although the addition of the final factor, the retention of Gamez's driver's license, briefly gives us pause, we are not persuaded that it prevented this lawful Terry stop from becoming a voluntary encounter. In cases in which courts have found retention of travel documents particularly compelling, the documents in question were not only necessary for the defendant to continue on his way, but also were the defendant's rightful property. Their retention therefore presented the defendant with the untenable choice of ending the encounter with no legal means of actually leaving the scene, or consenting to further interaction with law enforcement in order to retrieve the documents. See, e.g., Florida v. Royer, 460 U.S. 491, 501-04, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (retention of the defendant's airline ticket and driver's license); United States v. Brugal, 209 F.3d 353, 358 (4th Cir. 2000) (en banc) (retention of defendant's rental car agreement); United States v. Walker, 933 F.2d 812, 816-17 (10th Cir. 1991) (retention of defendant's lawful driver's license and registration).

In sharp contrast to these cases, the DMV order indisputably required Officer Crump to retain Gamez's license. Thus, Gamez could not legally have driven away even had he wanted to do so. Moreover, Officer Crump explicitly informed Gamez that he was free to go.

Defendant's parole agreement provided for suspicionless searches, and that was valid under Samson. State v. Ochoa, 765 N.W.2d 607 (Iowa App. 2009).*

Defendant's wife had apparent authority to consent even though defendant padlocked the door to the storage area a couple of days before she consented. People v. Shover, 2009 Colo. App. LEXIS 212 (February 19, 2009)*:

The Randolph majority pointed out that "[t]he constant element in assessing Fourth Amendment reasonableness in the consent cases, then, is the great significance given to widely shared social expectations, which are naturally enough influenced by the law of property, but not controlled by its rules." 547 U.S. at 111. Thus, the padlock Shover installed a few days before the search is less important than the "commonly held understanding about the authority that co-inhabitants may exercise in ways that affect each other's interests." Id. The first officer's reliance on the wife's invitation to enter the residence reflected the societal "understand[ing] that any one [co-owner or co-tenant] may admit visitors, with the consequences that a guest obnoxious to one may nevertheless be admitted in his absence by another," and the chance of a contrary arrangement "is too remote to expect visitors to investigate a particular household's rules before accepting an invitation to come in." Id. at 111-12. Hence, applying the exclusionary rule here would not further its purpose of deterring police misconduct. White, 64 P.3d at 872.

The shed was logically included in the definition of the place to be searched because it was only inches away or even attached to the mobile home described in the warrant. State v. Brewer, 148 Wn. App. 666, 205 P.3d 900 (2009)*:

¶35 The adjacent shed appeared to be part of Defendants' mobile home residence both (1) when Detective Boardman procured and the superior court issued the search warrant and (2) at the time of the pretrial suppression hearing when the trial court considered the legality of the warrant and the search. The issue of whether the adjacent shed was actually attached to the mobile home, or technically separated by mere inches, did not arise until later at trial when the State introduced Exhibit 36, a photograph that showed a slight space between the mobile home's outerwall and the adjacent shed. Thus, when the officers executed the search warrant, they understood the adjacent shed to be part of the mobile home described in the warrant, as did the mobile home's owner.

A domestic violence call of an uncle and nephew did not provide evidence that an assault occurred within four hours, and the officer's staying on the premises was not justified. State v. Williams, 148 Wn. App. 678 (February 10, 2009).*

Stop was not an unreasonable detention. But, even if it was, it was based on reasonable suspicion. United States v. Brown, 310 Fed. Appx. 776 (6th Cir. 2009).*

Stopping defendant a few blocks away from the residence to be searched was valid under Summers, even though in Summers the defendant detained was coming down the front steps. A marked police car was needed for the stop, and it took awhile to show up. United States v. Whitley, 2009 U.S. Dist. LEXIS 12582 (E.D. Mich. February 19, 2009):

Like the situations seen in Cochran, Head and Yates, the officers in this case stopped and detained Whitley as soon as was practicable after he departed the Residence. The Officers at the scene when Whitley left the residence did not have a marked patrol car there and therefore radioed for a marked patrol car to make the stop. Officer Colosky testified that, after seeing Whitley leave the Residence, the officers decided to stop Whitley a few streets away from the Residence, so that the stop would be out of the view of any remaining occupants of the Residence. Whitley's car was therefore followed for a few blocks before he was stopped by the marked patrol car. The Court therefore rejects Whitley's argument that Summers does not apply because the vehicle was stopped a few blocks away from the Residence.

U.S. v. SDI Future Health, Inc., ___ F.3d ___ (9th Cir. 2009), posted here, applied: If the affidavit is referred to and around, it need not be attached. Also under SDI, the warrant was sufficiently particular. United States v. Akpan, 2009 U.S. Dist. LEXIS 12656 (D. Nev. February 12, 2009).*

Defendant was delivering bananas on a pallet as a cover for cocaine, and he lacked requisite control over the bananas as a mere deliveryman to claim standing. United States v. Arias, 2009 U.S. Dist. LEXIS 12579 (D. Conn. February 18, 2009).*

There was no reason shown to revisit the prior decision denying the motion to suppress. Caver v. United States, 2009 U.S. Dist. LEXIS 12435 (N.D. Ohio February 9, 2009).*

Where defendant could not prevail on the search claim, defense counsel could not be ineffective. United States v. Marutz, 2009 U.S. Dist. LEXIS 12219 (E.D. Cal. February 3, 2009).* See also United States v. Jones, 2009 U.S. Dist. LEXIS 12445 (N.D. Ill. February 18, 2009).*

GPS monitoring of a juvenile probationer was reasonable; if it can be done for adults, it can be done for juveniles. In re R.V., 171 Cal. App. 4th 239, 89 Cal. Rptr. 3d 702 (1st Dist. 2009):

GPS monitoring is expressly authorized by statute for adult probationers (Pen. Code, § 1210.7 et seq.), as well as for registered sex offenders (Pen. Code, § 1202.8) and parolees (Pen. Code, § 3010). If GPS monitoring is a permissible condition for adult probation, a fortiori the condition is permissible for juvenile probation since broader conditions may be imposed on juveniles. (In re Antonio R., supra, 78 Cal.App.4th 937.)

Given the history of R.V.'s violations of the Penal Code and of the conditions of his probation, the GPS monitoring condition was both reasonably related to his past behavior and likely to deter future criminality. Among other things, the GPS device would have allowed the probation department to determine if R.V. was on school property outside of regular school hours, when he should not have been there as he was when he committed his initial offense, or, in light of his history of truancy, off campus when he should have been at school. It would have allowed the probation officer to determine whether R.V. was observing the 9:00 p.m. to 6:00 a.m. curfew imposed by the court and to locate R.V. if he again absconded. The GPS device also would have provided a constant reminder to R..V. that he was on probation and that his activities were being monitored, hopefully providing an additional incentive to avoid further violations of the criminal laws or of his conditions of probation. (Cf. In re Jaime P. (2006) 40 Cal.4th 128, 137 ["the very existence of a probation search condition, whether for adults or juveniles, should amply deter further criminal acts"].)

The Tulsa airport is the first in the nation with only backscatter body scanners that can see you under your clothes. The Tulsa World noted it was received "without complaint" by travelers. From Gadling:

It was only a matter of time - the first airport in the nation has switched to full body scanners as a replacement for the usual metal detector at the checkpoint.

The scanners use electromagnetic waves to create an image of you - sans clothes. The image is viewed by a TSA agent in a nearby room, which should at least mean you don't hear their chuckles as you pass through the scanner.

A TSA screener who operates the machine reported that the images "are not pornographic at all", and that she merely sees them as "a thing that could have something on it".

But make no mistake - the 3D images will show all your parts to the screener, right down to the size of your breasts and genitals.

The trial aims to determine whether the full body scanners can be a true replacement for metal detectors, and whether the use of the scanners increases, or decreases efficiency at the checkpoint.

During the first day of operation, only 2 out of 1039 passengers declined to use the scanner. Of course, this could simply be because the general public is not fully aware what these new machines are, and just what the images reveal.

Are travelers becoming the frog in the heating water such that they would rather travel unimpeded than be seen naked by a TSA screener?

Previous posts about backscatter technology are here (airports), here (portable machine at border), and here (prison use).

"[S]trip searches carried out in non-secluded areas of prisons and in the presence of prison employees of the opposite sex are not unconstitutional." Tuft v. Chaney, 2009 U.S. Dist. LEXIS 12860 (S.D. Tex. February 17, 2009).*

Probable cause was shown for seizure of DNA evidence in a bank robbery case. United States v. Cornelius, 2009 U.S. Dist. LEXIS 12849 (D. Kan. February 19, 2009).*

Defendant was detained based on a warrant, and he was handcuffed. About 8 minutes into it, the officers learned that the warrant had been recalled, and they unhandcuffed him. While conversing with him, they obtained consent. The consent was separate from the arrest on the recalled warrant. State v. Haslam, 2009 Ohio 696, 2009 Ohio App. LEXIS 604 (7th Dist. February 10, 2009).*

The evidence supports the trial court's finding of consent, and this appellate argument is really just that the wrong conclusion was reached. State v. Hodges, 195 N.C. App. 390, 672 S.E.2d 724 (2009).* See also McFadden v. State, 2009 Tex. App. LEXIS 1119 (Tex. App.—San Antonio February 18, 2009).*

Defendant visiting another answered the motel room door smoking a blunt, and the officer smelled and saw it, handcuffed him, and did a protective sweep of the room before getting a search warrant. Celestin v. State, 296 Ga. App. 727, 675 S.E.2d 480 (2009)*:

Celestin argues that the warrantless intrusion into the motel room was not justified by exigent circumstances. We disagree. First, pretermitting whether Celestin had a reasonable expectation of privacy in a motel room that he had occupied for only a few hours, neither Butler's knock on the door nor Bracken's presence in the corridor implicated the Fourth Amendment. Thereafter, Bracken was "rightfully standing before the open doorway of the motel room for purposes of investigation" when he saw Celestin with contraband. Observing Celestin smoking marijuana created an exigency that justified the officer's warrantless intrusion. "A classic example of exigent circumstances is the likelihood that contraband is in danger of immediate destruction." Bracken was entitled under the exigency doctrine to enter the room to prevent the further destruction of the contraband.

Defendant's call for police assistance at his house and then inviting them in was not a Fourth Amendment issue. United States v. Jackson, 2009 U.S. Dist. LEXIS 11764 (N.D. W.Va. February 9, 2009).*

Defendant's stop was unjustified. They had no arrest or search warrant and did not observe defendant commit an offense. No specific facts provided reasonable suspicion that defendant was engaged in criminal activity. Because the out-of-state defendant and his car were illegally seized and he was Mirandized, frisked, seated in a police car, and dispossessed of his car for over 40-50 minutes, he was under arrest. A reasonable person from out-of-state without a car would not have considered himself free to leave with two officers interrogating him and two officers searching his car. The motion to suppress was properly granted. People v. Vasquez, 2009 Ill. App. LEXIS 54 (February 11, 2009).*

Oregon school search was without PC and, therefore, invalid. The CI was a student who was prone to lie to deflect "heat" from himself and just lacked credibility on his own. State ex rel Juv. Dept. v. M. A. D., 226 Ore. App. 21, 202 P.3d 249 (2009),* revd State ex rel Juv. Dept. v. M. A. D., 348 Ore. 381, 233 P.3d 437 (2010) (posted June 13, 2010).

Where the police intentionally used an old warrant list, they could not rely on Herring to avoid application of the exclusionary rule. People v. Morgan, 388 Ill. App. 3d 252, 327 Ill. Dec. 316, 901 N.E.2d 1049 (2009):

In this case, the State failed to meet its burden of proof that the good-faith exception should apply, and exclusion was the proper remedy. The first consideration in determining whether the exclusionary rule should apply--misconduct by the police--clearly applies here. See Herring II, U.S. at , 172 L. Ed. 2d at 507, 129 S. Ct. at 702 ("To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system"). Although the trial court found the officers acted reasonably and without any negligence, that conclusion was against the manifest weight of the evidence. The officers testified that they typically obtained a warrant list printed the same day as their visit to the police department. In this instance, they knew they were relying on a warrant list that was up to three days old. They made no attempt to verify the continued existence of the warrant before approaching defendant's residence. Doing so apparently would have indicated that the warrant was inactive. Deputy Brooke testified that less than five minutes passed between obtaining the warrant list and arriving at defendant's house. The events at defendant's house appeared to have occurred over a short period of time. Nonetheless, when Deputy Brooke called the communications center, LivCom, he immediately learned the warrant was no longer valid. The reliance on the old warrant list and the failure to check on the continued validity of the warrant constituted, at the very least, gross negligence, if not reckless or wilful misconduct. See, e.g., Herring II, U.S. at , 172 L. Ed. 2d at 507, 129 S. Ct. at 702 (noting that "the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence" but concluding that the failure to update the warrant system was not "so objectively culpable as to require exclusion"); Michigan v. Tucker, 417 U.S. 433, 447, 41 L. Ed. 2d 182, 194, 94 S. Ct. 2357, 2365 (1974) ("The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in wilful, or at the very least negligent, conduct which has deprived the defendant of some right").

