New sections:
Vol. 1:
  § 3.18A. DNA profile
  § 5.12A. Bypassing the merits to get to good faith?
  § 8.60. Consent to a frisk
  § 18.17A. Moving vehicle
Vol. 2:
  § 27.21. Detention pending deportation after release from prison
  § 38.32. Domestic violence calls [special needs]
  § 38.33. Child abuse investigations [special needs]
  § 39.2A. Subpoenas issued under treaties
  § 44.7A. Burden of proof for no-knock
  § 44.13A. Application of inevitable discovery to knock-and-announce
  § 44.22A. Service with the officer present or by fax

___________________________________

Chapter 1 Introduction

RESEARCH REFERENCES
    Thomas K. Clancy, Coping With Technological Change: Kyllo and the Proper Analytical Structure to Measure the Scope of Fourth Amendment Rights, 72 Miss.L.J. 525 (2002).
    Kathryn R. Urbonya, A Fourth Amendment "Search" in the Age of Technology: Postmodern Perspectives, 72 Miss.L.J. 477 (2002).

§ 1.8 n. 133
     Kyllo v United States (2001) 533 US 27, 33 n. 1, 150 L Ed 2d 94, 121 S Ct 2038, holding that a "search" meant "'to look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief.'" (quoting N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989)).

§ 1.10 n. 159
    Service of process in a civil case is not a "seizure." Williams v Lu (2003, CA8 Mo) 2003 US App Lexis 14034 (other allegations about how the service occurred and alleged indignities did not rise to the level of a seizure).
    Service of a criminal summons is not a seizure. Myers v Shaver (2003, WD Va) 2003 US Dist Lexis 2547.
    It is not a seizure to tell a person found during a protective sweep under an arrest warrant to show his hands. United States v Enslin (2003, CA9 Cal) 315 F3d 1205.

§ 1.13 n. 201
    See Lee v City of Chicago (2003, CA7 Ill) 330 F3d 456 (initial seizure of vehicle was valid, but continued detention of it did not violate Fourth Amendment; due process is the consideration instead; the Court rejects time as the primary consideration over possessory interest, looking to the common law) at *12-15:
    "But this is not to suggest that there aren't other justifications for reaching the same conclusion as the Fox and Jakobetz courts. First, we cannot overlook the text of the amendment, which states that it protects the right 'to be secure' in one's home, person, or effects. That language suggests a state of being that is protected against intrusion by unlawful government action. It then could be argued that once that state has been disturbed by an act of dispossession, the individual is no longer secure in his possessory interest within the meaning of the amendment. Moreover, at the time of the amendment's drafting, the word 'seizure' was defined as a temporally limited act, one involving the 'confiscation or forcible taking possession (of land or goods); a sudden and forcible taking hold.' Oxford English Dictionary (2d ed. 1989) (quoting 10th Rep. Hist. MSS. Comm. App. v. 516 (1701) ('His Majestie Attornie-Generall ... moved ... for a seizure of the premises.'), and Burke Corr. IV 143 (1793) ('The seizure of the estates of the church.')); see also California v. Hodari D., 499 U.S. 621, 624, 113 L. Ed. 2d 690, 111 S. Ct. 1547 (1991) ('From the time of the founding to the present, the word "seizure" has meant a "taking possession."' (quotations omitted)); Thompson v. Whitman, 85 U.S. (18 Wall.) 457, 471, 21 L. Ed. 897 (1873) ('A seizure is a single act, and not a continuous fact."). Thus, Justice Stevens's description--even if lacking in independent precedential value--is consistent with this literal reading.
    "Besides the textualist argument, there is precedent in this Circuit that requires us to restrict Fourth Amendment seizures temporally. In Wilkins v. May, we rejected the idea that a Fourth Amendment seizure can continue beyond the point of arrest to govern excessive-force claims brought by pretrial detainees. 872 F.2d 190, 194 (7th Cir. 1989); see also Reed v. City of Chicago, 77 F.3d 1049, 1052 n.3 (7th Cir. 1996) (reaffirming Wilkins on this point and rejecting the notion that Justice Ginsburg's endorsement of the continuing-seizure concept in Albright v. Oliver, 510 U.S. 266, 276-80, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994) (Ginsburg, J., concurring), was controlling precedent). Two practical reasons led us to reject the notion of a 'continuing seizure.' First, the 'considerations that have been used to give meaning to the key substantive term in the amendment – 'unreasonable' – are largely inapplicable once the arrest has taken place and the arrested person has been placed securely in custody.' Wilkins, 872 F.2d at 193. We noted that the usual issue for Fourth Amendment cases in general was whether probable cause existed, and in a typical Fourth Amendment excessive-force case it was the related issue of 'whether the force used to seize the suspect was excessive in relation to the danger he posed.' Id. (citations omitted). Neither of these issues would be presented when a suspect was already lawfully in custody. Id. As such, the 'text, history, and judicial interpretations' of the Fourth Amendment would prove unhelpful in resolving the cases. Id. at 194."

§ 1.15 n. 205
    See also Inyo County v Paiute-Shoshone Indians (2003) 2003 US Lexis 3676 (Indian Tribe had sovereign immunity like states from § 1983 suits like states, and it was not a "person" who could maintain a § 1983 action to claim immunity from execution of a valid state search warrant on an Indian casino for business records; case remanded to determine whether Tribe was immune from state criminal processes).

§ 1.15, Add text at end of section:
    "Persons" in the Fourth Amendment does not included illegal aliens previously deported who reentered illegally.[fn216.1]
    216.1. United States v Esparza-Mendoza (2003, D Utah) 2003 US Dist Lexis 9178.

§ 1.23 n. 323
    See Lee v City of Chicago (2003, CA7 Ill) 330 F3d 456, quoted in § 1.13 n. 201.

§ 1.23, Add new footnote 323.1 to section heading:
    323.1. See generally Tracey Maclin, Let Sleeping Dogs Lie: Why The Supreme Court Should Leave Fourth Amendment History Unabridged, 82 B.U.L.Rev. 895 (2002).

§ 1.26 n. 346
    Lawrence v Texas (2003, US) 2003 US Lexis 5013 (Texas law against same sex consensual sex in private unconstituttional under due process clause; Bowers v Hardwick (1986) 475 US 186, 92 L Ed 2d 140, 106 S Ct 2841, was always wrongly decided and is overruled).

§ 1.26, Add new text at end of section:
    In Lawrence v Texas,[fn360] the Court held that a state criminal law against same sex sexual relations violated the Due Process Clause, overruling Bowers v Hardwick[fn361] in language that speaks to everything within the "right to be let alone," but did not use that phrase. The Court found a due process liberty right in private, consensual, same sex intimate relationships. The first paragraph of the opinion is illustrative of the powerful forces at work here within an individual's right of private in intimate private relationships:
    "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions."[fn362]
    The Court found that the general right of privacy in intimate relationships and aspects of human life required that it find a due process right there as well:
    "There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U.S. 479 (1965). In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom. Id., at 485. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird, 405 U.S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights, ibid. It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own: 'It is true that in Griswold the right of privacy in question inhered in the marital relationship .... If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.' Id., at 453."[fn363] This right of privacy included the right not to be stigmatized as a criminal, and, even though a misdemeanor, four states required those convicted to register as sex offenders.[fn364] More fundamentally, however, the Court noted that early laws against prohibiting same sex sexual relations where directed at nonconsensual conduct, and modern prohibitions were a matter of legislating morality.[fn365]
    The Court then dealt with Bowers, which it had to overrule::
    "The Court began its substantive discussion in Bowers as follows: 'The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a very long time.' Id., at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.
    "This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
    "Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: 'Proscriptions against that conduct have ancient roots.' Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties Union et al. as Amici Curiae 15-21; Brief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance."
    . . .
    "Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v Casey, 505 US 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows: 'These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.' Ibid. Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right."[fn366]
    In sum,
    "The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. 'It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.' Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."[fn367]
    Thus, individuals have the right to private intimiate conduct that is beyond the reach of government.
    360. Lawrence v Texas (2003, US) 2003 US Lexis 5013.
    361. Id. at *35-36: "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v Hardwick [(1986) 475 US 186, 92 L Ed 2d 140, 106 S Ct 2841] should be and now is overruled."
    362. Id. at *8-9.
    363. Id. at *12-13.
    364. Id. at *31-32:
    "The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders. Smith v. Doe, 538 U.S. __ (2003); Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003). We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of a least four States were he or she to be subject to their jurisdiction. Pet. for Cert. 13, and n. 12 ([citations omitted). This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example."
    365. Id. at *18-22. The Court also noted that the European Court of Human Rights held five years before Bowers that government could not proscribe private consensual sexual conduct. Dudgeon v United Kingdom (1981) 45 Eur Ct H R P52. Id. at *27.
    366. Id. at *15-18 & *28-29.
    367. Id. at *36.

Chapter 2 The reasonable expectation of privacy

§ 2.9 n. 204.3 (in supp.)
    Kyllo is discussed in Tracey Maclin, Katz, Kyllo, and Technology: Virtual Fourth Amendment Protection in the Twenty-First Century, 72 Miss.L.J. 51 (2002), David A. Sklansky, Back to the Future: Kyllo, Katz, and Common Law, 72 Miss.L.J. 143 (2002).

Chapter 3 Probable cause

§ 3.13 n. 116
    United States v Funches (2003, CA7 Ill) 327 F3d 582 (reversing trial court's finding of no PC; officer's experience would have led him to believe drug deal just went down).

§ 3.14 n. 129
    Burns v State (2003, Md App) 2003 Md App Lexis 19 (officer saw drugs in plain view, so further search of car revealed gun under front passenger seat with handle close to where defendant was sitting in right rear seat after defendant reached down; probable cause to arrest defendant).

§ 3.14 n. 132
    Probable cause must be established independent of a suspect's refusal to give his or her name. Graves v City of Coeur d'Alene (2003, CA9 Idaho) 2003 US App Lexis 15424 (§ 1983 case).

§ 3.17 n. 147
    Jones v State (2003, Fla App 2D) 2003 Fla App Lexis 1349 (riding horse at full gallop down a city street is not a crime; stop unjustified).

§ 3.18 n. 159
    United States v Newman (2003, D Ariz) 2003 US Dist Lexis 8897.
    Contra: People v Davis (2003, Mich) __ Mich __, 660 NW2d 67 (no communication required if collective knowledge shows PC).

§ 3.18A. DNA profile [New][fn159.1]
    A DNA profile alone is enough to issue a "John Doe" warrant.[fn159.2]
    159.1. See §§ 24.35 note 295.1 (compulsory DNA testing of violent felons) & 43.21 n. 142 (particularity of description of a person for arrest warrant).
    See also Meredith A. Bieber, Comment, Meeting the Statute or Beating It: Using "John Doe" Indictments Based on DNA to Meet the Statute of Limitations, 150 U. Pa. L. Rev. 1079 (2002).
    159.2. State v Dabney (2003) 2003 WI App 108; 663 NW2d 366:
    "Here, the complaint and arrest warrant identified the suspect as 'John Doe' and set forth a specific DNA profile. We conclude that for purposes of identifying 'a particular person' as the defendant, a DNA profile is arguably the most discrete, exclusive means of personal identification possible. 'A genetic code describes a person with far greater precision than a physical description or a name.' [Bieber, supra]. Thus, we agree with the State's arguments that the DNA profile satisfies the 'reasonable certainty' requirements for an arrest warrant and answers the 'who is charged' question for a complaint." (footnotes omitted)
    Also, while the argument that a physical description would also be better, a DNA profile warrant cannot be executed without knowing more about the person to be arrested, so it is not required that the police state more in the complaint for the warrant. (The warrant was issued on the DNA profile alone on the eve of the expiration of the statute of limitations and amended when a name could be linked to the warrant.)

§ 3.19 n. 164
    State v Wible (2002) 113 Wash App 18, 51 P3d 830; State v Weaver (2003, Tenn Crim App) 2003 Tenn Crim App Lexis 35; State v Webb (2003, Tenn Crim App) 2003 Tenn Crim App Lexis 567 ("In order for the informant to be considered a citizen informant, the affidavit should contain more than conclusionary allegations that the informant was a 'concerned citizen source,' 'acted on civic duty,' and 'asked for no payment for their information.' ... Generally, a more particularized showing of the law-abiding nature of the person supplying the information is needed. ... The reliability of the informant, as well as the information furnished, must be judged from all the circumstances and from the entirety of the affidavit.").

§ 3.20 n. 181
    People v Redmond (2003, Ill App 1st Dist) 2003 Ill App Lexis 841 (for purposes of issuance of a warrant, the magistrate did not have to inherently not believe the tale of a "lying, thrice-convicted felon and gang member with 23 arrests and a strong motive to save his own skin by placing full responsibility for the crime on Redmond"; magistrates reviewing probable cause are viewed like judge's making credibility determinations after a suppression hearing).

§ 3.24 n. 250
    State v Martinez (2003, Mont) 314 Mont 434, 2003 MT 64, 2003 Mont Lexis 68.

§ 3.24 n. 254
    State v Saddler (2003, Utah App) 2003 UT App 82, 2003 Utah App Lexis 23.

§ 3.24 n. 256
    Land v State (2003, Ga App) 259 Ga App 860, 2003 Ga App Lexis 289 (no showing of how informant came by information, and much was widely known anyway and innocuous).

§ 3.28 n. 274
    Lovett v Commonwealth (2003, Ky) 2003 Ky Lexis 6895.

§ 3.30 n. 293
    Commonwealth v Smith (2003) 57 Mass App Ct 907, 2003 Mass App Lexis 171.

§ 3.30 n. 298
    State v Allen (2003, Iowa App) 2003 Iowa App Lexis 295 (trash search corroborated anonymous tip); State v Graves (2003, Ohio App) 2003 Ohio 2359; 2003 Ohio App Lexis 2190 (defendant showed up for drug deal, just as informant said he would; police also heard defendant's side of conversation saying he was coming).

§ 3.31 n. 301
    State v Lengen (2003, Ohio App) 2003 Ohio 2124, 2003 Ohio App Lexis 1996 (while informant's voice was recognized, information passed on was still conclusory).

§ 3.34 n. 334
    State v Detroy (2003, Haw) 72 P3d 485 (information from informant failed).

§ 3.37 n. 227
    Commonwealth v Mathias (2003, Mass App) 58 Mass App Ct 231, 789 NE2d 165 (indications of time were truly stale; even construing everything together could not overcome staleness).

§ 3.39 n. 347
    United States v Leasure (2003, CA9 Cal) 319 F3d 1092.
    State v Eads (2003, Tenn Crim App) 2003 Tenn Crim App Lexis 537 (72 hour old information of a controlled buy not stale).
    People v Rodriguez (2003, 3d Dept) 755 NYS2d 691 (month old information about drug sale stale).
    See State v Whitsey (2003, Tenn Crim App) 2003 Tenn Crim App Lexis 3598 (inclusion of 5 year old information about an alleged drug sale case that was dismissed on a speedy trial violation was stale information; however, removing this stale information still left enough to show PC).

§ 3.39 n. 348
    United States v Beckett (2003, CA1 RI) 321 F3d 26 (2001 search for weapon allegedly involved in 1995 murder; there were informant statements that evidence of the murder could still be found there coupled with delay in discovering murder).
    Turner v State (2003, Dal) 2003 Del Lexis 353 (four days not stale as to gun in murder case).

§ 3.39, Add text after note 348:
Many years have passed in sexual abuse and child pornography cases and the suspects moved, even to other states, and courts have been found the affidavits not to be stale.[fn348.1]
    348.1. State v Woodcock (1987, Iowa) 407 NW2d 603; People v Russo (1992) 439 Mich 584, 487 NW2d 698; State v Kirsch (1995) 139 NH 647, 662 A2d 937; Behrel v State (2003) 151 Md App 64, 823 A2d 696.

§ 3.42 n. 390
    Application for anticipatory warrant must prominently so state and it should state that "This warrant is not effective except upon the occurrence of the conditions set forth in the attached affidavit of probable cause." Otherwise, anticipatory warrants are subject to potential abuse. United States v Bingham (2003, WD Pa) 2003 US Dist Lexis 11604.
    Magee v State (2003, Alaska App) 2003 Alas App Lexis 95 (while "contingent" anticipatory warrants are possible, the contingency must be precisely defined; here it "was not defined precisely enough to assure judicial control over the search process," and the search was suppressed because the triggering event was defined too broadly).
    Contra: State v Hulbert (2003) 2003 Wisc App Lexis 722 (follows 7th Cir. rule and notes conflict with other courts).
    See § 42.11, infra.

§ 3.42, Add text to Caution and Recommendation:
    Also, defense counsel should watch for government arguments that police tampering with a package before a controlled delivery justifies a no-knock entry, in spite of the officers' creating the exigent circumstances.[fn390.1]
    390.1. United States v Martinez (2003, D Md) 2003 US Dist Lexis 8795 (police altered package and then used it to justify exigency; no-knock entry sustained).

Chapter 4 History and purpose of the exclusionary rule

Chapter 5 Applying the exclusionary rule

ANNOTATION REFERENCES
    Admissibility, in civil proceeding, of evidence obtained through unlawful search and seizure, 105 ALR5th 1, superseding 5 ALR3d 670.

§ 5.12, Add new footnote 239.1 to "Recommendation" at end of section:
    239.1. See new § 5.12A, infra.

