Defendant was an IT guy at Ohio's Miami U, and several high end items, including a $4,500 digital camera, disappeared from the University which were found on eBay for sale by "thesizemores." An investigation was begun, and an officer went to defendant's house to talk to him, but nobody answered. The officer left and called defendant, cellphone to cellphone, and defendant answered and said that he was out doing some personal business. The officer, however, heard defendant's storm door squeaking on the phone, a sound he had just heard, so he went back and saw defendant driving away from his home. A traffic stop was made based on erratic driving, and the officer asked about the stolen camera. All the stolen electronic items from the University were in the bed of the defendant's pickup truck in plain view [apparently the evidentiary value was immediately apparent]. The stop was justified. State v. Sizemore, 2009 Ohio 5069, 2009 Ohio App. LEXIS 4282 (12th Dist. September 28, 2009)* (IT guys usually think they are so smart. Selling stolen property on eBay? In your own name?).

Search of defendant's pretrial jail cell and seizure of Romanian language documents to use in another matter did not violate defendant's Fourth or Sixth Amendment rights. As to the Sixth Amendment claim, the documents were never used in state court, so he could show no constitutional violation. Gheorghiu v. Commonwealth, 54 Va. App. 645, 682 S.E.2d 50 (2009).*

A school search validly occurred based on another student telling school officials that he saw defendant with a gun at school. That was a sufficient basis of knowledge for this CI. Commonwealth v. Monteiro, 75 Mass. App. Ct. 280, 913 N.E.2d 900 (2009).*

Defendant had no reasonable expectation of privacy in a search of the records of a credit card processor for credit card owners purchasing child porn. United States v. Mason, 660 F. Supp. 2d 479 (W.D. N.Y. 2009).*

Police received a shots fired call and came to defendant's property, and could ID him as the source. They thus had authority to conduct a protective sweep of the premises for possible victims, which defendant conceded at the hearing. United States v. Martinez, 2009 U.S. Dist. LEXIS 88407 (S.D. Tex. September 25, 2009).*

Defendant was stopped for a seat belt violation, and the smell of marijuana wafted from the car. The officer asked why he could smell marijuana, and the defendant handed him a joint. The officer asked if there was more in the car, and the defendant said that there was at his house, which he then consented to. United States v. Thomas, 2009 U.S. Dist. LEXIS 88618 (W.D. Tenn. July 20, 2009).*

Seizure of pornographic magazines in a sex assault case were proper and within the scope of the search warrant. Rasmussen v. State, 2009 Ark. App. 586, 2009 Ark. App. LEXIS 731 (September 16, 2009):

The affidavit stated that appellant likely possessed items used to arouse and entice children, including sexually-oriented photographs, videos, and magazines depicting adults and children. The covers of the magazines in question were replete with references to depictions of "young girls" and "teens," bore photographs of nude girls or young women in suggestive poses, and were found in a location within the reasonable scope of the search for the items expressly specified in the affidavit. Considering the totality of the circumstances, we think that the pornographic magazines seized from appellant's home were within the scope of the search authorized by the warrant. In any event, under Ark. R. Crim. P. 13.3(d), if the officer prosecuting the search discovers things not specified in the warrant that he reasonably believes to be subject to seizure, he may also take possession of things so discovered. George v. State, supra.

Officer who observed a convenience store patron apparently drunk could stop the motorist on reasonable suspicion of DUI when the patron left and drove off. State v. Hessel, 2009 Ohio 4935, 2009 Ohio App. LEXIS 4175 (12th Dist. September 21, 2009).*

Police had PC for defendant’s stop in his car. He had been under investigation for 8 months, they had 106 recorded conversations, and they knew he would have drugs in his car. People v. Stroud, 392 Ill. App. 3d 776, 911 N.E.2d 1152, 331 Ill. Dec. 922 (2009).*

Now Safford is a decided case instead of just an argued case. The incomparable Vista operating system, which, frankly sucks and would make a grown man cry,* or at least seriously considering going to Apple, crashed an almost new (6 months old) Lenovo computer** and took out the entire hard drive. Getting back into the blog settings for the template was not easy, after having to find the lost copy of the software that enabled it, and then getting the settings.

I'm a lawyer, see, not a tech guy. Besides, I had a real job to contend with. I have other plans for the template that have been on hold. We'll see.

_________

* Remember Windows 98's ad campaign with the Rolling Stones's Start Me Up? One of the lines is "You make a grown man cry." My office computer guy actually said, "Vista sucks. It did this. What can I say?" I have beaten computers to death before, but doing that to this computer would be like beating a hospital patient to death for having pneumonia. Not even Rep. Eric Cantor would do that; just make the patient sell everything and get charity.

** Only Vista would kill a computer with a ThinkVantage Rescue and Recovery blue botton.

Hot pursuit was similar to that in Santana. The defendant got to the threshold, where he was detained and he threw a baggie of cocaine inside. The officer could retrieve it. State v. Allen, 2009 Tenn. Crim. App. LEXIS 799 (September 23, 2009).*

"[T]he Defendant appeals the trial court's conclusion that the checkpoint did not unreasonably intrude upon his constitutional right to privacy, arguing (1) the advance publicity of the checkpoint was inadequate; (2) the checkpoint lacked a basis in a statistical study establishing the need for DUI deterrence at the checkpoint's location; and (3) the checkpoint inadequately limited supervising officer Sergeant Bay's discretion in implementing the checkpoint. We address each of the Defendant's contentions below," and the prosecution satisfied each requirement. State v. Muncie, 2009 Tenn. Crim. App. LEXIS 811 (September 23, 2009).*

Defendant’s stop was based on a seat belt violation, but ICE had information on defendant from the year before that made PC to search the car for drugs from a plane that flew into the U.S. United States v. Alvarez, 2009 U.S. Dist. LEXIS 87995 (D. N.J. September 23, 2009) (Well, if they had PC to search the car, why did they have to use the seat belt violation for the stop?)*

Similarly, the stop here was based on PC for a traffic offense, but there was PC for a felony, too. United States v. Stilling, 346 Fed. Appx. 458 (11th Cir. 2009) (unpublished):

Furthermore, the district court's application of the inevitable discovery doctrine falls squarely within this Circuit's jurisprudence. As in Jefferson, the police had information that caused them to focus their attention on Stilling even before the stop. See Jefferson, 382 F.3d at 1296. Moreover, and assuming the stop by Deputy Ortiz had not occurred, Deputy Lajic was seconds behind Deputy Ortiz in stopping Stilling and would have lawfully stopped him based on the traffic violations Stilling had committed. As Deputy Lajic testified, he was looking for probable cause to stop this particular vehicle, which had been identified as coming from a high drug-trafficking area. Upon a lawful stop of Stilling's vehicle, Deputy Lajic would have inevitably discovered the cocaine in Stilling's vehicle. There was a reasonable probability the drugs would have been discovered during Deputy Lajic's stop, and Deputy Lajic was actively pursuing Stilling prior to Deputy Ortiz's stop. See Jefferson, 382 F.3d at 1296.

The officers unlawfully entered defendant's property and stayed there seven hours before the search warrant arrived. Removing anything from the application for the warrant that came from the illegal entry left enough for the warrant to issue. The first officer's outlandish conduct in the illegal entry did not taint the warrant. Commonwealth v. Webster, 75 Mass. App. Ct. 247, 913 N.E.2d 890 (2009). An interesting view:

The defendant does not claim that the affidavit had an insufficient independent basis to support the search warrant. Instead, he contends that the fruits of the search should be suppressed because of egregious police misconduct. The misconduct consisted of illegally entering the apartment and staying there for approximately seven hours while waiting for the warrant, all the while restraining the occupants from movement and from answering the telephone. Officer Fabiano, in addition, searched the apartment before the warrant issued and discovered hidden pornographic videos and paraphernalia which he then discussed with Ms. Webster in front of her friend, and, in the words of the defendant's counsel, "befouled before [Ms. Webster's] eyes [her home with] the revolting spectacle of [his] spitting tobacco juice into the kitchen sink."

Officer Fabiano's behavior, in particular, was thuggish, wholly unworthy of a professional who was sworn to protect the citizens of Boston. The motion judge rightly observed that his behavior "should be reported to his superiors for their review. Whether he be disciplined or subject to additional training is a function of the police department. Even young officers should know a search without the warrant is a violation of the constitutional rights of the citizenry."

The question, though, is whether the police misconduct warrants suppression of the mattress pistol even if, as the judge found, no fruits of the misconduct were used in the application for the search warrant and there was probable cause for the warrant's issuance. Relying principally on United States v. Madrid, 152 F.3d 1034 (8th Cir. 1998), the defendant argues that it does.

. . .

Here, although the police misconduct was similar to, and in some respects more outlandish than, the misconduct in Madrid, the warrant application was sufficient after removing any product of the misconduct. Because the application was sufficient, we have no need to explore whether the inevitable discovery rule validates the search or whether that rule is inapplicable in the face of improprieties like those that plagued this case.

. . .

Here, the mattress pistol was not obtained in violation of the defendant's constitutional rights, and its use as evidence had no adverse impact on the law's integrity. Suppression of the mattress pistol, therefore, was not warranted. The remedy for unconstitutional police conduct lies in departmental discipline, a civil action, or, ultimately and if sufficiently durable and widespread, the voting booth.

Defendant's issues for appeal of denial of a suppression motion in a child porn case did not rise to exceptional circumstances for bail pending appeal. Child porn is a crime of violence where there is no bail pending appeal without exceptional circumstances. United States v. Bonczek, 2009 U.S. Dist. LEXIS 87782 (S.D. N.Y. September 8, 2009):

The Government urges that Mr. Bonczek has failed to make a clear showing of exceptional circumstances. Mr. Bonczek argues that the issues he will raise on appeal are "exceptional," including:

(1) The District Court failed to suppress the pornographic materials seized from Bonczek's apartment, as it should have, and instead erroneously relied on the:

(a) independent source doctrine; and
(b) inevitable discovery doctrine; and

(2) The affidavit in support of the search warrant failed to describe the child pornography with sufficient particularity.

Of course, agreeing that the questions on appeal are substantial does not mean that they are exceptional. ...

. . .

As to the exceptional nature of the law applicable to Mr. Bonczek's suppression motion, there are no unusual legal or factual questions. There is abundant law on Mr. Bonczek's issues for appeal, and the legal questions are not unusual, even if the Second Circuit has not specifically ruled on the sufficiency-of-the-affidavit issue that Mr. Bonczek challenges. See United States v. Jasorka, 153 F.3d 58, 60-61 (2d Cir. 1998).

Comment: Based on the cases I've read, without even knowing the specifics of the issue here, I would have to agree with the court that the chances of success on the appeal where PC is the issue is less than 1 in 30 because of the good faith exception. So few child porn searches win that, statistically, it is unlikely he will win on appeal.

Inevitable discovery supported seizure from a car that the court found no PC for an automobile search. However, an inventory search which was authorized would have discovered the evidence, despite the fact the court does not believe the officer. United States v. Martinez-Pena, 2009 U.S. Dist. LEXIS 87578 (N.D. Iowa September 23, 2009)*:

The first prong of the test is more problematic. The only evidence at the suppression hearing regarding the location of the drugs was from Bob Jones, who testified he saw the methamphetamine as soon as he opened the driver's side door. The court has found this evidence not to be credible, both from the photographs and from the fact that both of the other officers who had a reasonable opportunity to do so failed to notice anything in the driver's side floorboard. Nevertheless, it also seems reasonable that during a thorough inventory search of the vehicle, Todd Jones and Miller would have checked underneath the seats for items that should be placed on the inventory list. The court therefore finds that inevitable discovery of the illegally-seized evidence during the inventory search was "more likely than not." See Bourjaily v. United States, 483 U.S. 171, 176, 107 S. Ct. 2775, 2779, 97 L. Ed. 2d 144 (1987); see also Thomas, 524 F.3d at 861-62 (Colloton, C.J., concurring). As a result, the drugs need not be suppressed.

Defendant was not seized when the officer parked behind the defendant's legally parked car, walked to the front and started asking questions. The fact the car was blocked, however, and defendant could not leave, was a seizure. United States v. Hicks, 2009 U.S. Dist. LEXIS 87884 (E.D. Pa. September 23, 2009):

Viewing the totality of the circumstances, however, this Court concludes that the occupants of the vehicle were seized when Officer Haser, whose vehicle was blocking the Intrepid from leaving, instructed the driver, Hicks, to shut off the car engine and Hicks complied. At that point in time, Defendants were faced with a uniformed officer with a holstered weapon who had asked the driver to roll down the window and also instructed the driver to shut off the engine. Furthermore, the Intrepid was blocked in such a way that to terminate the encounter, the driver would have had to back up from his parked spot and maneuver his car around Officer Haser's patrol car. To accomplish this, the driver would have either had to defy Officer Haser and start the engine again or Defendants would have had to exit the vehicle and abandon the car with the officer only a few feet away. Instead, Hicks complied with Officer Haser's show of authority and shut off the engine. A reasonable person in the situation in which the occupants of the Intrepid found themselves would not feel free to ignore the police officer and go about his or her business. See United States v. Jones, 562 F.3d 768, 772 (6th Cir. 2009) ("Here, by blocking in the Nissan, the officers had communicated to a reasonable person occupying the Nissan that he or she was not free to drive away.").

A party to a business dispute was temporarily ousted by Sheriff's deputies enforcing a court order. The business dispute led to an order of possession, a stay, and a bankruptcy and a stay of the stay until it was dissolved. The Sheriff's deputies had qualified immunity. Dever v. Kelly, 348 Fed. Appx. 107, 2009 FED App. 0656N (6th Cir. 2009) (unpublished).*

The Pennsylvania Supreme Court has agreed to hear a case that implicates gun searches in every drug case, Commonwealth v. Grahame, 981 A.2d 1284 (Pa. 2009):

The issue, rephrased for clarity, is:

Did the Superior Court err in finding sufficient reasonable suspicion based on a "guns follow drugs" presumption to justify a "protective search" of Petitioner's pocketbook for weapons pursuant to Terry v. Ohio 392 U.S. 1 (1968)?

In addressing this issue, the parties are to discuss and address any alternative, intermediate investigative measures, short of a search, which police officers may have lawfully utilized under the circumstances of this case. See, e.g., 4 Wayne R. Lafave, Search and Seizure § 9.6(e) (4th. Ed. 2008).

The prior post was from eighteen months ago:

Consent to search a house immediately after a drug deal there permitted a search of a large handbag of a guest on the premises. Normally, consent does not extend to the persons of guests not shown to be linked to the crime under investigation, but here the search of the bag was reasonably related to officer safety because it was clearly large enough to hold a gun. Commonwealth v. Grahame, 2008 PA Super 73, 2008 Pa. Super. LEXIS 581 (April 18, 2008).*

Don't expect a decision soon.

In an IAC claim, defendant would lose on the merits of the search both because there was PC and because the GFE, Mil. R. Ev. 311(b)(3), applied. United States v. Orona, 2009 CCA LEXIS 345 (A.F. Ct. Crim. App. September 14, 2009):

In the case sub judice, the military judge addressed the three prongs of Mil. R. Evid. 311(b)(3) and found that they were all met. We agree. Concerning the first prong, the military judge concluded that the warrant was issued by a competent authority. On this point, we note that the evidence highlights the magistrate was a competent authority to issue the search authorization. With regard to the second prong, the military judge concluded that there was no evidence that Special Agent MB provided false information to the magistrate or that Special Agent MB acted in bad faith by failing to advise the magistrate that the appellant's background showed no pedophilia tendencies.

We likewise note there is neither evidence that the information Special Agent MB provided in the affidavit was false much less deliberately false nor evidence that Special Agent MB exhibited a reckless disregard for the truth in providing information to the magistrate. Her failure to provide the information trial defense counsel highlighted in his motion simply does not evince a reckless disregard for the truth. Moreover, we have examined the affidavit and note that it is more than a "bare bones" recital of conclusions. The affidavit is replete with facts from which the magistrate could conclude, correctly or incorrectly, that the appellant had possessed and was still in possession of child pornography.

Lastly, the military judge found, contrary to the appellant's assertion, that there was no evidence the magistrate "rubber stamped" Special Agent MB's request and, in so doing, abandoned his judicial role. Rather, the evidence shows the magistrate was neutral and detached and he conscientiously exercised his judicial role. In the final analysis, we agree with the military judge's conclusion that the good faith exception is applicable. Accordingly, we find that the military judge did not err in admitting the evidence Special Agent MB seized from the appellant. The evidence was properly admissible because the magistrate had a substantial basis for determining that probable cause existed and, barring that, the evidence is properly admissible under the good faith exception.

Gant is retroactive, and a good faith exception is inappropriate, with separate analysis of the Fourth Amendment and state constitution. State v. McCormick, 152 Wn. App. 536, 216 P.3d 475 (2009). Retroactivity:

¶9 The Supreme Court has firmly established that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). Likewise, in Johnson, the Court decried the “actual inequity that results” when similarly situated defendants receive different treatment after a change in the law. United States v. Johnson, 457 U.S. 537, 556 n.16, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982) (emphasis omitted); see State v. Counts, 99 Wn.2d 54, 57, 659 P.2d 1087 (1983) (applying Johnson and adopting retroactivity in “all cases still pending on direct appeal at the time of the new decision”).