The second condition necessary to warrant application of the exclusionary rule--whether application of the rule would result in appreciable deterrence--also applies here. See Herring I, 492 F.3d at 1217 (listing the "three conditions that must occur to warrant application of the exclusionary rule"). Unlike court employees, as was the case in Evans, police officers are the very actors the exclusionary rule was meant to deter. See, e.g., People v. Boyer, 305 Ill. App. 3d 374, 379, 713 N.E.2d 655, 658, 239 Ill. Dec. 124 (1999) (applying the exclusionary rule where the prosecutor failed to get a stale warrant recalled, noting that excluding the evidence would deter similar constitutional violations). Moreover, the officers' reliance on an up to three-day-old warrant list is conduct that can be deterred.

Third, the deterrent benefit of excluding the evidence outweighs the social costs. Specifically, the cost of excluding the evidence is outweighed by the strong deterrent effect of exclusion. See, e.g., Herring II, U.S. at , 172 L. Ed. 2d at 507, 129 S. Ct. at 703 ("To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system").

Credibility determination goes to the officer on consent where the defendant lied twice during the stop. State v. Jones, 2009 Ohio 670, 2009 Ohio App. LEXIS 577 (9th Dist. February 17, 2009).*

When the officer approached a group of men, one stepped back and threw a baggie of crack up on to the roof of a garage. That was abandonment not precipitated by an illegal act. State v. Scott, 2009 Ohio 672, 2009 Ohio App. LEXIS 582 (9th Dist. February 17, 2009).*

Private search which produced a CD of child porn from defendant's house was valid; the private searcher was not acting as an agent of the state. State v. Staggs, 2009 Tenn. Crim. App. LEXIS 115 (February 13, 2009).*

Reasonable suspicion defendant was an illegal alien justified his detention for 24 hours under 8 C.F.R. § 287.8(b) while officers checked out his status. United States v. Diaz-Quintana, 596 F. Supp. 2d 1273 (D. S.D. 2009).*

Defendant was seized when he was confronted by SWAT officers on a street sweep who asked him for ID and told him they were checking wants and warrants. State v. Bozeman, 6 So. 3d 899 (La. App. 1st Cir. 2009):

Based on the foregoing, we find the defendant was seized pursuant to an investigatory stop. The officers involved in the stop were not on routine patrol; rather, they were part of the Sheriff's Office SWAT team conducting "street sweeps" and, based on narcotics complaints, specifically targeting the high-drug area where the defendant was spotted. The defendant was approached by five officers. Four of the officers spread out around the defendant, while another officer positioned himself on the other side of the vehicle behind the defendant. Lieutenant Brown testified at the motion to suppress hearing that, after the defendant first refused to produce his identification, "[w]e advised him that we needed identification to check and make sure he wasn't wanted or a wanted person or anything like that." We find that under these circumstances a reasonable person would not have felt free to disregard the encounter and walk away.

UPS Inspectors had probable cause to search defendant’s backpack for stolen mail when they finally caught up to her while watching her after she was suspected of stealing mail out of mailboxes. United States v. Walker, 2009 U.S. Dist. LEXIS 11415 (D. Ariz. January 30, 2009).*

Probation officers had reason to conduct a probation search of defendant's apartment based on dirty UAs and another PO having seen drug paraphernalia in defendant's house. State v. Moore, 112 Conn. App. 569, 963 A.2d 1019 (2009).*

Reasonable suspicion was lacking for defendant's stop. He was seen in a high crime area. The next day he saw the police and fled. That's it. Thames v. State, 2 So. 3d 1098 (Fla. App. 3DCA 2009).*

Scrap metal business under Mississippi law is a closely regulated business where the buyer of scrap is required to gather information from sellers and turn over the information on reasonable demand from law enforcement. The likelihood of success of plaintiff's suit on the merits is not good. Metal Management of Mississippi v. Barbour, 2008 U.S. Dist. LEXIS 10716 (S.D. Miss. August 13, 2008):

The defendant further notes that scrap metal businesses such as the plaintiff's are closely regulated under the new Act, as well as the prior law. Closely regulated businesses are characterized by licensing, registration, maintenance of records, and criminal penalties. Burger, 482 U.S. at 703-04; Peterman, 764 F.2d at 1421. Furthermore, says defendant, reducing metal theft crime, protecting theft victims, and recovering stolen goods from scrap dealers all constitute substantial governmental interests, thereby satisfying the first prong of the Burger test. Id. Secondly, says defendant, warrantless inspections are necessary in this instance in order to deter and detect crime. Thirdly, says defendant, the government's discretion is limited to searching only records and inventory during customary business hours. Moreover, the new Act limits the scope of inspection to mandatory records and inventory on premises.

Based on the foregoing, this court is not persuaded that the plaintiff has shown likelihood of success on its Fourth Amendment argument. At this juncture of the lawsuit, this court is persuaded that the new Act meets the constitutional standards set forth in New York v. Burger and that no basis for granting injunctive relief on the plaintiff's Fourth Amendment claim has been substantiated.

Defendant's stop on a road on the edge of Quantico Marine Base was justified because Quantico is a closed military base as a whole, even though this particular road would seem not to be. United States v. Guajardo, 2009 U.S. Dist. LEXIS 11410 (E.D. Va. February 17, 2009)*:

In an unpublished opinion, the Fourth Circuit specifically found Quantico to be a closed military base. United States v. Tate, 129 F.3d 118, 1997 WL 693049, *1 (4th Cir. Oct. 29, 1997)("The question we must decide in this appeal is whether MCB Quantico is a closed military base. We find that it is.") In the decision, the Court noted several factors indicating that Quantico is a closed installation. For example, the base houses a helicopter squadron that provides support for the President of the United States, and also serves as headquarters for the Marine Corps' Systems Command. Id. Indeed, every Marine Corps officer, as well as many high-ranking foreign military officers, receive training at Quantico. Id. Additionally, signs posted at every gate state that the base is closed and warn that all persons and vehicles entering the base are subject to search. Id. Thus, Quantico is a closed military base, even despite the fact that Fuller Road, upon which defendant was traveling when he was stopped, is open to public use for vehicular traffic. See United States v. Daniels, 471 F.Supp.2d 634, 638-39 (E.D. Va. 2007) (noting that signage located at Quantico gates indicates that entry onto the base is deemed consent to a search).

Defendant was not stopped when he got out of his car. His furtive movements justified a "protective sweep" of the car for a weapon. United States v. Walker, 2009 U.S. Dist. LEXIS 11264 (E.D. Va. February 13, 2009)*:

In the present case, Officer Gohlke's knock on the window and Walker's exit of the vehicle do not constitute a stop. The officers did not ask or demand that Walker exit the vehicle; he did so voluntarily. There is no evidence that the officers had their guns drawn, were especially hostile to Walker, blocked his car from leaving, or physically touched Walker. Furthermore, the officers were tasked with investigating trespassing on the premises--as required by the ownership--therefore the questions regarding Walker's residence were justified. Accordingly, the knock on the window and Walker's voluntary exit did not require any reasonable articulable suspicion because a reasonable person would have known he was free to leave--therefore it was not a stop.

Officer did not have reasonable suspicion defendant was a drug courier on the totality of innocuous facts.

We first observe that the Officers did not have reasonable suspicion to hold Bell beyond the time reasonably required to fulfill the purposes of the initial stop for the speeding violation. The government argues that the Officers had reasonable suspicion that Bell was engaged in other criminal activity justifying a longer stop based on seven factors: (1) Bell repeated the same story and sounded rehearsed; (2) Bell moved too quickly for the rental agreement; (3) Bell was holding a cell phone; (4) Bell did not make eye contact with Trooper Roberts; (5) Bell was overly respectful and cooperative; (6) Bell did not have written permission to operate the rental car; and (7) Sergeant Helton observed Bell's exaggerated body movements while in the vehicle.

However, the dog sniff was not unreasonable because the stop was not extended for it. United States v. Bell, 555 F.3d 535 (6th Cir. 2009):

Viewing the facts in the light most favorable to the government, we cannot say that Trooper Roberts's failure to complete the stop before the dog alerted was unreasonable. Trooper Roberts began a computer check of Bell's license immediately upon his first return to the patrol car. Waiting for the results of the license check was clearly within the purpose of the initial stop, and only while waiting for the results of that check did the Officers discuss whether to call Trooper Farabaugh to walk the dog around the car. Because the Officers already were waiting for the results of the background check, any time that the Officers spent in pursuing other matters while the background check was processing, even if those matters were unrelated to the original purpose of the stop, did not extend the length of the stop. Once Trooper Roberts received the results of the license and warrant checks, on his second return to the patrol car, he decided to issue a warning and then almost immediately walked back to Bell's car and began writing the warning and discussing it with Bell. It was during this discussion that the dog alerted. At no time did the actions of the Officers improperly extend the length of the stop.

Plaintiff was an air base employee who resisted a job transfer by claiming a back injury that prevented him from driving 30 minutes to work. A private investigator was hired to watch plaintiff, and they videotaped him outdoors riding a tractor and working in the yard. He had no reasonable expectation of privacy from what he did outdoors, even from a 20x zoom. Ryan v. Kelmar & Assocs., 2009 U.S. App. LEXIS 2821 (5th Cir. February 12, 2009) (unpublished).

Blood sample already drawn by an authorized person could be seized by court order. People v. Elysee, 2009 NY Slip Op 1155, 2009 N.Y. LEXIS 15 (February 17, 2009).*

Examining all the information in the affidavit for search warrant, there was a fair probability that the information sought would be found. State v. Craft, 2009 Ohio 675, 181 Ohio App. 3d 150, 908 N.E.2d 476 (12th Dist. 2009)*:

[*P14] In examining the affidavit, as we did in Harry, we found that when we viewed all of the information together -- which was gleaned from the informants and an anonymous complainant, as well as the corroborating information from the stakeout and other investigation conducted by the deputies -- was "sufficient to show there was fair probability that marijuana would be found at 225 Cereal Avenue." Id. at P21-22.

Entry for protective sweep was justified by fear that there were armed fugitives inside, and getting a warrant was no option. State v. Guggenmos, 225 Ore. App. 641, 202 P.3d 892 (2009):

However, securing the premises and obtaining a warrant was not a reasonable option in this situation, because the third officer, Morrison, remained inside the house with Tidwell. Mogle explained that he "went back upstairs to clear the upstairs because my other officer was up there by himself." Thus, Mogle had to reenter the house and check the upstairs rooms--without delay--in order to prevent what he reasonably (but, in the event, wrongly) perceived as an immediate threat to Morrison from named persons whom he knew to be wanted individuals involved with drugs. An officer safety sweep is justified not only by immediate danger to the officer, but to others as well. Bates, 304 Ore at 524. Perhaps Mogle could have reentered, explained the situation to Morrison, accompanied Morrison and Tidwell outside, and then attempted to obtain a warrant. His decision to sweep the house himself, however, was the sort of judgment that we are reluctant "to uncharitably second-guess." Id. We therefore conclude that Mogle's reentry and cursory search were justified as an officer safety precaution. He was therefore lawfully present in (or at the threshold of) defendant's room when he saw the disputed evidence in plain view. The police did not exploit information obtained during an unlawful search in order to obtain defendant's consent to conduct the follow-up search, and, in any event, that search did not lead to any additional evidence. The court did not err in denying defendant's motion to suppress.

While there was no break between "you're free to go" and questions about consent, all the other factors weighed in favor of the defendant being objectively free to go. State v. Bretches, 225 Ore. App. 602, 202 P.3d 883 (2009).*

Man armed with a crossbow in a car videotaping prison buses outside prison wall near a tower was reasonably suspected of planning a prison break, and that justified his detention. United States v. Rochelle, 2009 U.S. Dist. LEXIS 10875 (M.D. N.C. February 12, 2009):

Upon seeing Rochelle with the video-camera, walkie-talkie, and crossbow, Allen was concerned for the safety of the guards in the towers as well as those facilitating the prison transfer. He was also concerned that, given these items and the proximity to the prison transfer location, Rochelle could be facilitating a possible prison break or assault on persons in DOC custody. Allen was particularly worried because a crossbow was a weapon that would not produce any report when fired.

