VoteKansas.org

Defendant was riding an interstate bus which stopped at the MSP airport, and officers boarded the bus to talk to passengers. Defendant talked with the officers and refused to consent to a search of his bag. The officer asked: “May I see your driver's license or your ID?” This was a request in a friendly tone and not a command, and a reasonable person would have felt free to not provide it. United States v. Richards, 2010 U.S. App. LEXIS 15650 (8th Cir. July 29, 2010):

This was not a case of multiple officers coercing a bus passenger into submission by assailing him with multiple requests for the same thing until he complied. Nor was it a case in which police crafted an environment so coercive that Richards' will was overborne and he had no choice but to produce his identification. Richards was free to decline to present identification at the time that he was asked for it, regardless of Askerooth's hindsight reflection that, in light of his suspicious behavior, she would have likely detained Richards had he refused to cooperate. We conclude that, when viewed in the light of the totality of the circumstances, a reasonable person would have felt at liberty to decline Askerooth's request for identification, and thus it did not constitute a seizure for the purposes of the Fourth Amendment.

[I don't agree that any person feels free to refuse a request for ID when multiple police officers are on an interstate bus asking questions.]

Defendant ATF agent had qualified immunity for a search of plaintiff’s gun store at the request of local police. Having an FFL means you are in a highly regulated industry and have a reduced expectation of privacy in your records. Giragosian v. Bettencourt, 2010 U.S. App. LEXIS 15670 (1st Cir. July 29, 2010):

Pursuant to 18 U.S.C. § 923(g)(1)(B)(ii), the government may conduct compliance inspections of gun shop premises without either a warrant or reasonable cause, as long as it does not do so more than once in any twelve-month period. The Supreme Court has explicitly upheld the constitutionality of this provision under the Fourth Amendment. Biswell, 406 U.S. at 317 (holding that the “urgent federal interest” in regulating firearms traffic outweighs any threat to gun dealers' privacy). Bettencourt's 2007 compliance inspection of Giragosian's gun shop was the first in twelve months -- indeed, in ten years. It thus met all of the requirements of § 923(g)(1)(B)(ii).

The stop and subsequent search were valid, and any appeal would be frivolous (Anders brief). United States v. Pedraza-Bucio, 2010 U.S. App. LEXIS 15725 (10th Cir. July 28, 2010) (unpublished).*

Defendant was found to have consented to seizure of the portable hard drive to his computer after police asked him about child pornography on it, based on reports from another having seen it when he showed him. The “preview search” of the computer without a warrant violated the Fourth Amendment, but the search was permissible by inevitable discovery because of defendant’s admissions there was child pornography on the hard drive. The full forensic examination of the computer was with a warrant, and, excluding the preview search from the affidavit, the warrant would have been granted anyway. State v. Nadeau, 2010 ME 71, 2010 Me. LEXIS 74 (July 29, 2010)* (This case has a helpful analysis of applying the exclusionary rule or not under inevitable discovery, and the court finds that applying the exclusionary rule here would not advance Fourth Amendment interests.)

The search of defendant’s briefcase at the time of his arrest would have violated Gant, but it was valid as inevitable discovery because it would have been searched at book-in. United States v. Miles, 2010 U.S. Dist. LEXIS 76725 (E.D. Pa. July 29, 2010).*

One defendant consented to the officers entering the house to look for an alleged runaway, and the court of appeals did not properly consider the audio of the occurrence from one officer’s body recorder where he asked “may I.” Valtierra v. State, 2010 Tex. Crim. App. LEXIS 828 (May 5, 2010), revg Eduardo Valtierra v. State, 293 S.W.3d 725 (Tex. App.-San Antonio 2009); Heriberto Valtierra v. State, 293 S.W.3d 697 (Tex. App.-San Antonio 2009).