¶10 In Millan, we held that because Millan did not move to suppress at trial, he waived his Gant issue on appeal under RAP 2.5(a). State v. Millan, ___ Wn. App. ___, 212 P.3d 603, 607 (2009). But the reasoning in Millan is contrary to established law. Griffith, 479 U.S. at 328; Johnson, 457 U.S. at 556 n.16; Counts, 99 Wn.2d at 57-58. McCormick does not prevail on appeal because she moved to suppress at trial, but because justice demands that similarly situated defendants whose appeals are pending direct review deserve like treatment following a change in the law. Johnson, 457 U.S. at 556 n.16. We agree with the basic fairness represented by the Supreme Court's holding in Griffith and Johnson and follow our Supreme Court's recognition of these holdings in Counts. Griffith, 479 U.S. at 328; Johnson, 457 U.S. at 556 n.16; Counts, 99 Wn.2d at 57-58. We therefore reject Millan's reasoning and hold that under both RAP 2.5(a) and controlling precedent, McCormick has preserved the matter for appeal because the Supreme Court's opinion in Gant applies retroactively to all similarly situated defendants in Washington.

Good faith:

¶19 The State acknowledges that under State v. White, 97 Wn.2d 92, 109-10, 640 P.2d 1061 (1982), Washington does not recognize the federal good faith exception. In Buford, a district court analyzed Gant and the federal good faith exception at length and held that the exception did not apply. United States v. Buford, 623 F. Supp. 2d 923, 927 (M.D. Tenn. 2009) (concluding that because Buford would not have mentioned the gun unless the officers had conducted an unconstitutional search, evidence of the gun should be suppressed as fruit of the poisonous tree); but see United States v. Grote, 2009 WL 2068023 at *3 (E.D. Wash. 2009) (denying a motion for reconsideration that application of the good faith exception was merely an alternative ruling that did not constitute clear error on its part).

¶20 And recently, in Gonzalez, the Ninth Circuit rejected the good faith exception to the exclusionary rule in favor of the doctrine of retroactivity when faced with an argument nearly identical to the State's position in this appeal. United States v. Gonzalez, ___ F.3d ___, 2009 WL 2581738 (9th Cir. 2009). The court reasoned that to apply the good faith exception would “‘violate[] the principle of treating similarly situated defendants the same’ by allowing only one defendant to be the beneficiary of a newly announced rule.” Gonzalez, 2009 WL 2581738 *2 (quoting Griffith v. Kentucky, 479 U.S. at 322-23). The court ultimately concluded, “Because both Johnson and Griffith remain binding precedent, we cannot apply the good faith exception here without creating an untenable tension within existing Supreme Court law.” Gonzalez, 2009 WL 2581738 *2.

¶21 Ultimately, the State fails to provide us with a sound basis for avoiding the White precedent, which our Supreme Court recently reaffirmed as a rejection of DeFillippo and its progeny. See State v. Chenoweth, 160 Wn.2d 454, 472 n.14, 158 P.3d 595 (2007) (“no good faith exception for arrests made under unconstitutional statute) (rejecting … DeFillippo”) (citing White, 97 Wn.2d at 92)). We follow White, and decline to apply the federal good faith exception. 97 Wn.2d at 109-10.

Arrest for expired registration and lack of insurance cannot justify a search incident of the car's interior under Gant, in a case GVRed after Gant (reversing prior holding). State v. Carter, 2009 N.C. App. LEXIS 1574 (September 15, 2009), on remand from Carter v. North Carolina, 129 S. Ct. 2158, 173 L. Ed. 2d 1153 (U.S., 2009).

Officer’s prior knowledge of the defendant’s heavy meth involvement was RS for a patdown when defendant was stopped. Boyd v. State, 300 Ga. App. 455, 685 S.E.2d 319 (2009).*

Defendant had automatic standing under state law where it was alleged he was guilty of possession in the place searched. Commonwealth v. Ware, 75 Mass. App. Ct. 220, 913 N.E.2d 869 (2009).*

Officers doing a criminal history check during a traffic stop does not make the stop unreasonable. State v. Reed, 2009 Tenn. Crim. App. LEXIS 775 (September 17, 2009).*

Trial court found that defendant's stop was not justified because of a seat belt violation, and the officer was simply found not credible. The evidence does not preponderate against that finding. State v. Walker, 2009 Tenn. Crim. App. LEXIS 780 (September 21, 2009).*

Knock-and-talk approach veered off and officers instead went to defendant's outbuilding, and the search was unreasonable. Defendant's later consent was not sufficiently attenuated from the unlawful search. State v. Greene, 2009 Tenn. Crim. App. LEXIS 777 (September 22, 2009).*

Stop was based on weaving, and questions asked of the defendant that had nothing to do with the stop did not unlawfully extend it. United States v. Hernandez, 2009 U.S. Dist. LEXIS 86309 (N.D. Tex. September 21, 2009).*

The stop of the car defendant was a passenger in was justified, and he fled from the car and tossed a gun. United States v. Rodriguez-Aparicio, 2009 U.S. Dist. LEXIS 86710 (D. Nev. August 24, 2009).*

Inspection of a tractor trailer was justified by RS and a dog sniff because of defendant’s contradictory answers about where he had been when he came through South Texas making many unusual stops and being unable to explain the stops. United States v. Rendon, 2009 U.S. Dist. LEXIS 86410 (M.D. Ala. July 9, 2009).*

The search warrant for defendants’ premises for immigration fraud was based on probable cause and the search warrant for records was not open ended or general. United States v. Watson, 2009 U.S. Dist. LEXIS 86628 (S.D. Fla. May 29, 2009).*

Officers had RS that defendant was involved in a drug offense and had prior weapons offenses. That justified his patdown. The search of defendant’s car trunk would be unreasonable under Gant, but it was justified by the automobile exception because of probable cause. United States v. Arnold, 2009 U.S. Dist. LEXIS 87215 (E.D. Mich. September 23, 2009).*

Defendant’s stop was justified by his speeding, and the court finds that he expressly consented to a search of the vehicle. United States v. Rodriguez-Tirado, 2009 U.S. Dist. LEXIS 87050 (W.D. Tenn. September 22, 2009).*

While the defendant had been arrested after she admitted lying to officers, the evidence shows she voluntarily consented to a search. United States v. Berkolayko, 2009 U.S. Dist. LEXIS 86965 (S.D. N.Y. September 22, 2009).*

Defendant’s 45 minute detention on I-8 between border crossings while waiting for a drug dog was not unreasonable under all the circumstances. This case differs from the defendant’s primary authority involving a two hour delay of a suitcase in an airport. United States v. Macias-Encinas, 2009 U.S. Dist. LEXIS 86852 (S.D. Cal. September 22, 2009).*

Evidence showed that defendant consented to a search of his house, as proved by his twice offering to the police to look at a rifle in a closet and opening a nightstand drawer to show his “stash.” United States v. Lacy, 2009 U.S. Dist. LEXIS 86970 (E.D. Wis. August 13, 2009).*

Dog sniff was independent of an illegal search after the dog was called, so the dog sniff supported the search. United States v. Rendon, 2009 U.S. Dist. LEXIS 86409 (M.D. Ala. September 21, 2009):

While the Eleventh Circuit has not squarely addressed whether a canine sniff can provide an independent source of probable cause that justifies the admission of otherwise tainted evidence, several other circuits and district courts have addressed the subject. For example, in United States v. Forbes, 528 F.3d 1273 (10th Cir. 2008), government agents searched the interior of defendant's tractor-trailer, allegedly in violation of the Fourth Amendment, and then conducted a canine sniff of the exterior of the tractor-trailer. Id. at 1275-76. During the sniff, the canine alerted to drugs in the tractor-trailer, which was subsequently searched. Id. The Tenth Circuit determined that the evidence was admissible because the officers did not obtain the evidence as a result of an illegal search but rather through the independent source of a dog sniff. Id. at 1280. Notably, the initial illegal search yielded no contraband or evidence of wrongdoing, so it could not be said that the canine sniff was dependent on the prior illegal search. Id. Other authority, relied upon by the Magistrate Judge, similarly supports the proposition that a subsequent canine sniff can purge the taint resulting from a prior illegal search, and thus provide the probable cause necessary for the admission of any obtained evidence. See United States v. Moore, 329 F.3d 399, 404-05 (5th Cir. 2003); United States v. Harris, 175 F.3d 1017 (4th Cir. 1999); United States v. Jackson, 548 F. Supp. 2d 1314, 1324 (M.D. Fla. 2008).

In this case, the Magistrate Judge concluded that the decision to conduct a canine search was not in any way reliant upon the earlier illegal search conducted by Troopers Cox and Faulk (Doc. # 43, p. 11). This conclusion was based on the factual finding that the canine was called before any illegal search of the tractor-trailer took place (Doc. # 43, p. 2-3; Doc. # 42, p. 39, 52). Accepting the factual finding that the canine was called before any illegal search occurred, the court agrees that the canine sniff was a sufficiently distinguishable means of obtaining the probable cause necessary to justify the search and purge any taint from the prior illegal search in this case.

Contrary to defendant's assertion, defense counsel did file a motion to suppress and it was considered on the merits and denied, so he cannot raise IAC on this ground. United States v. Whitehead, 2009 U.S. Dist. LEXIS 86184 (N.D. Tex. September 21, 2009).*

Defendant’s guilty plea waived his claim after the plea that the consent form was forged. United States v. Hayes, 2009 U.S. Dist. LEXIS 86707 (N.D. Fla. August 31, 2009).*

Defendant was arrested after he walked out of a bedroom, and a search incident was conducted of the bedroom. The court finds that Gant does not apply to houses. United States v. Harris, 2009 U.S. Dist. LEXIS 86269 (N.D. Ill. September 21, 2009)*:

Assuming the seizure of the gun occurred before law enforcement obtained Truss' consent to search, the gun was justifiably seized as incident to Defendant's lawful arrest because the gun was recovered from the bedroom after Defendant was arrested coming out of the bedroom. See United States v. Tejada, 524 F.3d 809 (7th Cir. 2008) (law enforcement justified in searching the area that was in the immediate reach of the defendant at the time he was arrested, even though he was no longer there at the time of the search). In Tejada, the Seventh Circuit reasoned that "if the police could lawfully have searched the defendant's grabbing radius at the moment of arrest, he has no legitimate complaint if, the better to protect themselves from him, they first put him outside that radius." Id. at 812.

Here, it is uncontested that Defendant was in the bedroom at the time that agents entered the residence and that Defendant was apprehended by agents as he was coming out of the bedroom. The bedroom, and specifically the mattress, was within Defendant's grabbing radius at the time of his arrest. See Tejada, 524 F.3d at 811 (entertainment center that was within a few steps of the defendant at the time of his arrest was within defendant's grabbing distance). Thus, even though at the time of the search the Defendant was removed from the radius, under Tejada, the agents were justified in recovering the gun.

Defendant argues that Arizona v. Gant compels a different result. 129 S.Ct. 1710 (2009). In Gant, the Supreme Court recently held that a warrantless search of vehicle incident to arrest is only authorized if the arrestee is within reaching distance at the time of the search or if it is reasonable to believe that the vehicle contains evidence of the offense of arrest. Id. at 1723. However, the holding in Gant was limited to searches of vehicles incident to the arrest of the vehicle's recent occupant. Id. at 1723-24. As such, Gant fails to abrogate Tejada, on which I rely.

The room next to where defendant was arrested was subject to a valid protective sweep and not a search incident. United States v. Lemus, 582 F.3d 958 (9th Cir. 2009)*:

According to Buie, a "protective search 'incident to the arrest'" to protect the arresting officers from the danger of a surprise attack can be completed without reasonable suspicion or probable cause if two conditions are present. First, the area searched must "immediately adjoin []" the area of arrest. Id. Second, the area searched must be one "from which an attack could be immediately launched," and thus in any event must be capable of concealing at least one person. Id. Both of these conditions are satisfied here.

"Evans claims that the Federal Protective Service ("FPS") officers who conducted an investigative stop of her vehicle violated her Fourth Amendment rights by exceeding their jurisdictional authority under 40 U.S.C. § 1315. We disagree and affirm. In doing so, we hold that the FPS officers reasonably exercised their investigative and protective authority pursuant to § 1315 when they left federal property to surveil Evans's vehicle. We further hold that Evans's conduct, specifically, her tailgating of the FPS officers' marked police vehicle and her visible hand gestures, which simulated the firing of a gun, provided the FPS officers with probable cause to arrest her, regardless of her presence on non-federal property." United States v. Evans, 581 F.3d 333, 2009 FED App. 0341P (6th Cir. 2009).

Officers had reasonable suspicion for his stop either from his driving or the three days of surveillance of his activities. A hidden compartment gave PC to search. United States v. Carmenate, 344 Fed. Appx. 941 (5th Cir. 2009) (unpublished):

Specifically, the visual inspection under Carmenate's truck did not require his consent. See United States v. Muniz-Melchor, 894 F.2d 1430, 1434 (5th Cir. 1990). The subsequent discovery of suspicious markings created a reasonable belief that the truck contained a hidden compartment. See United States v. Inocencio, 40 F.3d 716, 724 (5th Cir. 1994). "[E]vidence of a hidden compartment supports 'probable cause' for a search/arrest." United States v. Estrada, 459 F.3d 627, 633 (5th Cir. 2006) (internal citation omitted). When probable cause for a search exists, consent is not required. See United States v. Mendoza-Gonzalez, 318 F.3d 663, 666 (5th Cir. 2003) (stating that a search is permissible without a warrant as long as there is "either the consent of the owner to conduct the search or probable cause to believe that the vehicle contains contraband or other evidence of a crime").

Gun was revealed by plain view of shining a flashlight into the defendant's car during a traffic stop. United States v. Jackson, 2009 U.S. Dist. LEXIS 85974 (W.D. Pa. September 21, 2009).*

The search of defendant's car for evidence of fraud was permissible under the automobile exception, and it was not a search incident. United States v. Owen, 2009 U.S. Dist. LEXIS 85929 (S.D. Miss. August 28, 2009).*

Defendant’s conclusory allegation that defense counsel did not file a motion to suppress was an insufficient ground for post-conviction relief. Tidwell v. United States, 2009 U.S. Dist. LEXIS 86115 (M.D. Ga. July 24, 2009).*

The Washington Post reported late last week that the DoJ Cybersecurity Division has written a memo a month ago, released Friday, that employees using government computers for personal use have no reasonable expectation of privacy. The memo is Legality of Intrusion-detection System to Protect Unclassified Computer Networks in the Executive Branch. DoJ's summary:

Operation of the EINSTEIN 2.0 intrusion-detection system complies with the Fourth Amendment to the Constitution, title III of the Omnibus Crime Control and Safe Streets Act of 1968, the Foreign Intelligence Surveillance Act, the Stored Communications Act, and the pen register and trap and trace provisions of chapter 206 of title 18, United States Code, provided that certain log-on banners or computer-user agreements are consistently adopted, implemented, and enforced by executive departments and agencies using the system. Operation of the EINSTEIN 2.0 system also does not run afoul of state wiretapping or communications privacy laws.

Updated citations, but nothing new.

Officer lawfully approached defendant for panhandling, even though it was daytime. His practice of always patting down everybody he encounters made the patdown here invalid because there was no reasonable suspicion he was armed. Chism v. State, 2009 Tex. App. LEXIS 7278 (Tex. App.—Texarkana September 16, 2009).

“In this appeal, we hold that a positive alert on a vehicle by a trained narcotics detection dog, combined with the subsequent fruitless searches of the vehicle, the driver, and two passengers, does not provide sufficient particularized probable cause to allow a search of the only remaining passenger in the vehicle. We will therefore reverse the judgment of the Court of Appeals holding that the search at issue did not violate the Fourth Amendment.” Whitehead v. Commonwealth, 278 Va. 300, 683 S.E.2d 299 (2009), rev’g Whitehead v. Commonwealth, 53 Va. App. 1, 668 S.E.2d 435, 438 (2008).

Valid plain view occurred when officer responding to shots fired call saw shotgun shell in car, and he could enter the car under the automobile exception to retrieve it. Commonwealth v. Turner, 2009 PA Super 190, 982 A.2d 90 (2009).

Defendant was validly arrested because the officer knew there was a scofflaw warrant out for him. Commonwealth v. Galendez, 2009 PA Super 185, 2009 Pa. Super. LEXIS 3286 (September 16, 2009).*

Officer could approach a parked car with a flat tire to inquire of the welfare of the driver under the community caretaking function. She had slurred speech. State v. Huecker, 2009 Tenn. Crim. App. LEXIS 759 (September 15, 2009).*

Officer could pin the defendant to his car when he made a sudden move to the back of the car that the officer did not expect. Defendant did not overcome the presumption of regularity of findings of fact and conclusions of law drafted by the prosecutor. [Maybe so if the written findings don’t match the oral findings.] State v. Dell, 2009 Ohio 4897, 2009 Ohio App. LEXIS 4151 (5th Dist. September 16, 2009):

[*P16] In his Second Assignment of Error, appellant contends the trial court's delegation to the prosecutor the task of submitting proposed findings of fact and conclusions of law on the suppression ruling was a violation of appellant's constitutional rights. We disagree.