§ 5.12A Bypassing the merits to get to good faith? [New section]
    A significant number of courts have held that the good faith exception can be resolved without reaching the merits. It is submitted that this is contrary to the purposes and intent of Leon and the cases it was premised on and their progeny, and it stifles development of the Fourth Amendment.
    Leon made it clear that good faith issues may be resolved alone if the Fourth Amendment merits question is "insubstantial."[fn239.2] This begs the question: What is an insubstantial Fourth Amendment question? Should Leon be limited to case-specific probable cause questions?
   The effect of reaching the good faith exception alone is that an appellate court can simply refuse to decide the merits of a search, skipping ahead to determining objective good faith. The result will be that the disputed police conduct is thereby implicitly approved for all law enforcement officers for the future because they will not be not acting in objective good faith as long as the officers in the prior case were acting in good faith. This is, however, even contrary to the qualified immunity cases.[fn239.3] And, such a "blanket rule impermissibly insulates these cases from judicial review."[fn239.4] Thus, the development of Fourth Amendment jurisprudence is stifled—a result never intended by Leon.[fn239.5] It could be said by some that Leon sanctions bypass of the merits:
    "As we have already suggested, the good-faith exception, turning as it does on objective reasonableness, should not be difficult to apply in practice. When officers have acted pursuant to a warrant, the prosecution should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time.
    "Nor are we persuaded that application of a good-faith exception to searches conducted pursuant to warrants will preclude review of the constitutionality of the of the search or seizure, deny needed guidance from the courts, or freeze Fourth Amendment law in its present state. There is no need for courts to adopt the inflexible practice of always deciding whether the officers' conduct manifested objective good faith before turning to the question whether the Fourth Amendment has been violated."[fn239.6]
    Justice White's thinking on this score is found in his concurring opinion in Illinois v. Gates, the Term before he wrote Leon, where he opined that case-specific probable cause determinations should be the primary vehicle for bypassing the merits and going straight to the good faith exception because that question is limited to the case at hand.[fn239.7]
    But, the genealogy of Leon's objective reasonableness standard includes the qualified immunity case of Harlow v. Fitzgerald.[fn239.8] In the qualified immunity cases, the Supreme Court now requires that the merits of the challenged official conduct be decided before turning to the question of whether the officer's conduct was objectively reasonable, and this is a necessary requirement of the development of the law from case to case.
    "A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show that the officer's conduct violated a constitutional right? This must be the initial inquiry. Siegert v. Gilley, 500 U.S. 226, 232 (1991). In the course of determining whether a constitutional right was violated ..., a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court to simply skip ahead to the question of whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case."[fn239.9]
    There is no constitutional justification for requiring a different resolution of the merits in a Fourth Amendment qualified immunity case where money is at issue, but not in a Fourth Amendment criminal case where a person's liberty is at issue. Saucier, read in context with Justice White's opinions in Leon and Gates, now requires that the merits of Fourth Amendment claims be decided before a trial or appellate court can turn to the application of the good faith exception, except perhaps where there is a case-specific probable cause question. To do otherwise impermissibly evades judicial review of a whole class of Fourth Amendment cases.[fn239.10]
    Following Leon, some cases sanction bypass of the merits of Fourth Amendment claims,[fn239.11] only some of them involving case-specific probable cause determinations.[fn239.12] The Tenth Circuit held in United States v. Dahlman,[fn239.13] that the merits of search warrant questions should be resolved before turning to good faith to prevent impeding the development of Fourth Amendment jurisprudence.
    "[W]hile [Leon] intended to vest lower courts with discretion, the preferred sequence is to address the Fourth Amendment issues before turning to the good faith issue unless there is no danger of 'freezing' Fourth Amendment jurisprudence or unless the case poses 'no important Fourth Amendment questions.' See Leon, 468 U.S. at 924-925, 104 S.Ct. at 3421-3422."[fn239.14]
    Dahlman also involved warrant particularity and other Fourth Amendment questions. Wyoming is in accord.[fn239.15]
    Other circuits, however, require that the question of good faith be resolved first to avoid deciding the merits. The Fifth Circuit in United States v. Pena-Rodriguez[fn239.16] requires
    "a two-step review of a district court's denial of a motion to suppress. United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992). The first step requires the court to determine whether the good- faith exception to the exclusionary rule applies. See United States v. Leon, 468 U.S. 897, 922-23, 104 S.Ct. 3405, 3420-21, 82 L.Ed.2d 677 (1984). The second step requires the court 'to ensure that the magistrate had a substantial basis for ... concluding that probable cause existed.' Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983) (internal quotation omitted). If the good-faith exception applies, the court need not reach the question of probable cause. Satterwhite, 980 F.2d at 320; see also United States v. Craig, 861 F.2d 818, 820 (5th Cir.1988) ('Principles of judicial restraint and precedent dictate that, in most cases, we should not reach the probable cause issue if a decision on the admissibility of the evidence under the good-faith exception of Leon will resolve the matter')."[fn239.17]
    The Fifth Circuit also held that
    "[t]he only instances in which this maxim should not be followed are those in which the resolution of a 'novel question of law ... is necessary to guide future action by law enforcement officers and magistrates.' Craig, 861 F.2d at 820-21 (quoting Gates, 462 U.S. at 264, 103 S.Ct. at 2346 (White, J., concurring))."[fn239.18]
    The Eighth Circuit also is in accord, but it does not articulate its rule the same way.[fn239.19] The Colorado, Virginia, and Arkansas also appear to be in accord.[fn239.20]
    Courts that only choose to reach the merits on "novel question[s]" of Fourth Amendment jurisprudence are working to freeze development of the Fourth Amendment contrary to Leon. Thus, there is a split in the courts ripe for a cert. grant.

     239.2. United States v Leon (1984) 468 US 897, 924 & n. 25, 82 L Ed 2d 677, 104 S Ct 3405; see Illinois v Gates (1983) 462 U.S. 213, 264-65, 76 L Ed 2d 527, 103 S Ct 2317 (White, J., concurring).
    239.3. Saucier v Katz (2001) 533 US 194, 201, 150 L Ed 2d 272, 121 S Ct 2151 (also, a case in point is not required to find the law “well settled” for objective reasonableness).
    239.4. Richards v Wisconsin (1997) 520 US 385, 393, 137 L Ed 2d 615, 117 S Ct 1416.
    239.5. This was the argument against the good faith exception in M. Mertens & S. Wasserstom, The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law, 70 Geo LJ 365, 449-53 (1981).
    239.6. Leon, 468 US at 924.
    239.7. Gates, 462 US at 264-66.
    239.8. Harlow v Fitzgerald (1982) 457 US 800, 815-19, 73 L Ed 2d 396, 102 S Ct 2727. See Leon, 468 US at 922.
    239.9. Saucier v Katz, 533 US at 201.
    239.10. See Richards v Wisconsin, supra.
    239.11. See, e.g., United State v Diaz-Lopez (1990, CA9 Wash) 919 F2d 741 (table), 1990 US App Lexis 21400; United States v Moland (1993, CA10 Colo) 996 F2d 259, 261 (pre-Dahlman, infra) (violation of knock-and-announce requirement); United States v Brown (1999, SD NY) 69 F Supp 2d 518, 520-21 (knock-and-announce); United States v Furlong (1994, D Mont) 844 F Supp 624, 631 (application of state law to federal search), affd in part, revd in part sub nom United States v Hand (1995, CA9 Mont) 61 F3d 913 (table), 1995 US App Lexis 20599, cert denied sub nom United States v Furlong (1995) 516 US 999, 133 L Ed 2d 445, 116 S Ct 1541; United States v Robinson (CA11, Fla) 2003 US App Lexis 13770; United States v Ware (2003, CA6 Ky) 2003 US App Lexis 8424 (GFE applied; officers could rely on anticipatory warrant), rev'g (2001, WD Ky) 154 F Supp 2d 1016 (not a valid anticipatory warrant because no triggering event was specified).
    239.12. See, e.g., United States v Word (2001, CA7 Ind) 1 Fed Appx 491, 493; United States v Garey (2003, CA7 Ind) 329 F3d 573; United States v Dailey (2001, CA9 Ore) 20 Fed Appx 686, 686; United States v Graham (1997, ND Ga) 998 F Supp 1460, 1464-65, affd (1999, CA11 Ga) 182 F3d 937 (table), reh denied (1999, CA11 Ga) 194 F3d 1326 (table); People v Altman (1998, Colo) 960 P2d 1164, 1169-70, 1172.
    See United States v Zayas-Diaz (1996, CA1 NH) 95 F3d 105, 112-13 (staleness claim); United States v Riley (1990, CA2 Vt) 906 F2d 841, 846 (rejecting overbreadth claim); United States v Kouzmine (1996, SD NY) 921 F Supp 1131, 1134 (same); Polston v Commonwealth (1998) 255 Va 500, 498 SE2d 924, 926 (regardless of merits, “[t]he evils identified in the Leon test are simply not present here”; good faith exception applied even assuming no probable cause).
    See also Behrel v State (2003) 151 Md App 64, 823 A2d 696, n. 4 (court has discretion to decide good faith first, but here it decided merits first).
    239.13. United States v Dahlman (1993, CA10 NM)13 F3d 1391, cert denied (1994) 511 US 1045, 128 L Ed 2d 218, 114 S Ct 1575
    239.14. Id., 13 F3d at 1397 (bracketed material added).
    239.15. Guerra v State (1995, Wyo) 897 P2d 447, 458-59.
    Accord: United States v Guzman (1998, SD NY) 1998 US Dist Lexis 1538.
    239.16. United States v Pena-Rodriguez (1997, CA5 Tex) 110 F3d 1120, reh denied (1997, CA5 Tex) 117 F3d 1419 (table), cert denied sub nom United States v Lied (1997) 522 US 819, 129 L Ed 2d 32, 118 S Ct 71, 72.
    239.17. Id., 110 F3d at 1129-30.
    239.18. Id. at 1130 n. 10.
    Accord: United States v Foy (1994, CA5 Tex) 28 F3d 464, 474; United States v Webster (1992, CA5 Tex) 960 F2d 1301, 1307, cert denied (1992) 506 US 927, 121 L Ed 2d 269, 113 S Ct 355; United States v McCoy (2003, CA4 Md) 2003 US App Lexis 2328 (unpublished).
    239.19. United States v Livesay (1993, CA8 SD) 983 F.2d 135, 137 (good faith first, except in unusual circumstances).
    239.20. People v Altman, note 239.12, supra; Polston v. Commonwealth, note 239.12, supra; Davidson v. State (2002) 76 Ark App 464, 68 SW3d 331, cert den (2002, US) 154 L Ed 2d 28, 123 S Ct 98.

§ 5.14 n. 257
    United States v Perez (2003, SD NY) 2003 US Dist Lexis 3162; Ex parte Parker (2003, Ala) 2003 Ala Lexis 8 (by implication).

§ 5.16 n. 274
    United States v Helton (2003, CA6 Mich) 314 F3d 812 (uncorroborated informant information; GFE inapplicable).

§ 5.16 n. 275
    People v Gotfried (2003, 6th Dist) 107 Cal App 4th 254, 131 Cal Rptr 2d 840; United States v Brown (2003, SD Ohio) 2003 US Dist Lexis 9414.

§ 5.16 n. 276
    State v McHone (2003, NC App) 2003 NC App Lexis 940.

§ 5.17 n. 277
    People v Hulland (2003, Cal App 2d Dist) 2003 Cal App Lexis 1195 (warrant sought 52 days after controlled buy).

§ 5.17 n. 261
    State v Allen (2003, Nev) 2003 Nev Adv Rep 21, 69 P3d 232 (sealed affidavit still had to be attached when incorporated by reference to show the probable cause; failure to do so not protected by GFE).

§ 5.26 n. 355
    Robert L. Brown, Expanded Rights Through State Law: The United States Supreme Court Shows State Courts the Way, 4 J. App. Prac. & Proc. 499 (2002).

§ 5.32 n. 391
    State v McHone (2003, NC App) 2003 NC App Lexis 940; State v Nall (2003, Wash App) 2003 Wash App Lexis 1227 (recalled Oregon faxed probation violation warrant invalid in Washington; GFE not applied).

§ 5.33 n. 396
    State v Ferrier (1998) 136 Wash 2d 103, 960 P2d 927 (notice of right to refuse consent); compare State v Khounvichai (2003) 149 Wn 2d 557, 69 P3d 862 (Ferrier notice not required for permission to enter to investigate a crime).

§ 5.36, Add text at end of section:
    Atwater v. City of Lago Vista[fn417.1] has been rejected in Ohio.[fn417.2]
    417.1. Atwater v City of Lago Vista (2001) 532 US 318, 121 S Ct 1536, 149 L Ed 2d 549.
    417.2. State v Brown (2003) 2003 Ohio 3931, 2003 Ohio Lexis 2102 (jaywalking arrest led to search incident).

§ 5.39 n. 434
    State v Geraw (2002, Vt) 795 A2d 1219 (recording defendant in his own home violates state constitution; see also § 33.5 n. 48).

§ 5.39 n. 444
    State v Randolph (2002, Tenn) 74 SW3d 330.

§ 5:39, Add after n. 444:
    Atwater v City of Lago Vista[fn444.1] has been rejected under state law.[fn444.2]
    The "clean hands exception" to the federal wiretap statute (Title III) is not applied under the Indiana Constitution.[fn444.3]
    444.1. Atwater v City of Lago Vista (2001) 532 US 318, 149 L Ed 2d 549, 121 S Ct 1536, discussed in Ch. 22.
    444.2. State v Bayard (2003) 119 Nev Adv Rep 29, 71 P3d 498 (custodial arrest for minor traffic offense does not justify taking defendant in and strip searching him under Nevada Constitution).
    444.3. Henson v State (2003) 2003 Ind App Lexis 1101 (but harmless in light of other evidence of guilt).

§ 5.40 n. 453
    State v Seay (2003, Tenn Crim App) 2003 Tenn Crim App Lexis 629 (feds simply did not appeal suppression grant, so state indicted; no collateral estoppel).
    State v Chavez (2003) 2003 SD 93, 2003 SD Lexis 118 (federal court suppressed because of unlawful questioning about alienage and feds did not appeal; state court heard different evidence about whether dog actually alerted).

§ 5.44 n. 485
    See also Benevidez v State (2003, Ark) 101 SW3d 242 (applying law of state of search and finding search valid).

§ 5.44 n. 488
    New Jersey officers would not be deterred by application of exclusionary rule to search of AOL records in Virginia by California officers, so no purposes of exclusionary rule would be served by suppression, even if the California officers violated some statutory provision. State v Evers (2003) 175 NJ 355, 815 A2d 432.

§ 5.46 n. 508
    People v Ferguson (2003, Cal App 3d Dist) 109 Cal App 4th 367, 134 Cal Rptr 2d 705 (probation search based on outdated information and incorrect probation list invalid).

§ 5.48 n. 528
    State v Buenaventura (2003, Iowa) 2003 Iowa Sup Lexis 70.

§ 5.59 n. 656
    Jacobs v Director (2003, NH) 2003 NH Lexis 70.

§ 5.61 n. 682
    State v Adams (2002, Ind) 762 NE2d 737 (search of home under drug tax jeopardy assessment statute unconstitutional), companion case State v Adams (2002, Ind) 762 NE2d 728 (drug tax assessment proceedings against money; exclusionary rule not applied).

§ 5.62 n. 683
   Annotation: Admissibility, in civil proceeding, of evidence obtained through unlawful search and seizure, 105 ALR5th 1, superseding 5 ALR3d 670.

Chapter 6 Standing to object to a search

§ 6.2, Add text after note 145:
    Practice pointer: If the prosecution granted immunity to any co-conspirators to procure the indictment, the defendant may be able to force immunity at the suppression hearing to establish standing.[fn145.1]
    145.1. People v Rosenberg (2003, Ill App 3d Dist) 2003 Ill App Lexis 886 (this case fits the narrow exception to the rule that the state can decide who gets immunity; use here for its benefit and denying defendant an opportunity to show standing violated due process).

§ 6.3 n. 138
    State v Thompson (2003, Fla App D2) 2003 Fla App Lexis 11579 (search of house of another was shown to be illegal, but trial court did not question standing when state objected: remanded, if standing shown, suppress).

§ 6.3 n. 146
    Contra: State arguing standing for first time on appeal required remand so defendant could litigate issue. McCauley v State (2003, Fla App D2) 2003 Fla App Lexis 1343.

§ 6.6 n. 215
    United States v Haqq (2002, SD NY) 213 F Supp 2d 383, on remand from (2002, CA2 NY) 278 F3d 44 (defendant showed standing in briefcase in apartment he shared).

§ 6.7 n. 224
    United States v Khamsouk (2002, Ct App Armed Forces) 57 MJ 282 (guest who slept on couch 2-3 days had standing).

§ 6.7 n. 225
    United States v Gamez-Orduno (2000, CA9 Cal) 235 F3d 453 (overnight guest had standing per se).
    The defendant carries the burden of showing a sufficient connection to the premises to have standing. Merely being there may not be enough. State v Finn (2003, Iowa App) 2003 Iowa App. Lexis 327. See also United States v Boose (2003, WD Mo) 2003 US Dist Lexis 8890 (defendant fled into relative's house with police in hot pursuit and hid under bed; no standing).

§ 6.7, Add text after note 225:
     A "social guest" was found to have standing United States v. Rhiger,[fn225.1] where the Rhiger had stayed at his co-defendant's house a few times and was there when the police entered searching for a meth lab. The Tenth Circuit found that reading Olsen and Carter with Jones showed that societal expectations give social guests an expectation of privacy in the premises, and, thus, standing. While there was a meth lab on the premises, Rhiger still had a reasonable expectation of privacy in the premises better than the co-conspirators denied standing in Carter.[fn225.2]
    225.1. United States v Rhiger (2003, CA10 NM) 315 F3d 1283. Accord: United States v Gamez-Orduno (2000, CA9 Cal) 235 F3d 453 (overnight guest had standing per se).
    225.2. Id., 315 F38d at 1286-87.
    Compare State v Ratleff (2003, Ohio App) 2003 Ohio 1028, 2003 Ohio App Lexis 972 (everybody on the premises denied living or staying there until after the drugs were found, and then they asserted standing; held, no standing).

§ 6.7 n. 228
    State v Palmer (2003, Ida App) 2003 Ida App Lexis 53 (similar to Carter); State v Sletten (2003, Minn App) 664 NW2d 870.

§ 6.8 n. 247
    United States v Watson (2003, ED Pa) 2003 US Dist Lexis 12211.

§ 6.10 n. 264
    United States v Araque (2003, D Neb) 2003 US Dist Lexis 6227 (driver was friend of owner who was passenger, but the driver at the scene disclaimed any interest in or control over the vehicle and thus had no standing; Magistrate's R&R).

§ 6.10 n. 265
    United States v Haywood (2003, CA7 Ill) 2003 US App Lexis 6172 (surveying the various positions of the circuits, but finding, on these facts, that it did not need to determine which rule was better).

§ 6.10 n. 267
    People v York (2003, 2d Dept) 2003 NY App Div Lexis 3990 (defendant borrowed car and did not return it; owner recovered it and allowed search; obviously no standing to challenge search).
    United States v Hocker (2003, CA10 Utah) 333 F3d 1206 (borrower of car had standing where he knew the person he believed was capable of giving possession).

§ 6.10 n. 268
    United States v Messina (2003, D Kan) 2003 US Dist Lexis 10884 (defendant claimed standing in that somebody gave permission to drive vehicle, and government did not refute it, so burden met; then defendant lost on merits).

§ 6.10 n. 269
    Pruneda v State (2003, Tex App–Texarkana) 2003 Tex App Lexis 3598 (unauthorized driver under the rental agreement had no standing).

§ 6.10 n. 275
    Swearingen v State (2003, Tex Crim App) 101 SW3d 89.
    Likewise, one does not have standing in what he leaves in a murder victim's car, even when he remains nearby. People v Myers (2003, 2d Dept) 303 AD2d 139, 758 NYS2d 68 (defendant's coat in car contained victim's wallet).

