Category Archives: Search incident

ND: Backpack removed from car before dog sniff couldn’t be searched based on dog’s alert on car

Probable cause was lacking to search a backpack removed from a vehicle shortly after the stop but before the dog alerted on the car. Search incident also did not apply: “In the absence of either a concern for officer safety, … Continue reading

Posted in Consent, Dog sniff, Excessive force, Search incident | Comments Off on ND: Backpack removed from car before dog sniff couldn’t be searched based on dog’s alert on car

W.D.N.Y.: SI lacking PC is suppressed

Defendant was arrested and searched incident to arrest, and the court finds no valid basis for the search. He was too far away from and out of sight of the drugs the government was attempting to link to him. United … Continue reading

Posted in Burden of pleading, Franks doctrine, Probable cause, Search incident | Comments Off on W.D.N.Y.: SI lacking PC is suppressed

N.D.Ind.: Search incident of unconscious man unreasonable without arrest or justification

A search incident of the unconscious defendant was unreasonable because it lacked any justification. He wasn’t arrested to be searched incident to it. United States v. Johnson, 2021 U.S. Dist. LEXIS 125188 (N.D. Ind. July 6, 2021). Defendant abandoned his … Continue reading

Posted in Abandonment, Search incident, Stop and frisk | Comments Off on N.D.Ind.: Search incident of unconscious man unreasonable without arrest or justification

FL5: Police report’s stating search was search incident isn’t binding at the suppression hearing

The officer’s noting the search of defendant’s vehicle was incident to arrest was incorrect and not binding at the suppression hearing. It was valid as an inventory. State v. Koontz, 2021 Fla. App. LEXIS 9019 (Fla. 5th DCA June 18, … Continue reading

Posted in Excessive force, Inventory, Search incident, Suppression hearings | Comments Off on FL5: Police report’s stating search was search incident isn’t binding at the suppression hearing

ID: Search incident justified by def’s lie about syringe in pocket

Officer’s certain knowledge of a syringe in defendant’s pocket defendant lied about after a consensual patdown for weapons justified a search incident. The officer sought a patdown because of his nervousness. State v. Budka, 2021 Ida. App. LEXIS 20 (May … Continue reading

Posted in Arrest or entry on arrest, Search incident, Seizure | Comments Off on ID: Search incident justified by def’s lie about syringe in pocket

D.Colo.: Federal law criminalizing marijuana makes dog sniff in recreational use state reasonable

Even though Colorado has decriminalized personal use of marijuana, a dog sniff is still reasonable under federal law because possession of marijuana is still a violation of federal law because it’s unlawful for “any purpose.” United States v. Spikes, 2021 … Continue reading

Posted in Dog sniff, Excessive force, Informant hearsay, Reasonable suspicion, Search incident | Comments Off on D.Colo.: Federal law criminalizing marijuana makes dog sniff in recreational use state reasonable

FL2: Open container city code violation justifies SI

An open container in violation of municipal ordinance justifies a search incident in Florida. State v. Coleman, 2021 Fla. App. LEXIS 6497 (Fla. 2d DCA May 7, 2021):

Posted in Arrest or entry on arrest, Search incident | Comments Off on FL2: Open container city code violation justifies SI

VI: Def walking into apt being searched with SW could be searched

Defendant who walked into an apartment being searched under a warrant could be searched himself, including the grocery bag he was carrying. People v. Matthias, 2021 V.I. LEXIS 23 (Apr. 30, 2021). Defendant’s backpack in the car couldn’t be searched … Continue reading

Posted in Emergency / exigency, Search incident, Warrant execution | Comments Off on VI: Def walking into apt being searched with SW could be searched

CA10: Def’s father’s consent to enter house was voluntary

Defendant’s father consented to officers’ entry into their house, so defendant’s Fourth Amendment rights were not violated. United States v. Guillen, 2021 U.S. App. LEXIS 12468 (10th Cir. Apr. 27, 2021). “While Artola putting his arm into Wheeler’s car may … Continue reading

Posted in Consent, Excessive force, Inventory, Reasonable suspicion, Search incident | Comments Off on CA10: Def’s father’s consent to enter house was voluntary

D.Vt.: Apt building parking lot not curtilage; def’s girlfriend was private searcher

Defendant’s vehicle was in an apartment building parking lot, and that’s not curtilage. There was also probable cause to search it and it was mobile. Defendant’s cell phone was privately seized from his vehicle and turned over to police by … Continue reading

