Plaintiff was not entitled to judgment as a matter of law on an excessive force claim for being shot during execution of a search warrant just because a gun was not found on him after the shooting. Officers knew that he had a propensity for violence, and an officer not involved in the shooting had yet “shots fired.” A gun was later found outside a window. Carvajal v. Mihalek, 453 Fed. Appx. 69 (2d Cir. 2011) (unpublished)*:

Finally, we are not persuaded by Carvajal’s argument that no reasonable jury could have concluded that a warning was not feasible before shots were fired. See Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985) (holding that, if officers have probable cause to believe suspect poses threat of serious physical harm, “deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given”); accord Hemphill v. Schott, 141 F.3d 412, 417 (2d Cir. 1998). First, Carvajal's contention rests on a false premise that no warning was given. In fact, when police entered the apartment, Mihalek, Rizza, and other armed officers repeatedly warned Robert and Joseph Carvajal to "get down," which they disobeyed. ... Assuming arguendo that a further warning was required, a reasonable jury could have found that such a warning was not feasible in light of the rapidly evolving scenario in which an armed Robert Carjaval and his reputedly violent brother refused to comply with the "get down" order and appeared to be positioning themselves to use deadly force to resist arrest.

In sum, Carvajal was not entitled to judgment as a matter of law. As the district court correctly observed, the Bivens claim depended on an assessment of the parties' credibility, which a reasonable jury could resolve in favor of defendants. On such a determination, a reasonable jury could conclude from the evidence that defendants' use of force was objectively reasonable and, therefore, consistent with the Fourth Amendment.

A detention on reasonable suspicion cannot be used as time to get a search warrant because there wasn’t any probable cause to get a search warrant. Commonwealth v. Joseph, 2011 PA Super 273, 34 A.3d 855 (2011):

In its reliance on Terry, however, [in Commonwealth v. Chase, 599 Pa. 80, 960 A.2d 108 (2008),] our Supreme Court emphasized that the nature of the stop in question was “to allow immediate investigation through temporarily maintaining the status quo.” Id. at 94, 960 A.2d at 115-16. The focus on the temporal nature of a Terry-type stop is important: “[O]ne must remember the reason why the Constitution tolerates the lesser standard articulated in Terry [i.e., reasonable suspicion] — the detention is allowed to maintain the status quo so the officer may conduct a brief and safe investigation to see if indeed there is criminal activity afoot.” Id. (emphasis added). Specifically, the Supreme Court described the limited scope of the police officer’s investigative authority: “In a Terry stop, the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.” Id. at 101-02, 960 A.2d at 120 (quoting Commonwealth v. Mistler, 590 Pa. 390, 411, 912 A.2d 1265, 1277 (2006) (Eakin, J., dissenting) (quoting Berkemer v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984)).

The issue in the case sub judice, of course, is not the propriety of the initial stop of Joseph’s vehicle, as Trooper Yingst clearly had a reasonable suspicion that Joseph had violated traffic laws (including driving under the influence). Instead, the issue here is the constitutionality of Trooper Yingst’s seizure of Joseph’s vehicle during the course of the traffic stop. To this end, the record on appeal contains no evidence regarding the length of time that would have been required for the troopers to obtain a warrant (including the drafting of an affidavit, its presentation to a magistrate, and then a return to the scene for service). As such, we cannot agree that Trooper Yingst’s seizure of Joseph’s vehicle while attempting to obtain a warrant constituted a “brief” Terry-type investigation. See, e.g., United States v. Place, 462 U.S. 696, 708, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (“The length of detention of respondent’s luggage [90 minutes] alone precludes the conclusion that the seizure was reasonable in the absence of probable cause.”). For these reasons, of this we conclude that seizure of a vehicle for an indeterminate amount of time while the police attempt to obtain a search warrant cannot be constitutionally justified as a “Terry stop” based upon mere reasonable suspicion.

[Note: What gets me is the state arguing with a straight face that they could detain on reasonable suspicion to get a search warrant which requires probable cause to be issued. And, obviously, a search warrant would never have been issued, if this had gone that far.]

Defendant was searched with reasonable suspicion, and a pill bottle was found. Search of the pill bottle was not justified as a search incident to arrest. Also, the altered label on the pill bottle did not lead to probable cause to search it. Corwin v. State, 962 N.E.2d 118 (Ind. App. 2011).*

Officer safety justified a patdown of a juvenile put into a police car after finding he was a truant from school. Where there was no reasonable suspicion he’d committed a crime, officer safety justified it. D.O. v. State, 77 So. 3d 787 (Fla. 3d DCA 2011).*

Defendant did not receive IAC from defense counsel not objecting to his strip search at the stationhouse, which was valid anyway on probable cause. Also, whether defendant had ineffective assistance of counsel from defense counsel not objecting to defendant’s statement that he had marijuana on him was harmless in light of what was found hidden in his buttocks. Bryant v. State, 959 N.E.2d 315 (Ind. App. 2011).*

Defendant’s wife had common authority to consent to a search of the house despite moving out because of defendant’s abuse. “‘There is a difference between voluntarily giving up your home and being forced to flee from it in fear for your life ...’ U.S. v. Backus, 349 F.3d 1298, 1304 (11th Cir. 2003) (affirming the lower court's denial of the defendant's motion to suppress because the defendant's wife, who fled as a result of the defendant's abuse, still had enough common authority over, or a sufficient relationship to, the marital home to consent to a search of it).” Barnes v. State, 75 So. 3d 1287 (Fla. 1st DCA 2011).

Defendant was stopped for a traffic offense, smelled of alcohol and admitted to being in a bar which just had happy hour. That was reasonable suspicion for a further detention. State v. Montelauro, 2011 Ohio 6568, 2011 Ohio App. LEXIS 5408 (10th Dist. December 20, 2011).*

The search and seizure issue raised on appeal was not the same one litigated in the trial court, so the issue is waived. State v. Williams, 2011 Tenn. Crim. App. LEXIS 929 (December 15, 2011).*