Defendant’s stop led to questions simultaneous with the paperwork which lead to consent. “Although the results of the questioning led to a police-citizen encounter that was longer than it would have been without the questioning, that fact is not relevant.” State v. Gomes, 2010 Ore. App. LEXIS 890 (July 28, 2010).*

Defendant solicited an underage girl to come to his house for potentially nude picture taking, and this was sufficient probable case for issuance of a search warrant for the house for evidence of attempted production of child pornography. United States v. Davies, 2010 U.S. Dist. LEXIS 76778 (M.D. Pa. July 29, 2010)*:

This case is more like Vosburgh than Zimmerman. As in Vosburgh, the affidavit of probable cause set forth facts that would make it fairly probable, considering the totality of the circumstances, that evidence of attempted possession of child pornography in violation of 18 U.S.C. § 2252 would be found in Defendant's home. Defendant engaged in explicit online discussions with the agent, said he wanted to take pictures of her on his pool table, asked her to take off her hoodie and shirt in subsequent photographs, and then gave her his address. Therefore, there was sufficient evidence to give rise to probable cause to believe that Defendant attempted to produce and/or possess child pornography. This case is distinguishable from Zimmerman, where there was no evidence that the defendant had ever possessed or attempted to possess child pornography at any time. Thus, the warrant was issued on probable cause.

The search of defendant’s car for a weapon was justified by seeing the butt of the gun with a flashlight. Defendant’s car was stopped in a high-crime area, and a woman was leaning in the window, and that led the officer to conclude a hand-to-hand drug deal was happening. Defendant fled the vehicle when the officer approached. His handcuffing when he was caught was for safety reasons. He was a felon. State v. Williams, 2010 La. App. LEXIS 1073 (La.App. 5th Cir. July 27, 2010).*

Defense counsel filed an Anders brief after defendant’s plea, and he raised his search issue pro se, which was held waived by the guilty plea. State v. Turner, 2010 La. App. LEXIS 1071 (La.App. 5th Cir. July 27, 2010).*

In a civil rights/false arrest case, the officer had probable cause, or at least qualified immunity, for plaintiff’s arrest as a felon in possession without having to further investigate the status of the conviction which he was told on a records check. Dickson v. City of Clovis, 2010 NMCA 58, 2010 N.M. App. LEXIS 81 (April 1, 2010), Filed, Certiorari Denied, No. 32,370, June 2, 2010.*

The defendant got in an argument with his girlfriend over his looking at underage nudity on his computer, and he hit her. She called the police, and they came. She told them the reason for the argument, and she consented to a search of the computer. She had apparent authority. He told her to get out of the house, but she hadn’t left yet, and she had unrestricted use of the premises and the computer. Therefore, she could consent to a search of his computer as a user. People v. Bell, 2010 Ill. App. LEXIS 744 (July 9, 2010).

Defendant’s vehicle stop was in an area known for stolen vehicles, and that was the basis for his stop and the car looked suspicious in the area, although it turned out it wasn’t stolen. There was, at least, reasonable suspicion for the stop. People v. Letner, 2010 Cal. LEXIS 7290 (July 29, 2010).*

The defendant had no expectation of privacy in observations of a car (assuming he even had standing in that car in the first place) parked in a ten unit parking space in an apartment building. State v. Collanzo, 2009 N.H. LEXIS 152 (February 23, 2009).*

The search of defendant’s car incident to his arrest on a failure to appear warrant, where he was already hooked up and in the police car, violated Gant, decided a year later. Gant is retroactive, and, noting the conflict in the courts, the good faith exception should not apply to case law. Here, the officer offered no reason why the car was searched, so it is assumed it as a search incident. State v. Frederick, 2010 Ida. LEXIS 144 (July 27, 2010):