§ 6.10 n 276
    State v Miller (2003, Minn App) 659 NW2d 275.

§ 6.10 n. 277
    State v Bissegger (2003, Utah App) 2003 UT App 256, 2003 Utah App Lexis 70 (search of passenger's belongings gave her standing).

§ 6.10 n. 278
     State v Cooper (2003) 260 Ga App 333, 2003 Ga App Lexis 302, cert applied for; State v Finn (2003, Ohio App) 2003 Ohio 1023, 2003 Ohio App Lexis 977 (on state's confession of error).

§ 6.11 n. 307
    State v McBride (2003, Minn) 2003 Minn Lexis 464 (but harmless).

§ 6.12 n. 318
    Compare United States v Boose (2003, WD Mo) 2003 US Dist Lexis 8890 (defendant with police in hot pursuit entered relative's house and hid under bed).

§ 6.16 n. 141
    See United States v $1,790,021 in U.S. Currency (2003, MD Pa) 2003 US Dist Lexis 8029 (claimant relinquished money and it was stashed in vehicles on a flatbed truck; he claimed no ownership interest in the vehicles searched).

§ 6:30 n. 270
    United States v Nichols (2003, D Kan) 2003 US Dist Lexis 3702 (alternative holding).

§ 6:30 n. 271
    United States v Nichols, supra (alternative holding).

Chapter 7 The fruit of the poisonous tree doctrine

§ 7.7 n. 125
    United States v Hernandez (2003, CA5 Tex) 279 F3d 302 (government argued manipulation of bag was unlawful search, but argued consent as to purse).

§ 7.7 n. 139
    United States v Isiofia (2003, SD NY) 2003 US Dist Lexis 7542 (suppressing alleged consent after nine police officers entered without a warrant after a controlled delivery and encamped there questioning the handcuffed defendant; the taint of the illegal entry was not dissipated).

§ 7.7, Add text after note 139:
Brown was applied to validate a "knock-and-talk" entry in Brown v State[fn139.1] where officers entered after consent was given by a guest without the ability to consent. The defendant was in the bathroom, and he told them to wait outside, and the officers retreated. When Brown came out of the bathroom, he met them outside and talked to them, and then consented to an entry. Applying Brown v. Illinois, the court found the circumstances made the prior illegal entry was sufficiently attenuated from the consent to validate the second entry.[fn139.2]
    139.1. Brown v State (2003, Ga App) 2003 Ga App Lexis 627, also cited in § 8.199 n. 276.
    139.2. Id. at *10 ("Even though only a short time elapsed between the illegal entry and the subsequent consent to search, based on the trial court's findings of fact, we hold that the intervening actions sufficiently attenuated the link to the illegal entry and the subsequent consent. Under the circumstances, we cannot conclude that the illegal entry was so flagrant as to overcome the effect of the intervening circumstances. Therefore, we hold that Brown's subsequent consent to search was not so tainted by the illegal entry that the evidence should be excluded.").

§ 7.9 n. 148
    State v Zesiger (2003, Utah App) 2003 UT App 37, 2003 Utah App Lexis 8, 467 Utah Adv 9 (police had warrant for computer for child porn with adequate probable cause; first search suppressed for failure to knock-and-announce at bedroom door, and the computer was then returned to defendant; officers applied for another search warrant advising issuing judge of prior suppression; truly independent source because they had probable cause before the failure to knock-and-announce).

§ 7.9 n. 149
    State v Eshnaur (2003, Mo App) 106 SW3d 571.

§ 7.9 n. 159
    Commonwealth v DeJesus (2003) 439 Mass 616, 790 NE2d 231 (striking information from affidavit of illegal warrantless entry into house still left PC for search).

§ 7.10
    The Supreme Court granted cert. on March 24, 2003 to determine whether the Maryland Court of Appeals erred in finding no probable cause to arrest a passenger after a traffic stop when the officer noticed a large roll of bills in the car glove compartment after the driver opened it to recover the car's papers. He got consent to search and found cocaine, and the driver and his two passengers were arrested. At the stationhouse, Pringle admitted the drugs were his. The Maryland court held there was no probable cause to arrest the passenger and the confession was the fruit of the poisonous tree. Pringle v. State, 370 Md. 525, 805 A.2d 1016 (2002), pet. for cert. filed Nov. 22, 2002, petition granted March 24, 2003 (02-809) (will not be argued until Fall 2003). See also § 3.10 (probable cause under the totality of the circumstances).

§ 7.13, Add text to end of section:
    In Kaupp v. Texas,[fn238.1] the Supreme Court reversed per curiam on the cert petition a Texas Court of Appeals unreported decision[fn238.2] holding that the confession of a 17 year old to a murder was invalid. The police came to his house at 3 a.m., and they were admitted after asking his father for permission to enter. They rousted Kaupp from bed, handcuffed him, and took him in for questioning dressed only in his underwear in January. They thought about obtaining an arrest warrant, but knew they lacked probable cause.
    The Court restated that a confession obtained by exploitation of an illegal arrest must not be used against a criminal defendant. Because Kaupp was taken into custody before questioning, the state bore the burden of showing that the confession was not tainted by the illegal arrest.[fn238.3] The Court also found no consent.[fn238.4] It vacated and remanded for reconsideration.
    The Texas court held that Kaupp had not been arrested before he confessed and that he left by consent when the police said "We need to go and talk," and he said "OK." Kaupp was led away in handcuffs and questioned about the murder.[fn238.5]
    238.1. Kaupp v Texas (2003, US) 2003 US Lexis 3670.
    238.2. Kaupp v State (2003, Tex App–Houston (14th Dist)) 2001 Tex App Lexis 3732.
    238.3. Kaupp v Texas, supra, at *10-*12.
    238.4. Id. at *8-*9. Also, "failure to struggle with a cohort of deputy sheriffs is not a waiver of Fourth Amendment protection, which does not require the perversity of resisting arrest or assaulting a police officer." Id. at *10.
    238.5. Kaupp v State, supra, at *5.
    The Texas Court of Appeals was remarkably so callous on these facts that it is no wonder the Supreme Court reversed per curiam.
    For what it is worth, the Court mentioned that Kaupp had passed a polygraph given by the police two days earlier, while his brother had failed three. Kaupp v Texas, supra, at *10 n. 1. He confessed only after being told his brother implicated him in the murder, but he denied being involved in stabbing the victim.

§ 7.13 n. 239
    United States v Davis (2003, CA9 Nev) 2003 US App Lexis 11556 (illegal seizure of gym bag with gun led to confession of ownership; suppressed).

§ 7.14 n. 246
    State v Simes (2003, La) 2003 La Lexis 1938 (revg State v. Sims (2002, La App 4th Cir) 823 So2d 1013) (while officers had no justification for stop, defendant's altercation with officers independently justified his arrest, and cocaine found in search incident was thus admissible).

§ 7.14 n. 257
    State v Brocuglio (2003, Conn) 826 A2d 145, aff'g (2001) 64 Conn App 93, 779 A2d 793 (following the general rule, but not applying the rule to this defendant because of common law right to defend home and court created new rule: "Indeed, there is a greater risk of escalating violence when citizens are permitted to use, or threaten to use, force to respond to unlawful police conduct. This concern is especially true considering that law enforcement officers typically are equipped with firearms, and that a violent response to an illegal search may well result in a tragic outcome. [¶] Moreover, from a public policy standpoint, issues arising from illegal entries are best remedied in the courtroom.").

§ 7.18 n. 287
    Kabat v State (2003, Ala Crim App) 2003 Ala Crim App Lexis 167.

§ 7.18 n. 292
    United States v Alvaraz-Gonzalez (2003, CA8 SD) 2003 US App. Lexis 3453 (sustaining the finding of gun under inevitable discovery after a traffic stop produced two invalid driver's licenses and an admission the defendant overstayed his visa (M. Arnold, J., dissented; no showing they would have arrested)); Hatcher v State (2003, Fla App D5) 834 So 2d 314 (preponderance).

§ 7.18 n. 295
    United States v Brown (2003, D DC) 2003 US Dist Lexis 7862 (traffic stop for speeding led to discovery of no license; search incident of trunk for that offense unjustified; reliance on inevitable discovery by inventory rejected where the government put on no proof that inventory policies were complied with).

§ 7.19 n. 299
    United States v Groce (2003, ED Wis) 255 F Supp 2d 936; State v Licari (2003, Minn) 659 NW2d 243 (remanding for determination of when body in rental storage unit likely would have been inevitably found; dissent argued that it already existed).
    Prior illegally obtained confession did not taint later finding of evidence where co-defendant independently and validly confessed to the same thing. Kabat v State (2003, Ala Crim App) 2003 Ala Crim App Lexis 167.
    See State v Wagoner (2001) 130 NM 274, 24 P3d 306, 316 (holding that a prior illegal search tainted the later warrant): "We hold that a search conducted pursuant to a warrant based partially on tainted information gathered during a prior illegal search is not an independent source of the evidence seized and therefore must be suppressed. We believe this holding accomplishes two important goals: (1) it provides a bright line rule for law enforcement officers and for courts reviewing police conduct, and (2) it properly effectuates an individual's right to be free from an unreasonable search and seizure and the corresponding right not to have evidence gained by exploitation of a constitutional violation used against the individual in court."

Chapter 8 Consent searches

§ 8.4 n. 47
    Page v State (2003, Wyo) 63 P3d 904.

§ 8.9 n. 178.9
    Following Drayton is United States v Angule-Guerrero (2003, CA8 Neb) 328 F3d 449 (Nebraska checkpoint; five passengers got off bus saying they were citizens; INS officer walked down aisle asking remainder).

§ 8.9, Add text at end of section:
    In Kaupp v Texas,[fn179.1] the Court held that the state failed on its burden of proving consent where the police knocked on the door of the 17 year old defendant's home at 3 a.m., his father let them in, they went to his bedroom and rousted him from bed and said "we need to go and talk," and he said "Okay." They handcuffed him and took him out in his underwear with no shoes in January, and drove him to the police station. He confessed after being confronted with the The state argued that this was consent, but the Court held that the state failed in its burden of proof. The Court added that "failure to struggle with a cohort of deputy sheriffs is not a waiver of Fourth Amendment protection, which does not require the perversity of resisting arrest or assaulting a police officer."[fn179.2]
    179.1. Kaupp v Texas (2003, US) 2003 US Lexis 3670.
    179.2. Id. at *10.

§ 8.11 n. 211
    Sallee v State (2003, Ind App) 785 NE2d 645 (but harmless on other evidence in record).

§ 8.13 n. 235
    United States v Weidul (2003, CA1 Me) 325 F3d 50; State v Fulgrhum (2003, Ga App) 2003 Ga App Lexis 724 (affirming suppression of an entry by police based on a child custody order; there was no direction in the order to enter; plain view suppressed).

§ 8.14 n. 246
    State v Sprague (2003, Vt) 2003 VT 20, 2003 Vt Lexis 19 ("mind having a seat in my car while I check your license" is a seizure; subsequent consent to search was invalid).

§ 8.14 n. 248
    United States v Mask (2003, CA5 Tex) 330 F3d 330 (suspect was free to leave and knew it but did not leave; another officer with narcotics intell on one heard radio traffic and showed up; plain view of sawed off shotgun and following inventory of vehicle sustained).

§ 8.14 n. 249
    State v Hunter (2003, Tex App–Ft. Worth) 2003 Tex App Lexis 2392 (traffic stop was over but defendant was not free to leave by officer's admission, plus defendant's car was blocked).

§ 8.17 n. 264
    But see State v Beougher (2003) 2003 Ohio 3591, 2003 Ohio App Lexis 3276 (lie to person she was subject to arrest to get her consent did not make the consent invalid).

§ 8.17 n. 265
    A false statement as to what the officers were looking for invalidates the consent. Miami-Dade Police Dept. v Martinez (2003, Fla App D3) 838 So 2d 645 (stated they were looking for weapons when they were looking for money and drugs; consent invalid, $101,100 forfeiture reversed).

§ 8.18 n. 264
    See United States v Chambers (2003, WD Tenn) 2003 US Dist Lexis 6442 (Magistrate's R&R; Vescovo, MJ) (officers came to a rural mobile home that they suspected, based on anonymous tips and essentially a fruitless month-long investigation, had a meth lab; surveillance showed foot traffic; when they knocked and announced, an occupant yelled "The police are here" and ran to the back, and others running could be heard; the warrantless entry was without probable cause or exigent circumstances).

§ 8.18 n. 268.1 in supplement:
    Compare State v Mann (2003, Conn App) 2003 Conn App 137 (apparent knock-and-talk at 5 a.m.; defendant opened door and refused entry, so officers entered because he put hand in pocket; entry and search unjustified; no exigency); United States v Saucillo (2003, ND Iowa) 2003 US Dist Lexis 8116 (Magistrate's R&R; officers received information in afternoon and waited until 2:49 a.m. to conduct knock-and-talk; occupants woke up and permitted entry and consent to Spanish speaking officer).

§ 8.18 n. 276
    See, e.g., Brown v State (2003, Ga App) 2003 Ga App Lexis 627 (indeterminate guest could not grant consent to entry; no reasonable reliance on his ability to consent; however, officers went outside, and occupant came out the bathroom and then allowed the entry; see also § 7.7 n. 140.1-.2.

§ 8.18, Add text at end of section:
    A suspect handcuffed during a knock-and-talk may be subject to Miranda if he is arguably in custody when he is asked questions during the encounter.[fn286.1]
    286.1. Ramirez v State (2003, Tex App–Austin) 105 SW3d 730 (suspect handcuffed after an officer had a glimpse of marijuana on a scale during a knock-and-talk was in custody for Miranda purposes and his statement in response to (essentially) "where's the dope" was suppressed).

§ 8.18 n. 272
    State v Jones (2003, Tenn Crim App) 2003 Tenn Crim App Lexis 278.

§ 8.18 n. 234
    United States v Garza (2003, D Utah) 2003 US Dist Lexis 11095.

§ 8.18, Add text at end of section:
    A knock-and-talk can create an unreasonable search of the curtilage.[fn286.2]
     286.2. Divello v State (2003, Ind App) 782 NE2d 433 (no answer at door, and looking in car was violation of curtilage); Griffin v State, n. 286.1 (look in car occurred before knock and talk; search suppressed).

§ 8.19 n. 287
    United States v Messina (2003, D Kan) 2003 US Dist Lexis 10884 (consent to search valid even if officer's Spanish was not grammatically correct; officer's microphone failed in part of tape, but defendant's body language what could be discerned showed consent).

§ 8.19 n. 293
    Commonwealth v Gillespie (2003, Pa) 2003 Pa Lexis 657 (defendant refused consent and then became agitated when told that officers would seek a warrant; blurted out location of gun).

§ 8.21 n. 299
    While the facts were highly controverted, the trial court found the defendant consented to drive 30 miles to a checkpoint near Del Rio, Texas for a dog sniff. The court also rejected the contention that the officer could not continue asking questions after the stop was completed. United States v Sanchez-Pena (2003, CA5 Tex) 2003 US App Lexis 13190.

§ 8.21 n. 303
    State v Hansen (2003, Idaho) 69 P3d 1052 (defendant first refused consent, then initiated conversation and consented to search to avoid having vehicle towed).

§ 8.29 n. 354
    State v Pointer (2003, Tenn Crim App) 2003 Tenn Crim App Lexis 176 (defendant's prior convictions and exposure to criminal justice system showed consent was voluntary); United States v Becker (2003, CA8 Iowa) 333 F3d 858; Meyers v State (2003, Ind App) 2003 Ind App Lexis 1059.

§ 8.29 n. 355
    In re D.G. (2002, Tex App–Austin) 96 SW3d 465 (student off school grounds consented to search based on anonymous tip he possessed cocaine); In re L.C. (2003, Tex App–Austin) 2003 Tex App Lexis 4606 (apparent truant walking with adult consenting to search of person).

§ 8.30 n. 274
    Commonwealth v Vazquez (2003, Mass Super) 2003 Mass Super Lexis 66 (police had PC, but they had no exigent circumstances to enter without warrant and then obtain consent).

§ 8.30 n. 375
    Commonwealth v Kipp (2003, Mass App) 2003 Mass App Lexis 360 (assuming protective sweep revealed money bag was invalid, defendant consent to entry and seizure; defendant's prior experience with criminal justice system showed voluntariness).

§ 8.31, Add text after 389:
Likewise, a burglary call is consent for the police to enter to investigate.[fn389.1]
    389.1. State v Stucky (2003) 2003 Ohio 3177, 2003 Ohio App Lexis 2814 (drug paraphernalia found).

§ 8.33 n. 407
    United States v Politi (2003, SD Ind) 2003 US Dist Lexis 7971 (officers arrived for knock-and-talk about receipt of child porn; husband and wife separated in house and talked to; she consented and he did not; consent valid).

§ 8.33 n. 410
    Contra: United States v Garcia (2002, N-M Ct Crim App) 57 MJ 716 (defendant's on-premises objection to search did not override wife's off-premises consent).

§ 8.37 n. 439
    Police could not reasonably believe mere handyman at premises could consent to search after occupant refused. United States v Jones (2003, CA6 Tenn) 2003 US App Lexis 13838.

§ 8.39 n. 451
    United States v Shelton (2003, CA5 Miss) 2003 US App Lexis 13693, aff'g (2001, ND Miss) 181 F Supp 2d 649 (also, evidence showed no reasonable expectation of privacy as to wife who had moved out (court seems to have undervalued some important facts for defendant)).

§ 8.40 n. 460
    State v Blair (2001, 3d Dist) 321 Ill App 3d 373, 254 Ill Dec 872, 748 NE2d 318 (son's bedroom locked; could not consent to turning on his computer).

§ 8.44 n. 490
    United States v Barrera-Martinez (2003, ND Ill) 2003 US Dist Lexis 13125 (roommates).

§ 8.45 n. 498
    State v Licari (2003, Minn) 659 NW2d 243 (storage unit, but remanded to determine whether the rental agreement may confer other rights in landlord).

§ 8.46 n. 511
    Krise v State (2001, Ind) 746 NE2d 957 (guest's purse); State v Barker (2001, Idaho App) 2001 Ida Lexis 30 (parolee could not consent to search of fanny pack that belonged to girlfriend where he sometimes stayed); State v Rison (2003) 116 Wn App 955, 69 P3d 362 (guest's eyeglass case).

§ 8.47 n. 523
    State v Frank (2002, Minn App) 650 NW2d 213.
    Compare United States v West (2003, CA7 Ill) 321 F3d 649 (passenger consented to unmarked dufflebag which defendant observed and did not object to; search valid).

§ 8.48 n. 525
    Seldon v State (2003) 151 Md App 204, 824 A2d 999.