[*P17] Generally, "[a]n appellate court is guided by a presumption of regularity in the proceedings before a trial court." Huffer v. Chafin, Licking App.No. 01 CA 74, 2002 Ohio 356. In Adkins v. Adkins (1988), 43 Ohio App.3d 95, 539 N.E.2d 686, the court indicated that a trial court may adopt a party's proposed findings verbatim, but that before adopting proposed findings, the trial judge has a duty to read the document thoroughly, and ensure that it is completely accurate in fact. See id. at 98, 539 N.E.2d 686, citing Paxton v. McGranahan (Oct. 31, 1985), Cuyahoga App. No. 49645; State v. Rose, 4th Dist. No. 06 CA 5, 2006 Ohio 5292, P 45. Findings from the verbatim adoption of proposed findings may be reversed on appeal only if they are clearly erroneous. See State v. Elmore, Licking App.No. 2005-CA-32, 2005 Ohio 5940, P 30.

Officers did not “stop” the defendant, but, if they did, there was reasonable suspicion. Defendant fled. United States v. Colon, 654 F. Supp. 2d 326 (E.D. Pa. 2009).*

The video of the stop supported the government’s contention defendant consented. United States v. Hendrix, 2009 U.S. Dist. LEXIS 85244 (W.D. Tenn. September 17, 2009).*

Defendant found to have consented to search of his car. He was questioned in Spanish. United States v. Navarro, 2009 U.S. Dist. LEXIS 85113 (M.D. Ala. August 28, 2009).*

Informant’s information provided reasonable suspicion to stop the defendant, including the fact that defendant had a gun under the car seat. United States v. Allen, 2009 U.S. Dist. LEXIS 84991 (E.D. Mo. May 21, 2009).*

Case remanded for more findings on plain view. The reasons given by the trial court do not support the finding of plain view. The reason for the stop was satisfied before that happened. Skjervem v. State, 215 P.3d 1101 (Alas. App. 2009).*

The Court of Appeals (State v. Marx, 38 Kan. App. 2d 598, 171 P.3d 276 (2007)) was correct that the community caretaking function cannot be a pretext for an investigative stop. State v. Marx, 289 Kan. 657, 215 P.3d 601 (2009).

Defendant was detained because he was put in the back of a police car and was not told he was free to leave. Nevertheless, he could still validly consent. State v. Kemp, 2009 OK CR 25, 217 P.3d 629 (2009).*

Officers were able to position themselves to look in windows of defendant's property as they approached for safety purposes on this record. State v. Foster, 347 Ore. 1, 217 P.3d 168 (2009), rev'g State v. Foster, 219 Or App 276, 182 P3d 262 (2008):

In this case, the deputies had a reasonable suspicion that they were about to encounter circumstances in which (1) there might be as many as 10 occupants of the residence, (2) those occupants might be armed, and (3) the occupants might be willing to use force against the deputies. There was an open, lighted window some 20 feet past the front door; Hardison went to look through that window in order to "keep[] an eye on the residen[ts] inside the house" while the deputies served the restraining order. By doing so, Hardison would have been able to warn the other deputies if an occupant either was armed or had begun arming himself when the deputies knocked. Under those circumstances, we agree with the trial court that Hardison's actions were within the range of reasonable precautions that the officers were entitled to take against the anticipated threat.

The Court of Appeals appears to have reached a contrary conclusion because it applied a more demanding test to the deputies' actions. The issue, that court stated, was whether the state had "identif[ied] sufficient, articulable facts to show that officer-safety concerns required Deputy Hardison to position himself [where he did,] *** as distinguished from a different location that could ensure officer safety." Foster, 219 Or App at 284 (emphasis added). That test misreads both the officer safety doctrine and Bates, which explained the doctrine. The requirement of specific, articulable facts relates only to whether an officer reasonably suspected an immediate threat. See Bates, 304 Or at 524 ("a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury"). [emphasis in original]

Defendant's refusal to provide key to locked console in car during consent search of the car was a denial of consent as to the console. J.J.V. v. State, 17 So. 3d 881 (Fla. App. 4th DCA 2009):

In this case, the locked console in the defendant's car was as much a manifestation of an expectation of privacy in the contents as the locked briefcase in Wells. In both cases, if law enforcement officers wanted access, they had to ask for the key or lock combination or use significant force to open the container. See Mendoza-Gonzalez, 318 F.3d at 671. When the deputy in this case asked for the key, appellant told him that it was not available -- that only his mother had a key. In spite of that, the deputy located the key himself and used it to gain access to the console. While his action in doing so was not as intrusive as prying the lock open, it was nonetheless a violation of the defendant's expectation of privacy in the console. If the defendant had wanted the officer to search the console, he would have given him the key, instead of denying that he had one. Appellant's actions should have been objectively seen as an affirmative attempt to narrow the scope of his general consent and prevent a search inside the console.

Police officer's turning on flashing lights to pull up behind an already parked car is not a stop. There are safety reasons for the lights. Jacobs v. United States, 981 A.2d 579 (D.C. App. 2009).*

Police officer in uniform is not inherently coercive; it is but a factor on the totality of consent. People v. Castigilia, 394 Ill. App. 3d 355, 333 Ill. Dec. 738, 915 N.E.2d 809 (2009):

Although an officer's attire is, perhaps, a relevant factor that may occasionally tip the balance toward or away from a finding that a particular encounter is a seizure, Ocampo hardly suggests that attire is a paramount consideration or even a particularly significant one. To be sure, a police uniform is a vivid reminder of the authority a police officer holds. However, it is the exercise (or apparent exercise) of that authority--not merely its existence--that may result in an encounter becoming a seizure. Thus, a confrontation with a police officer is not a seizure on the basis that the officer's authority produces an inherent pressure to cooperate. Rather, as the leading commentator on the fourth amendment has suggested, an encounter between a police officer and a civilian "is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse." 4 W. LaFave, Search & Seizure § 9.4(a), at 425 (4th ed. 2004).

This test, of course, assumes belief in a sort of legal fiction. As defendant notes, "in a truly consensual encounter with a police officer, one would not expect to have to display one's identification to the officer, or be asked to submit to a search." To the contrary, it has been stated that "[n]o fourth amendment violation occurs when an officer approaches a person in a public place *** and asks if he is willing to answer some questions and provide identification." People v. Evans, 296 Ill. App. 3d 1, 9 (1997), citing Mendenhall, 446 U.S. at 555, 64 L. Ed. 2d at 510, 100 S. Ct. at 1877, and Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 236, 103 S. Ct. 1319, 1324 (1983); accord People v. Dent, 343 Ill. App. 3d 567, 578 (2003) ("a police officer, in most cases, does not violate the fourth amendment *** by approaching an individual and questioning him or asking for identification," but this is true only if the individual remains free to disregard the questions and walk away). Similarly, "[a] request for consent to search does not convert a consensual encounter into a seizure 'as long as the police do not convey a message that compliance with their request is required.'" 4 W. LaFave, Search & Seizure § 9.4(a), at 427 (4th ed. 2004), quoting Florida v. Bostick, 501 U.S. 429, 435, 115 L. Ed. 2d 389, 398-99, 111 S. Ct. 2382, 2386 (1991); see also United States v. Childs, 277 F.3d 947, 950 (7th Cir. 2002) ("the Supreme Court has held repeatedly that police may approach persons and ask questions or seek their permission to search, provided that the officers do not imply that answers or consent are obligatory").

There is no per se rule for or against search incident in a DUI arrest. The officer looked in a brown bag and found a gun. The good faith exception to the exclusionary rule applied to this warrantless search. Whether Gant overruled Belton does not have to be decided. United States v. Grote, 629 F. Supp. 2d 1201 (E.D. Wash. 2009):

Application of the exclusionary rule here clearly will not deter future police misconduct. The simple reason is that the police conduct in question--warrantless searches incident to lawful arrest- will now be evaluated by the new legal standard articulated in Gant, not by the legal standard that existed when Officer Moses conducted his search. As there is no deterrent effect to be gained, application of the exclusionary rule cannot be justified considering the substantial social costs imposed by the rule. It is important to point out that Officer Moses made no mistake of law or fact. Instead, he acted reasonably pursuant to the law as it existed at the time he conducted the search of the vehicle. Application of the good faith exception here is not intended to excuse a mistake on the part of Officer Moses, but to recognize that Gant represents a change in well-established law on which law enforcement officers once reasonably relied.

The court finds the defendant consented to a search of his person and his car. United States v. Stinson, 2009 U.S. Dist. LEXIS 83819 (W.D. N.C. August 26, 2009).*

Apparent hand-to-hand drug sales through the mail slot of a house was probable cause for a search warrant. United States v. Rudolph, No. 93-2392, 1994 WL 592932 (6th Cir. Oct. 27, 1994), is nearly identical. United States v. McCreary, 2009 U.S. Dist. LEXIS 84644 (E.D. Mich. September 16, 2009).*

The acts of a co-inhabitant of a house will nullify the defendant’s reasonable expectation of privacy. United States v. Sagataw, 2009 U.S. Dist. LEXIS 84383 (D. Minn. August 18, 2009).*

Defendant was the subject of a cold case hit on his DNA after his DNA was taken years earlier after he showed up at an ER with a gunshot wound and the ER called the police. They arrived and seized defendant's clothing which was later subjected to DNA testing. The seizure of the clothing was permissible under plain view but not inevitable discovery or implied consent. "[U]nder the totality of the circumstances, the Court finds that the extraction of Davis' DNA profile for comparison with the evidentiary sample from the Neal murder was reasonable. The compelling government interest in potentially identifying the perpetrator in an ongoing homicide investigation outweighs the somewhat diminished privacy interests in his DNA that Davis retained. Therefore, the extraction of Davis' DNA from his clothing was a lawful search under the Fourth Amendment." It was a violation of his privacy interest in putting his DNA profile in CODIS where he was a victim. United States v. Davis, 657 F. Supp. 2d 630 (D. Md. 2009):

c) Conclusion As To Placement of Davis' Profile In Database

The above analysis demonstrates that there are significant privacy interests implicated by the maintenance of one's DNA profile in a government database, above and beyond those implicated by the testing and comparison of one's DNA profile to evidence from a single, specific crime. Were law enforcement permitted to include individuals' DNA profiles in searchable databases under these circumstances, it would open "a backdoor to population-wide data banking." Joh, Reclaiming "Abandoned" DNA at 874. If the Fourth Amendment imposes no restrictions on the indefinite retention of DNA profiles developed from "abandoned" DNA or DNA lawfully in police possession for another purpose, then "the means by which total population DNA data banking might be achieved have arrived without general public awareness and thus without discussion of how it might be regulated against abuse." Id. at 884.

Although we may eventually retain DNA profiles as routinely as we retain fingerprints today, the Court does not believe that day has yet arrived:

Since investigators should not treat ordinary private citizens like criminals, the analysis should differ and courts should consider additional factors. Similar to the case of convicted criminals, obtaining the DNA of ordinary citizens through covert methods is not overly invasive. Unlike convicted criminals, however, an ordinary citizen, solely by virtue of police suspicion, does not have an increased tendency to commit crimes. If the covertly obtained DNA profile of an ordinary citizen is included in a database, authorities have the capabilities to identify a near hit, which might indicate that he or she is a close relative to the perpetrator of a crime. Furthermore, DNA has the potential to reveal a wide range of personal information, including physical characteristics, medical information (such as susceptibility to disease), ancestral and familial information. Practically speaking, police could not obtain these kinds of private information without a search warrant or without first having gained the trust and confidence of the individual.

Matejik, DNA Sampling at 85.

However, it was a close question, and the court declines to apply the exclusionary rule to the DNA.

D. Application of the Exclusionary Rule Is Not Appropriate In This Case

. . .

In this case, the only constitutional violation occurred when Prince George's County homicide detectives, after comparing Davis' DNA profile with the sample from the Neal homicide, retained Davis' profile in the local CODIS database. As the length and intricacy of this Court's analysis of that decision should indicate, whatever error existed was hardly flagrant. Given precedents such as Edwards, the officers most likely believed that Davis had no significant privacy interest in his clothing because it was lawfully within police custody. Then, once the profile existed, the officers placed it within the database for use in any potential future investigations; it is certainly counterintuitive that information, once gained by police, should not be retained. However, in the unique discipline of DNA analysis, as the Court's analysis above demonstrates, this is what the Fourth Amendment requires. Nonetheless, the placement of Davis' profile in the database can hardly be called reckless, flagrant, or systematic, and is negligent at worst.

The actions of the officers investigating the Schwindler murder are even less culpable. When those officers realized that the culprits in the Schwindler robbery/murder had left DNA evidence behind, detectives simply utilized an investigative resource that was available to them. They ran a comparison of the crime scene evidence against the profiles contained in the local CODIS database and came up with a "hit." This is precisely why such databases were created--to assist in solving crimes where more traditional investigative techniques may not be successful. The detectives investigating the Schwindler murder had no knowledge of the circumstances under which Davis' DNA came to be included in the database, nor were they under any obligation to make inquiries about them. Officers are entitled to rely upon the presumptive legality of any DNA profile contained within their database. Therefore, as to these detectives, there is no behavior that needs to be deterred by application of the exclusionary rule.

As for the officers who placed Davis' profile in the database, the Court finds that excluding the DNA evidence in this case would result in only marginal deterrence, if any. First of all, the relative rarity of the factual scenario presented here--a former victim's DNA already being in police custody when that victim later becomes a suspect--does not create a great need to deter similar actions in the future. Errors that arise from "nonrecurring and attenuated negligence [are] far removed from the core concerns that led us to adopt the [exclusionary] rule in the first place." Herring, 129 S. Ct. at 702. Furthermore, the good faith rule does not require that exclusion of the evidence have no deterrent effect whatsoever. As the Court noted in Herring, "we do not suggest that the exclusion of this evidence could have no deterrent effect. But our cases require any deterrence to 'be weighed against the substantial social costs exacted by the exclusionary rule,' and here exclusion is not worth the cost." Id. at 702 n.4 (quoting Illinois v. Krull, 480 U.S. at 352-353 (internal quotation and citations omitted)) (emphasis added).

This Court reaches the same conclusion in the instant case. Any deterrent effect that could be achieved by application of the exclusionary rule in this case would be vastly outweighed by the costs that would be incurred by suppression of the powerfully inculpatory and reliable DNA evidence. The marginal deterrence that might be achieved by suppression of the evidence in this case -- potentially preventing police from placing DNA profiles obtained from those with undiminished privacy expectations in their genetic information (already a rare occurrence) into law enforcement databases -- simply cannot justify keeping the DNA evidence from the jury and disrupting the truth-seeking function of a criminal trial.

III. CONCLUSION

The seizure, nine years ago, of Defendant's blood-stained clothing, the later extraction of DNA therefrom, and the entry of his DNA profile into the local CODIS database has generated a host of interesting and novel legal issues that have now been addressed and resolved. Ultimately, any Fourth Amendment violations were, at worst, close calls over which many reasonable minds could differ. There was certainly no blatant or flagrant police action in deliberate disregard of the Defendant's rights that would warrant the remedy of suppression.

This is a fascinating and important case on all the issues. The discussion of Davis's privacy interest in his DNA from the police just scarfing it up and putting it in CODIS for no apparent reason is valuable. Read this case if you can; the court posted it on its website. It is 101 pages long.

Massachusetts had already held that a search warrant was required for installation of a GPS tracking device on defendant’s minivan. Commonwealth v. Balicki, 436 Mass. 1, 8 (2002). It now holds that a warrant was required to track the vehicle after installation. Commonwealth v. Connolly, 454 Mass. 808, 913 N.E.2d 356 (2009):

We conclude that a warrant was required here because the initial installation of the particular device clearly constituted a seizure under art. 14. The installation required not only entry by the police into the minivan for an hour, but also operation of the vehicle's electrical system, in order to attach the device to the vehicle's power source and to verify that it was operating properly. Moreover, operation of the device required power from the defendant's vehicle, an ongoing physical intrusion. See Karo, supra at 729 (Stevens, J., dissenting) (insertion of beeper in vehicle is physical invasion and seizure because it infringes on owner's exclusionary right).

In addition, and apart from the installation of the GPS device, the police use of the defendant's minivan to conduct GPS monitoring for their own purposes constituted a seizure. When an electronic surveillance device is installed in a motor vehicle, be it a beeper, radio transmitter, or GPS device, the government's control and use of the defendant's vehicle to track its movements interferes with the defendant's interest in the vehicle notwithstanding that he maintains possession of it. The owner of property has a right to exclude it from "all the world," see Karo, supra at 729 (Stevens, J., dissenting), and the police use "infringes that exclusionary right." Id. The interference occurs regardless whether the device draws power from the vehicle and regardless whether the data is transmitted to a monitoring computer. It is a seizure not by virtue of the technology employed, but because the police use private property (the vehicle) to obtain information for their own purposes.