Defendant's prior giving of DNA on incarceration linked him to a rape, and the use of that evidence did not violate the Fourth Amendment. State v. Gaines, 2009 Ohio 622, 2009 Ohio App. LEXIS 540 (8th Dist. February 12, 2009).*

In Oregon there are two components to a stop: Objective and subjective. What would the defendant have believed, and was it reasonable what he actually believed. State v. Parker, 225 Ore. App. 610, 202 P.3d 205 (2009):

Thus, a Holmes type (b) inquiry implicates conjunctive subjective and objective components--viz., the defendant subjectively believed that he or she was significantly restrained and that belief was objectively reasonable. Consequently, as the party bearing the burden of demonstrating the lawfulness of the search, the state can prevail against a Holmes type (b)-based motion to suppress if it disproves either of those conjunctive components. That is, the state can prevail either (1) by proving that the defendant did not believe that the officer had significantly restrained or interfered with the defendant's freedom of movement or (2) if such a belief would not be objectively reasonable. Id. at , 2008 Ore. App. LEXIS 1918 at *13. In assessing whether "such a belief is objectively reasonable under the circumstances," the operative inquiry is whether "'a reasonable person in defendant's position could have believed that the officers significantly had restricted [his or her] liberty or freedom of movement.'" Id. at , 2008 Ore. App. LEXIS 1918 at *15 (quoting Toevs, 327 Ore at 535-36) (first emphasis in Toevs; second emphasis in Ashbaugh).

We begin with the objective component because--for reasons that will become apparent shortly--if the state were to prevail on that component, that would obviate the need for a remand. We conclude for the following reasons that, in the totality of the circumstances in this case, "a reasonable person in defendant's position could have believed" that he was not free to go. Toevs, 327 Ore at 536. In that regard, we emphasize that the controlling inquiry is not whether every reasonable person would have so believed, but, instead, whether a reasonable person could have so believed. Cf. Ashbaugh, 225 Ore App at , 2008 Ore. App. LEXIS 1918 at *24-29 (Brewer, C. J., concurring).

Putting property in somebody else's basement was a waiver of an expectation of privacy. Commonwealth v. Williams, 453 Mass. 203, 900 N.E.2d 871 (2009):

In applying these factors to this case, we conclude that the judge ruled correctly that the defendant lacked a reasonable expectation of privacy in the basement area in which she had deposited some possessions. The defendant clearly did not own the area, nor did she have a lease or other property interest. She lacked permission to stay there. Nor did she control access to the area: the tenants of the building used the basement for storage; members of the defendant's family had access for maintenance or other purposes; and other people apparently could enter, as the police did, by going through an unlocked door. The judge was correct to conclude that any subjective expectation of privacy the defendant may have had was not objectively reasonable. See Commonwealth v. Welch, supra at 654 (no reasonable expectation of privacy where defendant shared room in common with other fire fighters and lacked ability to exclude others from room); Commonwealth v. Montanez, supra at 301-302 (even if defendant had subjective expectation of privacy in space above hallway ceiling, expectation not reasonable where hallway was common area open to public and defendant neither owned nor controlled space). See also Commonwealth v. Hawkins, 139 F.3d 29, 32 (1st Cir.), cert. denied, 525 U.S. 1029 (1998) ("It is now beyond cavil in this circuit that a tenant lacks a reasonable expectation of privacy in the common areas of an apartment building"). Once it is determined that the defendant had no reasonable expectation of privacy in the basement area, she cannot challenge the police action that occurred there.

Private searchers' replacement of the evidence did not "resuscitate" a reasonable expectation of privacy. State v. Rowley, 2009 UT App 33, 623 Utah Adv. Rep. 27, 204 P.3d 198 (2009):

[*P10] In the instant case, just as in Jacobsen, Mithun, and State v. Miller, 2004 UT App 445, 104 P.3d 1272, the private party who performed the original search effectively "resealed" the container in which the evidence was found. We agree with the Mithun court that a private party's replacement of the items back into a vehicle is no more significant than the items having been found in a mailed package and replaced therein. Rowley's expectation of privacy in the contents of his truck was lost when his parents searched his truck and seized the evidence. Father's replacement of the evidence back into the truck in no way resuscitated Rowley's expectation of privacy, especially in light of the fact that Father had already informed the authorities of the evidence's existence and where it was located. The Officer's subsequent search of the truck was therefore not a violation of Rowley's constitutional protections, unless it exceeded the scope of the prior search performed by Father and Mother.

New Mexico rejects Whren under the State Constitution and decides that the officer's subjective intent for a stop may be inquired into by the defense to prevent abuse. State v. Ochoa, 2009 NMCA 2, 146 N.M. 32, 206 P.3d 143 (2008), released for publication January 13, 2009, certiorari granted, No. 31,430, December 30, 2008:

[*31] Third, the State argues that New Mexico's historical treatment of pretext claims does not justify our departure from Whren. The State refers us to cases in which we have rejected pretextual traffic stop claims where there was an objectively valid basis for the stop. See State v. Pallor, 1996 NMCA 83, PP 14-15, 122 N.M. 232, 923 P.2d 599; State v. Benjamin C., 109 N.M. 67, 69, 781 P.2d 795, 797 (Ct. App. 1989); Mann, 103 N.M. at 663-64, 712 P.2d at 9-10. Again, these cases do not apply the interstitial analysis of state constitutional claims.

[*32] In Pallor, we rejected the defendant's claim that the officers' traffic stop was a pretext to investigate drug activity because the officers had a reasonable suspicion that the defendant was engaged in drug activity. 1996 NMCA 83, PP 13-14, 122 N.M. 232, 923 P.2d 599. In Benjamin C., we applied two federal standards to the child's claim of pretext: (1) the purely objective probable cause/reasonable suspicion standard that was adopted in Whren, and (2) the more probing federal standard applied at the time by the Tenth Circuit in United States v. Guzman, 864 F.2d 1512 (10th Cir. 1988), overruled on other grounds by United States v. Botero-Ospina, 71 F.3d 783 (10th Cir. 1995). Benjamin C., 109 N.M. at 69, 781 P.2d at 797. Guzman applied the "would have" approach to pretextual stops: "In the same circumstances would a reasonable police officer have made the stop in the absence of an invalid purpose? Under Guzman, [a] stop [i]s unreasonable not because the officer secretly hope[s] to find evidence of a greater offense, but because it [i]s clear that an officer would have been uninterested in pursuing the lesser offense absent that hope." Benjamin C., 109 N.M. at 69, 781 P.2d at 797 (alterations in original) (internal quotation marks and citations omitted). Because the child in Benjamin C. did not articulate what ulterior motive the officers had for the stop, we had no basis to engage any meaningful Guzman analysis. See id. In Mann, we applied the federal standard under the Fourth Amendment to the defendant's claim that the initial stop was pretextual. 103 N.M. at 663-64, 712 P.2d at 9-10. Further, like Benjamin C., the Mann opinion gives no indication what the pretextual purpose might have been.

[*33] Since Mann, this Court has been inconsistent in its approach to allegations of pretextual stops, reflective of the varying federal standards before Whren, and we have been hesitant to establish a definitive standard. See, e.g., State v. Apodaca, 112 N.M. 302, 304, 814 P.2d 1030, 1032 (Ct. App. 1991) (observing that the district court made a specific finding that the officer did not have a pretextual purpose in stopping the defendant); Bolton, 111 N.M. at 35, 801 P.2d at 103 (refusing to decide "whether to adopt a sole-bad-purpose test or a primary-bad-purpose test-or even whether to adopt a subjective test at all" where a defendant challenged his stop at a state police roadblock administered by both the state police and United States Border Patrol agents, on pretext grounds, but concluding that "the district court was entitled to find, based on the evidence before it, that the purpose of the roadblock in this case was legitimate"); Benjamin C., 109 N.M. at 69, 781 P.2d at 797 (articulating both the probable cause/reasonable suspicion standard and the "would have" standard).

[*34] Although no New Mexico case until today has decided the validity of pretextual stops under our state constitution, we have admonished pretextual practices, revealing a distinct inclination to remove police pretext from the range of reasonable police conduct. See, e.g., State v. Lowe, 2004 NMCA 54, P 22, 135 N.M. 520, 90 P.3d 539 (stating that where officers attempt to "inquire about weapons as a ploy leading to other bad faith action to uncover criminal activity based on speculation or bare suspicion, [w]e make it very clear that an abuse of these precautionary measures to protect against harm from weapons should not be tolerated by district courts and will not be tolerated by this Court when those measures smack of pretext or ruse"); see also Ryon, 2005 NMSC 5, PP 34-37, 137 N.M. 174, 108 P.3d 1032 (refusing to permit officers to "use the [emergency assistance] doctrine as a subterfuge or pretext when the real purpose of the search is to arrest a suspect or gather evidence without probable cause"); State v. Prince, 2004 NMCA 127, P 19, 136 N.M. 521, 101 P.3d 332 (facing a claim of pretext and refusing to permit the officer to " use a lawful stop to fish for evidence of other crimes" and expand the traffic stop into a drug investigation that was not supported by reasonable, articulable suspicion); State v. Montoya, 116 N.M. 297, 303, 861 P.2d 978, 984 (Ct. App. 1993) ("This pretext doctrine is generally justified as a means of restricting what would otherwise amount in practice to unbridled police discretion in certain circumstances, such as detentions for traffic offenses.").

[*35] Finally, the State argues that diverging from Whren is not needed to protect New Mexico citizens from unreasonable searches and seizures. The State argues that the police do not have unlimited discretion under Whren because they are limited by probable cause and reasonable suspicion. At the same time, the State admits that officers must decide who to stop and when because it would not be possible to strictly enforce the multitude of traffic laws. We agree. However, we limit that discretion to avoid bad faith. Police officers may enforce any and all traffic laws, so long as it is done with reasonable suspicion and in good faith for that purpose.

Request to see a driver's license of a person driving a car invokes no constitutional protections under the Fourth Amendment or the state constitution. Defendant consented to the officer looking in the glove compartment for proof of insurance, and that led to a plain view. Shaw v. State, 2009 WY 18, 201 P.3d 1108 (2009).*

"Minnesota's criminal test-refusal statute does not violate the constitutional prohibition against unreasonable searches because exigent circumstances created by rapidly dissipating evidence of blood-alcohol concentration justify the warrantless search." The underlying offense does not need to a felony. State v. Netland, 762 N.W.2d 202 (Minn. 2009):

In Shriner, we held that the "rapid, natural dissipation of alcohol in the blood creates single-factor exigent circumstances that will justify the police taking a warrantless, nonconsensual blood draw from a defendant, provided that the police have probable cause to believe the defendant committed criminal vehicular homicide or operation." Shriner, 751 N.W.2d at 549-50. This conclusion rested squarely on our prior jurisprudence upholding warrantless searches if evidence would be destroyed during the time required to obtain a warrant. Id. at 548. We further recognized that in the case of dissipating alcohol, even the delay required to obtain a telephonic warrant creates an unreasonable burden for law enforcement to evaluate how much time must pass before the evidence disappears. Id. at 549.

Netland argues that Shriner does not compel a result in this case because the police in Shriner had probable cause to believe that Shriner committed criminal vehicular operation. Id. at 546, 548. The officer in this case did not have probable cause to believe that Netland had committed a felony when he invoked the implied-consent statute. But exigency does not depend on the underlying crime; rather, the evanescent nature of the evidence creates the conditions that justify a warrantless search. It is the chemical reaction of alcohol in the person's body that drives the conclusion on exigency, regardless of the criminal statute under which the person may be prosecuted.

Defendant was under investigation for being an unlicensed firearms exporter, buying 17 guns just before a trip to Guatemala. There were other international trips, too. A search warrant was obtained for the home, and a computer and iPhone were seized. Separate search warrants were obtained for the computers and phone. There was probable cause for the home based on the ATF Form 4473s that listed the home as defendant's address. The court does not have to decide nexus because there was at least a substantial basis for concluding there was nexus. United States v. Corleto, 2009 U.S. Dist. LEXIS 10826 (D. Utah February 5, 2009).*

Blocking defendant's car on a parking lot, and defendant then pulling up along side the police car was submission to a show of authority and a seizure. United States v. Salazar, 2009 U.S. Dist. LEXIS 10888 (D. Kan. February 12, 2009).*

Defendant admitted that the pants he wore to the hospital after being shot were not his. The pants were searched looking for ID, and 28 grams of cocaine were found. No search warrant was required, and defense counsel was not ineffective for not arguing that it was. Claytor v. United States, 2009 U.S. Dist. LEXIS 10705 (W.D. Va. February 12, 2009).*

Neither defendant nor the consenter were at the house when the consenter was asked. Nothing in Randolph requires the police to first offer to the defendant to consent before asking somebody else with apparent authority. United States v. Travis, 311 Fed. Appx. 305 (11th Cir. 2009) (unpublished)* (2672 month sentence for bank robbery and armed career criminal).

