Reconceiving the Fourth Amendment and the Exclusionary Rule by Craig Bradley, Indiana University School of Law-Bloomington, Criminal Law Symposium, Chicago-Kent Law Review, 2010: Abstract:

In Herring v. United States, the Supreme Court indicated both that it was undertaking a major revision, essentially an abolition, of the exclusionary rule and at other times, including in its stated holding, suggested that it was only reducing the rule's force in a minor way. This article reconceives the exclusionary rule in light of the reasonableness language of the Fourth Amendment. It argues that the best approach to exclusion, unlike the Court's past approach, or its proposal in Herring, is to exclude evidence only when there is a violation of the Court's Fourth Amendment rules and that violation is "unreasonable" or negligent on the part of police. This compromise would eliminate much of the conservative opposition to the rule while maintaining it as an effective deterrence to police misconduct.

NYPD officer who failed a drug test could not complain that this specific test violated his Fourth Amendment rights just because it was not approved by the police union collective bargaining agreement. Matter of Chiofalo v. Kelly, 2010 NY Slip Op 785, 70 A.D.3d 423, 893 N.Y.S.2d 552 (1st Dept. 2010).

We reject petitioner's claim that using the radioimmunoassay method of hair testing violated his Fourth Amendment right against unreasonable search and seizure because the use of that method was not authorized by the Police Department's collective bargaining agreement with petitioner's union. The Court of Appeals has held that the Commissioner was empowered to choose the method of drug testing, and that choice was not subject to collective bargaining (see Matter of City of New York v Patrolmen's Benevolent Assn. of City of N.Y., Inc., NY3d , 2009 NY Slip Op 09314 [2009]).

[Note: If a police officer can be drug tested under the Fourth Amendment, which is a given, how does any particular test after the sample is taken violate the Fourth Amendment?]

Trial court erred in granting defendant’s motion to suppress. The totality of circumstances showed more than mere coincidence and thus reasonable suspicion for defendant’s stop, and the smell of marijuana thereafter justified more action by the police. State v. Peery, 2010 Mo. App. LEXIS 107 (February 2, 2010)*:

But, this case does not present any one of those "facts" as the only "fact." This case presents all of those "facts" itemized by the motion court in its suppression order. Any one of these facts may properly be deemed an innocent coincidence, but when all of these "coincidences" are added together, it is erroneous to conclude that this string of facts is anything but a pattern of conduct suggestive of involvement in criminal activity. It is erroneous to conclude that this cumulative evidence of Peery's conduct fails to establish a particularized and objective basis for suspecting illegal activity. When reviewing the whole picture, it is erroneous to conclude that the officers in this case failed to point to articulable facts that criminal activity may be afoot. It is erroneous to conclude that the totality of the circumstances of the facts of this case fail to demonstrate a minimal level of objective justification for a Terry stop.

Defendant’s effort to distance himself from the premises searched ended up denying him standing. United States v. Xavier, 2010 U.S. Dist. LEXIS 8786 (D.V.I. February 2, 2010)*:

Here, rather than show a legitimate expectation of privacy in the searched residence, Defendant has done just the opposite. Defendant's Motion for Reconsideration is premised on the notion that “he does not reside at # 10 Estate Humbug.” (Defendant's Memorandum of Law in Support of Motion for Reconsideration 5.) Indeed, the affidavits and exhibits tendered by the Defendant are all offered to show that he did not reside at No. 10 Estate Humbug. While the searched residence may be the home of Defendant's wife, Brendacia Xavier, Defendant offers no evidence from which this Court can deduce that he had possession, control, or dominion over No. 10 Estate Humbug. Defendant has not demonstrated that he actually believed that he had an expectation of privacy at the searched residence or that his expectation was the type that society is prepared to recognize as reasonable and has therefore failed to carry his burden of showing that the search of No. 10 Estate Humbug violated his Fourth Amendment rights. Salvucci, 448 U.S. at 85; Rakas, 439 U.S. at 132; Acosta, 965 F.2d at 1256 n.9.

911 hangup call led police to defendant’s house and talking to his girlfriend who consented to the entry by the police. United States v. Risner, 593 F.3d 692 (7th Cir. 2010)*:

We agree with the district court that Dean impliedly consented to the police entering her home on both occasions. Regarding the first entry, Dean called the police. Although she hung up before speaking with the dispatcher, she willingly spoke with Dulin when he arrived on the scene. She told him that she had called 911 because Risner had attacked her and threatened her life. She also told him that Risner was armed and where he was hiding in the house. Any reasonable person would infer from Dean's communications that she consented to the police entry into her home to arrest Risner. In fact, we have trouble imagining why Dean would have provided Dulin such information if she was not actually requesting that the police enter her home and arrest Risner.

Officers stopped defendant based on calls that he had been threatening others with a gun. When stopped, they saw a gun. That was probable cause for a search. United States v. Sir, 2010 U.S. Dist. LEXIS 8743 (W.D. Tenn. February 2, 2010)*, USMJ’s R&R United States v. Sir, 2009 U.S. Dist. LEXIS 124473 (W.D. Tenn. December 22, 2009).*

Before an arrest warrant issued for a dirty UA, the officer does not first have to establish that the test was not flawed. United States v. Truette, 2008 U.S. Dist. LEXIS 112209 (N.D. Fla. June 6, 2008).*

Defense counsel was not ineffective for not moving to suppress the search of defendant’s property for evidence of bank robbery where an unsigned copy was left and not shown to defendant before the search was done. Even if the facts alleged were true, these are not violations of the Fourth Amendment or Rule 41. United States v. Askew, 2010 U.S. Dist. LEXIS 8581 (W.D. Pa. February 2, 2010).*

The evidence supports the USMJ’s conclusion that defendant’s consent was voluntary. United States v. Romero, 2010 U.S. Dist. LEXIS 8286 (D. Neb. February 1, 2010).*

Defendant’s IAC claim for not challenging a murder defendant’s arrest on an Air Reserve base in unicorporated Cobb count failed where the arrest was not shown to be unlawful in the first place. Devega v. State, 286 Ga. 448, 689 S.E.2d 293 (2010).*

Questioning a motorist and passengers about their immigration status was brief and did not turn an otherwise valid stop into an unreasonable detention. Their inability to speak English and produce any identification created at least reasonable suspicion they were illegal aliens. “In any event, the law was not and is not now clearly established, such that Chabot should have known that he could not investigate further.” It was objectively reasonable at the time for the officer to believe he needed to investigate further, and the officer had qualified immunity. Estrada v. State of Rhode Island, No. 09-1149 (1st Cir. February 4, 2010).*