City rental property license ordinance required an inspection from the city or a licensed private inspector or architect, and it did not violate Fourth Amendment rights because there was no criminal penalty for refusing other than denying a license. Marcavage v. Borough of Lansdowne, 493 Fed. Appx. 301 (3d Cir. 012).*

Defendant consented to a search of his car, and there was no need to unhandcuff him after a toy gun was found before asking for consent. United States v. Correa, 881 F. Supp. 2d 272 (D. R.I. 2012).*

The officer’s waiting for backup before searching defendant was not proof that the officer was not credible that he feared a gun. He didn’t act immediately, but that didn’t undermine credibility. United States v. Velazquez, 2012 U.S. Dist. LEXIS 111430 (D. Utah August 3, 2012).*

Struggling with whether putting a key in the door is a search, the court determines that it doesn’t have to decide that question. Assuming that it is a search, it was reasonable and virtually de minimus. People v. Robinson, 208 Cal. App. 4th 232, 145 Cal. Rptr. 3d 364 (1st Dist. 2012):

Ultimately, we need not determine whether testing the key in the lock was a search because, even assuming it was a search, the search was not unreasonable. “The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ [Citation.]” (United States v. Knights (2001) 534 U.S. 112, 118–119 [151 L. Ed. 2d 497, 122 S. Ct. 587] (Knights); People v. Sanders (2003) 31 Cal.4th 318, 333 [2 Cal. Rptr. 3d 630, 73 P.3d 496] (Sanders); see also People v. Boulter (2011) 199 Cal.App.4th 761, 768 [131 Cal. Rptr. 3d 185] (Boulter).) “Whether an officer's conduct was reasonable is evaluated on a case-by-case basis in light of the totality of the circumstances.” (In re Raymond C. (2008) 45 Cal.4th 303, 307 [86 Cal. Rptr. 3d 110, 196 P.3d 810]; see also Knights, at p. 118; Sanders, at p. 333; Boulter, at p. 768.)

a. The Minimal Intrusion Exception to Warrant Requirement

“[I]n most criminal cases,” the balance between an individual's Fourth Amendment interests and the promotion of legitimate governmental interests “is struck in favor of the procedure described by the warrant clause (viewing a search as reasonable if conducted pursuant to a warrant that has been issued by a neutral magistrate upon a showing of probable cause) ….” (Loder v. City of Glendale (1997) 14 Cal.4th 846, 867–868 [59 Cal. Rptr. 2d 696, 927 P.2d 1200].) Nevertheless, the United States Supreme Court has “made it clear that there are exceptions to the warrant requirement. When faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, [it] has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.” (Illinois v. McArthur (2001) 531 U.S. 326, 330 [148 L. Ed. 2d 838, 121 S. Ct. 946], italics added.) In the present case, we focus on the minimal nature of the intrusion involved in testing the key, because “even if the challenged action triggers the protections of the Fourth Amendment, a ‘minimally intrusive’ action ‘may be reasonable in view of the government interests it serves.’” (U.S. v. $109,179 in U.S. Currency (9th Cir. 2000) 228 F.3d 1080, 1087, fn. omitted; see also, e.g., New York v. Class (1986) 475 U.S. 106, 117 [89 L. Ed. 2d 81, 106 S. Ct. 960] [officer's search of car dashboard for vehicle identification number obscured by papers was a “minimal” intrusion]; Hayes v. Florida (1985) 470 U.S. 811, 816–817 [84 L. Ed. 2d 705, 105 S. Ct. 1643] (Hayes) [suggesting in dicta that officers could seize and fingerprint a suspect in the field, a procedure the high court characterized as a nonintrusive search, on the basis of reasonable suspicion]; Pennsylvania v. Mimms (1977) 434 U.S. 106, 111 [54 L. Ed. 2d 331, 98 S. Ct. 330] (Mimms) [order that driver of properly detained vehicle get out of car was “de minimis” intrusion]; Arizona v. Johnson (2009) 555 U.S. 323, 331 [172 L. Ed. 2d 694, 129 S. Ct. 781] [citing Mimms with approval]; United States v. White (9th Cir. 1985) 766 F.2d 1328, 1332 (White) [border patrol agent's act of pushing down on the trunk of an automobile to determine whether the trunk contained heavy objects requiring further investigation, if a search, was a reasonable minimal intrusion].)