Defendant's traffic stop based a turn signal violation and on highly specific information from a CI that defendant was planning a burglary that weekend led to a seizure of evidence. Shortly thereafter, a court order was obtained for installation of a tracking device. The initial stop was based on reasonable suspicion and was not unreasonably extended. The tracking warrant had probable cause. United States v. George, 421 Fed. Appx. 149 (3d Cir. 2009) (unpublished),* aff'g United States v. George, 2007 U.S. Dist. LEXIS 33068 (W.D. Pa. May 4, 2007).

CI's information was detailed and corroborated and that gave reasonable suspicion for the stop. United States v. Holmes, 311 Fed. Appx. 156 (10th Cir. 2009) (unpublished).*

Defendant's careless driving traffic stop was without probable cause, just because the driver was looking at the police and pulled off the freeway rather than be followed. Stokes v. State, 375 Ark. 394, 291 S.W.3d 155 (2009).*

Defendant's custodial arrest for a traffic offense justified his search incident and search again on booking. People v. Taylor, 388 Ill. App. 3d 169, 327 Ill. Dec. 630, 902 N.E.2d 751 (2009).*

Officers lacked cause to stop the defendant who showed up at a loud party after the officers told them to quiet down, and they did. State v. Brown, 900 N.E.2d 820 (Ind. App. 2009).*

Conversation with the defendant which was within the normal time of a traffic stop was reasonable. McKnight v. State, 296 Ga. App. 38, 673 S.E.2d 573 (2009).*

There is no reasonable expectation of privacy in arrest warrants, which are public records. People v. Bailey, 232 Ill. 2d 285, 903 N.E.2d 409 (2009):

It has long been held that the existence of an arrest warrant is a matter of public record. Gist v. Macon County Sheriff's Department, 284 Ill. App. 3d 367, 377 (1996). Recent decisions continue to adhere to this principle. See People v. Harris, 228 Ill. 2d 222, 233 (2008); People v. Roberson, 367 Ill. App. 3d 193, 201 (2006). By definition, a person cannot have a reasonable expectation of privacy in public matters. Because a warrant check does not implicate any area of privacy, it is not a search under sections 12-603.1(f) and 108-1(3), and it is not prohibited by those provisions. Accordingly, a motion to suppress filed on this ground would not have been successful.

"Because of the foregoing, the bank teller's out of court identification must be suppressed. To be clear, the bank teller did nothing improper, but the lack of any intervening event to sever the causal connection between the illegal search and the photo lineup means that suppression must be ordered." It was not attenuated enough. United States v. Carter, 2009 U.S. Dist. LEXIS 9607 (N.D. Ill. February 6, 2009).*

Defendant was stopped on a bicycle for an equipment violation, and his strange responses led officers to believe that it was stolen. The patdown and drawing of weapons was justified. United States v. Banks, 2009 U.S. App. LEXIS 2491 (8th Cir. February 2, 2009).*

Targets of a search have a Fourth Amendment right of access to search warrant materials before indictment. In re Searches & Seizures, 2008 U.S. Dist. LEXIS 107087 (E.D. Cal. December 19, 2008):

In addressing the question left unanswered by the decision in Times Mirror, several courts have recognized that those individuals whose property is the subject of a search pursuant to warrant have a pre-indictment right of access to search warrant materials, including the supporting affidavit, grounded in the Fourth Amendment. In re Search Warrants Issued on April 26, 2004, 353 F. Supp. 2d at 591 (affirming the magistrate's order and recognizing "a search subject's pre-indictment Fourth Amendment right to inspect the probable cause affidavit."); In re Search Warrant for 2934 Anderson Morris Road, 48 F. Supp. 2d 1082, 1083 (N.D. Ohio 1999) ("Generally, a person whose property has been seized pursuant to a search warrant has a right under the Warrant Clause of the Fourth Amendment to inspect and copy the affidavit upon which the warrant was issued."); Up North Plastics, Inc., 940 F. Supp. at 232 (denying government's pre-indictment motion to keep in place a previously entered order sealing the affidavit in support of a search warrant); In re Search Warrants Issued August 29, 1994, 889 F. Supp. at 299 (granting a home and business owner's pre-indictment motion to unseal search warrant materials, stating "the Fourth Amendment right to be free of unreasonable searches and seizures includes the right to examine the affidavit that supports a warrant after the search has been conducted and a return has been filed"); see also United States v. Oliver, 208 F.3d 211, 2000 WL 263954, *2 (4th Cir. 2000) (unpublished) (recognizing a Fourth Amendment right to examine the search warrant affidavit); In the Matter of Searches of Semtex Industrial Corporation, 876 F. Supp. 426, 429 (E.D.N.Y. 1995) (observing in response to a motion to unseal a warrant affidavit brought by a business that had been subject to search that such materials may not be sealed indefinitely pending the government's decision to seek an indictment); Matter of Wag-Aero, Inc., 796 F. Supp. 394, 395 (E.D. Wisc. 1992) (vacating sealing order upon finding that the search target's due process rights would be violated by continued sealing of the supporting affidavit).

Warrant was stale [without much explanation], but the good faith exception saves it [also without much explanation]. United States v. Jones, 2009 U.S. App. LEXIS 2429 (11th Cir. February 10, 2009) (unpublished).*

Record showed defendant consented to a search of his person and rental car on the parking lot of a store that was an open air drug market at night. His cooperation showed consent [but not his acquiescence to a claim of authority?]. United States v. Boyd, 2009 U.S. Dist. LEXIS 9636 (M.D. N.C. February 9, 2009).*

Dog sniff of defendant's house was not a violation of the Fourth Amendment. "Here there is no indication the encounter between Chapman and law enforcement was not consensual. Chapman was present and did not object to the arrival of the canine unit or the sniff on the front porch. Under the circumstances, the canine unit was lawfully present on Defendant's front porch when the sniff occurred. Thus, the dog sniff did not violate the Fourth Amendment." [Which begs the question of knowing one can object, like the officers would stop if he did.] United States v. Chapman, 2009 U.S. Dist. LEXIS 9435 (E.D. Tenn. February 6, 2009).*

Trial court erred in suppressing a search under Grubbs and the good faith exception. While the warrant did not list the triggering condition, it was not executed until the triggering condition occurred. "[I]t is evident that delivery of the marijuana was the triggering condition." State v. Chen, 1 So. 3d 1257 (Fla. App. 2DCA 2009).

In a brief unpublished opinion, the Eighth Circuit finds no clear error in the trial court's holding a stop was valid, and, in any event, consent purged the taint. [I hope the parties get this, because I don't.] United States v. Nunez, 310 Fed. Appx. 53 (8th Cir. 2009).*

A single instance of crossing the fog line justifies a stop under Kansas law, and the record supports the conclusion that defendant consented to a search after the stop, despite his asserted language difficulties. United States v. Pulido-Vasquez, 311 Fed. Appx. 140 (10th Cir. 2009) (unpublished).*

Defendant's claim he was too intoxicated on Xanax to effectively consent was rejected. [He was also sentenced to 960 months as an armed career offender.] United States v. Kellogg, 306 Fed. Appx. 916 (11th Cir. 2009) (unpublished).*

Possession of a large quantity of PMB was PC to believe defendant was making PCP. "Specifically, the officers could reasonably infer that Cruikshank, who had no apparent legitimate use for large quantities of PMB, who had received PMB from a company linked to PCP laboratory operators, and who sold some of it to Byrd on the street for cash, knowingly possessed the PMB with reason to believe it would be used to make PCP." United States v. Cruikshank, 2009 U.S. App. LEXIS 2580 (9th Cir. February 6, 2009).*

Officer's touching the defendant to attempt to restrain him amounts to a seizure. State v. Gross, 2009 Ohio 611, 2009 Ohio App. LEXIS 533 (8th Dist. February 12, 2009)*:

{¶ 30} The testimony presented in this case demonstrated that, in fact, although Gross attempted to leave, Ramsey prevented him from doing so by “laying hands on him.” Franklin, supra. Subsequently, when Gross informed the officers that his identification was inside his bag, this did not amount to a “consent” to search. Locklear, ¶36, cf., State v. Hull, Ashtabula App. No. 2003-A-0068, 2005-Ohio-2526, ¶13.

Defense counsel was not ineffective for not filing a motion to suppress that would have been denied because defendant committed a traffic violation by backing into traffic, and the stop was clearly justified. State v. Alexander, 2009 Ohio 597, 2009 Ohio App. LEXIS 505 (8th Dist. February 12, 2009).*

Defendant was stopped for a traffic offense, and she had a BOLO out because of suspected drug activities. A drug dog was validly run around the car by another officer while the first officer was checking the license. State v. Dixon, 2009 Ohio 559, 2009 Ohio App. LEXIS 474 (12th Dist. February 9, 2009).*

An interstate bus was stopped on the highway for a safety inspection, and it was apparent that all the passengers were Spanish speakers. While the safety inspection was going on, other officers entered the bus to ask questions and seek consent searches of bags, making it clear that people could avoid the searches by just refusing. The encounters on the bus were constitutional. Solano-Rodriguez v. State, 295 Ga. App. 896, 673 S.E.2d 351 (2009):

Rather, the proper inquiry is "whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter." Id. at 436. The U.S. Supreme Court further clarified that the inquiry entails considering "all the circumstances surrounding the encounter," and that the same standard applies "to encounters that take place on a city street[,] in an airport lobby," or on a bus. Id. at 439-440; see Drayton, supra, 536 U.S. at 203-206 (applying Bostick framework and holding that defendants were not "seized" during drug interdiction effort on bus, even though officers never advised passengers that they had right to refuse to cooperate).

Ignoring Bostick, Solano-Rodriguez relies heavily on Brendlin v. California, 551 U.S. 249 (127 SC 2400, 168 LE2d 132) (2007), in which the U.S. Supreme Court held that a passenger in a private car is seized during a traffic stop. In Brendlin, the U.S. Supreme Court expressly acknowledged that "the relationship between driver and passenger is not the same in a common carrier as it is in a private vehicle, and the expectations of police officers and passengers differ accordingly." Id. at 2410 n.6. Brendlin did not purport to alter the framework in Bostick for determining whether a police officer's encounter with a bus passenger is consensual.

Here, Solano-Rodriguez does not dispute that Garcia conducted his encounter with passengers after the bus was stopped for a bona fide, legally authorized safety inspection. The record shows that when he first boarded the bus, Garcia specifically advised passengers that they could leave the bus at any time and did not have to speak with him or comply with his requests. See Bostick, supra, 501 U.S. at 437 (fact that officers advised defendant that he could refuse to consent to search was among factors creating doubt that a seizure occurred); U.S. v. Watson, 80 Fed. Appx. 765, 767 (3d Cir. 2003) (district court did not err in finding that defendant's encounter with police was voluntary where, inter alia, passengers were advised that cooperation was not required). After addressing passengers from the front of the bus, Garcia made a conscious decision to begin his inspection at the back of the bus so that he would not block the aisle if passengers wanted to exit. The record does not show that Pilcher or VanScoten did or said anything to discourage passengers from getting out of the bus.

Stipulation about evidence relieved the state from having to prove anything about its source, and defendant thus waived any constitutional challenge to its seizure. State v. Huy, 960 A.2d 550 (R.I. 2008).

School searches are administrative searches. The student and parents were warned at orientation of searches occurring on entry to the school, and that reduced the students' expectation of privacy. In re P.P., 2009 Tex. App. LEXIS 892 (Tex. App. — San Antonio February 11, 2009):

As was the case in In re O.E., the record in this case established that prior to entering the alternative school, all students and parents are required to complete an orientation session which includes an overview of the school rules and policies, and the students are required to sign a contract which includes an agreement to be searched each day before entering the school. P.P. clearly had notice of the routine search requirement, which reduced his expectation of privacy. See Shoemaker v. State, 971 S.W.2d 178, 182 (Tex. App.--Beaumont 1998, no pet.) (noting that a student had no reasonable expectation of privacy in a locker when the student handbook warned lockers could be searched any time there was reasonable cause to do so).