Predictably, this tension has led to sharply divergent results from the courts that have considered this question. A number of courts have applied the exception, recognizing that there is a distinction between recognizing the constitutional violation and providing an appropriate remedy for the violation and concluding that the deterrent purpose underlying the exclusionary rule is not advanced when officers have relied on existing case law. See People v. Henry, Cal. Rptr. 3d , 184 Cal. App.4th 1313 (Cal. App. 1 Dist. 2010); United States v. Davis, 598 F.3d 1259 (11th Cir. 2010); State v. Baker, 2010 UT 18, 229 P.3d 650 (Utah 2010); State v. Riley, 154 Wn. App. 433, 225 P.3d 462 (Wash. App. Div. 1 2010); United States v. McCane, 573 F.3d 1037 (10th Cir. 2009); United States v. Gray, 2009 U.S. Dist. LEXIS 113436, 2009 WL 4739740 (D. Neb. Dec. 7, 2009) (noting the Ninth, Seventh, and Sixth Circuits have refused to apply the good faith exception while the Fifth and Tenth Circuits have held Leon's good-faith exception applies to warrantless searches considered lawful under the case law existing when the search was performed); Brown v. State, 24 So.3d 671, 680-82 (Fla. App. 5th Dist. 2009).

Other courts have found the tension resulting from application of the good faith exception to be “untenable” and accordingly declined to apply the exception. People v. McCarty, 229 P.3d 1041 (Colo. 2010); State v. Harris, 154 Wn. App. 87, 224 P.3d 830 (Wash. App. Div. 2 2010); United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009) rehearing and rehearing en banc denied, 598 F.3d 1095 (9th Cir. 2010).

Yet other courts have recognized that retroactivity rules do not automatically exclude application of the good faith exception, yet have declined to apply the exception because the scope of Belton was not sufficiently defined as to warrant a finding of objective good faith by the law enforcement officials conducting the search. The Court of Appeals for the District of Columbia concluded that the scope of permissible searches of automobiles was not “settled law” and therefore declined to apply Leon. United States v. Debruhl, 993 A.2d 571 (D.C. 2010). Similarly, the Michigan Court of Appeals declined to apply the exception in the context of the search of an automobile pursuant to the arrest of a passenger in the vehicle, finding the question of extension of Belton to such circumstances to be a question of first impression. People v. Mungo, 2010 Mich. App. LEXIS 610, 2010 WL 1461620 (Mich. App. Apr. 13, 2010).

It is our view that retroactivity rules do not preclude application of the good faith exception when an officer relies on case law. We note, however, that the Supreme Court has emphasized that the good faith described in United States v. Leon “must be objectively reasonable.” 468 U.S. at 922. The burden of proving that such objectively reasonable good faith reliance existed is on the State. State v. Smith, 144 Idaho 482, 485, 163 P.3d 1194, 1197 (2007) (holding that “[t]he burden of proof is on the state to show that the search ... fell within one of the well-recognized exceptions to the warrant requirement.”) In this case, the State has failed to meet that burden.

The officer had no reasonable suspicion do detain the defendants, and the court discounts all of the [lame] justifications or indicators given by the officer as being meaningless, individually and collectively. However, the stop was justified by speeding, and the court is "regrettably" reluctant to grant suppression of the dog sniff that occurred reasonably promptly. United States v. Sepulveda-Sandoval, 2010 U.S. Dist. LEXIS 75784 (D. S.D. June 24, 2010)*:

Regrettably, this is a case where the defendants may not avail themselves of the remedy of suppression as a result of Trooper Oxner's Fourth Amendment violation. The court leaves for another day and a higher court Chief Justice Marshal's observation that every right has a remedy or it is no right at all. Marbury v. Madison, 1 Cranch 137, 163-64 (1803).

Putting a GPS on defendant’s vehicle during a drug investigation was not a violation of the Fourth Amendment. United States v. Jesus-Nunez, 2010 U.S. Dist. LEXIS 76107 (M.D. Pa. July 27, 2010).*

Defendant’s IAC claim is not proper in a direct appeal; he has to do it through a § 2255. United States v. King, 2010 U.S. App. LEXIS 15577 (3d Cir. July 27, 2010) (unpublished).*

The drug dog sniff of defendant’s car was justified during his stop with reasonable suspicion, and that developed from a wiretap on somebody else's telephone, and defendant refused consent [not a factor in RS; they tried that before the dog was called in]. United States v. Scott, 2010 U.S. Dist. LEXIS 75687 (D. Kan. July 27, 2010).*

There was probable cause for issuance of the search warrant in this case, and, even if there wasn’t, the good faith exception would make the evidence admissible. United States v. Wright, 2009 U.S. Dist. LEXIS 129240 (S.D. Ga. May 5, 2009).*