The state's CPS's taking custody of a child is a seizure of the child from the parents. Smith v. Tex. Dep't of Family & Protective Servs. Child Protective Servs., 2009 U.S. Dist. LEXIS 84778 (W.D. Tex. September 15, 2009).*

Plaintiff inmate's claim against a prison telephone provider who accidentally recorded the inmate's attorney-client telephone call showed a Fourth Amendment claim, but it was defeated by qualified immunity. Walen v. Embarq Payphone Servs., 2009 U.S. Dist. LEXIS 84659 (E.D. Mich. July 28, 2009):

A Fourth Amendment claim can be brought only when a justifiable expectation of privacy exists. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A defendant who alleges that a search violated his Fourth Amendment rights has the burden of showing that he had a legitimate expectation of privacy in the place or thing that was searched, and to meet that burden must satisfy a two-pronged test: (1) he must manifest an actual, subjective expectation of privacy, and (2) that expectation is one that society is prepared to recognize as legitimate. United States v. Sangineto-Miranda, 859 F.2d 1501, 1510 (6th Cir. 1988).

An individual's expectation of privacy is significantly reduced within the confines of a prison. Hudson v. Palmer, 468 U.S. 517, 525-26, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). However, given the privileged nature of attorney-client communications, and the importance of protecting those communications from improper disclosure, such communications, including telephone calls, would arguably be protected by the Fourth Amendment, under both the subjective and objective prongs of Sangineto-Miranda.

Plain view in a murder case led to an automobile exception search, and Gant was inapplicable. United States v. Brown, 2009 U.S. Dist. LEXIS 83828 (D. Minn. July 30, 2009).*

Law enforcement officer who was familiar with criminal activity at particular intersection who observed furtive actions by the defendant suggestive of being armed was able to make a stop and patdown of the defendant. United States v. Brown, 2009 U.S. Dist. LEXIS 83932 (E.D. Va. September 14, 2009).*

Smell of marijuana justified the search of defendant's car after its stop, and defendant's reliance on Gant was misplaced. United States v. Milan, 2009 U.S. Dist. LEXIS 84033 (N.D. Tex. September 15, 2009).*

Defendant consented to search when officer asked about illegal things in the car while questioning him about a suspended license. United States v. Miller, 2009 U.S. Dist. LEXIS 83911 (M.D. Ala. August 27, 2009):

The video shows that while writing the warning ticket, Deputy Salter began asking Miller questions about his suspended licences and at one point asked "you don't have any guns or drugs or anything illegal in your car do you?" Miller replied "no sir, feel free to check if you want." Thus, consent was given, and Miller's argument is that at this point the deputy was finished writing the ticket.

Defendant was unreasonably detained after he produced a Mexican driver's license which was facially valid and could be used to identify him. Motion to suppress granted. United States v. Izguerra-Robles, 660 F. Supp. 2d 1202 (D. Ore. 2009):

The government contends that defendant was lawfully placed under arrest only after failing to display a driver's license. This court disagrees and finds that defendant was constructively arrested when he was ordered from the mobile home. See United States v. Al-Azzawy, 784 F.2d 890, 892-94 (9th Cir. 1985) (holding that coercive police conduct outside a home can result in the arrest of person within the home). Based on the totality of the circumstances, a reasonable person in defendant's position would not feel he was free to disobey the two police officers ordering him from the mobile home. Although the police officers did not brandish their weapons, defendant was given no choice but to exit the mobile home on their orders.

Even assuming defendant was not arrested until he failed to display a driver's license, and assuming the police had probable cause to effect that arrest, the scope of the arrest exceeded that granted by ORS 807.570. Under ORS 807.570, failure to present a license is an arrestable offense. However, "[a] police officer may detain a person arrested ... only for such time as reasonably necessary to investigate and verify the person's identity." This offense does not allow "officers to use it as a ploy to conduct otherwise unauthorized searches." State v. Bishop, 157 Ore. App. 33, 967 P.2d 1241, 1245 (Or. App. 1998). Once the person's identity is verified, "detention is no longer reasonably necessary and the individual must be released." Id.

Another Gant remand: United States v. Casper, 536 F.3d 409 (5th Cir. 2008), vacated and remanded, 129 S. Ct. 2156, 173 L. Ed. 2d 1153 (2009), posted here, remanded to the District Court for application of inevitable discovery, an issue preserved by the government. United States v. Casper, 332 Fed. Appx. 222 (5th Cir. 2009) (unpublished).*

Defense counsel was not ineffective for not challenging the search because defendant lacked standing. United States v. Cook, 344 Fed. Appx. 473 (10th Cir. 2009) (unpublished).*

Defendant was not arrested or detained when he was talked to by police, and his own admissions gave reasonable suspicion for an immigration stop. United States v. Vasquez-Ortiz, 344 Fed. Appx. 551 (11th Cir. 2009) (unpublished).*

The Fourth Circuit elaborates on facts in Hunsberger v. Wood in denying rehearing. See opinion of concurring judges on denial of rehearing en banc, Hunsberger v. Wood, 2009 U.S. App. LEXIS 20453 (4th Cir. September 14, 2009), on the qualified immunity question:

The facts which I have recounted above in this case would certainly have suggested to an objectively reasonable officer that this teenage girl was not only missing but possibly hurt and incapacitated. Not to belabor the point, but any parent whose daughter was out after midnight, not answering her cell phone, in a house where she was not supposed to be, in a neighborhood where another residence had only recently burned down, with her car blocking the road, etc. would be alarmed, as plaintiffs admit Blessard was. And any reasonable officer would have tried to help. Even adopting plaintiffs' view that Wood expressly consented to Blessard's presence, as the panel's opinion explicitly did, Wood acted reasonably. It was reasonable for Wood to think that Blessard's presence in the home would be useful. The more quickly Wood could identify NW, the more quickly he could determine whether she needed assistance. And if she was frightened and hiding in the home, the one thing she might respond to was a parent's reassuring voice. If the missing NW was being held against her will, she might well answer a parent, but not a stranger.

Even to this day, plaintiffs have not suggested any remotely practical course of action Wood should have pursued. Wood could have entered alone and asked any girl he encountered to identify herself. But he had no guarantee of getting an answer, much less a truthful one. He wasn't even sure the missing girl was conscious or hadn't passed out. He could have required any girl who was possibly the missing NW to come outside in the dark after midnight to be identified by Blessard, but such a procedure would be more traumatic to young girls than the one actually used. Further, these alternatives would have been time-consuming, and time was one thing this officer did not have a whole lot of. It's always tempting to go the could-have/should-have route in hindsight, but that is not how the Supreme Court has structured the objective reasonableness inquiry. If a unanimous panel of this court believed upon reflection that Wood's actions were reasonable, how was he to figure otherwise in the fleeting minutes he had? We thankfully know now that NW is safe and that the Hunsberger home was not vandalized or burned to the ground. But no one knew at the time.

The post of July 1st:

"Because the objective circumstances confronted by defendant on the night in question suggested that plaintiffs' home was being vandalized and that a missing teenage girl was in the house and in need of assistance, the search was reasonable under the Fourth Amendment exigent circumstances doctrine. We thus reverse the judgment of the district court and grant the defendant qualified immunity in this case." Hunsberger v. Wood, 2009 U.S. App. LEXIS 13925 (4th Cir. June 29, 2009).

Biographical information obtained in violation of constitutional is subject to the exclusionary rule. State v. Maldonado-Arreaga, 772 N.W.2d 74 (Minn. App. 2009):

The federal circuits have taken different approaches to how Lopez-Mendoza relates to challenges to biographical/identity evidence in criminal proceedings. See United States v. Guevara-Martinez, 262 F.3d 751, 753-54 (8th Cir. 2001) (discussing Fifth, Eighth, and Ninth Circuit cases). The most persuasive discussion is found in Guevara-Martinez. There, appellant was fingerprinted after an illegal traffic stop, and subsequently charged with being an illegal alien found in the United States after deportation. Id. at 752. He moved to suppress fingerprint evidence as well as statements he made about his identity, and the government opposed the motion by relying on the same language from Lopez-Mendoza identified by respondent in this case. Id. After reviewing Lopez-Mendoza and the interpretations of it by the various circuit courts, the Guevara-Martinez court concluded that Lopez-Mendoza's statement about the suppression of identity did not apply to biographical evidence, such as fingerprint evidence challenged in a criminal proceeding. Id. at 754-55. Rather than apply a broad biographical-information exception to the exclusionary rule, the court addressed the admissibility of the evidence under traditional Fourth Amendment case law. Id. at 755. Specifically, the court determined that, under long-accepted Supreme Court precedent, the exclusionary rule may be applied to fingerprint and other biographical evidence obtained as the result of unlawful arrests and detentions. Id. at 755 (discussing Hayes v. Florida, 470 U.S. 811, 105 S. Ct. 1643 (1985) and Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394 (1969)).

Coming to the same conclusion, the Tenth Circuit interpreted Lopez-Mendoza and stated that

the Supreme Court's statement that the 'body' or identity of a defendant are 'never suppressible' applies only to cases in which the defendant challenges the jurisdiction of the court over him or her based upon the unconstitutional arrest, not to cases in which the defendant only challenges the admissibility of the identity-related evidence.

A defendant may still seek suppression of specific pieces of evidence (such as, say, fingerprints or statements) under the ordinary rules announced in [Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961)] and [Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407 (1963)]. A broader reading of Lopez-Mendoza would give the police carte blanche powers to engage in any manner of unconstitutional conduct so long as their purpose was limited to establishing a defendant's identity.

United States v. Olivares-Rangel, 458 F.3d 1104, 1111 (10th Cir. 2006).

We find this authority persuasive, and we conclude that there is no general principle that biographical information is exempt from the exclusionary rule. As such, the district court erred as a matter of law. We hold that when biographical evidence is obtained through unconstitutional governmental action and a party challenges the admissibility of the evidence, the exclusionary rule applies.

There is no reasonable expectation of privacy from a view from the front porch because it is part of the entrance way. It is not curtilage. Commonwealth v. Gibbs, 2009 PA Super 181, 981 A.2d 274 (2009):

[*P10] The issue of whether a front porch constitutes curtilage has not been addressed by the Pennsylvania Appellate Courts. Our sister states which have addressed the issue are divided. However, even those courts which have found that a front porch constitutes curtilage have generally found no Fourth Amendment violation where the porch in question was used by the general public. See, U.S. v. Titemore, 437 F.3d 251, 259 (2d Cir. 2006) (finding no reasonable expectation of privacy in deck attached to home where it constituted part of the principal entryway); Murphy v. Gardner, 413 F.Supp.2d 1156, 1167-68 (D.Colo. 2006) (unenclosed front porch which contained homeowner's mailbox and newspaper rack did not constitute curtilage for Fourth Amendment purposes); Davis v. State, 907 N.E.2d 1043, 1049-50 (Ind.App. 2009) (noting that police entry onto private property does not violate the Fourth Amendment when the police have a legitimate investigatory purpose and limit their entry to places that visitors would be expected to go like porches, as the Fourth Amendment does not protect items or activities which are knowingly exposed to the public); State v. Brisban, 989 So.2d 923, 927-29 (La. 2002) (no Fourth Amendment violation where police, while standing on a front porch, observed defendant cutting crack cocaine; while front porch was curtilage, defendant had only a limited expectation of privacy because it could have been approached by anyone). Thus, we find that the record supports the suppression court's conclusion that the officers viewed the contraband from a lawful vantage point.

Failure to dim headlines was a sufficient basis for a stop and a plain view of a baggie of cocaine. State v. Gist, 2009 Ohio 4791, 2009 Ohio App. LEXIS 4051 (2d Dist. September 11, 2009).*

Consent was inferred from defendant's statement that the officer could look in his pocket for money in response to a question from the officer. Evidence at both trial and the suppression hearing may be considered in determining an appeal from denial of a suppression motion. Thomas v. State, 297 S.W.3d 458 (Tex. App.–Houston (14th Dist.) 2009).*

Even under the more expansive Washington Constitution, there is no privacy interest in the common area of a commercial storage facility. State v. Lakotiy, 151 Wn. App. 699, 214 P.3d 181 (2009).*

"Dog breeding is a pervasively regulated activity and has been the subject of federal and state regulation since at least 1976 and 1982 respectively." It also satisfies the Burger analysis. Prof'l Dog Breeders Advisory Council v. Wolff, 2009 U.S. Dist. LEXIS 83054 (M.D. Pa. September 11, 2009):

Dog breeding is a pervasively regulated activity and has been the subject of federal and state regulation since at least 1976 and 1982 respectively. See 7 U.S.C. § 2131, et. seq.; see 9 C.F.R. § 1.1 et. seq. (federal regulations); 3 P.S. § 459-101 et. seq; see 7 Pa. Code § 21.1 et. seq. (state regulations). In Pennsylvania, dog breeders have been on notice since 1982 that their businesses are subject to random inspections. Furthermore, by Plaintiffs' own contention, the industry is heavily regulated, hence the reason for this suit. Plaintiffs cannot successfully argue that the kennel industry is not pervasively regulated while at the same time maintaining that the kennel industry is too pervasively regulated. Regulations concerning the kennel industry in the areas of licenses, enforcement, fees, penalties operations, and various other provisions have been around for years. Furthermore, the kennel industry has been subject to random inspections and searches since at least 1982. As such, the kennel industry is a pervasively regulated activity.

Motion to reconsider under Gant denied because the defendant concedes his stop and patdown were valid, and removing a spoon from his pocket was valid, and drug residue on the spoon gave justification for a search of his car under the automobile exception too. United States v. Herman, 2009 U.S. Dist. LEXIS 83243 (E.D. Wash. September 11, 2009).*

The County failed to show that a strip search was required for an arrest for violating a restraining order to stay away from another person. There was also nothing in her mental health history which would justify it. Barnett v. County of Contra Costa, 2009 U.S. Dist. LEXIS 83130 (N.D. Cal. September 11, 2009).* As to the latter:

Similarly, Defendants have failed to persuade the Court that Chan's mental history necessarily gave rise to reasonable suspicion to perform a strip search. Although Chan admitted that she tried to harm herself six years prior to her arrest and was a patient in a mental hospital on two occasions, three and six years prior to her arrest, she also stated that she was taking no prescription medication at the time of her arrest, did not use street drugs, had no current problems with depression, and had no current thoughts of harming herself. Chan's health questionnaire also indicates that she was not observed to be sweaty, shaking, agitated, disoriented, or confused. In addition, Chan was held for several hours prior to the strip search being performed -- a fact that, when viewed in the light most favorable to Chan, suggests that Defendants did not consider her a threat to herself or others. The Court cannot, on these facts, find it undisputed that Defendants had reasonable suspicion to strip search Chan based on her mental health history.

The Suffolk County Sheriff refused to produce inmate jail calls in response to a grand jury subpoena. Since there is no reasonable expectation of privacy in a jail telephone call, the contempt order is affirmed. (The inmates have no greater state constitutional right.) In re A Grand Jury Subpoena, 454 Mass. 685, 912 N.E.2d 970 (2009)*:

The sheriff asks us to conclude that the constitutional privacy rights of the pretrial detainee or inmate will not be violated where, in response to a grand jury subpoena, the sheriff provides recordings of the detainee's or inmate's telephone calls to the grand jury. We conclude that, where the sheriff's policy of monitoring and recording detainees' and inmates' telephone calls is preceded by notice to all parties, and further, where the recording and monitoring is justified by legitimate penological interests, no privacy interest exists in the recorded conversations such that they cannot be obtained by a grand jury subpoena.

The exclusionary rule was not applied to a stop outside an officer's territorial jurisdiction to give a warning. After the defendant was stopped, it was apparent he was DWI. Delker v. State, 2009 Miss. App. LEXIS 597 (September 11, 2009).*

Defendant's stop for an expired license led to finding an outstanding warrant. The attention of the police was drawn because Wal-Mart called to tell the police that defendant had bought a huge number of matches. The odor of meth was coming from the car. The stop and arrest were valid, without regard to the smell. Neither the driver nor the passenger had a license, so the vehicle was going to be towed. Defendant produced the matches before the search. Wade v. State, 2009 Ark. App. LEXIS 690 (September 2, 2009).*

Administering PBT to minors suspected of underage drinking as permitted by a city ordinance was a search without any permissible exceptions. While local federal courts which held other city's ordinances were not binding, they were persuasive. People v. Chowdhury, 285 Mich. App. 509, 775 N.W.2d 845 (2009):

The decisions in Spencer and Platte are both well-reasoned and consistent with existing Fourth Amendment law. Accordingly, we find Spencer and Platte to be persuasive, see Abela, 469 Mich at 607, and conclude that Troy Ordinance § 98.10.03 is unconstitutional on its face. Moreover, we agree with the Spencer court that "[t]here is nothing 'special' in the need of law enforcement to detect evidence of ordinary criminal wrongdoing," and that "'reasonableness generally requires the obtaining of a judicial warrant.'" Spencer, 292 F Supp 2d at 941 (citation omitted). The "special needs" exception to the search warrant requirement is quite simply not applicable on the facts of this case. Id.