Under Minnesota's rule that a drug dog in a common hallway requires reasonable suspicion, an apartment manager's report of "high" traffic to an apartment was sufficient, considering the admittedly low standard of reasonable suspicion. State v. Baumann, 759 N.W.2d 237 (Minn. App. 2009):

Here, a property manager thought that the level of short-term traffic coming to and leaving from Baumann's apartment was odd and suspicious. Inferentially, the manager of an apartment complex would have some degree of duty to be concerned about the use of the property since illegal activities on the premises could be problematic for the property owner and perhaps jeopardize rentals. So, the manager reported the facts she observed to a narcotics investigator. Although neither the manager nor Detective Buetow determined how many people would constitute a "high amount" or a "high volume," or what length of time amounted to "short term" or a "short amount of time," these characterizations were expressions of activities and circumstances the manager actually observed. From those reported facts, Detective Buetow, a trained narcotics investigator, drew an inference that there might be illegal drug activity occurring in the Baumann apartment, and he arranged to confirm the inference through a dog-sniff search.

Acknowledging, as we must, the low threshold the courts have set for reasonable suspicion, we conclude that the information Detective Buetow relied upon as the basis for his suspicion was "something more" than an unarticulated hunch and that he was able to point to "something" that "objectively" supported his suspicion. See Davis, 732 N.W.2d at 182.

A particular housing project was known to be a high crime area, and that contributed to reasonable suspicion. It had even been found a high crime area in other cases. United States v. Moore, 2008 U.S. Dist. LEXIS 107047 (E.D. Tenn. October 10, 2008):

An area's high crime rate can also contribute to reasonable suspicion. An individual's presence in an area of frequent criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. Brown v. Texas, 443 U.S. 47, 52 (1979). "But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." United States v. Wardlow, 528 U.S. 119, 124 (2000). Officers Roncska and Wallace have both testified to the frequency of violent crime and drug-related crime in the [project], and Officer Wallace testified regarding his particular experience with violent and drug related class in the area. In addition, numerous cases that originated in this District have recognized the high rate of crime in the [project]. See United States v. Muckle, 2008 WL 400444, at *2 (6th Cir. 2008) (noting officer's testimony that [this project] is a high crime area); United States v. McCreary-Redd, 475 F.3d 718, 720 (6th Cir. 2007) (describing Knoxville Police Department surveillance of the housing project due to complaints of drug activity). The Court finds that the stop was made in a high crime area but reiterates that this factor must be coupled with additional evidence of the circumstances to support a finding of reasonable suspicion.

Pretrial suppression denial was only a preliminary ruling, but the state dismissed the case. That holding was not binding in a subsequent § 1983 action. Best v. City of Portland, 2009 U.S. App. LEXIS 2289 (7th Cir. February 3, 2009):

In this case the officers argue, and the district court held, that the legality of the searches was necessarily and finally adjudicated in Best's criminal prosecution and cannot be relitigated. But this argument ignores the preliminary nature of the ruling on Best's pretrial suppression motion. Under Indiana law, "rulings on pretrial motions are not necessarily final." Joyner v. State, 678 N.E.2d 386, 393 (Ind. 1997). "'[A] ruling on a pretrial motion to suppress is not intended to serve as the final expression concerning admissibility.'" Id. (quoting Gajdos v. State, 462 N.E.2d 1017, 1022 (Ind. 1984)). The court was free to reconsider its earlier ruling on the pretrial suppression motion at any time before the evidence was offered at trial. Id. In fact, Best asked the court to do just that before the prosecutor dismissed the case.

Officers had qualified immunity from suit over plaintiff's detention and placement into a hospital because the ascertainable facts showed that plaintiff was a verifiable suicide threat. Cloaninger v. McDevitt, 555 F.3d 324 (4th Cir. 2009)*:

Lo knew that Cloaninger had made prior suicide threats, that police had responded to those threats, and that firearms had been found in the home. Treadway called the VA hospital, where a nurse who knew Cloaninger confirmed that he had made prior suicide threats. Treadway had no reason to doubt the objectivity of the nurse or the veracity of her information. Both the VA nurse and the Burke County magistrate agreed that an emergency commitment was an appropriate action. On these undisputed facts, we hold that the defendants had probable cause to seize Cloaninger and detain him for the purposes of a psychological evaluation. But this does not end our inquiry into the reasonableness of their conduct.

"Because defendant's wrongdoing in concealing his search condition from the officer by misrepresenting his identity estops him from contesting the search's validity as a probation search, we do not reach the question whether it was also a valid search incident to arrest." People v. Watkins, 170 Cal. App. 4th 1403, 89 Cal. Rptr. 3d 135 (3d Dist. 2009):

The equitable principle “No one can take advantage of his own wrong” (Civ. Code, § 3517) applies in criminal law (People v. Concepcion (2008) 45 Cal.4th 77, 82 [84 Cal. Rptr. 3d 418, 193 P.3d 1172] (Concepcion); People v. Pearson (2008) 165 Cal.App.4th 740, 742 [81 Cal. Rptr. 3d 234] (Pearson)). Thus, a criminal defendant who obtains a benefit in a judicial proceeding by intentionally concealing key information about his case is estopped to argue, when that information comes to light, that the court cannot use it against him. (Pearson, at pp. 744–747; People v. Level (2002) 97 Cal.App.4th 1208, 1213–1214 [119 Cal. Rptr. 2d 551].) Similarly, a defendant who absconds from custody during trial is estopped to argue that the court violated his constitutional right to be present at trial by proceeding in his absence. (Concepcion, at pp. 81–82.)

Here, as in the cited cases, defendant committed a wrong and then tried to profit from it. As did the courts in those cases, we conclude that this misconduct results in an estoppel.

The detention of defendant for an hour was reasonable under the circumstances. He was on probation, and he gave the officers a far-fetched story about the limits of his probation. The defendant argued that he was not free to leave and he was subjected to a dog sniff. The facts for the defendant were strong, but the court disagreed. United States v. Dingle-Jones, 2009 U.S. Dist. LEXIS 8969 (D. Me. January 30, 2009):

I see no evidence in this case that the agents were dilatory in investigating the defendant's probation status once he asserted that the only condition of his probation was that he report in to his probation officer, an obviously incorrect statement to the two experienced law enforcement officers. These are circumstances that developed during the course of the stop, from the defendant's responses to unobjectionable questions. Flowers, 359 F.3d at 30. Clifford reasonably believed that the fastest way to contact the probation officer, for whom he had only a name and a state, was to use the internet to which he had access at the nearby police station. The agents' reasons for choosing not to continue standing with the defendant on the street in a high-crime area while Clifford did so are eminently reasonable.

I also fail to see any evidence that the agents were dilatory in investigating the initial information that had been given to them about the defendant's sale of crack cocaine. Clifford had felt what he reasonably believed to be packets of cash in the defendant's pockets during his pat-down. The defendant had admitted that he was carrying an unusually large amount of cash, while giving a weak explanation for the fact that he was doing so. It was certainly reasonable for the agents to try to get a drug dog to sniff the defendant, who had already corroborated much of what the SOIs had told Clifford and Dumond. The SOIs would not have any apparent means of learning those facts other than those which they related to the agents: that they had purchased crack cocaine from the defendant that day. Much longer delays waiting for a drug-sniffing dog than that which occurred here have been held not to convert an investigative stop into a de facto arrest.

Fifteen minute traffic stop where officer had ID of passenger too was not unreasonable. United States v. Wolfe, 2009 U.S. Dist. LEXIS 9117 (N.D. Tex. January 30, 2009).*

Defendant was not in custody by NCIS when she gave a statement admitting to killing her daughter. United States v. Manning, 312 Fed. Appx. 34 (9th Cir. 2009)* (unpublished):

Considering these factors, a reasonable person in Manning's situation would have felt free to terminate the interview and leave. The language used to summon Manning was not indicative of someone in custody. Manning voluntarily accompanied the agents to NCIS offices after a professional and non-threatening summons and her refusal of the invitation by the officers to let her drive separately. While Manning may have been confronted with evidence of her guilt, this is not the case where the agents repeatedly called her a liar, confronted her with misleading evidence, and pressed her for the truth.

Defendant who did a drug deal as a passenger in a vehicle had no standing to challenge the search of the truck. Marshall v. State, 198 P.3d 567 (Alas. App. 2008).*

Crossing the white line is RS for a stop in Ohio. State v. Clark, 2009 Ohio 529, 2009 Ohio App. LEXIS 441 (2d Dist. February 6, 2009).*

Under Hudson and Herring, defendant's identity would not be suppressed from an illegal arrest. United States v. Farias-Gonzalez, 556 F.3d 1181 (11th Cir. 2009):

Additionally, allowing a criminal defendant to use the exclusionary rule to exclude evidence of his identity achieves the same result as would allowing him to suppress the court's jurisdiction over him. While Farias-Gonzalez does not seek to prevent the court from summoning him before it, he does seek to prevent the Government from showing who he is when he appears before it. If Farias-Gonzalez can suppress the Government's evidence of who he is, then he has accomplished the same thing he would have accomplished had he suppressed the ability of the court to exercise jurisdiction over him. But, the Supreme Court forbade the use of the exclusionary rule to challenge jurisdiction in Lopez-Mendoza. To allow the use of the exclusionary rule to exclude evidence of who the defendant is would be a significant social cost.

We turn now to the deterrence benefits in applying the exclusionary rule to identity-related evidence. Like in Hudson, there is no evidence at issue here which could not be otherwise obtained without violating the Fourth Amendment. The Constitution does not prohibit the Government from requiring a person to identity himself to a police officer. Hiibel, 542 U.S. at 188, 124 S. Ct. at 2459 ("A state law requiring a suspect to disclose his name in the course of a valid Terry stop is consistent with Fourth Amendment prohibitions against unreasonable searches and seizures."). The police can obtain both photographs and fingerprints without conducting a search under the Fourth Amendment. United States v. Dionisio, 410 U.S. 1, 14-15, 93 S. Ct. 764, 771-72, 35 L. Ed. 2d 67 (1973) (holding that voice and facial characteristics are exposed to public, and thus not protected by the Fourth Amendment, and that fingerprinting likewise does not constitute a search since it "involves none of the probing in to an individual's private life and thoughts that marks an interrogation or search." (quoting Davis, 394 U.S. at 727, 89 S. Ct. at 1398)). Thus, it is not the acquisition of the evidence at issue here, but rather an earlier unconstitutional search and seizure that caused what the district court found to be a constitutional violation and triggered the potential application of the exclusionary rule. This case is similar to Hudson in that there was no incentive to violate the Fourth Amendment, as the evidence was freely obtainable without implicating the Fourth Amendment.

Visiting a known drug house at 3:20 am for two minutes was reasonable suspicion for stopping the defendant leaving. State v. Doughty, 148 Wn. App. 585 (February 5, 2009).*

Wyoming declines to adopt a greater standard for a trash search than Greenwood. Barekman v. State, 2009 WY 13, 200 P.3d 802 (2009):

While he certainly had an expectation of privacy in his trash when it was inside his property, out of public view, we are not persuaded that expectation was reasonable once he placed it out on the curb for pickup. A majority of state courts have reached this conclusion under their own constitutions.

Although probationers have more limited expectations of privacy than do free citizens, law enforcement's ability to search probationers is not unlimited. Given probationers' expectations of privacy, community corrections officers or other law enforcement officers must have a rational, articulable suspicion of a probation violation or other criminal activity before subjecting the probationer's person or property to a search. The condition of probation in this case, requiring that a probationer submit to random, suspicionless searches, violates the probationer's constitutional rights under the Fourth Amendment and § 15 of the Kansas Bill of Rights. State v. Bennett, 288 Kan. 86, 200 P.3d 455 (2009).*

The exclusionary rule would not be applied to exclude evidence of a father's drug use in a dependency proceeding because it was a civil case and he had an insufficient liberty interest involved. State ex rel. HHS v. W.P. (In re W. L. P), 345 Ore. 657, 202 P.3d 167 (2009):

We turn to a consideration of the nature of father's liberty interest in this juvenile dependency proceeding. Obviously, this is not a criminal proceeding. See Geist, 310 Ore. at 188 (holding that proceeding to terminate parental rights, which is one possible outcome of a juvenile dependency proceeding, is not a criminal prosecution). Neither is it like the probation revocation proceeding in Rogers, because father does not face incarceration or similar criminal law sanctions as a result of this proceeding. The proceeding does not involve any effort by the state to punish the parent for wrongdoing. Rather, in a juvenile dependency proceeding, the welfare of the child is the court's primary consideration, and the state's purpose in initiating such a proceeding is to intervene as necessary to protect the child. See ORS 419B.100(1)(c) (child found to be within jurisdiction of court if child's condition or circumstances "endanger the welfare" of child); ORS 419B.331 (permitting court to place child under protective supervision "[w]hen the court determines it would be in the best interest and welfare of a ward"); ORS 419B.476 (requiring that court "consider the ward's health and safety the paramount concerns" at permanency hearing). Because this case does not implicate father's liberty interest in remaining free from state custody, Rogers does not require the court to exclude the evidence based on father's motion, even if the evidence was unlawfully seized.

