ICE's knock and talk led to invalid consent, and the nature of the ICE officer's testimony led the court to credit the defendant. The knock and talk occurred on a cold night at 9 pm and defendant told them to come back, but they did not want to leave. They also chose not to go across the street from their office and get a search warrant. Their testimony was vague and inconsistent, but the defendant's was clear. "From all of the above, I conclude that the three ICE agents' actions were the very anthesis of proper law enforcement practices and should not be condoned." United States v. Freeman, 2009 U.S. Dist. LEXIS 55071 (D. Ore. June 24, 2009):

For the reasons set forth below, I find Freeman's account of the events that transpired on November 29, 2006, to be the most credible, and therefore rely on his testimony to resolve any disputes of fact and to make my findings in this case. For Freeman, what occurred that night was one traumatic event, which he described with detail, clarity, and consistency. In contrast, the three ICE agents--who each testified that in the course of his law enforcement career had conducted between fifty and one hundred "knock and talk" investigations--lacked detail and suffered from a number of inconsistencies in several important respects. I find that the three agents' conflicting portrayals of what occurred that night at Freeman's home lack credibility, and that the methods used to obtain information from Freeman are highly suspect.

The IRS agent's affidavit for search warrant fairly presented probable cause to believe that plaintiff was involved in money laundering, so the defendants' motion for summary judgment is granted on a Franks-Bivens claim. Thunder Island Amusements v. Ewald, 2009 U.S. Dist. LEXIS 55199 (N.D. N.Y. June 29, 2009).*

"It is somewhat unclear when the purpose of the traffic stop was complete in the instant case because no traffic citation was issued. The Court need not answer that question, however, as the Court finds that the officers had reasonable suspicion to detain the men for a Terry stop." United States v. Hopewell, 2009 U.S. Dist. LEXIS 55272 (S.D. Ohio February 17, 2009).*

Police surrounding defendant's porch did not constitute an arrest. United States v. Tarleton, 2009 U.S. Dist. LEXIS 55197 (M.D. Ga. June 30, 2009):

Applying those factors, the Court concludes that Tarleton was not under arrest when the officers surrounded the porch. First, the officers surrounded the porch for a valid law enforcement purpose--namely, to investigate a potential drug transaction. Second, the officers had to approach the porch to investigate further. Had the officers simply sat back and done nothing, they would not have been acting diligently. Third, approaching the porch was not intrusive. At that time, the officers did not exert any physical control over Tarleton. Last, the officers surrounded the porch for a brief time. This conclusion is supported by the testimony of the Defendant's own witness at the hearing. That witness stated that only a brief period of time elapsed between the time the officers exited their vehicles and actually entered the porch area.

Based on these factors, the Court finds that the act of surrounding the porch did not constitute an arrest. At most, it constituted a Terry stop, which was amply supported by reasonable suspicion. The reasonable suspicion arose from the tip from a known, reliable CI that Tarleton dealt drugs, and the CI's call to Pippin stating that Tarleton was at his door to deliver drugs. Once Pippin received the information that Tarleton was on the front porch, the officers had reasonable suspicion to approach the CI's home to investigate further.

Simple questions after the paperwork from the traffic stop was returned led to consent. United States v. Canipe, 2009 U.S. App. LEXIS 14107, 2009 FED App. 0222P (6th Cir. June 30, 2009):

When Canipe signed the citation and Hagie returned his information, thereby concluding the initial purpose of the stop, Canipe neither refused Hagie's immediate request for permission to search the truck nor asked to leave. In fact, Hagie obtained Canipe's consent to search by asking two simple questions: whether Canipe had anything unlawful in his truck and whether Hagie could look. To the first question, Canipe responded that "he didn't think so," from which a fair inference of uncertainty or hesitation may be drawn. In light of Canipe's lukewarm response and the reliable information Hagie had already acquired, it was reasonable that Hagie request permission to verify. See Erwin, 155 F.3d at 820, 822-23 (holding officers were "entitled to ask [] for permission to search" using a similar two-step questioning technique at the conclusion of a traffic stop).