§ 8.48 n. 529
    A bailee of boxes of medical records, that effectively left the custody and all control of the records of the targetted doctor in a health care fraud case in the bailee, could validly consent to a search of the records. United States v Debbi (2003, SD NY) 244 F Supp 2d 235

§ 8.46 n. 511
    United States v Davis (2003, CA9 Nev) 2003 US App Lexis 11556 (guest who occasionally stayed at apartment; gym bag under lessee's bed; standing shown (see also § 8.48 n. 530)).

§ 8.48 n. 530
    United States v Davis (2003, CA9 Nev) 2003 US App Lexis 11556 (guest who occasionally stayed at apartment; gym bag under lessee's bed; standing shown (see also § 8.46 n. 511)). § 8.52, Add text after note 533:
or handyman[fn533.1]
    533.1. United States v Jones (2003, CA6 Tenn) 2003 US App Lexis 13838.

§ 8.56 n. 571
    Consent to enter house can retroactively validate prior entry onto premises. Schroeder v State (2003, Ga App) 2003 Ga App Lexis 801.

§ 8.56 n. 582
    State v Stucky (2003, Ohio App) 2003 Ohio 3177, 2003 Ohio App Lexis 2814 (drug paraphernalia found).

§ 8.56 n. 585
    Commonwealth v Nieves (2003, Mass Super) 2003 Mass Super Lexis 154; United States v Garza (2003, D Utah) 2003 US Dist Lexis 11095.

§ 8.58 n. 607
    United States v Marquez (2003, CA10 Kan) 2003 US App Lexis 15374 (RV storage compartment top was nailed down and had to be pried open; officers could smell marijuana; suspect's consent certainly implies that the officer could look wherever drugs might be hidden).

§ 8.58 n. 608
    Consent to a search the person does not include consent to search a cigarette pack in the pocket. Aponte v State (2003, Fla App D5) 2003 Fla App Lexis 3330.

§ 8.58 n. 609
    Consent to search a vehicle does not amount to a grant of consent to view videotapes found in the truck at a remote location where there was no probable cause to view them. People v Raibley (2003, Ill App, 4th Dist) 273 Ill Dec 345, 788 NE2d 1221.

§ 8.58 n. 613
    Flight after a consent search of belongings starts cannot be construed as withdrawal of consent. Higdon v State (2003, Ga) 2003 Ga App Lexis 747.

§ 8.58 n. 633
    Commonwealth v Caputo (2003) 439 Mass 153, 786 NE2d 352 (defendant allowed officers in house and at first agreed to talk to them; he changed his mind and said he did not want to talk to them, but he did not ask them to leave; valid consent to entry and refusal to talk did not rise to withdrawal of consent).

§ 8.59, Add text to end of section:
    A request for consent to "look around" an office includes consent to open desk drawers.[fn620]
    620. United States v Kwan (2003, SD NY) 2003 US Dist Lexis 8423 (consent also given after target called his lawyer and than agreed to the entry).

§ 8.60. Consent to a frisk [New]
    Consent to a frisk is a consent to only frisk for weapons.[fn621]
    621. State v Crawford (2003) 151 Ohio App 3d 784, 786 NE2d 83 (opening packet of drugs was outside of scope of consent).

Chapter 9 Plain view, hearing, smell, and touch

ANNOTATION REFERENCES
    Odor detectable by unaided person as furnishing probably cause for search warrant, 106 ALR5th 397.

§ 9.2 n. 61.1 (in supp.)
    Kyllo is discussed in Tracey Maclin, Katz, Kyllo, and Technology: Virtual Fourth Amendment Protection in the Twenty-First Century, 72 Miss.L.J. 51 (2002).

§ 9.4 n. 71
    State v Rodriguez-Ganegar (2003, Ore App) 2003 Ore App Lexis 257 (police could look through the curtains of a motel room from a common area to see drug packaging in plain view).

§ 9.6 n. 96
    Sawyer v State (2003, Fla App D5) 2003 Fla App Lexis 5462 (suppressing seizure of a single Ecstacy pill during a traffic stop for failing to dim headlights; when the officer walked up to the car, he saw a single white pill on the console and reached in to seize it, not knowing what it was; invalid as plain view).
    State v Tye (2003) 276 Ga 559, 2003 Ga Lexis 368 (blood on pants and shoes of murder suspect).

§ 9.8 n. 127
    State v T.P. (2003, Fla App 4D) 2003 Fla App Lexis 1159.

§ 9.8 n. 130
    Annotation: Odor detectable by unaided person as furnishing probable cause for search warrant, 106 ALR5th 397.

§ 9.15 n. 277.1 (in supp.)
    Kyllo is discussed in Tracey Maclin, Katz, Kyllo, and Technology: Virtual Fourth Amendment Protection in the Twenty-First Century, 72 Miss.L.J. 51 (2002).

§ 9.15 n. 277.3
    People v Gotfried (2003, 6th Dist) 107 Cal App 4th 254, 131 Cal Rptr 2d 840.

§ 9.18 n. 309
    The lack of quality of training of the dog undermines probable cause. Matheson v State (2003, Fla App D2) 2003 Fla App Lexis 11593 (compares the minimal training this dog had to significant training of Customs Service dogs; this dog could not eliminate "dead odors" of past presence of drugs that a well trained dog can; this case is a product of good lawyering).

§ 9.19, Add text to end of section:
    A dog sniff of a passenger based on an alert on the car has been held to be unreasonable.[fn330.1]
    330.1. People v Fondia (2000) 317 Ill App 3d 966, 251 Ill Dec 553, 740 NE2d 839 {moved from § 9.20 in 2002 Supp.}; Wallace v State (2002) 142 Md App 673; 791 A2d 968.

§ 9.20 n. 339
    State v. Delarosa (2003, SD) 2003 SD 18, 2003 SD Lexis 18 (traffic stop of motorcycle, drug dog immediately at hand sniffed; not unreasonable); Sadberry v State (2003, Tex App–Austin) 2003 Tex App Lexis 2191 (temporary detention for dog sniff after valid stop permissible); Jackson v State (2003, Ark App) 2003 Ark App Lexis 311 (dog at hand during traffic stop; minimal intrusion; sniff not totally arbitrary based on responses to questions); Wilson v State (2003, Md App) 2003 Md App Lexis 60 (dog arrived in two minutes); Sanchez v State (2003, Fla App D4) 847 So 2d 1043, rehearing denied (2003, Fla App D4) 2003 Fla App LEXIS 10724 (dog arrived before officer completed ticket); Wilson v State (2003, Md App) 2003 Md App Lexis 64 (dog arrived before officer completed ticket).

§ 9.20, Add text after note 339:
The Montana Supreme Court held in that reasonable suspicion is required to conduct a dog sniff of a vehicle, even in a public place.[fn339.1]
    339.1. State v Tackitt (2003) 315 Mont 59, 2003 Mont Lexis 157.

§ 9.20 n. 340
    Tiller v State (2003, Ga App) 2003 Ga App Lexis 632 (defendant was detained after traffic stop on previous anonymous tip he was involved in drugs and refused to consent to a search; 15 minute detention for arrival of drug dog unreasonable).

§ 9.20, Add text after note 339:
    It has been held that a dog sniff in a public place involving no detention is not unreasonable.[fn339.1] The Montana Supreme Court held in that reasonable suspicion is required to conduct a dog sniff of a vehicle, even in a public place.[fn339.2]
    339.1. United States v Tarantola (2003, CA8 Ark) 332 F3d 498 (at rest area while parked; officer had other suspicions).
    339.2. State v Tackitt (2003) 315 Mont 59, 2003 Mont Lexis 157.

§ 9.21 n. 341
    But see Rodriguez v State (2003, Tex App–1st Dist (Houston)) 106 SW3d 224 (finding dog sniff outside apartment door valid; noting disagreement with Thomas).

Chapter 10 Open fields

Chapter 11 Searches in other areas

§ 11.2 n. 3
    Police could enter common hallway and try key left at scene of a rape on defendant's door to see if it worked without entering the apartment. Commonweatlth v Dora (2003) 57 Mass App Ct 141, 781 NE2d 62 (he was also identified from a photo array prior to the use of the lost key).

§ 11.3 n. 13
    United States v Shaw (2003, ED NY) 2003 US Dist Lexis 10904.

§ 11.5, Add text to end of section:
    There may be a limited expectation of privacy in private e-mails on government computers for personal matters.[fn21.1]
    21.1. Petition of Board of County Commissioners of the County of Arapahoe, Colorado (romantic e-mails between county clerk and chief deputy clerk under Colorado Opens Records Act).

§ 11.7 n. 35
    Police could look through the curtains of a motel room from a common area to see drug packaging in plain view. State v Rodriguez-Ganegar (2003, Ore App) 2003 Ore App Lexis 257.

§ 11.7 n. 39
    United States v Gonzalez (2003, CA9 Cal) 328 F3d 542 (hospital mailroom).

§ 11.8 n. 46
    Martin v State (2003, Ala Crim App) 2003 Ala Crim App Lexis 136 (former Alabama State Trooper failed to clean out locker in his patrol car when he resigned; contents was treated as abandoned; see § 13.7 n. 79).

Chapter 12 Private searches

§ 12.3 n. 26
    United States v Ellyson (2003, CA4 NC) 326 F3d 522 (defendant's roommate revealed child porn).

§ 12.3 n. 27
    A nurse of a public hospital inventorying an emergency room patient's purse for valuables is a governmental actor under Ferguson v City of Charleston (2001) 532 US 67, 76, 149 L Ed 2d 205, 121 S Ct 1281. Wilson v State (2003, Tex App.–Houston, 14th Dist) 2003 Tex App Lexis 1355 (search sustained under caretaking function; see § 31.3, infra).

§ 12.3 n. 30
    Compare State v Charlton (2003, Mo App) 2003 Mo App Lexis 1238 (off-duty cop running for sheriff entered curtilage and saw marijuana plants was a private searcher).

§ 12.3 n. 37
    State v McCormick (2003, Wisc App) 2003 Wisc App Lexis 529 (even if conduct was "outrageous," it was private action, and state constitution would not be applied to private searchers even in such situations).do

§ 12.4 n. 56
    State v Jorgensen (2003, Minn) 660 NW2d 127 (police stood by while sister broke into house because she feared for victim's safety; police adamantly refused to assist; private search).
    Compare Dawson v State (2003, Tex App–Houston (1st Dist)) 106 SW3d 388 (motel owner was suspicious of conduct in room and opened door and changed locks because defendant had not paid rental for next day; officer stood by and smelled marijuana and used smell to get warrant; no entry into room by officer, and opening door was not at his suggestion; search sustained).

§ 12.5 n. 74
    State v Benge (2003, Del Super) 2003 Del Super Lexis 245 (defendant left bag at ex-wife's residence when arrested for assault; he did not abandon bag and had standing to challenge police expansion of private search of it; ex-wife's search of their former joint residence to prepare it for sale not state action)

Chapter 13 Abandonment

§ 13.3 n. 46
    United States v Pitts (2003, CA7 Ill) 2003 US App Lexis 3865.

§ 13.5 n. 58
    State v Mosby (2003, Mo App WD) 94 SW3d 410 (officer approached defendant who turned and walked away dropping rock of crack).

§ 13.5 n. 65
    People v Barker (2003, Monroe Co.) 195 Misc 2d 92, 757 NYS2d 692 (it violated no right of the defendant, either under the Fourth Amendment or fundamantal fairness, to feed him in jail and take the spoon and send it off for DNA testing).

§ 13.6 n. 70
    State v Saddles (2003, Wisc App) 2003 Wisc App Lexis 480 (car parked on wrong side of road and driver was out of car; officer stopped and started walking toward driver, and he fled leaving the car unlocked with keys in the ignition).

§ 13.6 n. 71
    Keilholtz v State (2003, Ga App) 2003 Ga App Lexis 611 (knock-and-talk at motel room led to disavowal of car outside that had license not matching vehicle; occupants of room came out to car after being advised they were not under arrest; one had keys that fit the car; search to see if it was stolen was valid).

§ 13.7 n. 79
    Martin v State (2003, Ala Crim App) 2003 Ala Crim App Lexis 136 (former Alabama State Trooper failed to clean out locker in his patrol car when he resigned; contents was treated as abandoned). See also § 11.8 n. 46.

§ 13.7 n. 81
    Commonwealth v Netto (2003) 438 Mass 686, 783 NE2d 439 (search of motel room day after it was vacated).
    Several cases hold that the fact the defendant's arrest made it impossible for him to return to his room to gather his belongings and leave does not mean he did not "abandon" it. United States v Perez-Guerrero (2003, CA8 Iowa) 2003 US App Lexis 13597 (fact defendant's arrest made him unable to check out of motel did not make search of room after checkout time unreasonable; citing several similar cases).
    But, police entry into a motel room before the rental expired to expedite the renter's check out is unreasonable. Carter v State (2003, Alas App) 2003 Alas App Lexis 132.

§ 13.8 n. 84
    Swearingen v State (2003, Tex Crim App) 101 SW3d 89.

§ 13.8 n. 94
    "[A]n unconstitutional seizure or arrest which prompts a disclaimer of property vitiates the disclaimer." Baggett v State (2003, Fla App D2) 2003 Fla App Lexis 10884.

§ 13.9 n. 115
    People v Stage (2003, Ill App 3d Dist) 2003 Ill App Lexis 245 (refusing to find greater protection under state law; also, police had search warrant for home, and searching the garbage can was hardly unreasoanble).

§ 13.9 n. 119
    Nilson v State (2003, Tex App–Dallas) 106 SW3d 869 (curtilage is not totally controlling; here, the most officer entered property was two feet from alley to get trash left for collection; no reasonable expectation of privacy).

§ 13.9 n. 120
    State v Stamper (2003, Ind App) 2003 Ind App Lexis 833 (under the Indiana Constitution, that a homeowner had a reasonable expectation of privacy in his trash in a bag on the property, ten feet onto which the officer had to step to take the bag, distinguishing cases which permitted trash searches where the officer did not have to step onto the property).

§ 13.9 n. 121
    State v Stamper, n. 120 supra.

Chapter 14 Exigent circumstances

§ 14.1 n. 10
    State v Acrey (2003, Wash) 2003 Wash Lexis 140 (officers were justified in stopping 12 year old on streets after midnight under caretaking function; patdown before putting him in patrol car to take him home was reasonable).

§ 14.3 n. 26O
    Officer shining flashlight on defendant on porch which caused defendant to run inside not exigent circumstance for warrantless entry of house. State v Barnes (2003, NC App) 582 SE2d 313.

§ 14.3 n. 30
    Commonwealth v Molina (2003, Mass) 439 Mass 206, 786 NE2d 1191 (warrantless entry to arrest day after assault invalid):
    "When proffering justification based on exigent circumstances, the burden is on the Commonwealth to show that 'it was impracticable for the police to obtain a warrant, and the standards as to exigency are strict.' ... The test considers all of the facts known to the officers at the time of the warrantless arrest. Factors such as 'a showing that the crime was one of violence or that the suspect was armed, a clear demonstration of probable cause, strong reason to believe the suspect was in the dwelling, and a likelihood that the suspect would escape if not apprehended,' support a finding of exigency. ... Factors such as whether the entry was peaceable and made in the daytime are also relevant. ... Finally, concern regarding the destruction or removal of evidence may also support a finding of exigency. .... These factors should be examined as a whole, and evaluated to determine whether the circumstances surrounding the warrantless arrest prevented officers from taking the time to obtain a warrant. In its simplest form, the primary purpose of this test is to balance the constitutional rights of the suspect with both the safety of others and the risk of flight by the suspect."

§ 14.3 n. 31
    See United States v Kuenstler (2003, CA8 Mo) 325 F3d 1015 (rapidly developing situation required immediate action).

§ 14.6, Add text to end of section:
    Caution: Courts have found exigent circumstances in a meth lab case authorizing entry without a warrant where officers, after a lengthy surveillance and gathering of information, determined that the suspects had succeeded in making their meth lab operational. The smell of the chemicals and the working lab and the apparent and inherent risk of fire and explosion created exigent circumstances.[fn54.1]
    54.1. United States v Rhiger (2003, CA10 NM) 315 F3d 1283, 1289-91 (the court also held that the half hour delay while the officers tried to determine the best course of action did not dissipate the exigency); United States v Cervantes (2000, CA9) 219 F3d 882, 891; State v Brown (2003, Iowa App) 2003 Iowa App Lexis 114; Kleinholz v United States (2003, CA8 Neb) 2003 US App Lexis 16036.

§ 14.8 n. 64
    State v Perkins (2003, NJ Super) 2003 NJ Super Lexis 82 (state law also allows seizure of any weapons that could be used against the domestic violence victim; however, the product of such a seizure cannot be used in a criminal prosecution absent some additional justification under the Fourth Amendment; see new § 38.32); State v Christensen (2003) 2003 SD 64, 663 NW2d 691 (order of protection that gave 48 hours to remove weapons or police could enter to do it authorized their entry; plain view of child porn sustained).
    See United States v Collins (2003, CA8 Minn) 321 F3d 691 (officer could lean in window of car where two men where slumped over on reports of shots fired); Thacker v City of Columbus (2003, CA6 Ohio) 328 F3d 244 (911 call of stabbing supported entry to protect paramedics who arrived first); State v Barrett (2003, Idaho App) 62 P3d 214 (911 call found defendant passed out on porch and uncommunicative; entry into house was legitimately based on exigency there may have been others in distress inside); United States v McMahon (2003, CA AF) 58 MJ 362 (911 call of aunt found dead on couch brought investigators to obtained consent; plain view led to officers getting warrant for (stolen military property).

Add after note 64.1 in supplement:
or a citizen report of a burglary[fn64.2]
    64.2. Davis v State (2003, Fla App D5) 834 So 2d 322 (sustaining seizure of cocaine in plain view, but suppressing seizure of other matters where criminality was not apparent).

§ 14.8 n. 65
    A 911 call about a suicide is effective consent. State v Voits (2003, Ore App) 2003 Ore App Lexis 270.

§ 14.10 n. 68
    State v Roberts (2003, Summit Co.) 2003 Ohio 363, 2003 Ohio App Lexis 385 (officers came to defendant's door to arrest him after controlled buy to informant, and he fled into the house; warrantless entry justified).

§ 14.11 n. 73
    Davis v State (2003, Fla App D5) 834 So 2d 322 (also cited in § 14.8, n. 69.2, supra.

§ 14.13 n. 90
    Caveat: But see United States v Martinez (2003, D Md) 2003 US Dist Lexis 8795 where the police altered a UPS package to look in it prior to a controlled delivery and then used its condition that they created to justify exigent circumstances for a no-knock entry which the court sustained. The court refused to require that they obtain a anticipatory warrant because of the mere possibility that the package would not stay at the place it was addressed to.

