On remand from State v. Singer, 349 Ore. 663, 249 P.3d 1281 (2011), the court concludes the defendant would not know she was free to leave and was thus detained when the officer directed her out of the car rather than the driver. [A passenger also has to communicate to the driver that he or she wants to leave, but societal understandings require that they stand by while the officer does whatever he is going to do.] State v. Singer, 245 Ore. App. 568, 262 P.3d 1172 (2011)*:

We conclude that Kirkpatrick's conduct toward defendant would lead a reasonable person in defendant's position to believe that she was the subject of a criminal investigation and, hence, that Kirkpatrick had seized defendant for purposes of Article I, section 9, before he requested consent to search her and her purse. Although the record does not establish that defendant knew that Kirkpatrick had requested her name and date of birth in order to run a warrant check on her, Kirkpatrick's actions after completing the check would reasonably lead defendant to believe that she was the subject of an investigation. Rather than returning from the warrant check to speak with the driver, whose unlawful turn had led to the stop, Kirkpatrick went to the passenger side of the stopped car and asked defendant to get out of the car, which she did. Kirkpatrick then told her that he knew that she was on probation for a drug offense and asked her to remove her sunglasses, which she also did. Those actions by Kirkpatrick constituted a show of authority that would lead a reasonable person in defendant's position to believe that Kirkpatrick had significantly restricted her freedom of movement. Therefore, under the test articulated in Ashbaugh, Kirkpatrick had seized defendant for purposes of Article I, section 9, before he asked her for consent to search her and her purse.

Where only one person testified to consent, the officer, how can the appellate court question the district court’s finding of voluntariness? United States v. Lopez, 445 Fed. Appx. 190 (11th Cir. 2011).*

No special showing of reliability of information from another officer is required; just knowledge. United States v. Johnson, 2011 U.S. Dist. LEXIS 107617 (N.D. Ill. September 20, 2011).*

The video raised sufficient question of the lawfulness of defendant’s detention that he was entitled to a jury instruction on that under Texas law. Hamal v. State, 352 S.W.3d 835 (Tex. App.—Ft. Worth 2011).*

Defendant sold drugs over a mile from his home, and there was no evidence that there was a connection to his house, other than an officer’s expert opinion that drug dealers commonly keep their drugs in their house. Without more, there was no probable cause for issuance of the warrant. Nevertheless, the search warrant would not be suppressed under Leon’s good faith exception because of a split in authority that this was not enough. United States v. Kortright, 2011 U.S. Dist. LEXIS 107386 (S.D. N.Y. September 13, 2011):

The Court holds that (1) stale information (one year old) that Defendant dealt drugs on a handful of occasions, combined with (2) an expert opinion that drug dealers typically keep drugs in their homes, is not enough to establish probable cause to search the Apartment.

. . .

Although the court in Moran found the “good faith” exception unavailing, this Court recognizes that there is an “existing disagreement among [courts] on the sufficiency of the opinions of law enforcement agents in establishing probable cause.” United States v. Guzman, 97 cr. 786, 1998 U.S. Dist. LEXIS 1538, 1998 WL 61850, at *3 (S.D.N.Y. Feb. 13, 1998) (Scheindlin, J.); 1998 U.S. Dist. LEXIS 1538, [WL] at *4 (“[T]here exists no clear rule in this circuit governing the exclusive reliance on law enforcement agents’ expert opinions in determining probable cause.”). Because of this disagreement, a reasonably well-trained officer may not necessarily have known that this search was illegal. Leon, 468 U.S. at 923 n.23.

. . .

In sum, these decisions reveal “existing disagreement among [courts] on the sufficiency of the opinions of law enforcement agents in establishing probable cause.” Guzman, 1998 U.S. Dist. LEXIS 1538, 1998 WL 61850, at *3. The Court thus declines to suppress the seized evidence because, under the current state of the law, a reasonably well trained officer would not have known that the search was illegal. Leon, 468 U.S. at 922 n.23. Here, the magistrate judge, whose duty it was to interpret the law, issued the search warrant, and it was reasonable for the officers to rely on that determination. See Gomez, 652 F. Supp. at 464. Accordingly, Defendant's motion to suppress evidence seized from the Apartment is denied.

So, what about the next case? Does this mean that the next case in the Southern District of New York with similar facts will not be suppressed? This case should now be notice to the NYPD that the search lacked probable cause. Is this like the “one dog bite” rule? What about other police departments? At what point is the rule universally accepted?

Search incident of a vehicle for being under the influence is proper in California for evidence of what the defendant is under the influence of. That produced drug evidence, and that justified a search incident of defendant’s cell phone because drug users and dealers connect through cell phone text messages and calls. People v. Nottoli, 199 Cal. App. 4th 531, 130 Cal. Rptr. 3d 884 (6th Dist. September 26, 2011):

We reject respondents’ assertion that there must be specific, articulable facts “indicating that the cell phone held relevant evidence of the offenses for which Reid Nottoli was arrested.” Respondents cannot point to any language in Gant imposing such a requirement. Under Gant, a vehicular search incident to arrest is justified “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” (Gant, supra, 129 S.Ct. at p. 1714, italics added.) It does not require any degree of probability that evidence bearing on that offense will be found in a particular container that is searched.

. . .

Moreover, even if Gant were construed to require a factual predicate for searching each object found in a vehicle searched incident to arrest, a proposition we reject, it was reasonable for Deputy Ryan to believe, based on the objective circumstances and his training and experience, that evidence relevant to Reid’s offense of arrest for being under the influence might be found on Reid’s cellular phone. The deputy testified that, in his experience, drug users and sellers use cell phones as their “main communication” and cell phones can contain text messages related to acquiring and offering drugs. Further, as suggested by the People, text messages saved in Reid’s cell phone might have identified the controlled substance or contained his admissions “as to what he had done that night.” This would be corroborative evidence.