A dog alert on a car where the occupants are removed does not give probable cause to search their persons, at least the passenger. State v. Smith, 2012 N.C. App. LEXIS 943 (August 7, 2012):

We note that in Whitehead [v. Commonwealth, 278 Va. 300, 683 S.E.2d 299 (2009)], the Commonwealth had a stronger case for probable cause to search the passengers than was present in the instant case. In Whitehead, the drug dog "hit" on the vehicle while defendant was inside of the vehicle, whereas in the instant case, the drug dog "hit" on the vehicle while no one was inside. We also note that the drug dog hit at the driver's door, and that defendant was a passenger.

"The textual touchstone of the Fourth Amendment is reasonableness. When applying this basic principle, the Supreme Court has consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry." State v. Shearin, 170 N.C. App. 222, 240, 612 S.E.2d 371, 384 (2005) (quoting Alvarez v. Montgomery County, 147 F.3d 354, 358 (4th Cir. 1998)). Given the specific facts of this case, we hold that it is factually more similar to Anderson and Whitehead then to Anchondo. We note that the rationale of Anchondo has been specifically rejected by Anderson, Gibson, Wallace, and Fondia. Further, we hold the logic of Anderson and Whitehead to be more compelling than that of Anchondo. The fact that defendant was formerly a passenger in a motor vehicle as to which a drug dog alerted, and a subsequent search of the vehicle found no contraband, is not sufficient, without probable cause more particularized to defendant, to conduct a warrantless search of defendant's person.

Defendant was stopped because of missing passenger side mirror which was not required by state law or the law of the state where the vehicle was registered. That was a mistake of law, and the stop was invalid. State v. Dunbar, 2012 W. Va. LEXIS 354 (June 13, 2012).

An FTCA complaint about a search is not barred by the discretionary function exception. Muhammad v. United States, 884 F. Supp. 2d 306 (E.D. Pa. 2012).

Defendant gets to voir dire on consent searches in a drug case. United States v. Goxcon-Chagal, 2012 U.S. Dist. LEXIS 110769 (D. N.M. August 5, 2012).*

Officer’s statement in SW application that furniture was not visible through the front window was not a Franks violation because furniture was actually found inside. United States v. Sullivan, 2012 U.S. Dist. LEXIS 110793 (S.D. Ga. July 16, 2012).*

Defendant rear-ended a vehicle with three U.S. Marshals, and he was arrested for DUI. His vehicle was searched for evidence of the DUI. This search violated Arizona v. Gant, and the court determines a reasonable suspicion standard is required to determine whether a search incident is proper, not the per se rule sought by the government. United States v. Taylor, 12-CO-5 (August 9, 2012):

As some of these courts have emphasized, practical considerations also counsel in favor of concluding that Gant’s reasonable belief standard is analogous to reasonable suspicion. Both the police and the courts are already familiar with the reasonable suspicion standard. Mbacke, 721 S.E.2d at 222. In addition, applying the well-established Terry doctrine would limit the proliferation of Fourth Amendment standards and prevent the associated confusion that such profusion would sow.

In this case, the government has not asked us to hold that Gant created a per se rule, and we decline to do so sua sponte. For the reasons just described, and in the absence of further guidance from the Supreme Court, we hold that officers must have reasonable, articulable suspicion to conduct a vehicle search under the second prong of Gant.

This case underscores the dominance of the reasonable suspicion standard. If one looks, threads of the reasonable suspicion standard can be found all around the Fourth Amendment landscape. Where probable cause is not mandated, reasonable suspicion for police action at least supports reasonableness by definition. When I was briefing knock and announce for SCOTUS back in the mid-90's, what was to be the standard for applying the exceptions? I concluded that reasonable suspicion had to be the standard, and found support in a couple of places for making the argument. It seemed logical, was a good fit, and it removed discretion from "the officer in the field." This holding is, too.

The search of defendant’s bedroom was valid by his mother’s consent while he was present and not objecting, and the seizure of bomb-making materials was valid. While officers were there, he admitted to blowing up pipe bombs in the woods. It was reasonable to issue a search warrant for the room after that for plans and other documents about how to make bombs. Bay v. Commonwealth, 60 Va. App. 520, 729 S.E.2d 768 (2012).*

Defendant litigated his suppression issue through direct appeal, so it can’t be religitated in his § 2255. Sims v. United States, 2012 U.S. Dist. LEXIS 109478 (W.D. N.C. August 6, 2012).*

“Failure to raise a losing argument is not ineffective assistance of counsel.” Here, the facts of the search were in the plea agreement, and that alone was sufficient to sustain the search. United States v. Hayes, 2012 U.S. Dist. LEXIS 111165 (E.D. Wis. August 8, 2012).*

Orin Kerr, Reviewing the Fourth Amendment cases of OT2011 on SCOTUSBlog.