For these reasons, we hold that Investigator Hagie's brief detention and request for consent to search the truck following the initial stop were reasonable and did not transform the legal traffic stop into an unconstitutional seizure.

Officers had probable cause for defendant's stop based on officers' listening to telephone calls between him and the CI. United States v. Santiago-Pagan, 2009 U.S. Dist. LEXIS 54202 (M.D. Pa. June 26, 2009).*

"[E]ducated deductions and inferences, taken along with the suspicious financial transactions and the strange living and employment conditions observed by the agents, lead the Court to the find that the affidavits sufficiently link Zhu's residence and business to the possible harboring and employment of undocumented aliens." Thus, the ICE agent showed PC. United States v. Da Zhu, 2008 U.S. Dist. LEXIS 109086 (S.D. Ga. April 30, 2008).*

The fact that defendant's car rental agreement agreement had expired was cause to extend the stop to inquire of the rental company whether continued driving was permitted. Commonwealth v. Watts, 2009 Mass. App. LEXIS 846 (June 26, 2009).*

Officers were looking for a vehicle involved in a robbery and had a description. An hour later, they saw a vehicle matching the description and stopped it. Individually, the factors were innocent, but, collectively, they gave cause for a stop. State v. Porter, 2009 Ohio 3112, 2009 Ohio App. LEXIS 2655 (4th Dist. May 26, 2009).*

The bus company's employee opened the package shipped from Denver to Albuquerque, and reopening it was not unreasonable under Jacobsen. Indeed, this case is a lot like Jacobsen. State v. Rivera, 2009 N.M. App. LEXIS 29 (March 16, 2009, released for publication May 21, 2009), on remand from State v. Rivera, 2008 NMSC 56, 144 N.M. 836, 192 P.3d 1213 (2008):

P14 In the present case, Agent Perry's actions were based upon his belief that the package had already been opened by the Denver station employee. As discussed above, the Denver station employee notified the Bus Company's Los Angeles office, which then contacted Agent Perry with information on a package with suspicious contents. The package was rewrapped and sent to Albuquerque per Agent Perry's instructions, and, once in Albuquerque, it was opened under Agent Perry's supervision. The facts are remarkably similar to those in Jacobsen, and, in following the reasoning established therein, we similarly hold that Agent Perry's search and seizure of the package was not unreasonable because a privacy expectation in the privately opened package no longer existed. See id. at 111-12. Just as in Jacobsen, Defendant's "privacy interest in the contents of the package had been largely compromised." Id. at 121. Thus, when Agent Perry opened the package and observed the same bundles previously described to him, his actions were within the scope of the privacy violation already perpetrated by the Denver station employee. Even if Agent Perry cut open one of the bundles in Albuquerque, as Defendant alleges, he did not unreasonably expand upon the original breach of Defendant's expectation of privacy. The knowledge Agent Perry gained from the Bus Company employee about the package, his experience with drugs and packaging of drugs, and his observations of the package and the bundles within would have supported his actions. Agent Perry's investigation did not unreasonably expand the private search and was therefore not a violation of the Fourth Amendment.

"Because the objective circumstances confronted by defendant on the night in question suggested that plaintiffs' home was being vandalized and that a missing teenage girl was in the house and in need of assistance, the search was reasonable under the Fourth Amendment exigent circumstances doctrine. We thus reverse the judgment of the district court and grant the defendant qualified immunity in this case." Hunsberger v. Wood, 2009 U.S. App. LEXIS 13925 (4th Cir. June 29, 2009).*

Threat to arrest a pawnshop operator (a closely regulated business) for refusing to open the safe during an administrative search was facially unreasonable, so the officer has no qualified immunity. 5 Borough Pawn v. City of New York, 2009 U.S. Dist. LEXIS 54069 (S.D. N.Y. June 22, 2009)*:

Clearly no reasonable officer could have thought that he was privileged to arrest a pawnshop owner who refused to allow him into a closed and locked safe without a warrant. The New York Court of Appeals' decision in Keta and the Grasso Memo--which was official NYPD policy--make it perfectly clear that police officers are not privileged, under the New York State Constitution, to invade safes without a warrant. Marti, like every other NYPD officer, is presumed to know about Keta and the Grasso Memo, and so to know that he was not privileged to arrest a pawnshop owner or employee for doing what Cabrera did. The Grasso memo is quite clear--an officer is not allowed to make an arrest in such a situation. The memo authorizes an officer to issue a citation, secure the premises, and obtain a warrant if he has probable cause to believe that the safe contains stolen property. Marti did none of these things. Instead, he made an arrest--the one thing he was explicitly not allowed to do.

Since Marti allegedly disobeyed express instructions (i.e., the Grasso memo) about what state law requires in the situation he confronted, neither probable cause nor arguable probable cause for the arrest exists, and Marti's motion for summary judgment declaring that he is shielded by qualified immunity for the First Arrest is denied.

The officers had PC for a vehicle search based on their surveillance, so Gant has no application. United States v. Almaraz, 2009 U.S. Dist. LEXIS 54138 (S.D. N.Y. June 26, 2009).*

The stop in this case was not unreasonably extended. The officer's questioning during the writing of the ticket led to answers that were more hesitant and gave reasonable suspicion. United States v. Suitt, 2009 U.S. App. LEXIS 13769 (8th Cir. June 25, 2009).*

"[P]olice may not stop an individual for the sole purpose of compelling him to identify himself." State v. Holly, 2009 Ohio 3081, 2009 Ohio App. LEXIS 2604 (8th Dist. June 25, 2009):

[*P15] Applying these principles, we find that the investigatory stop of Holly was unlawful. Despite the State's argument that Holly was stopped because the police had a reasonable suspicion that he was engaged in drug activity, Detective Mitchell's testimony was clear: the only reason Holly was stopped was to determine his identity. In America, however, the police may not stop an individual for the sole purpose of compelling him to identify himself.

Defendant 17 year old voluntarily accompanied three detectives to the police station for questioning. The court rejects that this 17 year old would have thought that she had to go with them. State v. Rogers, 2009 La. App. LEXIS 1308 (5th Cir. June 23, 2009).*

Defendant's possession of a samuri sword and other knives justified his patdown. State v. Ruff, 2009 Ore. App. LEXIS 816 (June 17, 2009).*

Merely asking if officers can search a car is not a seizure under Mendenhall. The driver, however, was asked for consent, and defendant passenger was asked to get out of the car, and this was reasonable. People v. James, 2009 Ill. App. LEXIS 521 (June 16, 2009).*

A mere request to see identification or to look at belongings is not a seizure. State v. Crum, 2009 Ohio 3012, 2009 Ohio App. LEXIS 2546 (2d Dist. June 19, 2009).*

Meth labs pose a danger, so exigent circumstances exist for an entry. State v. Timofeev, 2009 Ohio 3007, 2009 Ohio App. LEXIS 2624 (9th Dist. June 24, 2009).*

Statements made allegedly in violation of Miranda during a traffic stop were admissible under Berkemer. Even so, a Miranda violation does not always lead to suppression of physical evidence. United States v. Morse, 2009 U.S. App. LEXIS 13771 (8th Cir. June 26, 2009):