Chapter 15 Stop and frisk

RESEARCH REFERENCES
    Moran, David, Traffic Stops, Littering, and Police Warnings: The Case for a Fourth Amendment Non-Custodial Arrest Doctrine, 37 Am Crim L Rev 1143 (2000).

§ 15.6 n. 199
    Commonwealth v Morillo (2003, Mass Super) 2003 Mass Super Lexis 3.

§ 15.6, Add to end of section:
    An officer's mistake of law as to the reason for the stop makes it unconstitutional.[fn199.1]
    199.1. State v Royce (2003, Wisc App) 2003 Wisc App Lexis 297.

§ 15.7, Add to end of section:
It also permits stops based on the "community caretaking function."[fn201.1]
    201.1. State v Acrey (2003, Wash) 2003 Wash Lexis 140 (officers were justified in stopping 12 year old on streets after midnight under caretaking function; patdown before putting him in patrol car to take him home was reasonable).

§ 15.10 n. 219
    State v Puckett (2003, Tenn Crim App) 2003 Tenn Crim App Lexis 593 (there is no DUI exception to reasonable suspicion standard for a traffic stop; officer's testimony not backed up by videotape).

§ 15.11 n. 223
    United States v Hendricks (2003, CA7 Ind) 319 F3d 993.

§ 15.11 n. 225
    United States v Lenoir (2003, CA7 Ind) 318 F3d 725 (report of man with gun and suspect seen carrying two high-powered weapons near location of report); United States v Ullah (2003, SD NY) 2003 US Dist Lexis 4166 (apparent fake postal worker carrying mail bag and other stuff throwing things in mailboxs during height of 2001 Antrax scare); Hatcher v State (2003, Fla App D5) 834 So 2d 314 (suspect wearing heavy coat in July in Florida coupled with furtive movement).

§ 15.11 n. 226
    "Innocent persons might run from police officers; but flight creates an ambiguity; and the officers may stop the person to resolve the ambiguity." United States v Franklin (2003, CA11 Fla) 2003 US App Lexis 4280.
    Gaines v State (2003, Tex App.–Houston (14th Dist.)) 2003 Tex App Lexis 883 (defendant purchased ticket at airline counter, saw officers, turned and jogged from airport to parking lot with obvious bulge in back; valid stop produced brick of cocaine).
    Flight alone is not enough, but it is when considered with other factors. Commonwealth v Rupp (2003, Mass App) 57 Mass App Ct 377, 2003 Mass App Lexis 213; State v Davis (2003, La App, 5th Cir) 841 So2d 952; In re Steven McC. (2003, 1st Dept) 304 AD2d 68; 757 NYS2d 259; Whitfield v Commonwealth (2003, Va) 576 SE2d 463 (trespassing, and flight on being spotlighted). See Collins v State (2003, Md) 2003 Md Lexis 46 (flight during Terry stop when defendant asked if he had more than $20 on him was RS he was robber).
    As to furtive gestures, see, e.g., State v Thompson (2003, La) 842 So 2d 330.
    See People v. D.W. (In re D.W.) (2003, Ill App, 1st Dist) 2003 Ill App Lexis 748 (uncorroborated informant said a described man was dealing drugs; the police confronted him on the street, and he fled into his apartment, with the police in hot pursuit; the entry into the warrantless entry into the apartment was unreasonable because there was no probable cause for the entry based on what little the informant gave).

§ 15.11 n. 227
    United States v Ridge (2003, CA6 Tenn) 2003 US App Lexis 3676 (driving into scene drug of search after officers overheard call someone was coming with money); Commonwealth v Velasquez (2003, Mass Super) 2003 Mass Super Lexis 55.

§ 15.11 n. 228
    United States v Moore (2003, CA5 Tex) 2003 US App Lexis 5819 (became extremely nervous during stop after questioning, handcuffed and placed on curb; handcuffing, even if excessive, did not lead to finding of drugs; drug dog at hand); In re P.M. (2003, Tex App–San Antonio) 2003 Tex App Lexis 3658 (officer admittedly saw no reasonable suspicion until defendant's shaking and nervousness became extreme).
   Some courts have said that nervousness not enough; most detainees in a traffic stop are. See, e.g.: Damato v State (2003, Wyo) 2003 WY 13, 2003 Wyo Lexis 15 (coupled with speeding two miles over limit, luggage in back seat, and fast food wrappers on floor not enough; consent thereafter obtained to search trunk invalid); Peters v State (2003, Ala Crim App) 2003 Ala Crim App Lexis 89 (being agitated about being stopped for a traffic offense does not give rise to reasonable suspicion; once the ticket is signed, the stop is over); State v Laford (2003, Utah App) 2003 UT App 101, 2003 Utah App Lexis 35 (small flecks of marijuana on a Canadian Whiskey bag also did not justify frisk); Sheldon v State (2003, Md App) 2003 Md App Lexis 66 (also, presence of air freshener adds nothing)..

§ 15.11 n. 230
    United States v Ameling (2003, CA8 Iowa) 328 F3d 443 (store security saw defendants acquire psuedophedrine and split up in store; outside, bag went into truck box; at a second store they bought lithium batteries, another meth precursor; stop justified); State v Hauser (2003, Iowa) 2003 Iowa Sup Lexis 102 (several trips to buy pseudoephedrine and lithium batteries).
    State v Butler (2003, SC App) 353 SC 383, 577 SE2d 498 (smell of alcohol during traffic stop did not justify patdown; no passengers were patted downk, either).
    State v Fields (2003) 2003 ND 81, 662 NW2d 242 (Defendant was stopped for expired tags, and officer asked for consent to search, which was denied. He made the defendant wait for a drug dog to arrive. The officer knew of defendant's criminal history, there was information from a confidential informant about defendant's continued drug activity, defendant acted nervous, and defendant's story about his destination was suspicious. The combination of these factors, however, was insufficient to provide the officer with a reasonable and articulable suspicion that criminal activity was afoot.)

§ 15.11, Add text to end of section:
Likewise, a civil infraction does not justify a Terry stop.[fn231.1]
    231.1. State v Duncan (2002) 146 Wash 2d 166, 43 P3d 513.

§ 15.11 n. 233
    Commonwealth v Igaravidez (2003, Mass Super) 2003 Mass Super Lexis 192 ("excessive smoke" from tailpipe not enough to show that car was violating air pollution laws; stop suppressed).

§ 15.12 n. 234
    State v Anderews (2003, Del Super) 2003 Del Super Lexis 231 (court finds defendant was not illegally stopped, is talkative when nervous, and was making a "clean breast" of his sexual problems; was following and videotaping young girls).

§ 15.12 n. 236
    State v O'Neill (2003, Wash) 62 P3d 489 (report of man with gun in car matching description, and suspect was hiding something when officer approached); State v Enos (2003, Del Super) 2003 Del Super Lexis 71 (driver slumped over wheel of parked vehicle with motor running).

§ 15.12 n. 239
     Chappell v State (2003, Fla App D5) 838 So 2d 645 (police received call of suspicious man at apartment complex, and when asked to identify himself and what he was doing there, he said people in nearby apartment knew him; knocked on door, they opened it, and he stuck his bags inside; occupants didn't know him and "jettisoned" the bags; defendant stopped when he walked off as officer tried to talk to him).

§ 15.12, Add text to end of section:
    Mere "uneasy feelings" and inconsistent stories between a driver and a passenger do not constitute articulable facts that support a reasonable suspicion of drug trafficking.[fn242.1]
    Having a license plate that indicates a DUI conviction is not reasonable suspicion.[fn242.2]
    242.1. United States v Santiago (2002, CA5 La) 310 F3d 336, 388-89.
    242.2. State v Henning (2003, Minn) 2003 Minn Lexis 461.

§ 15.12 n. 240
    Ransome v State, § 15.13 n. 247, infra (bulge in pocket in high crime area not reasonable suspicion).

§ 15.12 n. 241
    Graves v City of Coeur d'Alene (2003, CA9 Idaho) 2003 US App Lexis 15424 (§ 1983 case; hostile atmosphere of an Aryan Nations parade made otherwise ordinary conduct (carrying a heavy back-pack in a crowd that looked like it had cylinders in it) sufficient to give rise to the articulable reasonable suspicion necessary to establish grounds for an investigatory stop; court referred to 1996 Olympic Park bombing).

§ 15.12 n. 242
    State v Kelly (2003, Del Super) 2003 Del Super Lexis 257 (officer's hunch defendant was involved in recent burglaries was based almost entirely on the fact that defendant was black and seen in what officer believed was an all-white neighborhood; rest of alleged information was just a hunch).

§ 15.13 n. 244
    State v Schumltz (2003, Mo App) 2003 Mo App Lexis 458 (defendant drove truck onto shopping center parking lot at night; sole justification for stop was to get a name in case something had happened; DWI reversed); State v Malveaux (2003, La App 3d Cir) 2003 La App Lexis 1756 (flight after illegal stop did not support arrest).

§ 15.13 n. 247
    Ransome v State (2003, Md) 2003 Md Lexis 39 (having bulge in pocket and being in a high-crime area not reasonable suspicion; frisk did not first go for bulge, but for possible drugs in waistband).
    Compare State v Dickerson (2003) 2003 Ohio 202, 2003 Ohio App Lexis 207 (bulge in back looked like a gun, and officer went right for it after stop; frisk reasonable); Washington v State (2003, Ind App) 784 NE2d 584 (similar).

§ 15.14, Add new note after first sentence of second paragraph: "provides reasonable suspicion.[fn251.1]"
    251.1. United States v Neufeld-Neufeld (2003, CA5 Tex) 2003 US App Lexis 13635.

§ 15.14, Add text at end of section: 
, but mere propinquity to those under reasonable suspicion does not justify a frisk.[fn.248.1]
    248.1. State v Morris (2003, Kan) 72 P3d 570 ("A person's mere propinquity to others independently suspected of criminal activity does not, without more, authorize a Terry stop unless the officer has reasonable suspicion directed specifically at that person. ... Under these circumstances, officers did not have reasonable suspicion that Morris had committed or was about to commit a crime at the time they seized him, i.e., at the moment when they pulled up behind him and activated their emergency lights." Meth conviction reversed; uncited affirmance of court of appeals reversed).

§ 15.15 n. 253
    See State v Carey (2003, La App 4th Cir) 2003 La App Lexis 1367 (detailed tip from previously reliable informant was corrobrated by defendant's actions, and that supported stop; defendant's furtive act in hiding object, standing alone, was not ground to search, but it was when coupled with the detailed reasonable suspicion).
    United States v Johnson (2003, D NM) 2003 US Dist Lexis 10365 (uncorroborated anonymous tip did not justify patdown; all suspicions were dispelled during stop before patdown).

§ 15.15 n. 255
    United States v Townsend (2003, CA6 Tenn) 330 F3d 438 (tip from Wal-Mart employee meth lab materials had just been purchased with detailed description of car was corroborated by officers' knowledge of defendant's activities); State v Triche (2003, La App 5th Cir) 2003 La App Lexis 1613 (anonymous tip led to surveillance which corroborated information in the tip); State v Odom (2003, Ala Crim App) 2003 Ala Crim App Lexis 160 (tip from Wal-Mart employee; stop at vehicle revealed more meth lab materials in plain view).
    When not corroborated, there is no reasonable suspicion. State v Nguyen (2003, Wisc App) 2003 Wisc App Lexis 343 (radio report of possible drunk driver from anonymous source; officer pulled defendant over without observing any erratic driving); State v Tackitt (2003) 315 Mont 59, 2003 Mont Lexis 157 (anonymous tip of possession of drugs in car not corroborated).

§ 15.15 n. 256
    Highsmith v State (2003, Fla App D2) 843 So 2d 369 (known informant, vague description); In re A.T.H. (2003, Tex App–Austin) 106 SW3d 338 ("An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person."); State v Zeilinger (2003, Wisc App) 2003 Wisc App Lexis 510 (vague description of suspicious activity).

§ 15.15 n. 258
    Several cases hold that there is no "man with a gun" exception: See People v William II (2002) 98 NY2d 93, 745 NYS2d 792, 772 NE2d 1150 (general anonymous tip defendant had a gun did not justify stopping defendant who was a passenger in a car who only generally matched description of driver-by shooter); United States v Collins (2003, D Mass) 2003 US Dist Lexis 8705 (mere possession of a handgun is insufficient grounds to stop); State v Patton (2003, NJ Super) 2003 NJ Super Lexis 243.

§ 15.16 n. 261
    See State v Diaz (2003, Fla) 2003 Fla Lexis 802 (once justification for stop evaporates, any longer detention is unreasonable). See § 15.19 n. 282.

§ 15.16 n. 263
    State v Bergerson (2003, Minn App) 659 NW2d 791 (stop of motorist one mile from hardware store where he bought everyday items that had a lawful use as well as potential use in making a meth lab was without reasonable suspicion).

§ 15.18 n. 269
    Having identified himself and his purpose, a suspect has the right to terminate the encounter and walk away, absent reasonable suspicion. State v Wheat (2003) 2003 Ohio 1147, 2003 Ohio App Lexis 1069.

§ 15.19 n. 281
    Commonwealth v Dales (2003, Pa Super) 2003 Pa Super Lexis 440 (second round of questioning after ticket was written unreasonably lengthened the stop).
    Peters v State (2003, Ala Crim App) 2003 Ala Crim App Lexis 89 (being agitated about being stopped for a traffic offense does not give rise to reasonable suspicion; once the ticket is signed, the stop is over).
    United States v $46,000 in U.S. Currency (2003, ED Pa) 2003 US Dist Lexis 1197 (while stop for too dark window tinting of a car from Texas in Philadelphia was valid, the failure to give a ticket and the detention was overlong and apparently based on defendant's refusal to consent to search).

§ 15.19 n. 282
    State v Diaz (2003, Fla) 2003 Fla Lexis 802 (Once an officer has completed a traffic stop by determining that there was no factual basis for a ticket, the stop was over and the motorist should be allowed to leave. Here, the officer stopped the car for an obscured temporary tag. As he approached the vehicle, he saw that he could see the tag, but he asked the driver for identification anyway, and an outstanding warrant was found on the driver. The continuation of the stop invalid. Id. at *12-*13: "It would be dangerous precedent to allow overzealous law enforcement officers to place in peril the principles of a free society by disregarding the protections afforded by the Fourth Amendment. To sanction further detention after an officer has clearly and unarguably satisfied the stated purpose for an initial stop would be to permit standardless, unreasonable detentions and investigations. Further, detentions such as that which occurred here are not sufficiently productive for law enforcement purposes, any more so than the random stops declared unconstitutional in Prouse. Allowing such investigations would result in boundless interrogations by law enforcement officers, unrecognized by the Court before, and also an erosion of Fourth Amendment protections.")
    State v Syhavong (2003, Minn App) 661 NW2d 278 (stop was unreasonably extended without reasonable suspicion): "We first conclude that the state has not demonstrated a reasonable relationship between the purpose of the stop–the broken tail light–and Stearns's question concerning contraband in the car. During a traffic stop, an officer's questions must be limited to the purpose of the stop. See Royer, 460 U.S. at 498-500, 103 S. Ct. at 1324-25. This purpose may include a protective search for weapons. Wiegand, 645 N.W.2d at 136. An officer may reasonably ask for the driver's license and registration and ask the driver about his destination and the reason for the trip. United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994) (en banc). Because Stearns's question about contraband was not related in scope to the circumstances that justified the stop, the resulting detention and inquiry were unreasonable. [¶] We further conclude Stearns lacked a reasonable, articulable suspicion that Syhavong was engaged in criminal activity so as to justify expanding the scope of the traffic stop. [¶] If the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions. United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993). Here, Syhavong's nervousness in the course of the initial questioning was the sole circumstance cited by Stearns to justify expanding the scope of the inquiry."

§ 15.19 n. 285
    State v Rucker (2003, Md) 2003 Md Lexis 169. § 15.19, Add text at end of section:
    Once the stop has ended and the suspect is allowed to drive off, indpendent reasonable suspicion is required for a new stop.[fn285.1]
    285.1. United States v Foreman (2003, ED Va) 2003 US Dist Lexis 11609 (reasonable suspicion ended with release after traffic stop; police could not stop again just for dog sniff).

§ 15.20 n. 287
    Blevins v Commonwealth (2003, Va App) 2003 Va App Lexis 254 (consensual encounter with person fitting description of attacker; officer asked defendant to remove stocking cap and scratches and blood seen).

§ 15.20 n. 288
    Ganwich v Knapp (2003, CA9 Wash) 2003 WL 282419 (during warrant search of a business it was not unreasonable to herd employees into one area to protect integrity of seach, but it was unreasonable to condition their release on submitting to custodial interrogation; § 1983 qualified immunity case).

§ 15.20 n. 289
    United States v Ellis (2003, ED Pa) 2003 US Dist Lexis 9729 (a consensual conversation between a suspect and the police where he revealed what he told his pschyatrist waived the psychotherapist-patient privilege; indictment for threatening President).

§ 15.20 n. 291
    People v Perkins (2003, Ill App, 3d Dist) 2003 Ill App Lexis 455 (detaining a person during an otherwise lawful Terry stop just to inquire about his backpack was an unreasonable detention since it did not relate to his identity); State v Fields (2003) 2003 ND 81, 662 NW2d 242 (suppressing drug dog search after a traffic stop where the defendant was told he was free to go but the officer engaged the defendant in conversation that made it clear he was not free to leave); State v Wood (2003) 188 Ore App 89, 69 P3d 1263 (defendant's sole testimony he did not feel free to leave after traffic stop was complete supported trial court's finding, and later consent was invalid); Harris v Commonwealth (2003) 266 Va 28, 581 SE2d 206 (did not feel free to leave (compare Dickerson v Commonwealth (2003) 266 Va 14. 581 SE2d 195 (was consensual)); State v Fortson (2003, Ohio App) 2003 Ohio App Lexis 2637 (questioning of passenger for identification and transporting him home to get identification was unreasonable; bag of cocaine that fell from pocket as he was let out of police car to go was suppressed); People v Leigh (2003, Ill App 5th Dist) 2003 Ill App Lexis 832.

§ 15.21 n. 296
    Washington v State (2003, Ind App) 784 NE2d 584 (traffic stop: actions in car were suspicious, so driver was ordered out, and the bulge of a gun justified a pat down).

§ 15.21 n. 297
    State v Taber (2002, Mo App) 73 SW3d 699 (no reasonable suspicion to continue stop after license proved valid); People v Gherna (2003) 203 Ill 2d 165, 271 Ill Dec 245, 784 NE2d 799 (any justification for detention was satisfied, and furthering the detention made it unreasonable; person in defendant's position would not feel free to leave).