Defense counsel was not ineffective for not filing a motion to suppress. Defendant had standing, but there was consent. Robertson v. State, 2009 Tenn. Crim. App. LEXIS 88 (February 5, 2009).*

Defendant could not claim Randolph was new law where it was decided a year before the suppression hearing. Jackson v. State, 2009 Tenn. Crim. App. LEXIS 72 (February 4, 2009).*

Knock-and-talk in the evening was valid, and officer saw drugs in plain view when the door was opened. Defendant who was a visitor abandoned drugs when he saw the officer. State v. Patton, 2009 Tenn. Crim. App. LEXIS 68 (February 2, 2009).*

A law-enforcement officer who personally observes a traffic violation while outside the officer’s statutory territorial jurisdiction has probable cause to make a traffic stop; the stop is not unreasonable under the Fourth Amendment under Virginia v. Moore. State v. Jones, 2009 Ohio 316, 121 Ohio St. 3d 103, 902 N.E.2d 464 (2009).

Officer's false claim that he stopped people leaving defendant's house with drugs was not true, but he got defendant to consent claiming he'd get a warrant if he did not consent. The consent obtain by this deception was not invalid. State v. Kuegel, 195 N.C. App. 310, 672 S.E.2d 97 (2009).*

Knock-and-talk led to consent. State v. Boyd, 2009 Ohio 421, 2009 Ohio App. LEXIS 346 (2d Dist. January 30, 2009).*

Defendant's driving gave reasonable suspicion for his stop for DUI. State v. Semenchuck, 2009 Ohio 465, 2009 Ohio App. LEXIS 389 (8th Dist. February 5, 2009).*

The government showed that the dog in this case was "well-trained" as required by Caballes. United States v. Nelson, 309 Fed. Appx. 373 (11th Cir. 2009) (unpublished):

A dog sniff must be sufficiently reliable in order to establish probable cause, and this reliability is generally present if the dog is "well-trained." Illinois v. Caballes, 125 S. Ct. 834, 838 (2005); United States v. Sentovich, 677 F.2d 834, 838 n.8 (11th Cir. 1982). Evidence of a dog's training is sufficient proof of reliability. Sentovich, 677 F.2d at 838 n.8. In Sentovich, we rejected the appellant's argument that "a mere statement that the dog had been trained in drug detection was not enough without an accompanying statement that the dog had proved reliable in the past and that an experienced handler was with the dog," and approved the reasoning of the First and Tenth Circuits that evidence of a dog's training is sufficient. Id.

In this case, the evidence regarding the dog's training went beyond a "mere statement" and included certification from a training school, an officer's testimony about subsequent training and his records of the dog's performance, and the testimony of the officer that he was familiar with the dog's reactions because of their prior training together. See Sentovich, 677 F.2d at 838 n.8. The district court found the officer's testimony and records about his training credible, and this Court gives great deference to the district court's credibility determinations. Clay, 376 F.3d at 1302. Based on the evidence presented during the hearing, the district court did not err when it denied Nelson's motion to suppress on the ground the dog was reliable and its response provided the officers with probable cause to search the car.

Traffic offense justified stop, and smell of marijuana provided probable cause. United States v. Davis, 308 Fed. Appx. 851 (5th Cir. 2009) (unpublished).*

Affidavit for thermal imaging warrant showed probable cause. United States v. Kattaria, 553 F.3d 1171 (8th Cir. 2009) (per curiam) (en banc).*

The 11th Cir. reconsidered Nguyen v. United States, posted here, and came to the same result: District court erred in granting the government's motion to dismiss under the FTCA for plaintiff doctor's false arrest and malicious prosecution action. He got a judgment of $1.8M from a jury which is reinstated. Nguyen v. United States, 545 F.3d 1282 (11th Cir. 2008), on reconsideration Nguyen v. United States, 556 F.3d 1244 (11th Cir. 2009).*

Search of defendant's property while it was in jail property room was not a Fourth Amendment violation under Edwards. United States v. Bell, 2009 U.S. Dist. LEXIS 8205 (D. Kan. February 4, 2009).*

Search warrant issued 109 days after a single incident crime was without probable cause because it was stale. United States v. Lindsey, 596 F. Supp. 2d 55 (D. D.C. February 5, 2009).*

Defendant was not compelled to stay by the officer's hand gestures. The door to the car was open, and the officer's tone was conversational. United States v. Villegas, 554 F.3d 894 (10th Cir. 2009).*

Private security working in conjunction with local off-duty sheriffs deputies were not acting as agents of government in this case. Here, they held defendant so he could be removed by the sheriffs from the property, and there was no detention in the arrest sense. United States v. Craig, 2009 U.S. Dist. LEXIS 8049 (D. Vt. February 4, 2009):

Similarly, there is no evidence that the Rutland Sheriffs offered or gave GMC Security any kind of reward for detaining Craig. These facts resemble those in United States v. Abney, where an off-duty police officer working as a private security guard questioned a person suspected of using counterfeit money and asked him to empty his pockets. The private security guard was not wearing a police uniform, identified himself as a security guard, and did not arrest, pat down, or physically restrain the suspect. The private security guard also testified that he acted to further the security interests of the private store in not receiving counterfeit notes. In those circumstances, the court determined that the private security guard was not acting as an agent or instrument of the government. United States v. Abney, No. 03 CR 60(JGK), 2003 U.S. Dist. LEXIS 15055, 2003 WL 22047842 at *5-*6 (S.D.N.Y. Aug. 29, 2003).

Like the security guard in Abney, GMC Security officers testified that they were acting to protect the interests of their employer, the Concert promoter, by avoiding any problems or confrontations at the Concert. The evidence here falls short of establishing that GMC Security acted as an instrument or agent of the government. Since the Fourth Amendment does not apply to private party action, there is no constitutional violation.

A clearing away from a house and not within an enclosure near the house was open fields. United States v. Armstrong, 2009 U.S. Dist. LEXIS 8296 (D. V.I. February 4, 2009):

The clearing in which the Officer observed the marijuana plant was not near a home, nor was it included within any enclosure surrounding a home. The clearing was not used for any residential purposes; no one lived there. That there may have been a fence surrounding the entire property and a chain across the access road, is not sufficient for the area to be considered one in which society would reasonably expect the same privacy as within a home. The clearing was not within the curtilage, but rather was an open field. Thus, the Officer needed neither a reasonable suspicion nor probable cause to search.

Defendant abandoned his property by leaving it in another person's outbuilding and moving to another state. The building was searched just before it was to be demolished. Driggers v. State, 295 Ga. App. 711, 673 S.E.2d 95, 67 A.L.R.6th 719 (2009):

Viewed in this manner, the record reflects that at the time of the search, Driggers had been absent from the outbuilding for approximately three months, was living in Florida, and had made no efforts to retrieve his personal belongings from the outbuilding despite having been advised to do so by the Laceys in their March 2002 letter. Moreover, in their January 2002 letter, the Laceys had specifically notified Driggers that he was not to return to the outbuilding. The evidence further reflected that at the time of the search, the outbuilding no longer had running water or functioning heat and was about to be demolished. Nor was Driggers paying any rent or utilities on the outbuilding, and he had not entered into a lease agreement with the Laceys. Finally, the Laceys themselves told the investigator that the outbuilding was now vacant and that Driggers had abandoned the items left behind in the building. [¶] These combined facts supported a finding of abandonment.

Trial court's finding that defendant consented to production of marijuana from his person when he got out of his car was supported by the evidence. State v. Dipietro, 2009 ME 12, 964 A.2d 636 (2009).*

Iowa upholds DNA extraction from convicts. State v. Duffy, 2009 Iowa App. LEXIS 80 (February 4, 2009).*

Court ordered search of defendant's house on federal supervision without probable cause violated Fourth Amendment. No statute permits it, and a Rule 41 search warrant was not sought. Therefore, the search was governed by the Fourth Amendment. The good faith exception did not apply because there was no probable cause determination to rely on. United States v. Kone, 591 F. Supp. 2d 593 (S.D. N.Y. 2008):

The Circuit courts, surprisingly, are somewhat divided on whether the Fourth Amendment warrant requirement presumptively applies to probationer or parolee searches where no governing law or parole condition authorizes the warrantless search. The Second Circuit, however, has spoken on the issue, albeit in a case involving a probationer rather than a person on supervised release. In United States v. Rea -- a decision that predated Griffin and Samson, but which has not been overruled -- the Second Circuit held that the Fourth Amendment's warrant requirement presumptively applies to the search of a probationer's home, where no state law or condition of probation authorizes a warrantless search of the probationer. In Rea, the probationer was subject "to conditions of probation which generally tend[ed] to diminish his otherwise valid expectations of privacy from intrusion by Governmental authorities," including, as here, the condition that the "probation officer c[ould] enter the probationer's home without a warrant in order to make supervisory visits." The Court held that, notwithstanding the probationer's reduced expectations of privacy, the presumptive warrant requirement applied in these circumstances:

[N]o statutory provision exempts a probation officer from the requirement that he obtain a warrant before searching the home of a probationer. There also has been no showing that upholding the warrant requirements for searches of probationers' homes will seriously impede the accomplishment of the dual law enforcement and rehabilitative goals of probation. Therefore, we hold that a probation officer is required to obtain a warrant prior to conducting a search of a probationer's home unless the search falls within a judicially recognized exception to the warrant requirement.

. . .

There are important limitations and exceptions to the Leon doctrine. Most important, for the Leon good faith exception to apply, "the officer's reliance on the magistrate's probable-cause determination ... must be objectively reasonable." In applying this principle, the Leon Court noted that, "depending on the circumstances of the particular case, a warrant may be so facially deficient -- i.e., in failing to particularize the place to be searched or the things to be seized -- that the executing officers cannot reasonably presume it to be valid."

Defendant excluded from his home by a valid court order had no reasonable expectation of privacy in it. State v. Stephenson, 760 N.W.2d 22 (Minn. App. 2009).

Officer looked through car window after defendant was arrested, and he saw scales. It was close in time to the arrest, and that justified a search incident. McGarvey v. State, 2009 WY 8, 200 P.3d 785 (2009).*

Strip searches must be conducted at the minimum on reasonable suspicion. Florence v. Bd. of Chosen Freeholders of Burlington, 2009 U.S. Dist. LEXIS 7923 (D. N.J. February 4, 2009):

Several other Courts in this District have since held the same. See, e.g., DiLoreto v. Borough of Oaklyn, 744 F. Supp. 610, 622 (D.N.J. 1990) (holding that a visual strip search and subsequent viewing of plaintiff urinating was not reasonable "on the basis of mere suspicion that a car in which the detainee was a passenger was stolen."); Ernst v. Borough of Fort Lee, 739 F. Supp. 220, 225 (D.N.J. 1990) ("The mere fact that an arrestee will be incarcerated … does not render a strip search reasonable. Stated somewhat differently, arrest itself, standing alone, is simply not enough."); O'Brien v. Borough of Woodbury Heights, 679 F. Supp. 429, 434 (D.N.J. 1988) (holding that strip/body cavity searches of plaintiffs arrested for petty disorderly offenses were unconstitutional and "senseless"); cf. Wilkes v. Borough of Clayton, 696 F. Supp. 144, 149 (D.N.J. 1988) (holding borough's blanket policy of visual observation of arrestees using bathroom facilities "no less destructive of arrestees' rights than the visual strip searches" previously held unconstitutional).