The district court’s finding of consent during a knock-and-talk was supported by the evidence. United States v. Anthony, 345 Fed. Appx. 459 (11th Cir. 2009) (unpublished).*

The officer had reasonable suspicion to detain the motorist long enough to get a drug dog to the scene to conduct a sniff. United States v. Davis, 2009 U.S. App. LEXIS 20288 (11th Cir. September 11, 2009) (unpublished).*

Defendant’s 2255 claim that defense counsel was ineffective for not filing a motion to suppress to challenge the statements of the informant was not shown to be prejudicial. The government filed the affidavit with its response, and it shows that the motion would not be granted. United States v. Scott, 2009 U.S. Dist. LEXIS 82753 (N.D. Fla. April 7, 2009)*:

Defendant's vague claim of unreliable informants and false information is insufficient to establish any basis for a motion to suppress, and certainly does not establish ineffective assistance of counsel. Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 2587-88, 91 L.Ed.2d 305 (1986) ("a good Fourth Amendment claim alone" does not demonstrate ineffective assistance of counsel for failing to raise it; "[o]nly those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be granted the writ and will be entitled to retrial without the challenged evidence.") (footnote omitted). Defendant has not demonstrated error of counsel or prejudice.

"Electronic data" in a search warrant permitted seizure of computers, although a second search warrant was required to get into them. United States v. Horn, 2009 U.S. Dist. LEXIS 82490 (E.D. Mich. September 10, 2009).*

The video of defendant's driving showed reason for his stop, and the marijuana in the back seat was in plain view. United States v. Brooks, 2009 U.S. Dist. LEXIS 82449 (M.D. Ala. August 13, 2009).*

Officers' testimony contradicted their reports, and the court lost confidence in their credibility as witnesses on the cause for the stop and the search after it, so the motion to suppress was granted. United States v. Coppin, 2009 U.S. Dist. LEXIS 82910 (N.D. Tex. September 11, 2009):

The court concludes that there are multiple inconsistencies between the officers' stories, the arrest reports, and Cottingham's testimony. These inconsistencies relate directly to the most important issues regarding the traffic stop: the reasonableness of the stop and credibility. The testimony was stated in such a way to justify or enhance the reason for the initial traffic stop. Regardless of the reasons for the multiple inconsistencies -- that is, whether they are the result of poor report writing, lapse of memory because of passage of time, or misrepresentations -- credibility is substantially undermined. The court has serious doubts that the officers had a reasonable suspicion that the occupants of the Town Car were involved in criminal activity at the time of the stop. These inconsistencies undermine the officers' credibility to a degree that the court concludes that the government has not met its burden in showing that there was a reasonable basis for the traffic stop at its inception. As the stop was not justified, the court need not reach the parties' arguments about whether Defendant had a privacy right in the car or whether he has standing to challenge the search. Accordingly, the court concludes that the evidence found during that traffic stop must be suppressed. The court grants Coppin's Motion to Suppress Evidence and hereby suppresses the evidence obtained by the Dallas Police Department during the traffic stop on June 29, 2008.

Three vehicles showed up together on a lonely border road, and the officer stopped them. On the totality, there was reasonable suspicion for the stop and detention for smuggling at the border under Arvizu. The fact the stop was planned does not make it unreasonable. United States v. Seibel, 2009 U.S. Dist. LEXIS 82854 (D. Ariz. September 10, 2009):

Johnson's supposed intent when he first began to approach Seibel's vehicle does not provide a basis to conclude that Johnson manufactured the specific, articulable facts that, at the moment of seizure, support a finding of reasonable suspicion. Similarly, while the Court considers that Johnson may have been less than thorough in investigating all three vehicles, it does not change the conclusion that, at the moment of seizure, there was reasonable suspicion for Johnson to stop Seibel's vehicle.

Today's NYTimes has a story about police drawing blood on their own in DUI cases: Officers’ New Tool Against D.W.I.: Syringe.

The implied consent statute did not prevent the officer from getting a search warrant for BAC when the defendant refused a blood test. City of Seattle v. St. John, 166 Wn.2d 941, 215 P.3d 194 (2009).*

Smell of marijuana after officer approached defendant's car was RS. State v. Arrington, 2009 Ohio 4721, 2009 Ohio App. LEXIS 3993 (8th Dist. September 10, 2009).*

There was no reasonable suspicion for a search of the passenger in a car that was stopped for going the wrong way on a one-way street. State v. Morrison, 2009 Ohio 4724, 2009 Ohio App. LEXIS 3997 (8th Dist. September 10, 2009).*

The trial court erred in granting a motion to suppress a search as lacking probable cause, but on remand, the trial court has to consider numerous factual errors that were not resolved the first time around that might undermine PC. State v. Kiraly, 2009 Ohio 4714, 2009 Ohio App. LEXIS 3986 (8th Dist. September 10, 2009).*

The officer did not stop the defendant when he approached the defendant who was parked at a gas pump. The officer was parked on the street and had no lights on when he came up to the defendant. Powell v. State, 2009 Ind. App. LEXIS 1483 (September 8, 2009).*

Defendant's weaving in traffic for about a half mile justified his stop. Potter v. State, 912 N.E.2d 905 (Ind. App. 2009).*

Defense counsel had no reason to file a motion to suppress, so he could not be ineffective. Allen v. State, 2009 Tenn. Crim. App. LEXIS 754 (September 9, 2009).*

The officer had reasonable suspicion to continue defendant's stop because of nervousness, a third party car rental, and other factors suggesting they were transporting drugs. Parker v. State, 2009 Tex. App. LEXIS 7122 (Tex. App. — Eastland September 10, 2009).*

Probation officer conducting a home visit had reasonable suspicion to make the home visit intensive, and he lawfully searched under the bed and in a refrigerator. United States v. Cofer, 2009 U.S. Dist. LEXIS 82141 (S.D. Ohio August 26, 2009).*

Defendant made a preliminary showing for a Franks hearing because, if the information was removed from the affidavit, probable cause was lacking. United States v. Laich, 2009 U.S. Dist. LEXIS 82365 (E.D. Mich. September 10, 2009).*

Officer's reliance on his memory about a warrant list he saw earlier in the week where the warrant turned out to be recalled after that arrested the defendant without probable cause, and the exclusionary rule would be applied. Herring's good faith exception was not applied. People v. Arnold, 914 N.E.2d 1143, 333 Ill. Dec. 331 (2009):

In proceeding to the second part of the analysis--whether the facts of the fourth amendment violation at issue support suppression--we conclude that they do. Here, as in Morgan, Officer Dykema's decision to proceed with handcuffing the defendant, despite the lack of confirmation that there was an active arrest warrant for the defendant, went beyond mere negligence and constituted reckless disregard. Such a decision is the type that can be deterred by suppression of evidence. See Morgan, 388 Ill. App. 3d at 265 ("the officers' reliance on an up-to-three-day-old warrant list is conduct that can be deterred"). Finally, the benefits of suppression outweigh the costs, in that the need to deter police from handcuffing a citizen without confirming whether there is a valid warrant for his arrest outweighs the costs of hindering the State from prosecuting this particular defendant. Thus, the good-faith exception to the exclusionary rule does not apply here, and the evidence was properly suppressed.

The State also argues that, apart from the warrant, Officer Dykema had probable cause to arrest the defendant for driving while his driver's license was revoked. We must reject this argument in light of our holding that the defendant was arrested before the dispatcher provided Officer Dykema with any information, as Officer Dykema conceded that he did not know the status of the defendant's license at the time he handcuffed the defendant in the store. Accordingly, the defendant's arrest cannot be justified on the basis that the police had probable cause to believe that his license was revoked.

In sum, the police initiated the arrest before obtaining probable cause to believe either that there was a valid warrant for the defendant or that his license was revoked, and under the Herring suppression analysis the evidence gained from the search incident to arrest was properly suppressed. Even if suppression were not justified based on the invalidity of the arrest, however, we would still affirm the trial court's suppression order because the search performed by Officer Dykema was not a valid search incident to arrest.

A license plate hanging by one bolt was reasonable suspicion for a stop. State v. Martin, 218 P.3d 10 (Ida. App. 2009).*

Officer’s observation that the defendant passenger was still but nervous was not reasonable suspicion. Nothing in the car added to RS. United States v. Moore, 2009 U.S. Dist. LEXIS 81547 (E.D. Tenn. September 8, 2009).*

CI’s statements about the defendant’s activities were based on personal observations, and that was probable cause. United States v. Hinton, 2009 U.S. Dist. LEXIS 81750 (E.D. Mo. August 25, 2009).*

Inventory search was not shown to be conducted according to standardized policy, even where the policy was not in writing. It was the state's burden, and it failed. People v. Clark, 914 N.E.2d 734 (Ill. App. 2009):

Our review shows that defendant's vehicle was curbed by Officer Mocarski and his partners on a residential city street. There was no evidence, however, of its exact location, or that it was illegally parked, impeding traffic, or threatening public-safety or convenience. Ursini, 245 Ill. App. 3d at 483, 486; People v. Brown, 100 Ill. App. 3d 57, 63-64, 426 N.E.2d 575, 55 Ill. Dec. 429 (1981). In addition, Officer Mocarski did not testify that he towed the vehicle to protect it against damage or theft. People v. Schultz, 93 Ill. App. 3d 1071, 1076, 418 N.E.2d 6, 49 Ill. Dec. 362 (1981). The record, therefore, does not support the bases proffered by the State to establish the validity of the impoundment. Ursini, 245 Ill. App. 3d at 487.

The record also does not support the State's further contention that Officer Mocarski lawfully impounded the vehicle pursuant to a standardized police procedure. Ursini, 245 Ill. App. 3d at 483. Although Officer Mocarski testified to standard police procedure requiring him to take defendant into custody for verification of his identity and to conduct an inventory search incident to towing, he failed to testify to such a procedure requiring him to tow the vehicle. People v. Lear, 217 Ill. App. 3d 712, 714, 577 N.E.2d 826, 160 Ill. Dec. 501 (1991). Rather, Officer Mocarski testified to his belief that he could not leave the car on the street.

Although there is no requirement that the State present written procedures in such a case, Officer Mocarski's testimony here was insufficient to show that he was acting in accordance with a standardized police procedure regarding the decision to tow. Gipson, 203 Ill. 2d at 306, 309; Lear, 217 Ill. App. 3d at 714. That omission, and the lack of evidence regarding the location of the car, leads us to conclude that no cognizable reason for the impoundment was shown to justify the subsequent search conducted pursuant to it. Schultz, 93 Ill. App. 3d at 1077.

"Today we decide whether a warrantless administrative inspection of a dentist's office not authorized by statute violates the Fourth Amendment's prohibition against unreasonable searches. We conclude that it does and, accordingly, reverse." Seymour v. Dep't of Health, 152 Wn. App. 156, 216 P.3d 1039 (2009):

¶17 Reining in the power of the executive branch in conducting administrative searches is a primary concern of courts reviewing such statutory schemes. Where a statutory scheme is properly formulated and followed, Fourth Amendment concerns are addressed by the elimination of unreasonable searches. In such cases, “it is difficult to see what additional protection a warrant requirement would provide. … The discretion of Government officials to determine what facilities to search and what violations to search for is thus directly curtailed by the regulatory scheme.” Donovan, 452 U.S. at 605. A proper regulatory scheme, “rather than leaving the frequency and purpose of inspections to the unchecked discretion of Government officers … establishes a predictable and guided … regulatory presence.” Dovovan, 452 U.S. at 604. Hence, the person subject to the inspection “is not left to wonder about the purposes of the inspector or the limits of his task.” Biswell, 406 U.S. at 316. The “regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers.” Burger, 482 U.S. at 703 (citing Barlow's, 436 U.S. at 323).

¶18 Of critical importance to the validity of the warrantless inspection of Dr. Seymour's office is whether it satisfied the criterion of being authorized by a statute providing a constitutionally adequate substitute for the Fourth Amendment's warrant requirement. It did not. Although Dr. Seymour does not contend that the UDA provides inadequate statutory authorization for warrantless administrative inspections, we nonetheless conclude that the inspection herein was not made pursuant to a statutory scheme sufficiently protective of Dr. Seymour's rights because it was not made pursuant to any recognized statutory scheme at all.

¶19 Well before the commencement of the adjudicatory hearing herein, we made clear that an investigation under the UDA “may not proceed until the [disciplining authority] reviews the complaint and determines that there are reasonable grounds to believe unprofessional conduct occurred.” Yoshinaka, 128 Wn. App. at 843. We also emphasized that the UDA does not authorize DOH employees “to initiate an investigation unless the [disciplining authority] first makes a determination of merit and directs the [DOH] to investigate.” Yoshinaka, 128 Wn. App. at 843. Assuming that the UDA's requirements, as construed in Yoshinaka, are adequate substitutes for the warrant requirement, 6 the warrantless inspection herein was invalid because it was commenced before the determination of merit required by the UDA was made, indeed before the commission or a panel thereof was even aware of the complaints. Therefore, the inspection violated Dr. Seymour's rights under the Fourth Amendment.

Defendant consented to a search of his car, and the officer patted down the defendant without any reasonable suspicion because it was his policy. The patdown was unreasonable and suppressed. Rodriguez v. State, 16 So. 3d 317 (Fla. App. 2DCA 2009).*

First patdown produced nothing, and there was no constitutional basis for a second. Ballenger v. State, 16 So. 3d 1022 (Fla. App. 2 DCA 2009):

Once the first pat-down was finished without producing any threat to the officer, the constitutional underpinning of a pat-down evaporated, and the deputy should have removed the handcuffs from Ms. Ballenger. "Courts have generally upheld the use of handcuffs in the context of a Terry stop where it was reasonably necessary to protect the officers' safety or to thwart a suspect's attempt to flee. ... Absent other threatening circumstances, once the pat-down reveals the absence of weapons[,]" the use of handcuffs is improper. Reynolds v. State, 592 So. 2d 1082, 1084, 1085 (Fla. 1992). Once Ms. Ballenger had been searched for weapons, any suspicion that she posed a threat vanished. As in Reynolds, in this case "the suspect [] offered no resistance, [was] not particularly belligerent, and did not make any threats. Under these facts, the use of handcuffs after the pat-down was not reasonably justified under the circumstances." Id. at 1086. The use of the handcuffs is not the sole basis for our reversal, although it is a factor under these circumstances.

Unlike the first pat-down, the second pat-down was constitutionally improper. In order to legally pat-down a detainee without consent or a warrant, "the officer must be able to articulate some basis which would support a reasonable belief that an individual is armed." D.L.J. v. State, 932 So. 2d 1133, 1134 (Fla. 2d DCA 2006). When the second deputy patted down Ms. Ballenger, she had already been subjected to a pat-down revealing no weapons, and her hands remained cuffed behind her back. At the suppression hearing, the second officer offered no justification for the second pat-down, saying only that the first deputy requested it. Under these circumstances, there was no reasonable basis to believe that she was armed or posed a threat. Accordingly, the second pat-down was a violation of Ms. Ballenger's Fourth Amendment rights, and the evidence it produced must be suppressed.

An officer approached a group in a housing project, and defendant refused to talk to him and "darted" into an apartment. The officer gave chase and defendant dropped drugs inside. The entry violated Payton. Byrd v. State, 16 So. 3d 1026 (Fla. App. 2 DCA 2009):

Here, the arresting officer described a consensual encounter with some men who he suspected might have been trespassing at a public housing complex. Byrd decided not to speak with the officer and left, as he was free to do. See Popple v. State, 626 So. 2d 185, 186 (Fla. 1993) (stating that in a consensual encounter, a citizen may either comply with a police officer's requests or ignore them; the citizen is free to leave). The officer did not order Byrd to stop. He followed Byrd into the residence because he "didn't know if he had a gun, or what the case may be." He offered no facts to support this suspicion. He just thought that something wasn't right.

The type of mere suspicion presented here would be insufficient to support even an investigatory stop. See id. It is clearly inadequate to establish the kind of "grave emergency" necessary to rebut the presumption that a warrantless entry into a residence is unreasonable. Indeed, in its order on the motion to suppress the circuit court correctly determined that the officer's attempt to stop Byrd was not supported by a founded suspicion of criminal activity.

A knock-and-announce failure is subject to suppression, despite Hudson, which the court does not reflexively follow. The question, however, is certified to the Florida Supreme Court. Cable v. State, 2009 Fla. App. LEXIS 12890 (2DCA September 4, 2009):

The issue in the instant case, however, is not--as it was in Hudson--whether the evidence is subject to suppression under the Fourth Amendment. Instead, the issue is whether suppression of the evidence is a remedy that must be applied for the violation of the statutory knock-and-announce provision. The Florida case law recognizes the common law and constitutional background for the knock-and-announce statute. See Benefield, 160 So. 2d at 710 (stating that section 901.19 "appears to represent a codification of the English common law which recognized the fundamental sanctity of one's home"); State v. Loeffler, 410 So. 2d 589, 593 (Fla. 2d DCA 1982)(stating that the purpose of the knock-and-announce statute "parallels that of the constitutional guarantees against search and seizure"). But the case law does not support the conclusion that the statute has no force independent of the requirements of the Fourth Amendment. Under the Florida case law, it is by no means clear that the exclusionary rule has been applied to violations of the knock-and-announce statute only because Fourth Amendment knock-and-announce violations were subject to the exclusionary rule. Indeed, Benefield applied the exclusionary rule for violations of the knock-and-announce statute long before the United States Supreme Court decided in Wilson v. Arkansas, 514 U.S. 927, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995), that the common law knock-and-announce rule was also a "'command of the Fourth Amendment.'" Id. at 931 (quoting New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985)). Thus, we conclude that Hudson does not displace the existing Florida precedent, which mandates the application of the exclusionary rule for violations of the knock-and-announce statute.