The police kept defendants from their house and home office while they procured a search warrant, 33 hours later. The officer getting the search warrant was not told to hurry it up. On defendant was an insulin-dependent diabetic, and officers would not permit him access to get it. The search and detention of the wife for the duration was unreasonable. United States v. Song Ja Cha, 2009 U.S. Dist. LEXIS 129278 (D. Guam February 19, 2009):

Applying the third factor to Mrs. Cha, the court notes that she was detained throughout the entire 33-hour period. Her possessory interest in her home can be said to be minimal. The same however, cannot be said regarding her possessory interest in the business establishment. While she may have been detained and arrested, she could have authorized the re-opening of the business and could have requested her husband to do so. Because of the seizure, the business was not able to open. While the allegations that she operated a prostitution house constitute a criminal offense, the opening of the lounge for the sale of alcoholic spirits is not illegal.

Finally, in applying the fourth factor the court finds 33 hours until procurement of the search warrant to be unreasonable. In McArthur, the Court found two hours to be a reasonable time frame in restricting the defendant from reentering his home without a police escort while the police diligently sought the warrant. In this case, it appears from the testimony presented that the police officers did not know they had a duty to diligently move to secure the search warrant. More importantly, Officer Perez, the officer tasked with drafting the search warrant, did not know that he had a duty to diligently pursue the drafting and eventual approval of the warrant by a detached magistrate. He had facts within his knowledge with which he could draft a search warrant with probable cause since he was at the briefing on the morning of January 13 when certain information was first divulged. But not knowing there was a sense of urgency, he waited until the police reports were all completed before he began drafting the warrant application. Officer Perez cannot solely be faulted for delaying the drafting of the information because he did not know there was urgency to do so. He testified that had he known there was a sense of urgency, he would have acted much sooner. But there was a sense of urgency and a duty of diligence because the possessory interests of Mr. Cha to the home and Mrs. Cha to the business enterprise were being interfered with by the police.

The search of defendant’s car for a weapon was not just justified by any articulable facts. Lewis v. State, 2010 Ind. App. LEXIS 1366 (July 27, 2010).*

Dog sniff of the air from outside a car did not violate the state constitutional protection of “private affairs.” State v. Hartzell, 2010 Wash. App. LEXIS 1534 (July 19, 2010).*

The officer received a report of a potential drunk driver in defendant’s car. The officer was free to approach defendant’s garage to attempt to talk to him, and defendant’s admission that he was driving plus his condition was reasonable suspicion of DUI. The Fourth Amendment was not implicated until a second officer arrived for a field sobriety test. Banda v. State, 2010 Tex. App. LEXIS 5902 (Tex. App. — Houston (14th Dist.) July 27, 2010).*

Violation of constitutional no-knock requirement by SWAT team deciding on its own to enter without knocking without sufficient legal justification required suppression of the search under the Indiana Constitution. Lacey v. State, 2010 Ind. App. LEXIS 1367 (July 27, 2010):

Here, no circumstances bearing upon officer safety or escape arose after the issuance of the warrant and before its execution. There has been no allegation of furtive movement, attempted flight, or destruction of evidence. Under the totality of the circumstances, we find the unilateral decision to dispense with the knock-and-announce rule unreasonable under Article 1, Section 11 of the Indiana Constitution where the relevant facts could have been presented in application for a “no-knock” warrant.

Accordingly, we must decide whether the evidence obtained in the search should be excluded. The State urges that we follow Hudson v. Michigan, 547 U.S. 586, 590 (2006),which discussed the appropriateness of the exclusionary rule where a “no-knock” entry concededly violated the Fourth Amendment. At the outset, the Court observed that”indiscriminate application of the exclusionary rule” had been rejected, and it was applicable only when its deterrence benefits outweigh its substantial social costs. Id. at 591. ...

. . .