Posted in Inventory, Private search, Search incident | Comments Off on D.Vt.: Apt building parking lot not curtilage; def’s girlfriend was private searcher

CA4: Def had burden on GFE, and he failed

Assuming without deciding the probable cause question, defendant fails to prove that the good faith exception should not be applied. United States v. Parrish, 2021 U.S. App. LEXIS 10533 (4th Cir. Apr. 13, 2021). The officer had probable cause to … Continue reading

Posted in Burden of proof, Good faith exception, Search incident, Seizure | Comments Off on CA4: Def had burden on GFE, and he failed

W.D.N.C.: Gant bars search of car trunk

A search of a car trunk incident to arrest is barred by Gant. United States v. Abusnena, 2021 U.S. Dist. LEXIS 51605 (W.D. N.C. Mar. 18, 2021). Then there is this observation:

Posted in Search incident | Comments Off on W.D.N.C.: Gant bars search of car trunk

FL2: There was suspicion for the stop, but it wasn’t reasonable suspicion

There may have been suspicion for defendant’s stop, but it wasn’t reasonable suspicion. He was potentially dumpster driving at a closed business at night, and he left when he saw the police officer. Vonlydick v. State, 2021 Fla. App. LEXIS … Continue reading

Posted in Reasonable suspicion, Search incident, Standing | Comments Off on FL2: There was suspicion for the stop, but it wasn’t reasonable suspicion

N.D.Iowa: SI to arrest can support search even when officers choose not to arrest at that moment

The search incident exception supported the search here because it was factually and legally appropriate except for the fact that the actual arrest didn’t occur until months later. The officers chose not to arrest at that moment. United States v. … Continue reading

Posted in Search incident | Comments Off on N.D.Iowa: SI to arrest can support search even when officers choose not to arrest at that moment

SD: Impending surgery exigency for warrantless blood draw

Defendant’s impending surgery was an exigent circumstance for a warrantless blood draw. “We have held that imminent medical care that threatens to destroy BAC evidence through blood transfusions, intravenous fluids, or natural dissipation over time may create exigent circumstances. … … Continue reading

Posted in Drug or alcohol testing, Emergency / exigency, Search incident | Comments Off on SD: Impending surgery exigency for warrantless blood draw

GA: Search incident to arrest without PC is suppressed

The trial court did not apply the beyond a reasonable doubt standard to the search, contrary to the state’s argument. It did apply the preponderance standard, and the record supports its finding that the state failed to show probable cause … Continue reading

Posted in Arrest or entry on arrest, Cell site location information, Search incident | Comments Off on GA: Search incident to arrest without PC is suppressed

M.D.Fla.: Borrower of a rental car with a suspended DL has no standing

“Because the Eleventh Circuit has not yet addressed this issue, the Court has carefully considered the reasoning of the Lyle and Bettis cases and concludes, in line with the Second Circuit, that the unlicensed driver of a rental car should … Continue reading

Posted in Search incident, Standing | Comments Off on M.D.Fla.: Borrower of a rental car with a suspended DL has no standing

D.D.C.: Search of def’s fanny pack wasn’t valid as search incident, but it was valid because he disclaimed it

Defendant’s front license plate being on the dashboard and not affixed to the car was a traffic offense that justified his stop. “Perhaps Giles recognizes that there was probable cause to arrest him after he refused to pull over and … Continue reading

Posted in Abandonment, Search incident, Stop and frisk | Comments Off on D.D.C.: Search of def’s fanny pack wasn’t valid as search incident, but it was valid because he disclaimed it

CA4: Seizure of firearm was inevitable; def would have been arrested for DUI and searched incident to arrest anyway

“[W]e conclude that the district court did not err in crediting the arresting officer’s testimony and finding that the arresting officer had probable cause to arrest Herman for driving under the influence. We further conclude that the district court did … Continue reading

Posted in Plain view, feel, smell, Search incident | Comments Off on CA4: Seizure of firearm was inevitable; def would have been arrested for DUI and searched incident to arrest anyway

N.-M.: Search incident of gym bag valid as incident to arrest when def asked for the bag to be transported with him

Defendant was assigned to Anchorage as a Marine recruiter and ended up being charged with sexual assault. On his arrest by the APD, the search incident of defendant’s gym bag for weapons incident to his arrest was valid. He asked … Continue reading

Posted in Search incident | Comments Off on N.-M.: Search incident of gym bag valid as incident to arrest when def asked for the bag to be transported with him