On appeal, the government argues that the district court erred in suppressing Morse's statements and the crack cocaine based on Miranda, and we agree. In Berkemer, the Supreme Court held that even though a motorist is seized during a traffic stop, 468 U.S. at 436-37, Miranda warnings are not required where the motorist is not subjected to the functional equivalent of a formal arrest. Id. at 440-42. Therefore, that Morse reasonably believed that he was not free to terminate the encounter with Baggett does not resolve whether Miranda warnings were required in order to elicit admissible statements from Morse. See United States v. Pelayo-Ruelas, 345 F.3d 589, 592 (8th Cir. 2003) (rejecting the "broad contention that a person is in custody for Miranda purposes whenever a reasonable person would not feel free to leave"). The district court thought Berkemer was distinguishable based on the nature of Baggett's question to Morse, but we held in United States v. Martin, 411 F.3d 998 (8th Cir. 2005), that Miranda warnings were not required when a police officer asked a motorist during a traffic stop virtually the same question asked of Morse: whether there was "anything in the vehicle that [the officer] should know about." Id. at 1000. Like the motorist in Martin, Morse was never "'informed that his detention would not be temporary,' and he was asked only a 'modest number of questions.'" Id. at 1003 (quoting Berkemer, 468 U.S. at 442). In short, Morse was [*5] not subjected to the functional equivalent of a formal arrest before Baggett made his inquiry, and Miranda warnings were therefore not required. Id.

In addition, the parties agree that the court's rationale for suppression of the drugs is incorrect in light of United States v. Patane, 542 U.S. 630 (2004). In Patane, the Supreme Court held that a violation of the Miranda rule does not justify the suppression of non-testimonial physical evidence that is the fruit of custodial interrogation conducted without Miranda warnings. Id. at 642-44 (plurality opinion); id. at 645 (Kennedy, J., concurring in judgment). Thus, even if Baggett had been required to administer Miranda warnings before questioning Morse in order to elicit admissible statements, the physical evidence recovered from Morse's pocket based on his unwarned statements should not be suppressed under the Miranda rule.

Defendant had no standing in a hidden compartment in a vessel which was not his sleeping compartment. United States v. Amaro-Rodriguez, 2009 U.S. Dist. LEXIS 53989 (D. P.R. June 25, 2009).*

CI's previous history of 8 search warrants on his information showed him believable. United States v. Harris, 2009 U.S. Dist. LEXIS 53797 (E.D. Tenn. June 25, 2009).*

"No, no but can I look when you look? I just want to be right there, you can put the hand cuffs on me and everything, just let me be right there" is consent. United States v. Hill, 2009 U.S. App. LEXIS 13765 (5th Cir. June 19, 2009) (unpublished).*

A police detective was allowed to testify at trial that he received a tip from a confidential informant that a black male wearing a blue baseball cap and a black hooded sweatshirt was selling heroin at a particular intersection. That tip led to defendant's arrest. The testimony was inadmissible hearsay because it contained too much specific information about defendant and his criminal activity to be justified by the proffered non-hearsay purpose of establishing why the detective was at the intersection. The court found that the specificity of the informant's extrajudicial statement created a danger that the jury would misuse the information as substantive evidence of the defendant's guilt and the State proved that point by referencing the informant's tip for the truth of the matter asserted in closing argument. It was not harmless. Parker v. State, 970 A.2d 320 (Md. May 4, 2009).

Consent can be inferred from conduct. Here, defendant effectively consented with conditions. He never said no. United States v. Riekenberg, 2009 U.S. Dist. LEXIS 53351 (D. Neb. June 24, 2009):

When Sergeant Morrow asked if the officers could enter the defendant's apartment, the defendant stated the key was in his right pants pocket. He then asked what the officers were looking for, and when told they wanted to confirm no one else was present in the apartment, the defendant stated he wanted to accompany the officers into the apartment. The defendant never said the officers could not enter the apartment; rather he placed a condition--his presence--on that entry. Viewed in the totality, a reasonable officer would have believed the defendant was agreeing to allow the officers to enter his apartment provided the defendant was with them, and any limitation on that consent applied to the scope of the search conducted once the officers entered, not whether they could enter.