In this case, the criminal histories of the targeted individuals were known well in advance of the execution of the search warrant. Nonetheless, the officer seeking the warrant did not advise a neutral judicial officer of the circumstances that would arguably have supported a “no-knock” authorization. Rather, the critical decision was made by a person charged with a duty of law enforcement.

Further, it was admittedly routine and systemic for the Emergency Service Team officers, as opposed to a neutral magistrate, to decide to serve warrants in a “no-knock” manner. Although police officers at times confront emerging exigent circumstances, to which an emergency response is appropriate under the Indiana Constitution, the instant situation did not involve exigencies arising when there was no opportunity to seek judicial sanction for a “no-knock” entry. As Sergeant Strausborger explained, “no-knock” entries into a residence increase the potential for violence against police officers due to misapprehension of circumstances by the occupants. In light of our Indiana Supreme Court’s pronouncement in Holder, acknowledging that intrusions based upon security concerns will be tolerated only “so long as they are reasonably aimed toward those concerns,” 847 N.E.2d at 940, we believe that such entries should remain rare and, where practicable, subject to review by a detached and neutral judicial officer.

And Wilkins v. State, 2010 Ind. App. LEXIS 1364 (July 27, 2010) holds blanket no-knock is unconstitutional:

Indiana Code Section 35-33-5-7 does not constitute a blanket prohibition upon no-knock warrants in this State. The “no-knock” execution of the search warrant was supported by reasonable suspicion and thus no Fourth Amendment violation is established. However, under the totality of the circumstances, the “no-knock” execution was unreasonable under the Indiana Constitution. We find suppression of the evidence to be an appropriate remedy in the particular circumstances of this case.

White House proposal would ease FBI access to records of Internet activity, by Ellen Nakashima, Washington Post, today:

The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.

The administration wants to add just four words -- "electronic communication transactional records" -- to a list of items that the law says the FBI may demand without a judge's approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user's browser history. It does not include, the lawyers hasten to point out, the "content" of e-mail or other Internet communication.

But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.

Grabbing defendant’s arm when he reached into his pocket after having gotten out of his car at the officer’s direction was reasonable. United States v. Street, 2010 U.S. App. LEXIS 15264, 2010 FED App. 0216P (6th Cir. July 23, 2010).*

Defendant’s stop was objectively reasonable for a partially obscured license plate, and the officer’s other reasons for the stop were not pertinent. The officer had objective probable cause to arrest defendant for car theft. United States v. Boyd, 2010 U.S. App. LEXIS 15330 (11th Cir. July 26, 2010) (unpublished).*

Defendant failed to stop at a weigh station, so his stop was valid. After the officer looked at his paperwork and issued a ticket for the failure to stop and warnings for other infractions, he told defendant he could go. Then he asked for consent and got it. The court finds the officers more credible on the question of consent. United States v. Narcisse, 2010 U.S. Dist. LEXIS 75359 (M.D. Pa. July 26, 2010).*

The requirement of record keeping of sexually oriented performers to avoid child pornography, 18 U.S.C. §§ 2257 & 2257A, is a reasonable record keeping requirement and inspection of those records does not violate the Fourth Amendment. Three decades of regulation qualifies as closely regulated for the purposes of age documentation of performers. [The case also involves First and Fifth Amendment challenges.] EFF's page for the case does not have this opinion as of the time of this posting. Free Speech Coalition v. Holder, 2010 U.S. Dist. LEXIS 75471 (E.D. Pa. July 27, 2010):

It is well established that, under the Fourth Amendment, a person's reasonable expectation of privacy in his or her home or business exists "not only with respect to traditional police searches conducted for the gathering of criminal evidence but also with respect to administrative searches designed to enforce regulatory statutes." New York v. Burger, 482 U.S. 691, 699-700 (citing Marshall v. Barlow's, Inc., 436 U.S. 307, 312-13 (1978)). "An expectation of privacy in commercial premises, however, is different from, and indeed less than, a similar expectation in an individual's home." Id. at 700 (citing Donovan v. Dewey, 452 U.S. 594, 598-99 (1981)).

