Brignoni-Ponce on roving border patrols applies virtually “anywhere” near the border. Applying Brignoni-Ponce does not violate equal protection even if ethnicity is a basis for the stop near the Mexican border. Here, RS developed for the stop when the Border Patrol officer pulled on to the highway to follow, four of the six passengers in the vehicle had apparently ducked down to hide, and that supported the stop. United States v. Hernandez-Moya, 353 Fed. Appx. 930 (5th Cir. 2009) (unpublished).

Defendant’s traffic stop was not unreasonably extended because reasonable suspicion had developed. The driver’s story was suspect in itself, but the passenger’s story and actions made reasonable suspicion, so the request for consent came within a reasonable time. United States v. Pena-Ponce, 588 F.3d 579 (8th Cir. 2009).*

Because defendant storing his duffle bag at a friend’s apartment told the friend what was in it and permitted access, he had no reasonable expectation of privacy in the bag. This distinguishes United States v. Waller, 426 F.3d 838 (6th Cir. 2005), involving suitcases left with a friend where that defendant did retain a reasonable expectation of privacy. United States v. Grantham, 2009 U.S. Dist. LEXIS 110372 (W.D. Ky. November 25, 2009).

Defendant’s frisk revealed a crack pipe which was obvious from plain feel, since the officer knew a crack pipe when he felt it, having seized hundreds. The search incident of the car was limited and reasonable, and it did not have to stop when the first contraband was found. United States v. Bradford, 2009 U.S. Dist. LEXIS 110385 (E.D. Wis. November 5, 2009):

In the present case, as the magistrate judge explained, defendant was arrested for possession of drug paraphernalia (not a traffic offense), making it reasonable for the officer to search the car for drugs. Further, once the officer found the bullet, it was reasonable for him to look for a gun. Cf. Gant, 129 S. Ct. at 1721 (noting that under United States v. Ross, 456 U.S. 798, 820-821 (1982), police may, based on probable cause that a vehicle contains evidence of criminal activity, search any area of the vehicle in which the evidence might be found, and that Ross allows searches for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is broader).

Defendant argues that Koestering should have stopped his search after he found the crack cocaine on the front passenger seat, but nothing in Gant suggests that a permissible search incident to arrest must stop as soon as any contraband is found. Nor does the record show that Koestering searched areas of the car where evidence of the offense of arrest could not be located. Defendant suggests that Koestering "ransacked" the car, but the record does not support that contention either. As discussed above, Koestering moved the front seat in order to check the back for more drugs, at which point he saw the bullet. He then looked under the front driver's seat and saw the gun. Far from a ransacking, this was a limited search, fully justified by the circumstances.

Defendant alien’s fingerprinting was incidental to his removal on his admission he was an illegal, and it was not suppressed. United States v. Guijon-Ortiz, 2009 U.S. Dist. LEXIS 110505 (S.D. W.Va. November 25, 2009)*:

Based upon the entirety of the findings of fact set forth heretofore, the court is satisfied that the 10 minutes of questioning of defendant along the lines set out in Government Exhibit 2, and the taking of his fingerprints, fit within the booking exception. The evidence was obtained for, and was motivated solely by, the administrative purpose of removal, including the reinstatement of the defendant's prior order of deportation. It is important to note as well that at the time of the road side encounter ICE was on notice, via defendant's admission, that he did not possess papers showing he was in the United States legally. Hilton's observations on the point are also noteworthy. He is unchallenged in asserting that illegal reentry cases are generally pursued administratively rather than criminally.

A search warrant was issued for alleged rioters and served by the Joint Terrorism Task Force. After execution, the court issued a TRO on the petitioners' motion the next day to prevent the government from looking at what was seized until a hearing because of First Amendment concerns. The TRO had been set aside, and a special master was not appointed. Preindictment litigation of the search is possible under Rule 41(g). In re Madison, 687 F. Supp. 2d 103 (E.D. N.Y. November 10, 2009):

The threshold issue, raised by the government and ignored by petitioners, is whether the court should rule on petitioners' Rule 41(g) motion prior to indictment absent a showing of irreparable harm. As the government points out, courts have held that, in the absence of a showing of irreparable harm, a decision on a Rule 41(g) motion should be deferred until after an indictment has issued. See, e.g., United States v. Douleh, 220 F.R.D. 391, 397 (W.D.N.Y. 2003).

Under the version of Rule 41 in effect from 1944 to 1989, granting a motion for the return of property required the suppression of that property at any subsequent hearing or trial. See Doane v. United States, No. 08 Mag. 0017 (HBP), 2009 WL 1619642, at *7 (S.D.N.Y. June 5, 2009) (citing FED. R. CRIM. P. 41(e) (1989)). Therefore, under the old version of the Rule, granting the motion pre-indictment would have had the effect of suppressing evidence before the grand jury in derogation of the holding in United States v. Calandra, 414 U.S. 338 (1973). See Doane, 2009 WL 1619642, at *7 ("The principal reason offered by these courts [*11] for engrafting an irreparable harm requirement onto the language of Rule 41(e) was that a pre-indictment suppression motion would unduly interfere with the function of the grand jury."). "As a result, many courts deferred pre-indictment Rule 41(e) motions unless a movant could show (1) the search was illegal, (2) that he is without an adequate remedy at law, and (3) that he would suffer some irreparable injury if relief is not granted." Id. (citations ommitted).

Rule 41 was amended in 1989 to provide that "[i]f the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings." Id. (quoting FED. R. CRIM. P. 41(g)). This change was intended to "(1) keep pace with new developments in the exclusionary rule allowing the Government to retain and utilize unlawfully seized evidence in certain circumstances (i.e. grand jury proceedings) and (2) achieve a more equitable balance between the Government's law enforcement interest and the property rights of owners." Id. Thus, as a result of the new language of Rule 41, granting a pre-indictment motion for the return of property no longer inevitably results in the suppression of the property in subsequent proceedings. Moreover, in light of the reasonable conditions that may be imposed to preserve the use of the property, the government's conclusory assertion that consideration of this motion at this juncture would interfere with the grand jury investigation is unavailing. Accordingly, petitioners need not establish irreparable harm for the court to consider their motions at this time.