§ 15.21 n. 298
    People v Gonzalez (2003, Ill) 2003 Ill Lexis 765 , *24-26 (passenger):
    "Thus, in determining whether police questioning during the course of a traffic stop satisfies Terry's scope requirement, we must consider, as an initial matter, whether the question is related to the initial justification for the stop. If the question is reasonably related to the purpose of the stop, no fourth amendment violation occurs. If the question is not reasonably related to the purpose of the stop, we must consider whether the law enforcement officer had a reasonable, articulable suspicion that would justify the question. If the question is so justified, no fourth amendment violation occurs. In the absence of a reasonable connection to the purpose of the stop or a reasonable, articulable suspicion, we must consider whether, in light of all the circumstances and common sense, the question impermissibly prolonged the detention or changed the fundamental nature of the stop. [¶] Application of these principles to the present case leads us to conclude that Officer McCarthy's mere request for identification from defendant did not render defendant's otherwise lawful detention unreasonable. As noted previously, the stop of the vehicle in which defendant was riding was based on the officers' observation that the front license plate was missing-a violation of our vehicle code. Defendant, however, was simply the front-seat passenger-a passive occupant-who was not implicated in the code violation, and who was not suspected of any other wrongdoing. Thus, the request for identification was not directly related to the initial justification for the stop and was not otherwise supported by a reasonable, articulable suspicion of criminal activity. Nonetheless, the officer's question did not run afoul of the fourth amendment. The request for identification was made during the course of the stop while the driver was being questioned by the other officer and did not impermissibly prolong defendant's detention. Further, we cannot say that the question changed the fundamental nature of the stop. A simple request for identification is facially innocuous. It does not suggest official interrogation and is not the type of question or request that would increase the confrontational nature of the encounter. We note, too, that defendant was under no obligation to answer or comply."
    An officer could continue asking questions after the stop was completed. United States v Sanchez-Pena (2003, CA5 Tex) 2003 US App Lexis 13190.
    Observation: Picking up on the case law, it is apparent from the cases that officers hand the driver back his or her paperwork and tell them they are free to leave, and then they start the banter that leads to the consent. The police are consciously attempting to support a judicial finding that the accused was free to leave. They have, after all, prosecutors reading the cases and providing them with cop "CLE" to make continuation of the stop valid.

§ 15.21 n. 299
    Eckenrod v State (2003) 2003 WY 51, 2003 Wyo Lexis 63.
    Telling a suspect to put his hands on the hood is a seizure. Dawson v State (2003, Ind App) 2003 Ind App Lexis 630 (but there was reasonable suspicion).
    Compare United States v Grant (2003, D Del) 256 F Supp 2d 236 (stop with guns drawn not an arrest under the circumstances).

§ 15.21 n. 303
    Handcuffing on reasonable suspicion was unreasonable and showed that the suspect was not free to go. State v Williams (2003) 2003 Ohio 2656, 2003 Ohio App Lexis 2400.

§ 15.21, Add text at end of section:
    Detaining for a drug dog is a sliding scale: the shorter the detention the more likely the detention is de minimus.[fn306.1]
    It has been held that using blue lights to pull over a car is a seizure.[fn306.2]
    306.1. State v Box (2003, Ariz App) 2003 Ariz App Lexis 118, relying on United States v $404,905.00 in U.S. Currency (1999, CA8 Neb) 182 F3d 643 (if dog is already there, further detention is de minimus).
    Observation: This is really bad law because it enables highway drug stops to be made under the veil of a traffic offense (real or imaginary) just to conduct a dog sniff. It is inevitably prone to gross abuse because officers will make up excuses for traffic stops just to conduct a dog sniff and they will get away with it because courts will inevitably defer to the cop's determination that a traffic offense occurred and never find that the cop is lying. It is intellecutally dishonest for a court to hold otherwise. The potential for gross abuse should be reason enough to limit these cases.
    306.2. State v Randolph (2002, Tenn) 74 SW3d 330 (decided under state constitution, rejecting Hodari D.).

§ 15.22 n. 309
    United States v Moore (2003, CA5 Tex) 2003 US App Lexis 5819 (became extremely nervous during stop after questioning, handcuffed and placed on curb; handcuffing, even if excessive, did not lead to finding of drugs; drug dog at hand).
    See Lawrence v Commonwealth (2003, Va App) 2003 Va App Lexis 136 (stop led to running of tags which revealed no crime; handcuffing defendant before going for his driver's license was unreasonable because there was no reasonable suspicion anything other than a traffic offense occurred).

§ 15.22 n. 311
    People v Thompson (2003, 4th Dist) 272 Ill 672, 787 NE2d 858 (also, Terry stop is inconsistent with claim of "community caretaking" stop; no reasonable suspicion); McCraw v State (2003, Tex App–Ft. Worth) 2003 Tex App Lexis 5740 (car blocked by another police car made stop an arrest because defendant was not free to leave; weapon found had to be suppressed).

§ 15.23 n. 315
    State v Gillenwater (2003, Ohio App) 2003 Ohio App Lexis 1564 (jaywalking stop led to conversation where defendant admitted he was at drug house to "get hooked up"); State v Van Dort (2003) 315 Mont 303, 68 P3d 728 (arrest of the passenger did not justify further detention then arrest of driver).

§ 15.27 n. 332
    Williams v Brown (2003, ND Ill) 2003 US Dist Lexis 11263 (anonymous tip that one person at field house had a weapon did not justify wholesale searches of all occupants (§ 1983 case)).

§ 15.27, Add to end of section:
    The mere fact the detainee is a felon does not justify a frisk.[fn338.1]
    The fact the stop occurred for an equipment infraction in a high crime area does not justify a frisk.[fn338.2]
    338.1. Coleman v Rieck (2003, D Neb) 2003 US Dist Lexis 4502.
    338.2. People v Medina (2003, Cal App 2d Dist) 2003 Cal App Lexis 1008 ("May officers, as a matter of standard procedure and in the name of 'officer safety,' detain and frisk a driver stopped for an equipment infraction solely on the basis that the stop occurs in a high crime area at night? Here we conclude that the Fourth Amendment does not permit such an intrusion and that any incriminating evidence flowing from the illegal contact, which may include statements made by the driver, is inadmissible.").

§ 15.28 n. 338
    State v Haldiman (2003, Mo App) 106 SW3d 529 (mere fact officer considers traffic stops potentially dangerous does not justify a frisk; if that were the rule, every traffic stop would result in a frisk, and Terry does not permit that).

§ 15.30 n. 343
    State v Prince (2003, Ohio App) 2003 Ohio 723, 2003 Ohio App Lexis 594 (officer exceeded Terry when he went for sweatshirt pocket without patdown first); State v Lafond (2003, Utah App) 2003 UT App 44, 467 Utah Adv 17, 68 P3d 1043 (patdown of passenger pocket bulge during traffic stop where no indication of weapons or criminality exceeded Terry); State v Moore (2003, Mo App) 2003 Mo App Lexis 425 (officer exceeded Dickerson by going to sock to retrieve crack cocaine).
    A weapon in plain view presumptively seizable under Terry as potential threat to officer safety. United States v. Bishop (2003, CA6 Tenn) 2003 US App Lexis 15419 ("[W]e hold that a police officer who discovers a weapon in plain view may at least temporarily seize that weapon if a reasonable officer would believe, based on specific and articulable facts, that the weapon poses an immediate threat to officer or public safety.").     Compare McGuire v State (2003, Alas App) 70 P3d 1114 (pat down in response to a bar fight led to feeling of packages of cocaine and officer knew it was not a weapon; defendant's statement that it was marijuana justified arrest).

§ 15.30 n. 348
    State v Tollefson (2003) 2003 ND 73, 660 NW2d 575 (hard cylindrical object could have been drug pipe or weapon; search sustained).
    Compare United States v Spencer (2003, ED Pa) 2003 US Dist Lexis 4742 (box of ammunition which was rattled while inside clothing) with United States v Miles (2001, CA9 Ore) 247 F3d 1009 (box of ammunition did not rattle; opening it was unreasonable).
    Keys can be removed as a hard object usable as a weapon, but they cannot be used for investigative purposes. Commonwealth v Blevins (2003) 438 Mass 604, 782 NE2d 491.
    A lighter could be removed as a weapon when officers had a report somebody had been burned. State v Pointer (2003, Tenn Crim App) 2003 Tenn Crim App Lexis 176.
    Hard object felt and defendant was asked what it was; defendant replied "dope"; frisk sustained. State v Martinez (2003, NC App) 2003 NC App Lexis 927.
    No fear plastic bag protruding from pocket contained a weapon. Anderson v State (2003, Miss App) 2003 Miss App Lexis 634.
    See Mohamed v State (2003, Ga) 2003 Ga Lexis 604 (officer asked about possible weapons and defendant replied he had none; first produced a screwdriver, and officer asked again, and again defendant replied he had none; officer next found a pocket knife, and asked again, and defendant replied he had none; officer found credit cards which had been known to have razor blades attached; seizure of stolen credit cards sustained).

§ 15.30 n. 350
    United States v Miles (2001, CA9 Ore) 247 F3d 1009 (box of ammunition did not rattle; opening it was unreasonable); Burkett v State (2003, Ind App) 785 NE2d 276 (pill bottle could not be seized during pat down for weapons).

§ 15.30, Add text to end of section:
    Consent to a frisk is a consent to only frisk for weapons.[fn350.1]
    There apparently is not a "one frisk rule" if the officer still suspects a weapon.[fn350.2]
    350.1. State v Crawford (2003) 151 Ohio App 3d 784, 786 NE2d 83 (opening packet of drugs was outside of scope of consent).
    350.2. United States v Osbourne (2003, CA1 Mass) 326 F3d 397 (rookie officer conducted a cursory pat down, but second officer quickly did another and found a gun).

§ 15.31 n. 351
    State v Courtney (2003, Mo App WD) 101 SW3d 81 (defendant was being followed because he was supposedly the last person to be seen with a missing person; when he was stopped and got out of the car, a bolt fell on the ground; the officer opened the bolt finding it was hollowed out and contained drugs; search unreasonable under Terry).
    Sowell v State (2003, Ind App) 2003 Ind App Lexis 367; In re J.O.R. (2003, DC App) 2003 DC App Lexis 152 (even arrest on child neglect matter can justify frisk if defendant's actions created potential for belief he had a weapon).
    Compare Jackson v State (2003, Ind App) 785 NE2d 615 (third protective weapons search was unreasonable; nothing indicated a weapon (pat down, dog sniff, two vehicle frisks of car)); State v Bradshaw (2003, Mo App) 99 SW3d 73 (passenger detained without cause and placed in police car could not have her purse searched when officer went to get her purse "out of courtesy").

§ 15.31 n. 154
    No reasonable suspicion to continue to search for weapons after the officer determined defendant reached for cellphone and not a gun. United States v Austin (2003, ED Pa) 2003 US Dist Lexis 10822.

§ 15.32 n. 359
    See People v Williams (2003, 3d Dept) 2003 NY App Div 5541 (felony drug sal arrest warrant for driver permitted frisk of passenger; first part of frisk revealed nothing, but officer saw passenger was wearing "cargo pants" and noticed bag of dope protruding from lower pocket; plain view sustained).

§ 15.32 n. 361
    Companion to man in a fight could have area in car frisked for weapons because he was not treated as a mere bystander. United States v Clark (2003, CA11 Ga) 2003 US App Lexis 14320.

Chapter 16 Search incident to arrest

§ 16.7, Add text to end of section:
    A juvenile in juvenile custody but not yet arrested for a crime is subject to a search incident if the purposes of search incident are present.[fn159.1]
    159.1. State ex rel. R.D (1999, La App) 749 So2d 802; State ex rel. J.M. (2001) 339 NJ Super 244, 771 A.2d 651; In Interest of Adrian B (2003) 11 Neb App 656, 2003 Neb App Lexis 73; Matter of Terrence G. (1985, 1st Dept) 109 AD2d 440, 492 NYS2d 365; In re J.M. (1999, Tex App–Austin) 995 SW2d 838.
    Contra: State v Paul T. (1999) 128 NM 360, 993 P2d 74; In Interest of J.F.F. (1991, App) 164 Wis.2d 10, 473 NW2d 546.

§ 16.9 n. 168
    Search incident of passenger's shoe was proper based on findings in the car. United States v Richardson (2003, SD Ohio) 2003 US Dist Lexis 10460.

§ 16.10 n. 180
    State v Rose (2003) 357 NJ Super 100, 813 A2d 1279 (defendant hancuffed and removed from motel bathroom dissipated the exigency for a search incident).
    Crawford v State (2003, Alaska App) 2003 Alas App Lexis 76 (once removed from vehicle and handcuffed and placed in police car, car console is not within scope of search incident).
    United States v Brown (2003, D DC) 2003 US Dist Lexis 7862 (traffic stop for speeding led to discovery of no license; search incident of trunk for that offense unjustified).
    The fact a defendant is running away from a car denies search incident, but there otherwise could be cause for search of the car. United States v Edwards (2003, ED Pa) 2003 US Dist Lexis 12116.
    Contra: Commonwealth v Netto (2003) 438 Mass 686, 783 NE2d 439 (fact that officers could have conducted search incident prior to handcuffing murder suspects is what is determinative, not exactly when; officers need not "reorder" the events to legitimize search incident in arrest of murder suspects in a motel room).

§ 16.11 n. 189
    See State v Pancake (2003, Ohio App) 2003 Ohio App Lexis 1567 (fleeing peeping tom with videocamera in hand; no warrant needed to view the videotape; case viewed as expectation of privacy issue, but it would have been better viewed as a search incident).

Chapter 17 Seizure of vehicles

§ 17.5 n. 95
    United States v Gonzalez (2003, CA5 La) 328 F3d 755 ("Once the purpose of a valid traffic stop has been completed and an officer's initial suspicions have been verified or dispelled, the detention must end unless there is additional reasonable suspicion supported by articulable facts. ... We have recognized that mere 'uneasy feelings' and inconsistent stories between a driver and a passenger do not constitute articulable facts that support a reasonable suspicion of drug trafficking.").
    State v McCloud (2003, Ga App) 2003 Ga App Lexis 527 (affirmed suppression of cocaine found during a traffic stop for loud music; the officer said the defendant was free to go after the citation was issued and consent was sought, but the trial found that the citation said "jail" where the signature would have appeared and found the request for consent came when the defendant was not free to go).

§ 17.5 n. 96
    Once the papers are returned, it is not unlawful to ask the motorist if she would be willing to talk to another officer. State v Jones (2003, Ohio App) 2003 Ohio 1576, 2003 Ohio App Lexis 1525.

§ 17.5, Add to end of section:
    A parking offense may justify a stop.[fn98.1]
    98.1. United States v Copeland (2003, CA6 Mich) 321 F3d 582 (after observing parking violation, vehicle left and two traffic offenses occurred). See also United States v Burton (2003, CA6 Tenn) 330 F3d 869 (parking violation was what started it, but other factors made it reasonable (high crime area; reliable informant tip)).

§ 17.6, Add sentence at end of first paragraph:
An error of law as to the reason for the stop makes the stop unreasonable.[fn99.1]
    99.1. People v White (2003, 1st Dist) 2003 Cal App Lexis 482 (air freshener did not obstruct view); Frierson v State (2003, Fla App D4) 2003 Fla App Lexis 8291 (light out on vehicle did not interfere with other vehicles, so stop was unjustified), on rehearing, 2003 Fla App Lexis 11774 (conflict between state appellate districts noted on application of fruit of poisonous tree).

§ 17.6 n. 106
    The state's failure to call the officer to initiated the stop at the suppression hearing caused it to fail to meet its burden of showing stop was lawful. Burrell v State (2003, Ga App) 2003 Ga App Lexis 743.

§ 17.9 n. 123
    Johnston v State (2003, Miss App) 2003 Miss App Lexis 503 (sustaining a driver's license roadblock that found defendant with a suspended license; search incident produced meth and a syringe containing meth).

§ 17.10 n. 138
    Commonwealth v Rastogi (2003, Pa Super) 2003 Pa Super 45, 2003 Pa Super Lexis 121 (sustaining checkpoint).

§ 17.13 n. 144
    State v Snyder (2003, Ohio App) 2003 Ohio 2039, 2003 Ohio App Lexis 1929 (stop valid because truck labored uphill and appeared overloaded).

§ 17.14, Add text at end of section:
    A roadblock stopping all cars leaving the scene of a recent report of shots fired was reasonable where officers found 50 people milling around in a "chaotic" atmosphere and spent shell casings were found. Commonwealth v Grant (2003) 57 Mass App Ct 334, 2003 Mass App Lexis 175.

§ 17.15 n. 185
    United States v Yousif (2002, CA8 Mo) 308 F2d 820 (stopping every vehicle taking an interstate exit under assumption they were avoiding checkpoint was unreasonable; consent thus involuntary; but remanded for hearing on whether statements were admissible).

§ 17.17, Add text after n. 206:
Where there is no nexus to criminal activity, seizure is unlawful.[fn206.1]
    206.1. One 1995 Dodge Pickup v State (2003, Tex App–10th Dist) 2003 Tex App Lexis 6731.

§ 17.18 n. 210
    People v White (2003, 1st Dist) 2003 Cal App Lexis 482 ("hippie profile" unconstitutionl).

§ 17.20 n. 225
    See Commonwealth v McDevitt (2003) 57 Mass Ct App 733, 786 NE2d 404.

§ 17.20A n. 236.4
    State v Williams (2003, Wisc App) 2003 Wisc App Lexis 515.

§ 17.21 n. 238
    As will be seen, Whren does just that, but some state courts have refused to follow Whren under their state constitutions. State v Ladson (1999) 138 Wash 2d 343, 979 P2d 833; State v Myers (2003, Wash App) 117 Wn App 93, 69 P3d 367; State v Sullivan (2002) 348 Ark 647, 74 SW3d 215, on remand from Arkansas v Sullivan (2001) 532 US 769, 149 L Ed 2d 994, 121 S Ct 1876 (per curiam). See § 5.36A.

§ 17.21, Add text at end of section:
    In states permitting inquiry into pretext, "[w]hen determining whether a given stop is pretextual, the court should consider the totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer's behavior."[fn260] "The constitution of this state requires us to look 'beyond the formal justification for the stop to the actual one.'"[fn261]
    260. State v Ladson, supra, 979 P2d at 843; State v Myers, supra, 2003 Wash App Lexis 1056 at *4-5.
    261. Myers, at *5, quoting Ladson, 979 P2d at 839.

Chapter 18 Vehicle searches

§ 18.3 n. 155
    Commonwealth v Rogers (2003, Va App) 2003 Va App Lexis 85.