This expectation is particularly attenuated in commercial property employed in "closely regulated" industries. Id. "'Certain industries have such a history of government oversight that no reasonable expectation of privacy [can] exist for a proprietor over the stock of such an enterprise.'" Id. (citation omitted) (quoting Marshall, 436 U.S. at 313). As the Third Circuit has explained, "one who is engaged in an industry that is pervasively regulated by the government or that has been historically subject to such close supervision is ordinarily held to be on notice that periodic inspections will occur and, accordingly, has no reasonable expectations of privacy in the areas where he knows those inspections will occur." Lovgren v. Byrne, 787 F.2d 857, 865 (3d Cir. 1986). For this reason, a warrantless inspection of commercial premises may be reasonable within the meaning of the Fourth Amendment, and the Supreme Court has correspondingly recognized an exception to the warrant requirement for searches of "closely" or "pervasively" regulated industries. Burger, 482 U.S. at 702-03.

A pervasively regulated business is one which has "such a history of government oversight that no reasonable expectation of privacy could exist." Marshall, 436 U.S. at 313 (citation omitted). "[T]he doctrine is essentially defined by 'the pervasiveness and regularity of the federal regulation' and the effect of such regulation upon an owner's expectation of privacy." Burger, 482 U.S. at 701 (quoting Donovan, 452 U.S. at 606). As the Third Circuit has emphasized, individuals who "voluntarily engage in such [closely or pervasively] regulated businesses accept the burdens as well as the benefits of the trade." Frey v. Panza, 621 F.2d 596, 597 (3d Cir. 1980) (per curiam).

As discussed at length above, for over three decades the creation, production, and distribution of sexually explicit expression has been the subject of extensive federal regulation aimed at protecting children from sexual exploitation. 24 As a result of this steadily strengthening web of initiatives--which include §§ 2257 and 2257A and their implementing regulations--producers of sexually explicit expression have been on notice for some time that, when it comes to ensuring the performers in their expression are adults, they will be subject to various forms of government oversight, including inspection of age-verification records. Indeed, the "regulatory presence is sufficiently comprehensive and defined" in this regard that producers of such expression "cannot help but be aware that their property will be subject to periodic inspections undertaken for specific purposes." Burger, 482 U.S. at 705 n.16 (internal quotation marks omitted). Accordingly, this Court finds that, "in light of the regulatory framework governing" the production of sexually explicit expression as it pertains to age verification and the protection of children from sexual exploitation, plaintiffs have a "reduced expectation of privacy in this 'closely regulated'" enterprise. Id. at 707.

In the Arizona SB1070 preliminary injunction case, the District Court cited Fourth Amendment implications of detentions on people detained for lack of papers which factored into the decision to grant the preliminary injunction. United States v. State of Arizona, CV 10-1413-PHX-SRB, at 16 (D. Ariz. July 28, 2010)*:

Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully-present aliens because their liberty will be restricted while their status is checked. Given the large number of people who are technically “arrested” but never booked into jail or perhaps even transported to a law enforcement facility, detention time for this category of arrestee will certainly be extended during an immigration status verification. (See Escobar, et al. v. City of Tucson, et al., No. CV 10-249-TUC-SRB, Doc. 9, City of Tucson’s Answer & Cross-cl., ¶ 38 (stating that during fiscal year 2009, Tucson used the cite-and-release procedure provided by A.R.S. § 13-3903 to “arrest” and immediately release 36,821 people).) Under Section 2(B) of S.B. 1070, all arrestees will be required to prove their immigration status to the satisfaction of state authorities, thus increasing the intrusion of police presence into the lives of legally-present aliens (and even United States citizens), who will necessarily be swept up by this requirement.6

6 The Court is also cognizant of the potentially serious Fourth Amendment problems with the inevitable increase in length of detention while immigration status is determined, as raised by the plaintiffs in Friendly House, et al. v. Whiting, et al., No. CV 10-1061-PHX-SRB.