The stop of defendant's tractor-trailer for a safety inspection was valid, even without reasonable suspicion, which there was for a continued detention. United States v. Paez, 2009 U.S. Dist. LEXIS 53556 (D. Kan. June 18, 2009):

Irrespective of reasonable suspicion, Trooper Wolting stopped the vehicle in order to conduct a CVSA inspection. In Kansas, it is permissible for law enforcement officers to stop commercial vehicles without suspicion that any traffic offense has been committed. The Court adopts Judge Crow's reasoning in Rios-Pinela that the warrantless inspection of commercial vehicles under the Kansas regulatory scheme is reasonable under the Fourth Amendment. On this basis, the initial stop was justified at its inception.

Having lost the motion to suppress, the government sought to reopen after Herring, which the court does not find controlling. The prior decision is adhered to. Moreover, the good faith exception does not apply because of the invalidity of the warrant and the officers' failure to pay attention to it. United States v. Ryan, 2009 U.S. Dist. LEXIS 53644 (D. Vt. May 26, 2009):

Second, given the privacy interests in a person's home and the extensive nature of the search here (the application for the search warrant described the scope of the search of Ryan's home to include computers, related equipment, and records related to such equipment; books and magazines; originals, copies and negatives of photographs; motion pictures, videos, films and other recordings; envelopes, letters and other correspondence; books, ledgers or other records; credit card information; and records reflecting ownership of the premises, such as utility and telephone bills, mail or other correspondence) (see Attach. C, Application & Aff. for Search Warrant) (Doc. 1) the agents' failure to even read the warrant constituted gross negligence.

This is a critical distinction from Herring. The law enforcement officers in Herring relied upon apparently reliable information that existed. In this case, the agents relied upon a facially invalid warrant that failed to particularly describe the items to be seized. Exclusion is appropriate where a "warrant was so lacking in the indicia of probable cause that an objectively reasonable officer should not have relied on it." United States v. Lindsey, 596 F. Supp. 2d 55, 62 (D. D.C. 2009)(finding, post-Herring, that the good faith exception in Leon did not apply where "an objectively reasonable officer could not have relied on the warrant in this case" and suppressing evidence found in search of home where search warrant was based on stale evidence); see also United States v. Lester, No. 1:09cr00002, 2009 WL 902354, at *6-7 (W.D. Va. Apr. 1, 2009) (distinguishing Herring and finding that officers could not reasonably rely on search warrant because it was not based on probable cause).

The government cites Massachusetts v. Sheppard, 468 U.S. 981 (1984) to support its contention that the errors in the warrant here are the result of mere negligence and therefore do not warrant exclusion. See Gov't Supp. Mem. (Doc. 97). Sheppard is easily distinguishable. ...

By contrast, in this case the Magistrate Judge did not affirmatively assure Agent West that the search warrant was valid, and the agents did not take "every step that could reasonably be expected of them." Agent West did not inform the Magistrate Judge that the face of the warrant failed to particularly describe the items to be seized. "The mere fact that the Magistrate issued a warrant does not necessarily establish that he agreed that the scope of the search should be as broad as the affiant's request." Groh, 540 U.S. at 561, n.4 (pointing out the difference between Groh and Sheppard because the officer in Groh "did not alert the Magistrate to the defect in the warrant."). More importantly, the agents admitted that they did not read the warrant before executing it. At a minimum, this is one step that any officer would reasonably be expected to take before searching a person's home. In short, Sheppard offers little support for the government's position.

The government also asserts that suppression will not serve the exclusionary rule's important purpose to deter future conduct because "the conduct here that gave rise to the error involved the judiciary and not the police." Gov't Mot. 7 (Doc. 80). Even assuming that the lack of particularity in the warrant was the Court's error, the warrant was clearly invalid on its face and the agents "'would have known that the search was illegal' in light of 'all of the circumstances.'" Herring, 129 S.Ct. at 703 (quoting Leon, 468 U.S. at 922 n.23); see also Groh, 540 U.S. at 561 n.4 ("Nor would it have been reasonable for [the officer] to rely on a warrant that was so patently defective, even if the Magistrate was aware of the deficiency."). The agents here should have read the warrant, especially since they used the warrant to seize an assortment of items and documents.