§ 18.4, Add text to end of section:
    A person retains "a reasonable expectation of privacy in the enclosed and concealed spaces of his vehicle is in no way dependant on where his vehicle was parked."[fn172.1]
    172.1. State v Tackitt (2003) 315 Mont 59, 2003 Mont Lexis 157.

§ 18.8 n. 196
    State v Lejuune (2003, Ga) 2003 Ga Lexis 125 (search of car legally parked in apartment complex's parking lot was not subject to warrantless search under automobile exception where defendant and his cohorts were in custody elsewhere).

§ 18.10 n. 233
    An arrest for a traffic offense does not justify a search incident of the whole vehicle. United States v Brown (2003, D DC) 2003 US Dist Lexis 8079 (search of car and trunk produced evidence of identity fraud; suppressed).

§ 18.10 n. 234
    See State v Johnson (2003, Me Super) 2003 Me Super Lexis 41 (fuse panel on Saturn was easily reachable by sitting driver, so it was area subject to search incident).

§ 18.12, Add to text before "Comment":
    Encountering the arrestee outside his vehicle does not justify a search incident under Belton, particularly where the accused is too far away from the vehicle to pose any realistic threat to obtain a weapon to destroy evidence.[fn251.1]
    251.1. United States v Green (2003, CA5 La) 2003 US App Lexis 4157 ("Because none of the concerns articulated in Chimel and Belton regarding law enforcement safety and the destruction of evidence are present in this case, the Government cannot justify the search of Green’s vehicle under Belton or Chimel.") (comparing cases from other circuits).

§ 18.13 n. 255
    Sawyer v State (2003, Fla App D5) 2003 Fla App Lexis 5462 (suppressing seizure of a single Ecstacy pill during a traffic stop for failing to dim headlights; when the officer walked up to the car, he saw a single white pill on the console and reached in to seize it, not knowing what it was; invalid as plain view).

§ 18.17, Add text after note 280:
fenders,[fn280.1]
    280.1. United States v Rodriguez (2003, D Kan) 2003 US Dist Lexis 10887 (removing fender during consent search was valid because hidden compartment had first been found).

§ 18.17, Add new text before Caution:
    A consent search allows a certain amount of dismantling consistent with the scope of consent.[fn281.1]
    280.1. United States v Marquez (2003, CA10 Kan) 2003 US App Lexis 15374 (RV storage compartment top was nailed down and had to be pried open; officers could smell marijuana; suspect's consent certainly implies that the officer could look wherever drugs might be hidden).

§ 18.17A. Moving vehicle [New]
    Moving a vehicle to a more convenient location to conduct a search which is authorized by the law does not normally exceed the permissible scope of the search.[fn282.1] Inventory searches are commonly conducted elsewhere.[fn282.2]
    282.1. United States v Henphner (2003, ND Iowa) 2003 US Dist Lexis 7746 (defendant consented to search of car, but it was cold and windy and dog sniff likely would be ineffective; the car was moved 15 miles to a DOT maintenance garage; defendants rode in police car unhandcuffed and engaged in casual conversation with officer; no objection to moving vehicle for search; did not exceed scope of consent).
    282.2. United States v Mays (1993, CA8 Minn) 982 F2d 319 (inventory started at scene of arrest, but a crowd formed, so the vehicle was moved to the police station to complete it; purpose of inventory is safety, so it was reasonable to move vehicle under the circumstances).

§ 18.18 n. 289
    Commonwealth v Fernandez (2003) 57 Mass App Ct 562, 2003 Mass App Lexis 319 (drug deal by driver supported search of passenger's belongings, even though the passenger was not seen doing anything).
    Where no probable cause as to the passenger, the passenger's purse cannot be searched just because the officer direccted that it be left in the car. State v Boyd (2003) 275 Kan 271, 64 P3d 419; State v Taber (2002, Mo App) 73 SW3d 699; State v Bradshaw (2003, Mo App) 99 SW3d 73.
    But see the remarkable, almost bizarre, decision of State v Tognotti (2003) 2003 ND 99, 663 NW2d 642, the North Dakota Supreme Court, attempting to follow Wyoming v Houghton and overruling State v Gilberts (1993, ND) 497 NW2d 93, 99, held that a passenger's purse could be searched incident to the driver's arrest for an outstanding child support warrant. This case is obviously wrong.

§ 18.21 n. 308
    Saulsberry v State (2003, Ark App) 2003 Ark App Lexis 309.

§ 18.22, Add text after note 321:
    Police officers during traffic stops commonly walk around a vehicle to determine its condition, basically to look for some reason to extend the stop and ask questions, and this is not a search.[fn321.1] In doing so, it is not a search to touch the vehicle to tap on it to see what might be hidden.[fn321.2]
    321.1. United States v Unrau (2003, D Kan) 2003 US Dist Lexis 12307; Glover v Casale (2000, D NH) 2000 DNH 93; 2000 US Dist Lexis 6213.
    321.2. United States v Ramirez (2002, SD Tex) 213 F Supp 2d 722, aff'd, (2003, CA5 Tex) ___ Fed Appx ___.

§ 18.24 n. 334
    Police arrived at a car wreck with defendant partly hanging out of window. During his removal, one officer saw a gun box, which he then could seize. United States v Kelly (2003, D DC) 2003 US Dist Lexis 9972.
    Hiding cellphone when locking car revealed gun, but it was not a "search." United States v Maple (2003, DC Cir) 334 F3d 15. Comment: Rather than tow the defendant's car and use the towing for the time-honored pretext for an inventory search, the police chose to move it to a parking space on the street and just leave it. The officer put defendant's cellphone in the glove compartment rather than leave it in the open, so as to not invite a breaking and entering of the car. When he opened the glove compartment, he found a gun. This is quite a reasonable and expected result.

§ 18.24, Add text to end of section:
    Just because there is a policy permitting the towing of vehicles under the "community caretaking function" does not mean that a subsequent inventory is valid. There must still be a reasonable justification for it.[fn334.1]
    334.1. State v Clark (2003, Wisc App) 2003 WI App 121, 2003 Wisc App Lexis 496 (The apparent owner of the vehicle was the victim of an attempted robbery where shots were fired at him and he fled on foot. The police arrived and decided to tow his car in, and an inventory of the car produced drugs. The court held that there was no justification for towing the car under any rationale. It was lawfully parked, but unlocked. Also, just because there was a towing policy, complying with it, if they did, did not validate the search. (The result should have been the same under the Fourth Amendment.)).

Chapter 19 Searches and seizures of premises

§ 19.2 n. 18
    Commonwealth v Molina (2003) 439 Mass 206, 786 NE2d 1191, quoted in § 14.3 n. 30 (warrantless entry day after PC developed for assault arrest invalid).

§ 19.5 n. 47
    Dale v State (2002) 2002 OK CR 1, 38 P3d 910 (climbing over fence to access marijuana patch in back yard violated curtilage); State v Berry (2003, Mo App SD) 92 SW3d 823 (trailer on curtilage behind fence entered without warrant during investigation of animal abuse; suppressed).

§ 19.5 n. 48
    Contra: Lancaster v State (2003, Ark App) 105 SW3d 365 (driveway not part of curtilage; no expectation of privacy there); State v Abraham (2003, Wisc App) 2003 Wisc App Lexis 405 (same); State v Pacheco (2003, Mo App SD) 101 SW3d 587 (vehicle parked in driveway with damage visible from street could be approached and observed for evidence on the exterior of hit and run); United States v Hatfield (2003, CA10 Okla) 333 F3d 1189 (knock-and-talk and observation of marijuana grow operation in back, also visible from side road).

§ 19.5. n. 57
    See United States v Kruse (2003, ND Iowa) 2003 US Dist Lexis 11203 (Magistrate's R&R) (specific warrant for premises and four specific vehicles did not permit search of a truck on premises not named in the warrant).

§ 19.16 n. 145
    State v Fulgrhum (2003, Ga App) 2003 Ga App Lexis 724 (affirming suppression of an entry by police based on a child custody order; there was no direction in the order to enter; plain view suppressed).

§ 19.16 n. 155
    United States v Bradley (2003, CA9 Cal) 321 F3d 1212 (officers arrested a regular at 1 a.m., and knew that he had a 9 year old who wasn't with him; they asked where he was at so he could be taken into protective custody, and defendant said "at home"; officers went to house and knocked, getting no answer, and they called to transporting officer who asked again, and defendant said "across the street with neighbors"; officers went across the street and inquired, but no child there; officers went back to house to find child, found back door unlocked, knocked, and entered, and child came into kitchen; they went to get him clothes and found criminal evidence in plain view; entry was valid under caretaking function and genuine concern for welfare of child home alone).

§ 19.16 n. 160
    State v Earwood (2003, NC App) 574 SE2d 707 (defendant showed up at police station shot and said that he killed his mother; officer's warrantless entry into the house to look for her was justified under emergency exception in case she was still alive).

§ 19.16 n. 161
    State v Coles (2003, Iowa App) 2003 Iowa App Lexis 143 (entry not justified to arouse an unconscious woman where it was early morning and the officers had no reason to believe she was not just asleep, which she was).
    State v Jones (2003, Ohio App) 2003 Ohio 730, 2003 Ohio App Lexis 687 (officers observed man in building acting like he was concealing himself; he came out when instructed, locked door with key, put key in pocket and refused to consent to a search; no emergency for warrantless entry).

§ 19.16 n. 154
    State v Booth (2003, Wash App) 2003 Wash App Lexis 1354 (neighbor's complaint of acrid fire on defendant's property that officers could not see from road justified entry because it was illegal burning or it might have been a fire out of control or arson; in any event, there was no time to get a warrant and entry was reasonable).

§ 19.17 n. 173
    State v Werner (2003, RI) 2003 RI Lexis 145 (sustaining an entry under exigent circumstances to chase a man in warm pursuit with a shotgun who had shot two people without provocation; they also procured a warrant after the first entry).

§ 19.17 n. 175
    United States v Jenkins (2003, CA7 Ind) 329 F3d 579 (response to 911 call of assault in progress; inside, officer found two persons bleeding; next to one in fetal position was sawed off shotgun; gun properly seized).
    Miller v State (2003, Ga App) 2003 Ga App Lexis 719 (officer responded to shooting call at house, and when he arrived he found a bullet hole in door; entry justified, and plain view sustained).
    People v Pate (2003, Colo) 2003 Colo Lexis 567 (lack of exigency shown by officers' actions made entry invalid; response to 911 call led officers to another apartment where they entered).

§ 19.17 n. 181
    State v Saxton (2003) 315 Mont 315, 68 P3d 721 (responding to domestic disturbance call, from a distance, police hear man's voice inside say "I'm going to kill you!"; knocked on door, no answer; entry justified to see if someone hurt).

§ 19.18 n. 196
    Cardenas v. State (2003, Tex App–San Antonio) 2003 Tex App Lexis 5522 (entry to look for person with gun allegedly involved in homicide and arson occurring immediately before was reasonable).

§ 19.18 n. 197
    Cameron v State (2003, Ala Crim App) 2003 Ala Crim App Lexis 51 (also, defendant was seen actively hiding things in the kitchen and that showed possible destruction of evidence); Hughes v State (2003, Wyo) 65 P3d 378 (on opening of door, officer could see scales and marijuana on table); Beaver v State (2003, Tex App–Houston (1st Dist) 106 SW3d 243 (officers could enter to prevent possible destruction of evidence after arrest of one outside).

§ 19.18, Add text after note 197:
, but other courts have disagreed.[fn197.1]
    Underage drinking in a home[fn197.2] and loud partying [fn197.3] do not justify a warrantless entry,
   197.1. State v Steelman (2002, Tex Crim App) 93 SW3d 102, reh den, pdr den (2003, Tex Crim App) 2003 Tex Crim App Lexis 13 (warrantless entry on smell of burning marijuana not exigent circumstances; decided under state constitution); Barocio v State (2003, Tex App–Houston (14th Dist)) 2003 Tex App Lexis 5141; Ware v State (2003, Ind App) 782 NE2d 478 (just because officer smelled burning marijuana, there was no cause to believe that defendant was going to destroy it); State v Hawkins (2003, Ohio App) 2003 Ohio 1851, 2003 Ohio App Lexis 1776 (same); State v Holland (2003) 176 NJ 344, 823 A2d 38 (same; no independent source, either).
    See also Young v State (2003, Alas App) 2003 Alas App Lexis 133 (slipping a small package under a motel door not PC for entry into the room to seize it).
    197.2. In re B.R.K. (2003, Minn) 2003 Minn Lexis 183.
    197.3. Torrez v State (2003, Tex App–Houston (14th Dist)) 34 SW3d 10 (at a wake, partygoers also discharged firearms into the air; officers used that as exigency along with protective sweep as justification).

§ 19.25 n. 273
    See People v Ledesma (2003, Cal App, 1st Dist) 2003 Cal App Lexis 301 (also elaborating on the importance of a protective sweep).

§ 19.26 n. 279
    State v Batey (2003, Tenn Crim App) 2003 Tenn Crim App Lexis 233 (officers heard noises suggesting others inside).

§ 19.26 n. 280
    United States v Billings (2003, Army Ct Crim App) 2003 CCA Lexis 142.

§ 19.26 n. 281
    State v Grossi (2003) 475 Utah Adv Rep 8, 72 P3d 686 (protective sweep not justified when defendant only consented to police locking door after his arrest outside and there was no reason for a sweep; plain view of drugs suppressed).

§ 19.26 n. 282
    Lauderdale v State (2003, Ark App) 2003 Ark App Lexis 551 (U.S. Marshals made a probation violation arrest of McClendon in his apartment. Lauderdale was arrested and handcuffed coming out of the bathroom. A protective sweep was conducted, and local police were called. Since both suspects were handcuffed on the couch, the search of a black bag producing cocaine was unreasonable.)

§ 19.26 n. 283
    State v Rodriguez (2003, Ariz App) 2003 Ariz App Lexis 99.

§ 19.26 n. 285
    McCauley v State (2003, Fla App D2) 2003 Fla App Lexis 1343 (girlfriend's statement there was a gun under mattress did not amount to consent to protective sweep for gun).

§ 19.26, Add to end of section:
    A protective sweep during a knock and talk is not permissible.[fn289]
    289. United States v Gould (2003, CA5 La) 326 F3d 651 (but inviting en banc review of issue; 1994 Fifth Circuit case had to be followed that was correct on its facts but had broad language that required suppression because a protective sweep was only permissible incident to an arrest); United States v Groce (2003, ED Wis) 255 F Supp 2d 936.

Chapter 20 Searches of offices of lawyers, doctors, and other professionals

§ 20.4 n. 41
    Swearingen v State (2003, Tex Crim App) 101 SW3d 89 (defendant had letter written by fellow jail inmate to send to lawyer to divert suspicion from himself; no standing to challenge search because third parties handled it, he disclaimed authorship, and it did not purport to be from him). Observation: This is a disturbing case because it explains nothing about how this Texas search of the lawyer's office came about or was conducted or was even necessary.

§ 20.7 n. 47
    United States v Stewart (2002, SD NY) 2003 US Dist Lexis 10530 (special master appointed).

§ 20.7 n. 75
    U.S. Attorney's Manual § 9-13.420 is unchanged. The form for U.S. Attorneys to use in requesting authority to conduct a law office search is in Criminal Resource Manual 265.
    U.S. Attorney's Manual § 9-13.410 governs the process for obtaining subpoenas to lawyers.

§ 20.9 n. 87
    A search warrant for medical records of a DUI suspect directed at the treating hospital was sustained in King v State (2003, Ga) 2003 Ga Lexis 64 (right of privacy gives no constitutional right to pre-seizure notice).

Chapter 21 Searches involving First Amendment Rights

§ 21.5 n. 62
    U.S. Attorney's Manual § 9-13.400 also limits government activities in searching for evidence from the news media.

VOLUME 2

Chapter 22 Arrest and other seizures of persons

RESEARCH REFERENCES
    Thomas Y. Davies, The Fictional Character of Law-and-Order Originalism: A Case Study of the Distortions and Evasions of Framing-Era Arrest Doctrine in Atwater v. Lago Vista, 37 Wake Forest L. Rev. 239 (2002)

§ 22.1 n. 11
    See Thomas Y. Davies, The Fictional Character of Law-and-Order Originalism: A Case Study of the Distortions and Evasions of Framing-Era Arrest Doctrine in Atwater v. Lago Vista, 37 Wake Forest L. Rev. 239 (2002).

§ 22.3 n. 20
    United States v Wallace (2003, CA8 Ark) 323 F3d 1109 (FBI executed Medicaid Fraud warrant at ambulance company office, and employees were ordered away from their desks so the search could proceed; office manager was brought to an office and asked questions from a preprinted list when she was not Mirandized; not in custody; technically she was free to go, but she chose to remain as office manager).

§ 22.4 n. 45
    See Kaupp v Texas (2003, US) 155 L Ed 2d 814, 123 S Ct 1843 (arrest of juvenile at 3 a.m. from home without warrant or probable cause voided confession).

§ 22.5 n. 51
    Martinez v State (2003, Ark) 98 SW3d 827 (request for assistance made stop valid even though officer was outside his jurisdiction); Miller v State (2003) 151 Md App 235, 824 A2d 1017 (arrest 1/2 hour after rape near scene but in county rather than city did not invalidate arrest by city police officers).

§ 22.5 n. 54
    Yeager v State (2003, Tex Crim App) 2003 Tex Crim App Lexis 69 (continuous following of DUI suspect).

§ 22.15 n. 104
    Kaupp v Texas (2003, US) 155 L Ed 2d 814, 123 S Ct 1843 (arrest of juvenile at 3 a.m. from home without warrant or probable cause voided confession).
    Jones v State (2003, Miss) 2003 Miss Lexis 134 (county sheriff put out that defendant was wanted for questioning in a murder, and there was abundant probable cause; found and detained in Memphis bus station, and warrant was soon obtained).

§ 22.16 n. 107
    Considering the exigencies of a large metropolitan criminal justice system (County of Riverside, 500 US at 56-57), arrest to arraignment of 27 hours in New York City was not unreasonable considering that the police were aggressively investigating defendant's potentially being a suspect in a pattern of robberies). Irons v Ricks (2003, SD NY) 2003 US Dist Lexis 8437.

§ 22.31, Add to end of section:
    Asking others on the premises for identification when there is no reasonable suspicion as to them can amount to an unconstitutional seizure of the person.[fn290.1]
    290.1. State v Chansamone (2003, Utah App) 471 Utah Adv 3, 69 P3d 293.

§ 22.33 n. 319
    DOJ's policy on the use of deadly force is available online at DOJ's website along with commentary on the policies on use of force in noncustodial and custodial situations.

§ 22.34 n. 234
    Claims of excessive force by a teacher are governed by this standard. Doe v Hawai'i Dep't of Educ. (2003, CA9 Haw) 2003 US App Lexis 13230.