With respect to the Circuit Courts of Appeal, eight circuits presently agree that reasonable suspicion must be present before a strip search is conducted in this context. See Bull v. City and County of San Francisco, 539 F.3d 1193 (9th Cir. 2008); Roberts v. Rhode Island., 239 F.3d 107 (1st Cir. 2001); Weber v. Dell, 804 F.2d 796 (2d Cir. 1986), cert denied, 483 U.S. 1020 (1987); Masters v. Crouch, 872 F.2d 1248, 1255 (6th Cir. 1989), cert denied, 493 U.S. 977 (1989); Jones v. Edwards, 770 F.2d 739 (8th Cir. 1985); Stewart v. County of Lubbock, 767 F.2d 153 (5th Cir. 1985), cert denied, 475 U.S. 1066 (1986); Hill v. Bogans, 735 F.2d 391 (10th Cir. 1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263 (7th Cir. 1983); Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981), cert denied, 455 U.S. 942 (1982). This consensus is buttressed by valid concerns for privacy, dignity, and the preservation of self-worth. See, e.g., Roberts, 239 F.3d at 110 (considering strip searches an "extreme intrusion" on personal privacy and "an offense to the dignity of the individual") (citation omitted); Chapman v. Nichols, 989 F.3d 393, 396 (10th Cir. 1993) ("It is axiomatic that a strip search represents a serious intrusion upon personal rights."); Mary Beth G., 723 F.2d at 1272 (7th Cir. 1983) (considering strip searches "demeaning, dehumanizing, undignified, embarrassing and repulsive"); see also, O'Brien, 679 F. Supp. at 434 (D.N.J. 1988) (describing strip/body cavity searches of plaintiffs for disorderly offenses as humiliat[ing] and degrad[ing]"). In short, a clear consensus demonstrates that these searches are undignified and unconstitutional.

Officer who was generally aware of a search warrant's terms but did not have it in hand complied with the Fourth Amendment under Groh. United States v. Brown, 2009 U.S. Dist. LEXIS 7777 (E.D. N.Y. February 3, 2009):

Beyond merely complying with the four core warrant requirements of the Fourth Amendment, the undisputed credible facts establish that the execution of the warrant substantially complied with the procedural restrictions contained in the body of the warrant itself: the warrant was executed in the daytime, within ten days of its issuance, by officers of the NYPD. Although the warrant authorized the officers to enter Apartment 2A without previously announcing their authority (a "no-knock" warrant), Captain McGinn was unaware of this term. He adopted the more conservative approach to gaining entry to Apartment 2A by directing ESU officers to knock at the door and announce the NYPD's presence. This decision underscores the reasonableness of Captain McGinn's conduct in a situation in which he knew of the search warrant for crack cocaine inside Apartment 2A, but did not actually possess the warrant and thus did not know whether a no-knock entry was permitted.

Applying an objective standard in determining whether Captain McGinn's search of Apartment 2A was "pursuant to" the warrant, the court finds that because the warrant authorized the search of Apartment 2A by "any police officer in the City of New York" (Gov. Ex. 1), it is of no moment that the PSA-3 team did not obtain the search warrant for Apartment 2A, or that they did not intend to execute that warrant when they went to 125 Nostrand Avenue on January 9, 2007. Captain McGinn's knowledge of the contents of the search warrant and his reasonable reliance that the warrant was facially valid were sufficient.

Based upon the foregoing undisputed facts, Captain McGinn did not violate the Fourth Amendment when he directed the NYPD ESU and PSA-3 officers to enter Apartment 2A and search inside for crack cocaine, because the search of Brown's apartment was conducted "pursuant to" a valid search warrant. Accordingly, the court denies Brown's motion to suppress the evidence recovered inside his apartment as a result of the search.

Search warrant for a grow operation in a vineyard was executed, but the defendants lacked standing because the vineyard qualified as an open field. United States v. Alejandres-Santa Cruz, 2009 U.S. Dist. LEXIS 7975 (W.D. Wash. January 23, 2009).*

State court determination of third party consent bound § 1983 action over the same issue. Ingram v. Lupas, 2009 U.S. Dist. LEXIS 7791 (M.D. Pa. February 3, 2009).*

Police responded to a disturbance call at defendant's residence. A window beside the door was broken and the officers heard yelling from inside the residence. Defendant appeared at the window, visibly impaired and agitated, and said that he and his girlfriend were arguing, but the officers were unable to see the girlfriend. Officers told him to come back to the window, but he refused. This was exigent circumstances to enter. United States v. Tennis, 309 Fed. Appx. 312 (11th Cir. 2009) (unpublished).*

Pretext challenge failed, and there was a factual basis for the stop. The consent was valid. United States v. Suarez, 2009 U.S. App. LEXIS 2007 (4th Cir. January 30, 2009) (unpublished).*

"The strange movements in the car [during the traffic stop], combined with Defendant's nervousness, were sufficient to give the Officers a reasonable suspicion that the vehicle's occupants were attempting to hide something, particularly a weapon of some sort. United States v. Parker, 2009 U.S. Dist. LEXIS 7258 (E.D. Mo. February 2, 2009).*

Sole ownership of a corporation does not confer standing on the owner. United States v. Okun, 2009 U.S. Dist. LEXIS 7402 (E.D. Va. February 2, 2009):

While the Fourth Circuit has not directly ruled on the issue, the weight of precedent in this area clearly indicates that the possessory interest attendant to sole ownership of a corporation is not, in and of itself, sufficient to confer upon the owner Fourth Amendment standing as to all corporate property. See, e.g., U.S. v. Mohney, 949 F.2d 1397, 1403 (6th Cir. 1991); Williams v. Kunze, 806 F.2d 594, 599-600 (5th Cir. 1986); U.S. v. Moscatiello, 771 F.2d 589, 600-601 (1st Cir. 1985), rev'd on other grounds by Carter v. United States, 476 U.S. 1138, 106 S. Ct. 2241, 90 L. Ed. 2d 688 (1986); U.S. v. Vicknair, 610 F.2d 372, 379-80 (5th Cir. 1980); U.S. v. Dall, 608 F.2d 910, 914 (1st Cir. 1979); United States v. Kelly, 529 F.2d 1365, 1369-70 (8th Cir. 1976). Indeed, as the Eighth Circuit stated in Kelly, a case relied upon by Okun for the purpose of attempting to establish his standing: "a bare assertion of a property interest, without a supporting expectation of privacy, will not give rise to a cognizable Fourth Amendment claim." 529 F.2d at 1369. Therefore, while Okun's ownership of the corporations against which the search was conducted is surely a relevant and important consideration, that consideration is but one factor in deciding whether Okun possessed the required "reasonable expectation of privacy" necessary to have standing to challenge the search. See Rusher, 966 F.2d at 874-75.

See the SDI case posted Jan. 28.

Dog sniff during traffic stop that did not extend the stop was reasonable. United States v. Pierce, 2009 U.S. Dist. LEXIS 7207 (D. Del. February 2, 2009):

In this case, Cpl. Brietzke verbally engaged Defendant during the traffic stop and detained Defendant for follow-up questioning. In these circumstances, the Court concludes that Cole's sniff of the exterior of Defendant's vehicle during the stop and questioning, including Cole's sniff at the open front-passenger window, was not a search within the meaning of the Fourth Amendment.

Defendant's movements of his body and hands strongly suggested that he had a gun in his waistband, and that justified a patdown. United States v. Green, 2009 U.S. Dist. LEXIS 6860 (M.D. Pa. January 30, 2009).*

The court does not have to decide whether there was a knock-and-announce violation, because it does not matter since the exclusionary rule would not apply. Reasonableness of the search, however, was still to be determined. United States v. Gladney, 2009 U.S. Dist. LEXIS 7032 (C.D. Cal. January 23, 2009):

It was reasonable for the officers to breach the door with their guns drawn, given that Defendant failed to answer the door. There is no testimony in the record that the agents ransacked the apartment, or left it inhabitable. Defendant was left outside until the protective sweep was complete, and then he was permitted to reenter his apartment. Moreover, Defendant has not identified specific conduct that supports his contention that the execution of the search warrant was unreasonable.

State's failure to challenge standing in the trial court did not involve any assertions of fact or law that the court or defendant relied on, so Steagald does not apply to the state arguing no standing on appeal. State v. Brooks, 760 N.W.2d 197 (Iowa Sup. 2009).

Third-hand hearsay was sufficient for a stop where the initial report was particular and not anonymous. State v. Bishop, 203 P.3d 1203 (Ida. 2009).*

From Yahoo! Tech and AP: AP IMPACT: SWAT teams deployed in 911 fraud. Scammers are using internet-based phone services to call 911 and report that they are high on drugs and shot their sister. The SWAT team responds and breaks in.

Doug Bates and his wife, Stacey, were in bed around 10 p.m., their 2-year-old daughters asleep in a nearby room. Suddenly they were shaken awake by the wail of police sirens and the rumble of a helicopter above their suburban Southern California home. A criminal must be on the loose, they thought.

Doug Bates got up to lock the doors and grabbed a knife. A beam from a flashlight hit him. He peeked into the backyard. A swarm of police, assault rifles drawn, ordered him out of the house. Bates emerged, frightened and with the knife in his hand, as his wife frantically dialed 911. They were handcuffed and ordered to the ground while officers stormed the house.

The scene of mayhem and carnage the officers expected was nowhere to be found. Neither the Bateses nor the officers knew that they were pawns in a dangerous game being played 1,200 miles away by a teenager bent on terrifying a random family of strangers.

. . .

While Doug and Stacey Bates were cuffed on the ground that night in March 2007, 18-year-old Randal Ellis, living with his parents in Mukilteo, Wash., was nearly finished with the 27-minute yarn about a drug-fueled murder that brought the Orange County Sheriff's Department SWAT team to the Bateses' home.

In a grisly sounding call to 911, Ellis was putting an Internet-based phone service for the hearing-impaired to nefarious use. By entering bogus information about his location, Ellis was able to make it seem to the 911 operator as if he was calling from inside the Bateses' home. He said he was high on drugs and had just shot his sister.

According to prosecutors, Ellis picked the Bates family at random, as he did with all of the 185 calls investigators say he made to 911 operators around the country.

At what point are the police on notice that these types of calls could be bogus? Should the police wait to find out or go in? Under Herring, is just being on notice of a risk enough to sue the police? I know that Herring is a criminal case, but we all know it will soon be applied to civil cases.

A suppression hearing in the District of Massachusetts was fraught with a Brady/Kyles violation because of the officer's inconsistent versions and admission to the prosecutor that he did not first see the defendant to identify him, yet the government's pleading said he could. The AUSA was ordered to turn over her notes to the court for review, and they were given to the defense. Evaluating all the evidence now, the defendant loses on the motion, but the court orders review of a sanction against the AUSA. United States v. Jones, 609 F. Supp. 2d 113 (D. Mass. 2009) (opinion remarkably not on the court's website):

On October 30, 2008, Jones' counsel pointed out the many times reflected in Sullivan's notes that Cooley had told her that he did not identify the man on the bicycle as Jones on Middleton Street. These prior statements directly contradicted the assertion made in the government's Opposition to the motion to suppress, and in Cooley's affidavit and repeated testimony. Cooley's claim that he recognized Jones on Middleton Street was important to the government's contention that there was reasonable suspicion to chase and stop Jones when he first pedaled away from the approaching officers.

Rule 116.2(A)(2) of the Local Rules of the United District Court for the District of Massachusetts defines exculpatory information as including "all information that is material and favorable to the accused because it tends to ... [c]ast doubt on the admissibility of evidence that the government anticipates offering its case-in-chief ..." It has been long and clearly established that exculpatory information includes information that is potentially useful in impeaching government witnesses, as well as information that directly tends to negate guilt. See Giglio v. United States, 405 U.S. 150, 153-54, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); United States v. Misla-Aldarondo, 478 F.3d 52, 63 (1st Cir. 2007). Both Sullivan and Herbert, who reviewed her notes before they were submitted to the court for in camera review, now admit that the government made an error in not, by October 10, 2008, disclosing the many, various statements inconsistent with Cooley's affidavit and anticipated testimony that were memorialized in Sullivan's notes. See Oct. 30, 2008 Tr. at 117, 119, 124-126.

This error had the potential both to injure the court's ability to find the facts properly and to violate Jones' right to due process. See Giglio, 405 U.S. at 154. That potential might have been realized if the government's argument against holding an evidentiary hearing had been persuasive. However, the error was discovered in the course of the suppression hearing. Cooley was recalled to testify further and was thoroughly cross-examined based on the information revealed by Sullivan's notes. See Oct. 30, 2008 Tr. at 29-41, 48-50. The government has since abandoned its reliance on the claim that justification to stop Jones existed because Cooley recognized him on Middleton Street and regarded his flight as suspiciously inconsistent with Jones' conduct on prior occasions.

