The defendant stopped at his home after conducting a drug sale, but this did not show that the defendant kept drugs at his house. Also, the affidavit otherwise failed to show probable cause. Commonwealth v. Stegemann, 68 Mass. App. Ct. 292, 862 N.E.2d 381 (2007):
The Commonwealth advances two unpersuasive arguments in an effort to salvage its search and seizure. First, it claims probable cause to search Stegemann’s residence existed because, as set forth in the affidavit, police surveillance “has shown Stegemann to drive directly to his 8 Oak Street apartment moments after his sale to Carnute and Officer Hill.” The fact that Stegemann stopped at his residence–once, and then only after making a sale–fails logically to support any reasonable inferences justifying the issuance of a warrant to search that residence on the theory that his drug stash was probably there. Compare Commonwealth v. Smith, 57 Mass. App. Ct. 907, 908, 783 N.E.2d 463 (2003) (police observation of defendant driving one day from home to a drug sale and, on another occasion, to home after a drug sale was, without more, insufficient to link the defendant’s residence to drug activity). Contrast Commonwealth v. O’Day, 440 Mass. at 302-304 (police surveillance showed defendant going directly to drug sales from his residence); Commonwealth v. Eller, 66 Mass. App. Ct. 564, 570-571, 849 N.E.2d 859 (2006) (same); Commonwealth v. Gallagher, ante, 68 Mass. App. Ct. 56, 59-60, 859 N.E.2d 893 (2007) (same).
The Commonwealth also repeatedly asserts the significance of a single fact: that on one occasion Stegemann “was in the process of cooking a large quantity of cocaine in his apartment on Oak Street.” The affidavit does not, however, indicate whether Stegemann “cooked” cocaine on that occasion for distribution or for his personal consumption. More significantly, it fails to state when he allegedly cooked the cocaine–it could have been as long as five months earlier. See Sgro v. United States, 287 U.S. 206, 210-211, 53 S. Ct. 138, 77 L. Ed. 260 (1932) (the facts supporting probable cause cannot be stale and must be “closely related to the time of the issue of the warrant”). See also Commonwealth v. Reddington, 395 Mass. 315, 322-323, 480 N.E.2d 6 (1985) (six month old tip about once seeing drugs in defendant’s house stale and insufficient to establish probable cause).
The affidavit further fails to explain how Carnute knew of this “cooking” incident–whether she observed it personally or whether Stegemann or someone else subsequently mentioned it to her. n22 The information that Stegemann allegedly once cooked crack in his apartment at some undetermined time simply could not be deemed sufficiently reliable to support a probable cause finding to search that apartment.
Tractor trailer was lawfully stopped for traffic offense and then officer noticed that it had insufficient markings for interstate use. That justified extending the stop. Consent after that was valid. United States v. Norwood, 2007 U.S. Dist. LEXIS 11659 (C.D. Ill. February 20, 2007).
Officer’s mistake bars application of good faith exception. United States v. Cos, 2006 U.S. Dist. LEXIS 95396 (D. N.M. June 14, 2006), earlier opinion on legality of search: United States v. Cos, 2006 U.S. Dist. LEXIS 95391 (D. N.M. May 4, 2006):
As the Court noted in its Memorandum Opinion and Order (Doc. 55), like the mistake that the state trooper made in United States v. Herrera, “the mistake that led the police officers into Cos’ apartment–that Ricker had authority to consent — was one that they, not a neutral third party like a magistrate, made. As a result, the good-faith exception does not seem to apply in this case.” Id. at 30. The United States objects to this reasoning on two grounds. First, it argues that United States v. Herrera is distinguishable from this case, because in this case, “after the Defendant’s firearm was discovered, the officers obtained a search warrant that was approved by a state district court judge who found no problem with the preceding conduct that uncovered the evidence of the firearm. In Herrera, there was no search warrant; the search at issue was a warrantless administrative search and seizure.” Third Motion to Reconsider at 3.
The United States’ argument raises a distinction without a difference. While it is true that a state district court judge issued a search warrant after the constitutional violation occurred, the Tenth Circuit has expressed that the issuance of a search warrant does not preclude district courts from peering back at events before the search warrant to determine if a constitutional violation has taken place. See United States v. Scales, 903 F.2d at 768 (“Moreover, the search of the suitcase after the search warrant was issued does not prevent us from evaluating the agents’ behavior prior to that time.” (emphases in original)). In addition, United States v. Herrera did not base its decision about the good-faith exception on the fact that it was an administrative search case; instead, the rule it announced is that, to receive the benefit of the good-faith exception, the mistake that led to the constitutional violation must have been made by someone other than the law enforcement officer. See 444 F.3d at 1249 (“Leon‘s good-faith exception applies only narrowly, and ordinarily only where an officer relies, in an objectively reasonable manner, on a mistake made by someone other than the officer.”). While the Tenth Circuit stated, as an additional reason to suppress the evidence, that the good-faith exception should not apply to an administrative search because there is nothing, in that situation, to give notice to the party being searched that he or she is subject to a warrantless inspection, this conclusion did not alter the Tenth Circuit’s holding that the good-faith exception “almost always applies only when there is a determination made by a third party upon which the officer reasonably relied to conduct the challenged seizure or search.” Id. at 1253-54 (“Herrera never had any notice that a state trooper would have even facially valid authority to stop him to conduct a random administrative inspection. That is because Herrera was not in fact operating in a pervasively regulated industry such that he could not help but be aware that he and his truck were subject to search. For this reason, as well, we decline to apply Leon‘s good-faith exception so far afield from that exception’s origin.” (emphasis added)(citation and internal quotations omitted)).
Protective sweep for another gun after the only gun believed to be present was found lacked reasonable suspicion on the totality of circumstances. The officer’s training was to assume that there was another gun was logical and prudent, but it was not articulable reasonable suspicion. State v. Bentz, 211 Ore. App. 129, 158 P.3d 081 (2007):
Viewing the totality of the circumstances, we conclude that Slyter did not have reasonable grounds to believe that there was a true emergency that required immediate action or that there were persons present who posed an immediate threat of danger to the officers or anyone else. No specific articulable facts indicated that anyone other than Lohr’s children was inside the apartment. Furthermore, once Ward’s gun had been secured, Slyter had no reason to believe that Ward had given the gun to defendant’s brother. Thus, the only thing supporting Slyter’s concern that there could be another gun in the apartment was his training, which taught him to assume that, when one gun is found, another is present. Although that might be a prudent assumption for a police officer to make, where no articulable facts support the assumption, it is not a sufficient basis for a warrantless search.
In short, because there were no specific and articulable facts indicating that either a potential victim of a life-threatening incident or a potential perpetrator of a dangerous act were present in the apartment, we reject the state’s contention that the emergency aid doctrine and the protective sweep doctrine justified Slyter’s warrantless entry into the apartment. That conclusion also disposes of the state’s argument that Slyter’s contact with defendant was a lawful stop, because that argument hinges on the state’s assertion that Slyter’s entry into the apartment was lawful. It follows that Slyter’s stop of defendant was unlawful. Because the evidence used in defendant’s trial would not have been discovered without the unlawful stop, the evidence was tainted.