The parties did not raise the question of standing, but the court does sua sponte, and it finds that defendant lacks standing as a passenger in a rental car. “In the present case, the Defendant was a passenger in a Hertz rental car. It is undisputed that the driver ... was the only authorized driver on the rental agreement. Accordingly, the Court finds that the Defendant does not have a legitimate expectation of privacy in the rental car and, therefore, lacks standing to challenge the inventory search thereof.” Defendant’s claim that the officers should have released the car to her also fails, just in case there was standing. United States v. McCalebb-Pippens, 2010 U.S. Dist. LEXIS 74767 (E.D. Tenn. May 24, 2010).*

Defendant’s PO had reasonable suspicion to search him in connection with a murder. While he was not charged, he was nearby and he was in a city he was not permitted to be without permission. United States v. Benjamin, 2010 U.S. Dist. LEXIS 74941 (E.D. Pa. July 26, 2010).*

Officers approached people involved in a fight just to talk to them, and defendant walked away, so they told him to stop. It was reasonable to do so because it was likely the situation would flare up after they left. United States v. Parker, 2010 U.S. Dist. LEXIS 74733 (N.D. Ind. July 21, 2010).*

Defense counsel was not ineffective for not moving to suppress his breath test because it would not have been granted. State v. Brewer, 2010 Ohio 3441, 2010 Ohio App. LEXIS 2951 (2d Dist. July 23, 2010)*:

[*P26] The prejudice prong of the Strickland test requires more than a determination that the motion not made by trial counsel would have been a close call; it requires a finding that a motion to suppress, had it been made, would likely have been granted. We conclude, therefore, that Brewer's trial counsel was not ineffective for having failed to move to suppress the evidence.

Orin Kerr on Volokh Conspiracy: Good-Faith Exception for Changing Law Likely Headed to the Supreme Court. The Supremes denied his cert petition in McCane. DOJ resisted in McCane, but filed its own from United States v. Gonzalez, 598 F.3d 1095 (9th Cir. 2010), denying rehearing en banc from 578 F.3d 1130 (9th Cir. 2009). The government's cert petition, as usual, is more likely to be granted.

The government didn't want the issue heard when it was the winner, but it does when it is the loser. It had to know the case law would be hugely split by the time it would be argued.

McCane was decided a year ago today.

Defendant’s mother discovered that he had child pornography on his computer, and she brought the hard drive to the police. The police made some effort to locate the defendant, but he was hard to find because the police were looking for him. They decided to declare the hard drive abandoned and searched it, but the court found no evidence of abandonment. State v. Gould, 2010 Ohio 3437, 2010 Ohio App. LEXIS 2925 (6th Dist. July 23, 2010):

[*P28] The state contends that the hard drive was abandoned by appellant. Abandoned property is not subject to Fourth Amendment protection. Abel v. United States (1960), 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668. “Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts.” United States v. Colbert (C.A.5, 1973), 474 F.2d 174, 176. In determining whether someone has abandoned property, “[a]ll relevant circumstances existing at the time of the alleged abandonment should be considered.” Id. “The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.” Id.

[*P29] At the suppression hearing, there was no evidence presented to demonstrate appellant's intent, by words spoken or acts done, to abandon the hard drive.

[*P30] While intent of one in possession of property or premises often cannot be inferred from his actions, abandonment will not be presumed. It must be clearly established by the party asserting it. Coleman v. Maxwell (C.A.6, 1967), 387 F.2d 134, certiorari denied (1968), 393 U.S. 1007, 89 S. Ct. 492, 21 L. Ed. 2d 472. Mere absence from the premises without a clear intention to abandon could not legitimize a search of property found therein. U.S. v. Robinson (C.A.6, 1970), 430 F.2d 1141.

[*P31] Detective Lester's subjective belief that the hard drive had been abandoned was unsupported by the objective facts and Easterwood's testimony. More significantly, the detective could have obtained additional information concerning the circumstances surrounding Easterwood's access to the computer hard drive through further questioning and properly sought a search warrant for the hard drive. Accordingly, we find that the state failed to demonstrate by credible, competent evidence that the hard drive was abandoned.