Note: I argued Wilson in 1995. It was almost unfathomable that the Court would find knock-and-announce a constitutional imperative then and then turn around and gut it eleven years later in Hudson by holding that its constitutional violation was essentially not a constitutional imperative since the exclusionary rule does not apply to knock-and-announce violations. I have argued in proper cases since Hudson that my state's exclusionary rule should not apply to knock-and-announce violations. None has made it up on appeal yet. That is a little Quixotic since Arkansas did not find knock-and-announce to be a constitutional violation in the first place in 1994. After all, I was the petitioner against the state in Wilson.

Police removed a man from a movie theater. He entered with a gun in a holster on his hip, and the theater operators called the police. The plaintiff's seizure violated the Fourth Amendment because it was not against the law to "open carry." St. John v. McColley, No. 08-996 (D. N.M. September 8, 2009). See article: Federal judge rules police cannot detain people for openly carrying guns.

Applying the Hill [United States v. Hill, 199 F.3d 1143 (10th Cir. 1999)] factors, it is evident that Mr. St. John was seized. While watching a movie, Mr. St. John was approached by four armed officers who instructed him to stand up and and led him outside, away from the crowd, where they continued to restrain him until they had removed his lawfully possessed weapon. At his deposition, Officer McColley testified that, had Mr. St. John asked Defendants to release him, he "wouldn't [have felt] safe letting [Mr. St. John] go at that point." McColley Depo. 13:21-4 13:32. While outside, Defendants removed Mr. St. John's wallet and handgun. They ran a check on the latter and only returned it at the end of their encounter. Because, from the time that Defendants approached Mr. St. John to the time when they physically released him, Mr. St. John reasonably believed that he was not free to leave, a seizure occurred.

But the inquiry does not end there. The Fourth Amendment does not protect individuals from all seizures—only unreasonable seizures. See, e.g., United States v. Sharpe, 470 U.S. 675, 682 (1985). Under the Fourth Amendment, seizures such as Mr. St. John's, termed investigatory detentions, are reasonable if they are (1) justified at their inception and (2) reasonably related in scope to the circumstances which justified the interference in the first place. U.S. v. DeJear, 552 F.3d 1196, 1200 (10th Cir. 2009) (quoting United States v. Johnson, 364 F.3d 1185, 1189 (10th Cir. 2004)). An investigatory detention is "justified at its inception" if "the specific and articulable facts and rational inferences drawn from those facts give rise to a reasonable suspicion a person has or is committing a crime," id. (quoting United States v. Werking, 915 F.2d 1404, 1407 (10th Cir. 1990)), or where officers have a reasonable suspicion that a crime may be afoot. Id. See also, e.g., Oliver v. Woods, 209 F.3d 1179, 1186 (10th Cir. 2000); United States v. Sokolow, 490 U.S. 1, 7 (1989). "[I]nchoate suspicions and unparticularized hunches" are insufficient bases for a reasonable seizure. United States v. Lyons, 510 F.3d 1225, 1237 (10th Cir. 2007).

The undisputed facts establish that Mr. St. John's seizure was unreasonable. Defendants lacked a justifiable suspicion that Mr. St. John had committed a crime, was committing a crime or was about to commit a crime. Indeed, Officer McColley conceded that he did not observe Mr. St. John committing any crimes and that he arrived at the theater with the suspicion that Mr. St. John was merely "showing a gun", McColley Depo. 14:4, which is not illegal in the State of New Mexico. See N.M. Stat. § 30-7 et seq. Nor was there any reason to believe that a crime was afoot. When they found him, Mr. St. John was peacefully sitting through the previews for his second movie of the day. Officers had no reason to believe that Mr. St. John had been, was, or would be involved in any criminal activity whatsoever.5 Candidly, as the Ninth Circuit noted in a somewhat similar case, one would expect someone engaged in shady business to act in a more stealthy fashion than Mr. St. John did here. See Duran v. City of Douglas, Arizona, 904 F.2d 1372, 1377 (9th Cir. 1989).

Hat tip to OpenCarry.com

An adjudicated juvenile defendant in juvie detention has virtually no Fourth Amendment rights in detention. Betts v. New Castle Youth Dev. Ctr., 2009 U.S. Dist. LEXIS 81182 (W.D. Pa. September 8, 2009).

Where objection to USMJ's finding was based solely on the credibility of the witnesses, it was overruled. United States v. Sanders, 2009 U.S. Dist. LEXIS 80934 (E.D. Tenn. September 4, 2009).*

Court finds consent on the credibility of witnesses. United States v. Cole, 2009 U.S. Dist. LEXIS 81133 (D. Neb. August 25, 2009).*

CI's reliability was shown by the fact it related the CI seeing a drug deal going down. United States v. Dyer, 580 F.3d 386, 2009 FED App. 0330P (6th Cir. 2009).*

Officers had reasonable suspicion (without telling us what it was). United States v. Sadler, 344 Fed. Appx. 861 (4th Cir. 2009) (unpublished).*

A search that was valid before Gant should have the good faith exception applied. (See other posts on this issue listed here.) United States v. Owens, 2009 U.S. Dist. LEXIS 81378 (N.D. Fla. August 20, 2009):

Based upon the principles of the exclusionary rule, I find it proper to apply the good-faith exception to a search justified under the settled case law of the Eleventh Circuit, even though the law was later rendered unconstitutional by a Supreme Court decision. Just as there is no misconduct on the part of a law enforcement officer who reasonably relies on the mistake of a court employee in entering data, Evans, 514 U.S. at 15, 115 S. Ct. 1185, or the mistake of a legislature passing an unconstitutional statute, Krull, 480 U.S. at 349-50, 107 S. Ct. 1160, a police officer who performs an automobile search subsequent to arrest in reasonable reliance upon the settled case law of the United States Court of Appeals, even though the search is later invalidated by a Supreme Court decision, has not engaged in misconduct. United States v. McCane, 573 F.3d 1037, 2009 WL 2231658 at 7-8 (10th Cir. 2009). As repeated by the Supreme Court in its good-faith exception cases, the exclusionary rule should not be applied to objectively reasonable law enforcement activity." Leon, 468 U.S. at 919, 104 S. Ct. 3405. Relying upon settled case law is objectively reasonable law enforcement behavior.

Defendant's vehicle was unlawfully seized when it was towed, and a court ordered tracking device was installed. The unlawful towing did not make the installation of the court ordered tracking device. United States v. Williams, 650 F. Supp. 2d 633 (W.D. Ky. 2009), accepted in part, rejected in part, 2009 U.S. Dist. LEXIS 73997 (W.D. Ky. Aug. 18, 2009):

Here, no legitimate noninvestigative purpose existed for the police to remove Defendant Williams' automobile from the parking lot. The vehicle was lawfully parked and presented no danger to the public, nor was the vehicle itself shown to be at risk. Most importantly, Williams' wife and her friend, Cherie Liggons, were present and available to drive the vehicle back to Williams' Apollo Ct. home. Instead of releasing the automobile to the two women, the police had the vehicle towed purely for investigatory purposes so that the permanent electronic tracking device could be surreptitiously installed. Given these circumstances, the warrantless seizure of Williams' Town Car, while not prohibited in any fashion by the recent Gant decision, was nevertheless an objectively unreasonable warrantless seizure not supported by the community caretaking exception to the warrant requirement of the Fourth Amendment.

This conclusion does not mean, however, that the ensuing installation of the tracking device was unlawful. This is so, the Court concludes, because the seizure of the vehicle was an inevitable event. The record is undisputed that Det. Juan Garrett obtained a search warrant from Chief Judge Shake soon after the seizure of the vehicle. The warrant empowered police to lawfully install in the vehicle a hidden electronic tracking device powered by the electrical system of the car. The near-contemporaneous issuance of this warrant rendered the seizure of Williams' Town Car and implantation of the tracking device, inevitable irrespective of the preceding unlawful seizure.

The situation is analytically similar to the inevitable discovery doctrine under Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). Under this doctrine, the exclusionary rule is inapplicable, even if the initial search or seizure is unlawful, where the evidence at issue would inevitably been discovered by lawful means. See Murray v. United States, 487 U.S. 533, 539, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988) ("The inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.").

Federal Rules of Criminal Procedure, proposed amendment effective December 1, 2009:

Rule 41. Search and Seizure

* * *

(e) Issuing the Warrant.

(2) Contents of the Warrant.

(A) Warrant to Search for and Seize a Person or Property. Except for a tracking-device warrant, the warrant must identify the person or property to be searched, identify any person or property to be seized, and designate the magistrate judge to whom it must be returned. The warrant must command the officer to:

(i) execute the warrant within a specified time no longer than 14 days;

* * *

(B) Warrant Seeking Electronically Stored Information. A warrant under Rule 41(e)(2)(A) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.

(C) Warrant for a Tracking Device. A tracking device warrant must identify the person or property to be tracked, designate the magistrate judge to whom it must be returned, and specify a reasonable length of time that the device may be used. The time must not exceed 45 days from the date the warrant was issued. The court may, for good cause, grant one or more extensions for a reasonable period not to exceed 45 days each. The warrant must command the officer to:

* * *

(f) Executing and Returning the Warrant.

(1) Warrant to Search for and Seize a Person or Property.

* * *

(B) Inventory. An officer present during the execution of the warrant must prepare and verify an inventory of any property seized. The officer must do so in the presence of another officer and the person from whom, or from whose premises, the property was taken. If either one is not present, the officer must prepare and verify the inventory in the presence of at least one other credible person. In a case involving the seizure of electronic storage media or the seizure or copying of electronically stored information, the inventory may be limited to describing the physical storage media that were seized or copied. The officer may retain a copy of the electronically stored information that was seized or copied.

* * *

OFAC block on assets is a Fourth Amendment seizure under Soldal. Kindhearts for Charitable Humanitarian Dev. v. Geithner, 647 F. Supp. 2d 857 (N.D. Ohio 2009):

A Fourth Amendment seizure, in contrast, does not result in passage of title to the government or even necessarily permanent deprivation. A seizure affects a possessory interest: Id. at 1263. A Fourth Amendment seizure may often lead to permanent deprivation of the property "taken" by government officers, but that is not always so. Indeed, Fed. R. Crim. P. 41(g) provides a means for seeking return of seized property.

Viewing the consequences of a blocking order in a Fourth Amendment light, the court in Al Haramain stated that because "[e]ven a temporary deprivation of property" constitutes a seizure, an OFAC blocking action affects Fourth Amendment rights. Id. If merely "holding luggage for 90 minutes" constitutes a seizure, then surely placing an indefinite freeze on all an entity's assets is as well. Id.

This conclusion is not only reinforced, but, indeed, made irrefutable on consideration of the fact that the very purpose of an OFAC blocking action is to "depriv[e] the designated person of the benefit of the property, including services, that might otherwise be used to further ends that conflict with U.S. interests." Al Haramain, supra, 585 F. Supp. 2d at 1263. An OFAC block interferes with possessory rights, and is, in Fourth Amendment terms a seizure.

Defendant's alleged illegal arrest did not taint his live-in girlfriend's consent to search their home which was quite independent. United States v. Meece, 580 F.3d 616 (7th Cir. 2009):

The record in this case supports two theories as to why Lee consented to the search, neither of which helps Meece. Markham testified that when Lee consented to the search, she said that she had children in the house and that she was worried about the guns. Lee's affidavit and testimony claimed that she consented to the search because she needed to pick up her child from daycare and Markham threatened that if Lee did not consent to the search, the officers would get a warrant, which could take hours, and that, during that time, Lee would not be allowed to leave the house. 2 Lee never even hinted that the news of Meece's arrest prompted her consent; whether she consented to the search out of a concern for her children's safety or because she needed to pick up her child from daycare is irrelevant.

Supervised release condition of searches without cause was not facially unconstitutional, and it was within the district court's discretion. United States v. Camp, 344 Fed. Appx. 431 (9th Cir. 2009) (unpublished):

Camp contends that the district court erred by imposing a special condition of supervised release requiring him to submit to search or seizure "with or without a warrant and with or without reasonable or probable cause." This search condition does not facially violate the Fourth Amendment. United States v. Dupas, 419 F.3d 916, 922 (9th Cir. 2005). Furthermore, the record reflects that the district court did not abuse its discretion by imposing the condition in this case. See 18 U.S.C. § 3583(d); see also United States v. Weber, 451 F.3d 552, 557-58 (9th Cir. 2006); Samson v. California, 547 U.S. 843, 854-55, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006).

Drawing of weapons and use of handcuffs during a Terry stop does not transform it into an arrest. United States v. Jackson, 2009 U.S. Dist. LEXIS 81159 (N.D. Ga. July 30, 2009).*

The officers’ attempt at procuring a search warrant failed several statutory requirements because of his lack of training and experience. They sought help from other officers and failed to get it. The town JP also failed to so some things, but none of it rises to the level of bad faith to justify suppressing the search. The officers acted with good faith throughout, and that was sufficient to invoke the GFE to the exclusionary rule. (Half the opinion is quoting from Leon and Herring because of their relevance to the outcome.) United States v. Monroe, 2009 U.S. Dist. LEXIS 80479 (W.D. N.Y. March 17, 2009):

This lack of knowledge and experience is not "sufficiently deliberate" so as to "trigger the exclusionary rule;" nor is it "sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." Herring, supra, 172 L.Ed.2d at 507. The actions of Sergeant Lott and Detective Walters do not constitute "deliberate, reckless, or grossly negligent conduct" and therefore, it is RECOMMENDED that defendant's motion to suppress the evidence seized pursuant to the search warrant at issue herein be in all respects DENIED.

Although Rule 12 does not state what a defendant has to show to get a suppression hearing, under Third Circuit precedent the defendant needs to show a colorable factual dispute to get a suppression hearing. United States v. Boyd, 652 F. Supp. 2d 546 (D. Del. 2009).

Consent to search a car for drugs includes anywhere drugs can be hidden. Defendant's approach of the officers was not a withdrawal of the consent. He was waived off for officer safety. United States v. Jimenez, 2009 U.S. Dist. LEXIS 80410 (E.D. Tenn. September 2, 2009).*

The search warrant in this case authorized both the seizure and search of defendant's computer for child porn. The actual search occurred after the ten days for seizure, but this was not a constitutional violation (citing many cases). United States v. Cameron, 652 F. Supp. 2d 74 (D. Maine 2009).*

The stop of defendant was justified because the vehicle matched the description of a vehicle and occupants involved in a break-in within three minutes of the anonymous call and within a block in a high crime area. It was the only vehicle like it. United States v. Barrera-Omana, 2009 U.S. Dist. LEXIS 80413 (D. Minn. August 14, 2009).*

The officer had cause to stop the defendant's vehicle based on the driver's admissions on the tape during the stop. His implausible travel plans gave reasonable suspicion. United States v. Jimenez, 2009 U.S. Dist. LEXIS 80590 (E.D. Tenn. February 23, 2009),* adopted United States v. Sanders, 2009 U.S. Dist. LEXIS 80569 (E.D. Tenn. June 11, 2009).*

Plaintiff's arrest and detention and strip searches as a "material witness" when he was to fly round trip to Saudi Arabia stated a claim and the Attorney General who authorized it only had qualified immunity. The AG does not get absolute immunity because this was an investigative function by the government's public admissions. (Plus, plaintiff was never called as a witness in any case.) Al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009) (2-1):

According to the allegations of his first amended complaint, Plaintiff-Appellee Abdullah al-Kidd (al-Kidd), a United States citizen and a married man with two children, was arrested at a Dulles International Airport ticket counter. He was handcuffed, taken to the airport's police substation, and interrogated. Over the next sixteen days, he was confined in high security cells lit twenty-four hours a day in Virginia, Oklahoma, and then Idaho, during which he was strip searched on multiple occasions. Each time he was transferred to a different facility, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was eventually released from custody by court order, on the conditions that he live with his wife and in-laws in Nevada, limit his travel to Nevada and three other states, surrender his travel documents, regularly report to a probation officer, and consent to home visits throughout the period of supervision. By the time al-Kidd's confinement and supervision ended, fifteen months after his arrest, al-Kidd had been fired from his job as an employee of a government contractor because he was denied a security clearance due to his arrest, and had separated from his wife. He has been unable to obtain steady employment since his arrest.

Al-Kidd was not arrested and detained because he had allegedly committed a crime. He alleges that he was arrested and confined because former United States Attorney General John Ashcroft (Ashcroft), subordinates operating under policies promulgated by Ashcroft, and others within the United States Department of Justice (DOJ), unlawfully used the federal material witness statute, 18 U.S.C. § 3144, to investigate or preemptively detain him. Ashcroft asserts that he is entitled to absolute and qualified immunity against al-Kidd's claims. We hold that on the facts pled Ashcroft is not protected by either form of immunity, and we affirm in part and reverse in part the decision of the district court.