Therefore, this case is analogous to United States v. Osorio, which the First Circuit in 1991 characterized as involving "the recurring problem of belated government compliance with its duty to provide timely disclosure of exculpatory evidence," caused in Osorio by "astounding negligence." 929 F.2d 753, 755 (1991). "When dealing with cases of delayed disclosure 'the critical inquiry is ... whether the tardiness prevented defense counsel from employing the material to good effect.'" Id. at 757 (quoting United States v. Devin, 918 F.2d 280, 290 (1st Cir. 1990)). In the instant case, Jones eventually received the information to which he was constitutionally entitled and his counsel used it effectively to impeach Cooley's testimony thoroughly. Therefore, Jones has not been prejudiced.

Nevertheless, the court is considering whether to impose sanctions on the government and/or the lead prosecutor, Sullivan. Generally, the supervisory powers of the court should not be used to redress harmless error. See United States v. Santana, 6 F.3d 1, 11 (1st Cir. 1993). However, "the use of supervisory power to dismiss an indictment, in the absence of injury to the defendant, may not be entirely a dead letter ... [the Supreme Court has left] open the possibility that the goal of deterring future misconduct would justify using the supervisory power to redress conduct not injuring defendants if the conduct is plainly improper, indisputably outrageous, and not redressable through the utilization of less drastic disciplinary tools." Id. (citation omitted).

The egregious failure of the government to disclose plainly material exculpatory evidence in this case extends a dismal history of intentional and inadvertent violations of the government's duties to disclose in cases assigned to this court. However, this court has long shared the view expressed in United States v. Modica, 663 F.2d 1173, 1184 (2d Cir. 1981), that generally a defendant should not be rewarded, and the public should not be punished, for a prosecutor's violation of constitutional and ethical duties that do not prejudice the defendant. See United States v. Kelly, 543 F. Supp. 1303, 1313 (D. Mass. 1982) (quoting Deputy United States Attorney Mark. L. Wolf). Rather, in some such cases a sanction should be imposed on the prosecutor personally. Id.

. . .

In any event, the court is considering imposing sanctions on Sullivan. The court assumes that her failure to disclose material, exculpatory information was not intentional, in part because Sullivan produced her notes for the court's in camera inspection. Nevertheless, the violations were clear and inexcusable. If the error by an experienced prosecutor was inadvertent, it seems only to be explained by ignorance of or utter indifference to the constitutional duty she repeatedly claimed to have understood and obeyed. This court is consequently concerned that similar representations by other federal prosecutors are not reliable.

Accordingly, Sullivan and the United States Attorney are being ordered to file affidavits seeking to show cause why she should not be sanctioned in order to punish her misconduct and to attempt to send an important message to her colleagues. The court will also consider whether the imposition of additional sanctions on the government are necessary or appropriate.

See NLJ's Federal judge considers sanctions for Boston U.S. attorney's office.

Officers had exigent circumstances on the unusual facts of this case that a stolen pressurized tank was found next to defendant's house, and a gun was seen through a window. Then the gun was moved. Officers could reasonably fear the weapon. The facts were "unusual" and "extraordinary." State v. Smith, 165 Wn.2d 511, 199 P.3d 386 (2009) (dissent here):

¶18 Under the extraordinary facts of this case, the responding officers identified a legitimate threat to officer and public safety sufficient to constitute an exigent circumstance. Upon arriving at the property, they found a stolen tanker truck parked next to the house, pressure filled with 1,000 gallons of an extremely dangerous chemical. Presumably, someone hiding in the house had stolen the tanker, in a criminal act serious enough to warrant FBI involvement. The officers saw a firearm through the window of the house. By the time Smith and Breuer had emerged from the house, the firearm had disappeared, and Smith and Breuer did not have it.

¶19 The trial court made a finding of fact that Detective Gonzales was concerned that a person with the missing gun inside the house would shoot the pressurized tank of anhydrous ammonia, causing a grave health risk for all those in the vicinity. He was also concerned that a person hiding in the house would shoot directly at the officers.

¶20 There was no pretext here. The officers' actions were consistent with their stated purpose of preventing the risks to themselves and the public. They looked only in spaces where a person could hide, and they confiscated only the missing gun.

¶21 Under the unusual facts presented here, most notably the combination of large quantities of a toxic chemical and the missing firearm, the officers' search falls under the “officer and public safety” prong of the “exigent circumstances” exception to the warrant requirement. The trial court was correct in refusing to suppress the evidence gained in connection with the search.

Defendant was stopped for a windshield obstruction, and the officer a few minutes later said that he was going to issue a warning ticket. Additional questions, however, were revealing additional suspicions, and that justified more questions. United States v. Perez, 2008 U.S. Dist. LEXIS 106819 (D. Neb. December 2, 2008).*

Trial court's finding of voluntariness was supported by the videotape of the stop, which was purely conversational and not intimidating. United States v. Gonzalez, 308 Fed. Appx. 794 (5th Cir. 2009) (unpublished).*

A murder-suicide note police independently were aware of that was seen being read by defendant's wife was in plain view when they were on the premises by consent. Its seizure could not be successfully challenged by the defendant, so defense counsel could not have been ineffective for not challenging its seizure. Lynch v. State, 2 So. 3d 47 (Fla. 2008).*

Some subjective basis in a community caretaking search does not invalidate it if it has a real basis. State v. Kramer, 2009 WI 14, 315 Wis. 2d 414, 759 N.W.2d 598 (2009). This is a really interesting and educational opinion. Take a refresher course:

[*P30] When evaluating whether a community caretaker function is bona fide, we examine the totality of the circumstances as they existed at the time of the police conduct. Cady, 413 U.S. at 440; Kelsey C.R., 2001 WI 54, 243 Wis. 2d 422, P37, 626 N.W.2d 777. In so doing, we conclude that the "totally divorced" language from Cady does not mean that if the police officer has any subjective law enforcement concerns, he cannot be engaging in a valid community caretaker function. Rather, we conclude that in a community caretaker context, when under the totality of the circumstances an objectively reasonable basis for the community caretaker function is shown, that determination is not negated by the officer's subjective law enforcement concerns.

[*P31] In some respects, our analysis is similar to the analysis described in Whren. It is similar because in both a determination of probable cause to arrest, such as Whren, and in a community caretaker context, as we have in the case before us, when an objectively reasonable basis for probable cause or the community caretaker function exists, an officer's subjective motivations do not negate either the probable cause determination or the determination that the community caretaker function was bona fide. However, our analysis of the community caretaker function is also distinct from an analysis of whether there exists probable cause to arrest. In a probable cause analysis, the subjective intent of the officer plays no role in the totality of the circumstances that a court considers in determining whether there is probable cause to arrest. Whren, 517 U.S. at 813. In our community caretaker analysis, it constitutes a factor that may be considered in the totality of the circumstances.

[*P32] In regard to our community caretaker analysis, the nature of a police officer's work is multifaceted. An officer is charged with enforcing the law, but he or she also serves as a necessary community caretaker when the officer discovers a member of the public who is in need of assistance. As an officer goes about his or her duties, an officer cannot always ascertain which hat the officer will wear--his law enforcement hat or her community caretaker hat. For example, an officer may come upon what appears to be a stalled vehicle and decide to investigate to determine if assistance is needed; however, the investigation may show that a crime is being committed within the vehicle. Therefore, from the point of view of the officer, he or she must be prepared for either eventuality as the vehicle is approached. Accordingly, the officer may have law enforcement concerns, even when the officer has an objectively reasonable basis for performing a community caretaker function.

[*P33] To conclude otherwise would ignore the multifaceted nature of police work and force police officers to let down their guard and unnecessarily expose themselves to dangerous conditions. See, e.g., Maryland v. Wilson, 519 U.S. 408, 412-13, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997) ("Regrettably, traffic stops may be dangerous encounters. In 1994 alone, there were 5,762 officer assaults and 11 officers killed during traffic pursuits and stops."); Pennsylvania v. Mimms, 434 U.S. 106, 110, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977) ("[W]e have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. 'According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.'") (quoting Adams v. Williams, 407 U.S. 143, 148 n.3, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972)); State v. Ellenbecker, 159 Wis. 2d 91, 97, 464 N.W.2d 427 (Ct. App. 1990) ("[E]ven seemingly innocent activity, such as refueling a disabled car, could later turn out to be theft of a car that was left on the shoulder of the highway."); Charles Remsberg, The Tactical Edge: Surviving High-Risk Patrol 271-72 (Calibre Press 1988) (noting that officers approaching vehicles typically know nothing about the threat level passengers may pose, because they know nothing about the passengers themselves, and the officers thus expose themselves to considerable danger).

[*P34] Furthermore, to interpret the "totally divorced" language in Cady to mean that an officer could not engage in a community caretaker function if he or she had any law enforcement concerns would, for practical purposes, preclude police officers from engaging in any community caretaker functions at all. This result is neither sensible nor desirable.

Yesterday's WaPo: Deadly Force, by April Witt, recounting the raid on the home of the Mayor of Berwyn Heights, MD. The caption under the online photo: "Acting on a mistaken drug trafficking suspicion, a SWAT team broke down their door, shot beloved pets and shattered a happy home. Was it an extreme reaction, or business as usual in America's war on drugs?" This is the case of the mayor victimized by drug dealers sending drugs to the house to be picked up. The last five paragraphs:

They were also determined to hold the police accountable. Through a lawyer, Cheye, Trinity and Georgia have filed a notice of intent to sue the Prince George's County Police Department and the Sheriff's Office.

By the time, Cheye and Trinity hung ornaments on the Christmas tree in December, their sunny little brick home seemed almost as cozy as it used to, but different. Some damage couldn't be repaired. Georgia couldn't live in the house any longer and moved to an apartment in the area. Payton and Chase's ashes rested in a wooden chest, topped by their framed photo.

Cheye likes to sit near the chest on winter nights, Marshall at his feet, as he reads. Often, he sits up late researching Supreme Court rulings on police searches and seizures.

He's read the court's decision in one 2006 case, Hudson v. Michigan, more than once. In Hudson, the court found that even when police make a clearly illegal no-knock raid, the evidence they seize can still be used against a defendant at trial.

"In other words, police can do what they did to us with impunity" Cheye concluded. "There are no consequences, not for them."

On NYTimes.com today: To Nudge, Shift or Shove the Supreme Court Left.

Putting defendant in the back of a police car during a traffic stop did not elevate the stop to a Terry stop. United States v. Dunbar, 553 F.3d 48 (1st Cir. 2009):

[T]he fact that Dunbar "was placed in the back of a police cruiser does not elevate the detention beyond a Terry stop." Flowers v. Fiore, 359 F.3d 24, 30 (1st Cir. 2004). Though Dunbar was stopped based on a traffic violation, not on suspicion of some larger crime, we see no basis for concluding that the officer could not place Dunbar in his cruiser while he prepared the traffic citation. See Ruidiaz, 529 F.3d at 32 (holding that "[w]hen a Terry stop is effected in connection with a traffic violation and an officer's concern for his own safety is implicated, it is within the officer's authority to order a passenger out of the car as a security measure" and that "an officer may issue such an order as a matter of course; he does not need to have an independent fear for his safety" (emphasis in original) (citation omitted)).

Patdown produced certainty in the officer that he felt crack and marijuana, so plain feel was satisfied. The search of the car thereafter was justified as an inventory since defendant was in custody. State v. Davis, 2009 Ohio 345, 2009 Ohio App. LEXIS 276 (8th Dist. January 29, 2009).*

Officer responded to domestic disturbance call, and the defendant's wife who was calmly standing in the door was complaining about his smoking marijuana in front of their son. The officer, without invitation, entered, and it was unlawful.
State v. Biddix, 2009 Ohio 384, 2009 Ohio App. LEXIS 325 (6th Dist. January 30, 2009):

[T]he officer testified only that he saw an open door and entered. There was no suggestion that appellant or anyone else invited him in. Moreover, there was no evidence of exigent circumstances which might justify the officer's warrantless intrusion into appellant's home. There was no report of physical violence. There was no suggestion that any person or property inside the apartment was in jeopardy.

District court erred in presuming defendant was seized under Terry. The first question should have been whether the continuation of the stop was consensual, so the case is vacated for reconsideration. United States v. Crandell, 554 F.3d 79 (3d Cir. 2009), rev'g United States v. Crandell, 509 F. Supp. 2d 435 (D. N.J. 2007).

Officers could order a stopped motorist out of his car on a traffic stop. Here, the defendant got out of the car, and baggies of crack fell out of his pants leg. That was a valid plain view. United States v. Cochran, 309 Fed. Appx. 2 (7th Cir. 2009) (unpublished).*