Defendant was asked in Spanish for consent to search his vehicle, which he granted, after a simple and direct question. He was not Mirandized as he should have been, but that does not make the consent invalid. United States v. Solano-Fell, 2010 U.S. Dist. LEXIS 74324 (W.D. N.Y. May 17, 2010).*

Officers had a call of a suspicious person selling drugs on a street corner, so they went there, saw him, and approached. He threw down a gun, and that was probable cause to arrest. United States v. Chissem, 2009 U.S. Dist. LEXIS 129098 (E.D. Mo. April 17, 2009).*

Two apparent hand-to-hand sales of a man under surveillance was reasonable suspicion. United States v. Beard, 2009 U.S. Dist. LEXIS 129131 (E.D. Mo. April 8, 2009).*

Officers looking for a fugitive were on the “Johnson properties.” It was common knowledge in the community that two houses nearby were the “Johnson property,” and one person’s consent to search the “Johnson properties” reasonably was believed to include both buildings. The officers were lawfully there in the first place. State v. Johnson, 2010 Tenn. Crim. App. LEXIS 614 (July 22, 2010).*

In a DUI case, where the officer testified that he wasn’t sure who took the blood sample, and under statute only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or a LEO, it was a credibility determination against the state, and suppression was affirmed. State v. Robinson, 2010 Tex. App. LEXIS 4505 (Tex. App. – Waco June 16, 2010).*

The officer spoke to defendant in English, getting no response. So he spoke Spanish and defendant spoke to him. He asked if he could “take a look” and defendant agreed and was found to have consented. State v. Medina, 2010 N.C. App. LEXIS 1326 (July 20, 2010).*

Defendant’s claim that defense counsel was ineffective for not arguing that the search warrant specify the crime under investigation fails. Rule 41(e) does not require that, and it was amended out in 1972. His claim that the warrant have “scrupulous exactitude” comes from First Amendment implicating search warrants, Stanford v. Texas. Hale v. United States, 2010 U.S. Dist. LEXIS 73604 (N.D. Ill. July 22, 2010).*

Defendant failed in his burden of showing that the police lacked probable cause to arrest him without a warrant. People v Bulgin, 2010 NY Slip Op 20290, 2010 N.Y. Misc. LEXIS 3257 (Bronx Co. July 12, 2010):

At a suppression hearing, it is the People's burden to demonstrate the legality of the police conduct in the first instance, but defendant bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him and that the police lacked probable cause to arrest him. People v Thomas, 291 AD2d 462, 463 (2d Dept 2002); People v Sidhom, 204 AD2d 150 (1st Dept), lv denied, 84 NY2d 832 (1994).

The court is manifestly allocating the burden of proof to the wrong party under the Fourth Amendment. But, NY case law doesn't help any. This is the train of citations (Sidhom is not pertinent):

Thomas (2002):

The defendant, however, bears the ultimate burden of proving, by a preponderance of the credible evidence, that the evidence should not be used against him (see, People v Berrios, supra at 367; People v Baldwin, 25 NY2d 66, 70; People v Whitehurst, 25 NY2d 389, 391; Nardone v United States, 308 US 338, 341-342), and that the police lacked probable cause to arrest him (see, People v Milhouse, 246 AD2d 119).

. . .

Accordingly, the People satisfied their burden in the first instance to prove the legality of the police conduct. By contrast, the defendant failed to establish his ultimate burden by a fair preponderance of the credible evidence that there was no probable cause for his arrest.

Milhouse (1998):

At a suppression hearing, the burden of proof is on the defendant to show, by a preponderance of the evidence, that the officer lacked probable cause to arrest (People v Abdullah, 164 AD2d 260, 262).

Abdullah (1990) (without citation of authority):

After the Mapp hearing, at which Officer Reynolds was the only witness, the suppression court denied the motion to suppress finding: "the People met their burden of going forward, but the defendant did not meet his burden of proving *** by a preponderance of the evidence that the marijuana and the marijuana cigarette were unlawfully taken from his person".

If Mapp is authority, that was with a search warrant, so the rule is different.

How many times do we have to point this out to the Fourth Amendment-impaired? Under the Fourth Amendment, the burden is always on the government to prove that a warrantless arrest or search is valid.