. . .

We hold, therefore, that when a prosecutor seeks a material witness warrant in order to investigate or preemptively detain a suspect, rather than to secure his testimony at another's trial, the prosecutor is entitled at most to qualified, rather than absolute, immunity. 14 We emphasize that our holding here does not rest upon an unadorned assertion of secret, unprovable motive, as the dissent seems to imply. Even before the Supreme Court's decision in Bell Atlantic v. Twombly and Ashcroft v. Iqbal, it was likely that conclusory allegations of motive, without more, would not have been enough to survive a motion to dismiss. See, e.g., Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (facts pled must be accepted as true, but conclusory allegations need not be). Twombly's general requirement that "[f]actual allegations must be enough to raise a right to relief above the speculative level," 550 U.S. 555, applies with equal force to allegations that a prosecutor's actions served an investigatory function. In this case, however, al-Kidd has averred ample facts to render plausible the allegation of an investigatory function:

. Al-Kidd's arrest was sought a month after Al-Hussayen was indicted, and more than a year before trial began, temporally distant from the time any testimony would have been needed. See Genzler, 410 F.3d at 639 ("The timing of evidence gathering is a relevant fact in determining how closely connected that conduct is to the official's core advocacy function ...."). Cf. Betts, 726 F.2d at 81 (arrest warrant issued day of trial); Daniels, 586 F.2d at 68 (same).

. The FBI had previously investigated and interviewed al-Kidd, but had never suggested, let alone demanded, that he appear as a witness. Cf. Betts, 726 F.2d at 80 (subpoena issued; prosecutor called witness day before trial to remind her that trial was to begin the next day); Daniels, 586 F.2d at 65 (plaintiff had already been served one subpoena; second subpoena was misplaced by U.S. Marshal).

. The FBI conducted lengthy interrogations with al-Kidd while in custody, including about matters apparently unrelated to Al-Hussayen's alleged visa violations. Cf. Genzler, 410 F.3d at 641-43 (nature of questions asked witnesses relevant to whether interview served investigative function).

. Al-Kidd never actually testified for the prosecution in Al-Hussayen's or any other case, despite his assurances that he would be willing to do so. Cf. Betts, 726 F.2d at 80 ("On Monday morning the trial proceeded and the prosecutor called plaintiff as his first witness."); Daniels, 586 F.2d at 66 ("Plaintiff subsequently testified as a government witness when Phoenix's trial resumed.").

All of these are objective indicia, similar to those we cited in Genzler, 410 F.3d at 641-43, that al-Kidd's arrest functioned as an investigatory arrest or national security-related preemptive detention, rather than as one to secure a witness's testimony for trial. Finally:

. Ashcroft's immediate subordinate, FBI Director Mueller, testified before Congress that al-Kidd's arrest (rather than, say, the obtaining of the evidence he was supposedly going to provide against Al-Hussayen) constituted a "major success []" in "identifying and dismantling terrorist networks." Mueller Testimony, supra. Cf. KRL, 384 F.3d at 1114-15 (prosecutor contemporaneously admits on radio program that follow-up search warrant was part of "a stand-alone investigation").

We conclude that the practice of detaining a material witness in order to investigate him, on the facts alleged by al-Kidd, fulfils an investigative function.

See Law.com: 9th Circuit Blasts Feds for Post-9/11 Detention of 'Material Witness'.

The search warrant for defendant's home in a drug murder case lawfully revealed the victim's belongings in plain view. United States v. Clay, 579 F.3d 919 (8th Cir. 2009)*:

The circumstances of this case are distinguishable from Clark. The officers searching Clay's residence neither conducted an unbounded exploratory search nor recorded serial numbers of random items in the home seeking incriminating evidence of potential crimes. Furthermore, the incriminating nature of the items seized was immediately apparent to Agent Fehrenbach, who instantly connected the items to Johnson's homicide. We hold that the seizure of these items during the warrant search did not violate the Fourth Amendment and that the district court properly denied the motion to suppress.

Police had information for weeks of drug sales and made a warrantless arrest after a vehicle stop on "warrants" from the detective section. They clearly had time to get an arrest warrant. The search incident of the car was invalid. State v. Jones, 183 Ohio App. 3d 839, 2009 Ohio 4606, 919 N.E.2d 252 (2d Dist. 2009).

Officers had PC to believe that defendant was involved in hand-to-hand drug sales with cars that drove up. State v. Lee, 2009 Ohio 4536, 2009 Ohio App. LEXIS 3828 (4th Dist. August 27, 2009).*

Defendant was seized in her own home when the officer restricted her going to the bathroom to vomit and then watched her constantly and questioned her. State v. Martinez, 230 Ore. App. 492, 216 P.3d 347 (2009).*

Police officer came on a traffic accident, and defendant at first admitted he had been driving, and the officer suspected he was DUI. He was placed in the police car and questioned. The legality of the questioning did not have to be considered because the court found it harmless under all the circumstances considering the testimony at trial. Rockwell v. State, 215 P.3d 369 (Alas. App. 2009).*

Defendant consented to an entry of his motel room, and a gun and drugs in plain view were properly seized. United States v. Davis, 2009 U.S. Dist. LEXIS 79472 (W.D. Okla. September 3, 2009).*

Michigan refuses to apply inevitable discovery where the police were doing nothing to get a search warrant because, to hold otherwise, "diminishes the Fourth Amendment and is an incentive for improper or careless police practice." People v. Hyde, 285 Mich. App. 428 (September 1, 2009):

But even under this more expansive application of the inevitable discovery doctrine, we conclude that the evidence here should have been excluded. Although there was a high level of probable cause to obtain a warrant and the same evidence--Hyde's blood--would have been obtained pursuant to the eventual warrant, it is obvious that the police were not in the process of obtaining a warrant when they secured Hyde's invalid consent. Officer Williams did not understand the implied consent statute exception for diabetics and did not attempt to correct his mistake once Hyde's blood sample was obtained.

Moreover, the line of reasoning that does not permit the doctrine to apply is particularly persuasive when placed in the context of Michigan's three concerns with applying the inevitable discovery doctrine--independent legal means, inevitability of use of the legal means and discovery of the evidence, and incentive for police misconduct or significant weakening of Fourth Amendment protections. 34 Based on the facts here, there was an independent legal means to obtain the evidence by securing a search warrant. The discovery of the evidence was also inevitable because it is undisputed that Officer Williams would have done so had he realized his error. Also, there was easily enough evidence to establish probable cause based on Hyde's erratic driving, admission that he had been drinking, and his failure of two sobriety tests. However, the damage that would be done to the Fourth Amendment and the incentive for police misconduct by adopting the inevitable discovery doctrine under these circumstances outweigh these considerations. To allow a warantless search merely because probable cause exists would allow the inevitable discovery doctrine to act as a warrant exception that engulfs the warrant requirement. Even in the context of a good faith error, we reject the notion that a post-hoc probable cause analysis can preclude the constitutional requirement that a neutral and detached magistrate issue the warrant. Such an approach diminishes the Fourth Amendment and is an incentive for improper or careless police practice.

Despite the officer's statement that defendant was free to go before permission to use the drug dog was sought, it was apparent that he was not. The use of the dog here was not reasonable. State v. Haar, 2009 SD 79, 772 N.W.2d 157 (2009)*:

[*P20] In addition, we agree with the circuit court that Haar was detained or seized because a reasonable person in his position would not have felt free to leave or terminate the encounter. Haar and the other occupant were alone at the rest area without the ability to leave in their vehicle. Further, Swets parked his vehicle, positioned himself, questioned Haar, and released the dog in a manner such that a reasonable person would not feel he or she was free to leave. Under the totality of the circumstances, we agree with the circuit court that any initially consensual encounter became an investigatory detention. The circumstances justifying this conclusion include the remote location of the encounter, Haar's restricted access to his vehicle and jacket on a cold February day, the investigatory nature of the conversation, Swets's conceded show of authority, and the release of the dog. Even disregarding Swets's concession, his actions amounted to a show of authority such that a reasonable person would not have felt free to leave. See Royer, 460 U.S. at 501-02, 103 S. Ct. at 1326, 75 L. Ed. 2d 229 (concluding that analogous actions by law enforcement with respect to an airport traveler surely amounted to a show of official authority such that "a reasonable person would have believed he was not free to leave").

[*P21] Although we acknowledge that Swets told Haar he was "free to go," the seizure of the car together with the simultaneously release of the dog made this statement demonstrably false. Furthermore, the release of the dog left no room for a reasonable person to believe that he or she could have disregarded Swets's command to the dog, disrupted the canine sniff, and left in his or her vehicle uninterrupted. We conclude that Swets affected a Terry detention or seizure of Haar and his vehicle.

Defendant was sitting in a parked car and he was approached by a law enforcement officer who was asking him questions. The officer concededly believed that a hand to hand drug deal had gone down, but the appeals court is not persuaded. People v. Estrada, 394 Ill. App. 3d 611, 333 Ill. Dec. 260, 914 N.E.2d 679 (2009):

The thrust of the State's argument here is that Officer Cloherty had a reasonable suspicion that defendant was in the midst of a narcotics transaction. The State gleans support from the fact that defendant was seated in a vehicle with the engine running, engaged in a "brief conversation with a man standing near the driver's side of the vehicle," and then "attempted to conceal a white plastic bag by removing it from the front seat and placing it on the floor of the rear passenger seat." The State posits, that in light of the foregoing circumstances as well as Officer Cloherty's assignment and training, there existed a reasonable and articulable suspicion to support a Terry stop of defendant. We disagree. The State further maintains that, in addition to Cloherty's initial observations, the revelation that defendant's vehicle lacked a city sticker provided "further suspicion to investigate." However, we are not persuaded that this additional factor in any measure alters our initial disagreement with the State's position.

There is no reasonable expectation of privacy in a telephone call from a police interrogation room that the police were able to record the defendant's end of. Perhaps recognizing that the argument was borderline frivolous, the defendant argued that his speaking in Spanish manifested a REP. People v. Zamora, 220 P.3d 996 (Colo. 2009):

On appeal, Zamora contends that he had both a subjective and objective expectation of privacy in his phone statements because he spoke in Spanish. Assuming, without deciding, that Zamora demonstrated he had an actual, subjective expectation of privacy in his phone conversation by speaking in Spanish, we conclude that his expectation of privacy was not objectively reasonable. Objective reasonableness depends on "whether the government's intrusion infringes upon the personal and societal values protected by the Fourth Amendment." Oliver v. United States, 466 U.S. 170, 182-83, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). The objective reasonableness expectation is a fact-specific inquiry which takes account of all circumstances and is not tied to a single factor nor controlled by a specific formula. People v. Oynes, 920 P.2d 880, 882 (Colo. App. 1996); see also People v. Tufts, 717 P.2d 485 (Colo. 1986) (whether an expectation of privacy is legitimate depends on objective factors, not the individual's subjective intent).

Courts consider several factors in determining the objective reasonableness of an expectation of privacy. A person generally has no reasonable expectation of privacy in communications held in the actual presence of a police officer. People v. A.W., 982 P.2d 842, 848 (Colo. 1999) (citing Katz, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576); see People v. Smith, 716 P.2d 1115, 1118 (Colo. 1986) (defendant who was accompanied to telephone by jailhouse personnel does not have a reasonable expectation of privacy in his telephone communications); cf. People v. Hart, 787 P.2d 186, 187-88 (Colo. App. 1989) (defendant had no reasonable expectation of privacy where police officers, who were lawfully situated in an adjacent motel room, could hear his conversation without the aid of any listening device).

The location where statements are made is also a factor in determining whether an objectively reasonable privacy expectation exists. People v. Lesslie, 939 P.2d 443, 447 (Colo. App. 1996). Statements made while in police car, People v. Palmer, 888 P.2d 348 (Colo. App. 1994), or inside a jail, People v. Blehm, 44 Colo. App. 472, 476-77, 623 P.2d 411, 415 (1980), may not give rise to an expectation of privacy. See also People v. Lee, 93 P.3d 544, 548 (Colo. App. 2003) (defendant did not have reasonable expectation of privacy in his telephone calls from county jail). However, statements made in a private area of a public restroom may be subject to an objective expectation of privacy. Lesslie, 939 P.2d at 446 (defendant had expectation of privacy within restroom because it was legitimate to assume conversation was shielded from the public).

Defendant arrested two blocks from his car was not a "recent occupant" under Thornton. United States v. Mathis, 653 F. Supp. 2d 806 (E.D. Tenn. 2009) (case was decided five days before Gant):

In this instance, Defendant was arrested approximately two blocks away from the Vehicle. The arrest took place approximately five minutes after Defendant had left the Vehicle, and the officers returned Defendant to the Vehicle shortly after arresting him. The Court finds that while Defendant's temporal relationship with the Vehicle was appropriate under Thornton, his spatial relationship to the Vehicle was simply too great. Given the distance between Defendant and his Vehicle at the time of Defendant's arrest, the Court cannot find that a search of the Vehicle was appropriate under either a theory of officer safety or a concern for the preservation of evidence, the two bases for Thornton.

Nor has the government offered any evidence or argument providing any other legal basis in support of a warrantless search of the car. There is no evidence or argument that the Vehicle would have been seized by the police prior to the discovery of drugs, nor any evidence as to police policy regarding routine inventory searches prior to seizure, thus the government has not raised, and therefore cannot rely on, a theory of inevitable discovery to salvage the search at issue. United States v. Musick, 291 Fed. Appx. 706, 721 (6th Cir. 2008) (recognizing the validity of a warrantless inventory search pursuant to standard police policy). Nor can the Court find under the facts before it that the police had probable cause to search the Vehicle, which would have protected the search under the automobile exception to the warrant requirement. See Md. v. Dyson, 527 U.S. 465, 467, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (U.S. 1999) (describing the automobile exception). The only basis for a finding of probable cause would be the fact that defendant was carrying $1,580 in cash and two cell phones, neither of which is sufficient under the totality of the circumstances to create probable cause for a warrantless search of the Vehicle.

Affidavit for child pornography search warrant failed to show probable cause, but the good faith exception saved the warrant. United States v. Harner, 2009 U.S. Dist. LEXIS 78238 (D. Minn. August 4, 2009):

Here, the affidavit is padded with a lengthy description of how Internet distribution of child pornography works and how "typical" computer investigations of child pornography proceed. This information is not sufficiently particularized to the Defendant and must be disregarded. The remaining information in the affidavit that does relate to the Defendant also fails to establish probable cause. The affidavit provides no evidence that the 16 suspect files were advertised as child pornography; it simply offers a conclusion that the suspect IP address "was offering to participate in the distribution of child pornography." (Gov't Ex. 1 at Application.) This conclusion is not supported by sufficient evidence that a search of Defendant's residence would uncover evidence of wrongdoing. First, less than 1.5 percent of the 1,156 files on the Defendants' computer matched SHA1 values from the ICAC list -- hardly overwhelming evidence that the Defendant knowingly possessed prohibited files. Second, the affidavit provides no information as to how the ICAC compiled its list of child pornography files or how the ICAC determined that the files on its list meet the legal definition of child pornography under state or federal law. Third, the affidavit does not even provide a description of the 16 files on the ICAC list that allegedly match the files on Defendant's computer. Without a description of the files, it is impossible to tell whether these files are photos or videos, much less whether the photos or videos depict child pornography. This means that even if it were reasonable to believe that the Defendant's files matched the 16 ICAC files, the magistrate had no way to tell whether the 16 ICAC files met the legal definition of child pornography. Therefore, without more, the statement that 16 of 1,156 files Defendant's computer had SHA1 values matching 16 files on the ICAC list is insufficient to establish probable cause to believe that a search of Defendant's residence would result in evidence of wrongdoing.

This leaves only the evidence that of one half of one video file found on Defendant's computer depicted a female engaged in sexual activities. Although the affidavit states that the female seen in the video was between 13 and 15 years of age, it provides no indication of how this age determination was made. The affidavit provides no "basis of knowledge" for the conclusion that the female depicted in the partial video file is between the ages of 13-15, or even that the female is under 18 (such as, for example, evidence of an examination of the file by a pediatrician or other qualified expert). Certainly, the bare statement that the conclusion about a post-pubescent individual's age was based on Officer Hanson's general "training and experience" is facially insufficient to establish probable cause. Gates, 462 U.S. at 239. Further, the affidavit concludes, without explanation or analysis, that the file is prohibited child pornography as defined by Minn. Stat. § 617.247. Under Minnesota v. Cannady, a 2007 Minnesota Supreme Court case analyzing and interpreting this statute, in order to prove a violation of Minn. Stat. § 617.247 the government must prove that 1) not only are the persons depicted in pornographic work actually under the age of 18, but also 2) that the individual who possessed the pornographic work actually knew that the persons depicted were under the age of 18. Cannady, 727 N.W.2d 403, 407-09 (2007). The affidavit fails to provide sufficient evidence to support a finding of probable cause as to either element.

In sum, the Court concludes that the officer's application here is insufficient to support a finding of probable cause, and that therefore the search warrant was issued in violation of the Fourth Amendment.

B. Even Though No Probable Cause Existed To Support The Search Warrant, The Leon Good Faith Exception Applies

Search warrant for premises permitted search of a car parked in the closed garage. United States v. Valazquez, 2009 U.S. Dist. LEXIS 79500 (W.D. Okla. September 3, 2009).*

IRS summons does not implicate the Fourth Amendment. Hibben v. United States, 2009 U.S. Dist. LEXIS 78699 (E.D. Tenn. June 19, 2009).*

The Tenth Circuit’s McCane good faith exception to Gant is applied on a Sixth Circuit remand under Gant. United States v. Lopez, 2009 U.S. Dist. LEXIS 78320 (E.D. Ky. September 1, 2009). [Note: The Ninth Circuit disagrees with the Tenth.]

Government's appeal from a USMJ's R&R that recommended granting a motion to suppress included its disavowal of the accuracy of officer affidavits that it affirmed before the USMJ. The government can't have it both ways. The affidavits were admissible as admissions of a party opponent. United States v. Lopez-Ortiz, 648 F. Supp. 2d 241 (D. P.R. 2009):

The government, in its opposition to the R&R, offers no persuasive argument refuting the magistrate judge's legal analysis on this matter. The government argues that the affidavit contains inaccurate information as a result of poor communication between agents present at the time of the search and seizure and agents who ultimately created the affidavit. This line of argument - the factors leading to the affidavit's inaccuracies--is irrelevant. What matters in the analysis under Kattar is whether the government submitted the contested statements for their truth in one forum while denying their truth in another. Here, the government has done just that and, therefore, this Court agrees that the affidavit was properly admitted as a party admission.

The drug dog's training need not be shown in the affidavit for search warrant to establish probable cause. United States v. Campbell, 2009 U.S. Dist. LEXIS 79363 (E.D. Ky. September 1, 2009)*:

The Sixth Circuit has held that "to establish probable cause, the affidavit need not describe the particulars of the dog's training. Instead, the affidavit's accounting of the dog sniff indicating the presence of controlled substances and its reference to the dog's training in narcotics investigations was sufficient to establish the dog's training and reliability." Berry, 90 F.3d at 153. See also United States v. Daniel, 982 F.2d 146, 151, n.7 (5th Cir.1993)(rejecting defendant's argument that an affidavit must show how reliable a drug-detecting dog has been in the past in order to show probable cause); United States v. Venema, 563 F.2d 1003, 1007 (10th Cir. 1977)(stating that an affidavit in support of a search warrant need not describe the drug-detecting dog's educational background and general qualifications with specificity to establish probable cause). The affidvait in this case clearly meets those requirements.

[Note to readers: This website will go back three years. I've started deleting some early 2006 posts, but not all. Some cases are enduring and are kept. There were over 3300 posts on this website.]

A magistrate keeping his copies of issued search warrants in a brief case and not a file cabinet satisfies state rule 41 requiring search warrant papers separate. The purpose of the rule is to prevent alteration, and that suffices. State v. Waters, 2009 Tenn. Crim. App. LEXIS 732 (August 21, 2009):

The issue on appeal is whether storing copies of search warrants in a briefcase amounts to "keep[ing] one copy as part of his ... official records." The Rules of Criminal Procedure do not require a magistrate to keep copies of search warrants in any specific manner. Rather, as this Court has discussed in the past, the purpose of this Rule is to "protect[] against any post-issuance alteration of the original warrant" and to "give[] the judge control to insure that the warrant is executed and returned to the magistrate in a timely manner." State v. Brewer, 989 S.W.2d 349, 353 (Tenn. Crim. App. 1997) (citing State v. Gambrel, 783 S.W.2d 191, 192 (Tenn. Crim. App. 1989)). In our view, a briefcase is adequate to store a magistrate's copy of a search warrant. We agree with the trial court's finding, and we conclude that the Defendant is not entitled to relief on this issue.

Police received an anonymous complaint about a possible DUI and had specific information about the vehicle. The vehicle was seen parked where the caller said it would be a few minutes away from where the vehicle left. The anonymous tipster was corroborated by the detail that proved to be correct. State v. Jones, 2009 Tenn. Crim. App. LEXIS 731 (August 21, 2009).*

A minor appearing intoxicated is not PC to believe he is in possession of alcohol, so his search was invalid. State v. J.D.L.C., 293 S.W.3d 85 (Mo. App. 2009).*

Officer had PC to stop defendant who drove from a parking lot without seatbelt on. State v. Paige, 2009 Tenn. Crim. App. LEXIS 725 (August 31, 2009).*

Overtinted windows PC for stop. United States v. Valentine, 2009 U.S. Dist. LEXIS 78555 (E.D. Pa. September 1, 2009):

The question before the Court is not whether the Civic's windows violated the window tint statute, 75 Pa. C.S.A. § 4524(e)(1)--indeed, the government presented no evidence on that issue. Instead, the question is whether "an objective review of the facts shows that [Officer Ganksy] possessed specific, articulable facts that [defendant] was violating [the Pennsylvania window tint statute] at the time of the stop." Delfin-Colina, 464 F.3d at 398.

. . .

The government has not cited any cases on this issue. However, the Court, through its own research, has found several cases which held that an officer's testimony concerning his inability to see through a defendant's vehicle windows was sufficient to establish the officer's reasonable suspicion that the windows were overly tinted in violation of Pennsylvania law. See United States v. Bellinger, 284 F. App'x 966, 968 (3d Cir. 2008); United States v. Leal, 235 F. App'x 937, 938-39 (3d Cir. 2007); United States v. Truley, No. 08-105, 2009 U.S. Dist. LEXIS 59368, 2009 WL 2029975, *2 (W.D. Pa. July 13, 2009); United States v. Lynch, 290 F. Supp. 2d 490, 495 (M.D. Pa. 2003); see also Holeman v. City of New London, 425 F.3d 184, 191 n.2 (2d Cir. 2005); United States v. Wallace, 213 F.3d 1216, 1220 (9th Cir. 2000). The Court finds these cases instructive and concludes, notwithstanding the fact that the record is not as developed as in Ushery, that Officer Gansky's testimony concerning his inability to see through the windows of defendant's Civic is sufficient to establish reasonable suspicion in this case.

[posted 9/6]

An automobile search was permissible of a car driven in an internet predator sting. The defendant did not have condoms, discussed in the chat sessions, on his person, but it was not determinative that they were not on his person. United States v. Zahursky, 580 F.3d 515 (7th Cir. 2009):

We conclude, however, that the record establishes that probable cause to search the vehicle existed even before the discovery that Zahursky didn't have any condoms or lubricant on his person. First, the agents knew that Zahursky was the man they wanted. He arrived at Starbucks, the designated meeting place, in the make and color of car that he had described in his chats with Shelly. He was wearing the clothing he had told Shelly he would be wearing, and the agents could observe that his physical appearance fit the one he had described to Shelly. The agents also knew from the internet chats and email messages with Shelly that Zahursky planned to bring condoms and lubricant with him. Thus, they had probable cause, based on Zahursky's own statements, to believe that Zahursky had these items, which would be evidence of a crime, see 18 U.S.C. § 2422(b), with him when he met Shelly on June 21.

Furthermore, it was reasonable to believe that Zahursky would have left these items in his car instead of taking them into Starbucks. He surely wasn't going to use the condoms and lubricant inside Starbucks. Zahursky and Shelly had planned only to meet at the Starbucks before going to Lindsey's sister's dorm room where they planned to engage in sexual activity.

Identity evidence in an illegal entry case, including fingerprints, are not suppressible under a Fourth Amendment violation, if there was one. United States v. Aguila-Perez, 344 Fed. Appx. 521 (11th Cir. 2009) (unpublished), following United States v. Farias-Gonzalez, 556 F.3d 1181 (11th Cir. 2009), petition for cert. filed, (U.S. May 4, 2009) (No. 08-10195).*

Arresting men on defendant's porch justified a protective sweep. Exigency also permitted a search for a child inside. United States v. Minniefield, 2009 U.S. Dist. LEXIS 77807 (W.D. La. August 13, 2009).*

The government [just barely] showed that the drug dog and the handler were "well qualified" (Caballes). While the dog was certified through 2006, it was not certified since, but its general reliability was enough. [Essentially, the handler can make the dog qualify by testifying to a good track record.] United States v. Colon-Arenas, 2009 U.S. Dist. LEXIS 77953 (N.D. Ind. August 25, 2009):

The record discloses that this dog and handler were well-trained. They underwent a five-week training period together, and five subsequent two-day sessions that each provided fifteen hours of training. Although that training ended thirty months before the Monte Carlo search, Officer Kanaar continued to provide the dog with eight hours of training per month. Officer Kanaar isn't a certified trainer, but it is reasonable to infer he learned something about how to train his dogs in the sessions in Denver.

Most importantly, Officer Kanaar testified that he has found his dog to be reliable at detecting narcotics. That is, after all, the bottom line when it comes to evaluating information on which probable cause was found. ...

At bottom, then, this case involves an alert by a highly trained narcotics detection dog who has been reliable in the past. Were the standard higher than probable cause, or if the dog's alert provided the only basis for belief that drugs were in the Monte Carlo, the lack of recent recertification (and lack of evidence about just what the lack of recertification means) and more specific reports than "has been reliable in the past" might defeat use of the dog's alert. Under the circumstances of this case, though, the government's showing is minimally sufficient.

In a patdown that produces drugs, the officer can handcuff the defendant without elevating the stop to the arrest because of the potential danger to the officer from the discovery. Seizure of one thing from the defendant's pocket that might have been unreasonable did not transform the frisk into an unlawful stop. An inventory of his vehicle ultimately occurred for independent reasons unrelated to the excessive frisk. [Note, the government also sought leave to argue McCane and the Gant GFE, which was moot.] United States v. Albert, 579 F.3d 1188 (10th Cir. 2009).

Officers were entitled to qualified immunity in a SWAT team raid that led to them killing a man inside the house where he refused to get down, ran into a bedroom with officers in pursuit, picked up a shotgun and racked a shell into the chamber and was shot. He fell into a closet with the gun still in hand, and raised the gun again and was shot again. Whittier v. Kobayashi, 581 F.3d 1304 (11th Cir. 2009), Whittier v. Bruna, 2009 U.S. App. LEXIS 19473 (11th Cir. August 31, 2009) (unpublished):

Within the context of warrantless searches, we have held the mere presence of contraband, without more, does not give rise to exigent circumstances. United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991). At the same time, however, we have also repeatedly noted the dangerous, and often violent, combination of drugs and firearms, see, e.g., United States v. Hromada, 49 F.3d 685, 689 (11th Cir. 1995) ("Guns and violence go hand-in-hand with illegal drug operations."), and several of our sister circuits have concluded this combination may give rise to reasonable suspicion of danger and justify a no-knock entry, see United States v. Stevens, 439 F.3d 983, 988-89 (8th Cir. 2006) (affirming a magistrate judge's conclusion that a no-knock search was justified based upon the presence of drugs and a sawed-off shotgun in a common area of the house); United States v. Washington, 340 F.3d 222, 227 (5th Cir. 2003) (stating information that "the suspect was selling drugs and was typically armed ... exceeds the level this circuit has found sufficient to establish a reasonable suspicion of danger").

In this case, we conclude Bruna and Visners are entitled to qualified immunity because a reasonable officer could have had reasonable suspicion that knocking and announcing his presence would have been dangerous under the circumstances facing the SWAT team. Those circumstances included serving a search warrant on the home of a suspected drug dealer (Diotaiuto), who had ready access to firearms and occupied the premises when the SWAT team arrived to serve the warrant. Indeed, based upon the information available to the SWAT team, Diotaiuto (1) received and sold narcotics, including cocaine and marijuana, at his residence; (2) had a criminal history; (3) carried a concealed semi-automatic handgun on his person; and (4) possessed a shotgun that he kept in his bedroom. This information, which was contained in the SWAT team's operational plan and received and reviewed by the members of the team, provided a "particularized and objective" basis for a reasonable officer to suspect the situation had a potential for violence and to believe exigent circumstances existed to justify a no-knock entry.

The fact that the operational plan called for a knock and announce prior to entry does not alter our analysis. Even assuming the operational plan, which was prepared prior to the service of the warrant, speaks for what Bruna and Visners actually believed as they stood "in the stack" outside the Whittier/Diotaiuto residence, the officers' subjective beliefs regarding the circumstances are irrelevant to the qualified immunity inquiry. See Harlow v. Fitzgerald, 457 U.S. 800, 817-18, 102 S. Ct. 2727, 2737-38, 73 L. Ed. 2d 396 (1982) (discarding the subjective component of the qualified immunity inquiry and adopting the "objective reasonableness" standard); Jackson, 206 F.3d at 1165 ("[T]he standard for determining if an officer violated clearly established law is an objective one and does not include inquiry into the officer's subjective intent or beliefs."). Moreover, we have held an officer is entitled to qualified immunity even when he reasonably, but mistakenly, believes reasonable suspicion is present, see Brent, 247 F.3d at 1303; it makes little sense to not afford the same protection to an officer who, sensitive to the rights citizens enjoy under the Constitution, initially, but mistakenly, believes the situation involves a constitutional protection, but later learns it does not.

Officers came to defendant's house for a knock-and-talk, and they saw people fleeing and smelled marijuana. This was exigent circumstances for a "hot pursuit" entry. United States v. Valenzuela-Espinoza, 2009 U.S. Dist. LEXIS 77404 (D. Ariz. August 27, 2009).*

Defense counsel was not ineffective for not asking more questions on cross-examination. He vigorously challenged the third-party's consent on essentially the same grounds alleged now, but his failure to go further in cross was a matter of strategy. United States v. Snype, 2009 U.S. Dist. LEXIS 77416 (S.D. N.Y. August 21, 2009).*

Defendant was stopped based on classic Terry factors of suspicious activity around banks. When he was frisked, stuff was found that reasonably led the officers to believe that there would be additional evidence in the vehicle, which there was. United States v. Datcu, 2009 U.S. Dist. LEXIS 77197 (D. Minn. August 4, 2009).*

Reasonable suspicion developed immediately on defendant's stop, and it justified a patdown. United States v. Maxwell, 2009 U.S. Dist. LEXIS 77519 (E.D. Mo. June 18, 2009):

Here, the officer had reasonable suspicion to expand the scope of the stop to request consent to search, based on Defendant's conduct. Defendant was driving a rental car, and was exceedingly nervous, not looking at the officer and barely speaking to him, even though Defendant plainly knew the officer well enough to address him by his first name. Defendant also made a cryptic comment, stating, "You know what's going on." Both while he was in the car, and after he exited and was walking to the patrol car, Defendant was looking around in a manner that caused the officer to have concern that he might try to flee. Moreover, he observed a large bulge in Defendant's pocket.

Officer's experience indicated that he was observing a drug buy going down by the way the defendant met up with a car stopping near him and then leaned in. The way he had his hands in his pockets made the officer believe the defendant had a gun. United States v. Dubose, 579 F.3d 117 (1st Cir. 2009).*

Information to the police that shots may have been fired was sufficient to justify a stop when another person said he "thought" that the people were in a particular van. The standard is reasonable suspicion, not probable cause. Key here was that the statement came from an identified citizen informant. United States v. Booker, 579 F.3d 835 (7th Cir. 2009):

Tennin's statements to police provided the officers with enough information for officers to believe a crime occurred and that Booker may have been involved. First, police received a 911 call reporting gunshot fire. When Officer Presley arrived, Tennin flagged him down, identified himself, and reported a battery that occurred earlier in the evening. Tennin gave the address of where the battery occurred and the area in which he believed he heard the gunshot. He also gave a specific description of a suspect and pointed out Booker's van as the one that he thought carried the men involved in the battery.

... Tennin was willing to identify himself to police and have officers speak with his daughter, which differentiates him from other anonymous tipsters whose reports may not give rise to reasonable suspicion. ...

Whether the officers had reason to believe Booker was the person who committed the crime is a closer call. Tennin originally stated that the men involved in the battery left on foot, but then pointed out Booker's van as it entered the driveway. Although it is true Tennin said he "thinks" Booker's maroon van was the van the suspects were in, that conjecture does not necessarily make the statement unreliable. Reasonable suspicion is a lower threshold than probable cause and "'does not deal with hard certainties, but with probabilities.'" United States v. Jerez, 108 F.3d 684, 693 (7th Cir. 1997) (quoting United States v. Cortez, 449 U.S. 411, 418 (1981)). Tennin said the suspects left on foot and that a group of men, not just one man, was involved, but that does not change the fact that Tennin told police that he thought the people involved in the incident were in the van Booker was driving. That Booker's appearance did not exactly match the description offered by Tennin does not help Booker because Officer Campbell was about 200 feet away from Booker when he stopped the van and could not have seen whether Booker was bald under his cap.

This vehicle search was governed by the automobile exception and not Gant because the officers saw ammunition on the front seat, and that gave PC to look for a gun it would match. United States v. Black, 2009 U.S. Dist. LEXIS 77111 (M.D. Fla. July 7, 2009).*