§ 22.34, Add note 328.1 after "force may be required,"
    328.1. This goes without saying, but the Tenth Circuit had to in United States v Bennett (2003, CA10 Wyo) 329 F3d 769 (on execution search warrant, defendant was ordered to stay put, but he entered garage; he was ordered out of the garage at gunpoint and was arrested; not unreasonable).

§ 22.34 n. 332
    Chew v Gates (1994, CA9 Cal) 27 F3d 1432; Watkins v City of Oakland (1998, CA9 Cal) 145 F3d 1047; Jarrett v Town of Yarmouth (2003, CA1 Mass) 331 F3d 140.

§ 22.34, Add text after note 332:
, but it has been held that using a dog to bite without first warning the suspect can be excessive force.[fn333]
    333. Kuha v City of Minnetonka (2003, CA8 Minn) 328 F3d 427 ("We hold that Kuha's allegation that the police officers failed to give a verbal warning prior to using a police dog trained to bite and hold is sufficient to state a Fourth Amendment claim." Dog bite severe femoral artery.).

§ 22.34, Add to end of section:
    The use of pepper spray is not excessive where the suspect is combative or physically resisting,[fn334] but it is excessive when unjustified.[fn335]
    334. See, e.g., McCormick v City of Ft. Lauderdale (2003, CA11 Fla) 2003 US App Lexis 11629 (reasonable alternative to physical confrontation); Bringle v State (2001, Ind App) 745 NE2d 821; Caldwell v State (2001, Fla App D2) 803 So2d 839 (affirming denial of jury instruction on defense in criminal case); VanDevander v Voorhaar (2001) 136 Md App 621, 767 A2d 339 (police disciplinary appeal); Dokman v County of Hennepin (2001, Minn App) 637 NW2d 286 (suit over taking custody of potential suicide); Passino v State (1999, 3d Dept) 260 App Div 2d 915, 689 NYS2d 258.
    335. See, e.g., Vinyard v Wilson (2002, CA11 Ga) 311 F3d 1340; Greene v Barber (2002, CA6 Mich) 310 F3d 889; Lawrence v Bowersox (2002, CA8 Mo) 297 F3d 720 (in prison); Headwaters Forest Defense v County of Humboldt (2002, CA9 Cal) 276 F3d 1125 (see news article re prior appeal); Despain v Uphoff (2001, CA10 Wyo) 264 F3d 965 (in prison; no penological purpose).
    See The Effectiveness and Safety of Pepper Spray, NIJ (Apr. 2003).
    Pepper spray normally is not overly harmful, but it can cause death in asthmatics, which is what happened with a Ft. Lauderdale man who had sickle cell traits.

Chapter 23 Searches of persons

Chapter 24 Body searches

Add to Annotations References:
    Annotation: Validity, Construction, and Operation of DNA Database Statutes, 76 ALR5th 239.

§ 24.6 n. 62
    Compare McGee v State (2003, Tex Crim App) 105 SW3d 609 (officer had plenty of specific information that the defendant crack dealer could be found in a particular place with the crack hidden in his butt crack; detention and removal to fire station for strip search not unreasonable when all the facts panned out as described; also justified as a search incident).

§ 24.13 n. 115
    State v Engesser (2003) 2003 SD 47, 661 NW2d 739.

§ 24.13 n. 124
    State v Beasley (2003, Ariz App) 2003 Ariz App Lexis 87 (swabbing hands for GSR after arrest at hospital before surgery where defendant fled from police and exchanged gunfire was a search and valid as a search incident).

§ 24.13 n. 128
    State v Troyer (2003, Ohio App) 2003 Ohio 536, 2003 Ohio App Lexis 529 (unconscious DUI suspect in hospital); State v King (2003, Ohio App) 2003 Ohio 1541, 2003 Ohio App Lexis 1480 (conscious DUI suspect in hospital).
    State v Salzwedel (2003, Wisc App) 2003 WI App 89, 2003 Wisc App Lexis 290 (conscious DUI suspect–two other cases decided the same day were in accord). State v. Smith, 2003 Mo. App. LEXIS 1146

§ 24.13, Add text after note 128:
or telling the defendant to spit out what is in his mouth.[fn128.1]
    128.1. State v Graley (2003) 151 Ohio App 3d 647, 785 NE2d 487 (defendant put rock of crack into mouth when he encountered officer).

§ 24.13, Add text after note 129:
Likewise, it has been held that "implied consent" laws that require motorists involved in death or injury accidents to submit to blood tests violate the Fourth Amendment; there still must be probable cause to draw the blood.[fn129.1]
    129.1. Commonwealth v Kohl (1992) 532 Pa 152, 615 A2d 308; McDuff v State (2000, Miss) 763 So 2d 850; Hannoy v State (2003, Ind App) 789 NE2d 977.
    All these cases rejected the government's "special needs" arguments, but Hannoy analyzed the issue in light of the intervening case of Ferguson v City of Charleston (2001) 532 US 67, 149 L Ed 2d 205, 121 S Ct 1281 (§ 24.6 n. 69.1) as well as the Supreme Court's urine testing cases (§ 24.16).

§ 24.13 n. 130
    But see Sheler v Commonwealth (2002) 38 Va App 465, 566 SE2d 203 (defendant retains an expectation of privacy in his clothing, and examination of shoes for trace evidence was unreasonable).

§ 24.15 n. 142
    Neal H. Hutchens, Suspicionless Drug Testing: The Tuition for Attending Public School?, 53 Ala. L. Rev. 1265 (2002).

§ 24.17, Add text to ende of section:
    Employees of the Office of Inspector General of the Environmental Protection Agency are not police officers subject to random testing.[fn210.1]
    210.1. Freeman v Fallin (2003, D DC) 254 F Supp 2d 52.

§ 24.19 n. 217
    Peterson v. City of Mesa (2003, App) 394 Ariz Adv Rep 22, 63 P3d 309.
    See Hughes v. City of Chicago (2003, ND Ill) 2003 US Dist Lexis 11261 (§ 1983 case about how the city tested it did not even come close to stating a claim).

§ 24.28 n. 253
    Blackwood v State (2003) 261 Ga App 110, 2003 Ga App Lexis 556 (led to consensual detention until he passed 48 pellets of cocaine).

§ 24.32, Add text to end of section:
    A body cavity search incident to arrest is unreasonable without exigent circumstances or a warrant.[265.1]
    265.1. People v More (2002) 97 NY2d 209, 738 NYS2d 667, 764 NE2d 967.

§ 24.33 n. 269
    United States v Garcia-Ortiz (2003, D PR) 2003 US Dist Lexis 7514 (government's request for surgery two years after shooting to recover bullet was less intrusive than in Winston but still risky, so Magistrate Judge refused to sanction it):
    "Pursuant to Winston v. Lee, this Court must conclude that the proposed procedure poses no significant risk to the defendant's health prior to ordering surgery on the defendant. The procedure's viability, in and of itself, does not suffice. More so, the Court can not take its responsibility under Winston lightly. Weighing the defendant's privacy and security interests against society's interest in conducting the procedure is a delicate task which merits a comprehensive analysis. Id., at 766. As in Winston, 470 U.S. 753, the medical facts in the instant case are sufficiently disputed to question the safety of the proposed surgery, and thus, warrant the denial of the Government's Motion to Remove Bullet From Defendant."

§ 24.35, Add new footnote to section heading:
    293.1. Annotation: Validity, Construction, and Operation of DNA Database Statutes, 76 ALR5th 239.

§ 24.35 n. 294
    Overstreet v State (2003, Ind) 783 NE2d 1140; State v Clark (2003, La) 2003 La Lexis 1933 (PC hearing for arrest held before order issued for DNA satisfied Fourth Amendment).
    Comment: Drawing blood is no longer required for DNA samples; it is now done by taking saliva which is far less intrusive.

§ 24.35, Add text at end of section:
All states require DNA testing of all violent offenders,[fn295.1] and DNA sampling for future use is uniformly found not to be a violation of the Fourth or Fourteenth Amendments.[fn295.2] The federal government has a statute[fn295.3] and proposed rules to test all federal violent criminals.[fn295.4]
    It has been held to violate no Fourth Amendment or fundamental right of the acccused to feed him in jail and take his spoon for DNA testing.[fn295.5]
    It has also been held that, on balance, the state's need for DNA evidence justifies taking by force if an eligible inmate refuses to cooperate.[fn295.6]
    295.1. Annotation: Validity, Construction, and Operation of DNA Database Statutes, 76 ALR5th 239.
    295.2. D.B. v State (2003, Ala Crim) 2003 Ala Crim App Lexis 2, cert den (2003, Ala) 2003 Ala Lexis 118; State v Leppert (2003, ND) 656 NW2d 718; People v Robert K. (2003, Ill App, 2d Dist) 336 Ill App 3d 867, 271 Ill Dec 630, 785 NE2d 562; State v Maass (2003, Kan) 275 Kan 338, 64 P3d 382; Nickolas v Goord (2003, SD NY) 2003 US Dist Lexis 1621 (magistrate's R&R); United States v Sczubelek (2003, D Del) 255 F Supp 2d 315.
    See also Whibby v Commonwealth (2003) 2003 Pa Commw Lexis 178, 820 A2d 829 (under state law, inmate could noty be retaliated against if he refused second sample).
    295.3. 42 U.S.C. §§ 14135-14135e.
    295.4. DNA Sampling of Federal Offenders Under the USA PATRIOT ACT of 2001, A.G. Order No. 2664-2003, 68 FR 11481.
    295.5. People v Barker (2003, Monroe Co.) 195 Misc 2d 92, 757 NYS2d 692.
    295.6. Comonwealth ex rel. Smith v Pa. Dept. of Corrections (2003) 2003 Pa Commw Lexis 538 (under state and federal constitutions).

Chapter 25 Searches of prisons, parolees, probationers and as a condition of bail

§ 25.6 n. 64
    Wallace v State (2003) 373 Md 69, 816 A2d 883.

§ 25.7 n. 84
    Laporte v Wall (2003, D RI) 2003 US Dist Lexis 11442 (vandalism; § 1983 claim).

§ 25.7 n. 86
    Craddock v Commonwealth (2003) __ Va App ___, 580 SE2d 454 (arrest for FTA on a felony drug charge supported strip search, which defendant fought in jail to avoid); Bell v State (2003, Tex App–Dallas) 2003 Tex App Lexis 4158 (stop for multiple bookable traffic offenses before which suspect appeared to stuff something in back of pants; at jail, he was sweating and hostle; strip search justified).

§ 25.7 n. 89
    Murcia v. County of Orange (2002, SD NY) 226 F Supp 2d 489; Maneely v City of Newburgh (2003, SD NY) 256 F Supp 2d 204.

§ 25.7 n. 90
    King v Gorczyk (2003) 2003 VT 34, 2003 Vt Lexis 54.

§ 25.7 n. 96
    People v Barker (2003, Monroe Co.) 195 Misc 2d 92, 757 NYS2d 692 (it violated no right of the defendant, either under the Fourth Amendment or fundamantal fairness, to feed him in jail and take the spoon and send it off for DNA testing).

§ 25.8 n. 98
    Koger v Snyder (2003, CD Ill) 252 F Supp 2d 723(also not shown to be retaliatory because plaintiff was a "jailhouse lawyer").

§ 25.9 n. 113
    Carter v State (2003) 149 Md App 509, 817 A2d 277 (not a violation of Fourth Amendment, but violation of Fifth and Sixth Amendments).

§ 25.11 n. 157
    People v Loyd (2002) 27 Cal 4th 997, 119 Cal Rptr 2d 360, 45 P3d 296; State v Martin (2003, Conn App) 2003 Conn App Lexis 289.
    State wiretap statute not violated where three way call was made from a prison and the two involved in the opening call were aware of recording. Commonwealth v Ennis (2003) 439 Mass 64, 785 NE2d 677.
    State v Cherry (2003, Duchess Co.) 2003 NY Misc Lexis 663 (while notice to inmates could have been better, inmates were on notice that their telephone calls were subject to recording; tapes were to be used in conspiracy to commit murder case).

§ 25.15, Add text to end of section:
    A probation search based on outdated information that the suspect is on probation is invalid.[fn210.1]
    210.1. People v Ferguson (2003, Cal App, 3d Dist) 109 Cal App 4th 367, 134 Cal Rptr 2d 705.

§ 25.16 n. 213
    State v Flagstadt (2003, Wisc App) 2003 Wisc App Lexis 414 (probationer status, suspicion of drug activity, and being with a known felon justified lengthy detention).

§ 25.16 n. 215
    See United States v Rodriguez (2003, SD NY) 2003 US Dist Lexis 7473 (additional special search condition could not be imposed where there it was not reasonably related to defendant's conduct).

§ 25.16 n. 231
    United States v Branch (2003, D Del) 2003 US Dist Lexis 10262 (informant provided sufficient detail that defendant was in violation of probation by violating curfew and possessing gun that they had reasonable suspicion to search the probationer's home).

§ 25.17 n. 237
    United States v Loney (2003, CA6 Ohio) 331 F.3d 516 (repeated failed drug tests; warrant had been issued for parolee's arrest).
    Commonwealth v Altadonna (2003) 2003 PA Super 59, 817 A2d 1145 (Pennsylvania retains "stalking horse" rule by statute; search here was reasonable).
    But see Riley v Commonwealth (2003, Ky) 2003 Ky Lexis 119 (Knights eliminated "stalking horse" defense).

§ 25.17, Add text at end of section: 
    It has been held that police cannot use a parole search without any justification just to "sweat him" for information about an old crime to see if he would confess.[fn240.1]
    The police may not use a probation roster as a means to conduct probation searches where the list omits references to those whom are subject to a probation search condition.[fn240.2]
    240.1. United States v Crawford (2003, CA9 Cal) 323 F3d 700.
    240.2. People v Spence (2003, Cal App, 3d Dist) 107 Cal App 4th 1131, 132 Cal Rptr 2d 621.

§ 25.19 n. 244
    Third person with whom parolee has rights that overcome parole search condition. People v Sanders (2003, Cal) 2003 Cal Lexis 5371.

§ 25.19 n. 247
    State v Barker (2001, Idaho App) 2001 Ida Lexis 30 (girlfriend's things in apartment where parolee often stayed).

§ 25.20 n. 250
    Caution and Criticism: See State v Deier (2003, Ida App Lexis 57 where the court sustained an entry into an home that was based on consent in as a condition of pretrial release. In the house they encountered Deier who was there during a prior search of the premises when a weapon was found. A frisk of the person was proper, and he separately consented to a search of his bag, and the search was sustained.
    A pretrial release condition that requires searches of a person still presumed to be innocent cannot be constitutional under the Fourth or Fifth Amendments (or a state constitutional provision). The only possibility might be if the government can show a compelling need related to some weighty governmental interest. A person should not be able to waive Fourth Amendment as a condition of pretrial release as a matter of course. The police here entered on that condition, and Deier is said in the opinion to have admitted that he knew of the search condition. A patdown produced marijuana. Deier then was asked about his belongings, and he allegedly consented to the search of his belongings, and that produced meth. Deier should have argued: (1) he had standing as a guest (and he has standing in his body and personalty regardless of standing, just like a passenger has standing to challenge a stop that leads to a search of her person even if he cannot challenge a search of the car); (2) the search condition was unconstitutional as applied to (a) the person on bail and (b) especially his guests; (3) the search of the bag cannot be based on consent because it based on the officer's asserted power to search all the premises. Therefore, the unlawful entry voided the patdown and the search of the bag. See State v Johnson (1987, Utah) 748 P2d 1069 (limited expectation of privacy remains for the others); Diaz v Ward (1977, SD NY) 437 FSupp 678 (civil rights case; families of parolees retain privacy rights sufficient to survive motion to dismiss).    There is not a lot of law on this issue, but there is some, and viscerally, Deier is just plain wrong.

Chapter 26 Border searches and stops

§ 26.1 n. 4
    See What Gives Customs the Right to Search Me? on the Customs Service website. This document also seeks to assure travelers that border searches of the person and belongings are conducted nondiscriminatorily and with tact and sensitivity.

§ 26.2 n. 13
    On March 1, 2003, the border inspection functions of the U.S. Customs Service, the Immigration and Naturalization Service, and the Animal and Plant Health Inspection Service, along with the U.S. Border Patrol, were transferred to the Bureau of Customs and Border Protection.

§ 26.11 n. 154
    United States v Bravo (2003, CA9 Cal) 295 F3d 1002 (defendant's conduct arose sufficient suspicion to handcuff him before vehicle search).

§ 26.24 n. 237
    United States v Perez (2003, D PR) 247 F Supp 2d 108.

§ 26.30 n. 266
    United States v Pollard (2003, CA3 VI) 326 F3d 397.

Chapter 27 Immigration stops and searches

§ 27.1 n. 3
    United States v Pollard (2003, CA3 VI) 326 F3d 397.

§ 27.15, Add text at end of section:
    Immigration detentions can lead to inevitable discovery even if the detention was otherwise potentially unlawful.[fn122.1]
   122.1. United States v Alvaraz-Gonzalez (2003, CA8 SD) 319 F3d 1070 (M. Arnold, J., dissented) (arguably pretextual stop; sustains the finding of gun under inevitable discovery after a traffic stop produced two invalid driver's licenses and an admission the defendant overstayed his visa).

§ 27.18, Add text after note 139:
This includes the curtilage.[fn139.1]
    139.1. United States v Romeo-Bustamente (2003, CA9 Cal) 2003 US App Lexis 15249 (curtilage not within Border Patrol's power to search "dwelling" under 8 U.S.C. § 1357(a)(3)).

§ 27.21. Detention pending deportation after release from prison [New]
    The government, through "the Attorney General shall take into custody any alien who” is removable from this country because he has been convicted of one of a specified set of crimes (aggravated felonies).[fn148] In Demore v. Kim[fn149] the Supreme Court held that due process did not prevent a resident alien from being detained upon release from prison for residential burglary pending deportation, and the Ninth Circuit's conclusion that Kim had to be released on bail pending deportation was incorrect.[fn150] The Court reaffirmed that aliens have lesser due process rights than citizens.[fn151]
    148. 8 U.S.C. § 1226(c).
    149. Demore v Kim (2003, US) 155 L Ed 2d 724, 123 S Ct 1708.
    150. The Court noted that the number of aliens in prison had increased 25% in recent years and the government had evidence that there was a high likelihood of their reoffending pending deportation proceedings [nothing to lose?], and it was logical for the government to order their detention rather than admit them to bail. 155 L Ed 2d at 731-32.
    151. Id at 732.

Chapter 28 Seizures and searches of vessels

§ 28.6 n. 38
    United States v Thomas (2003, D PR) 257 F Supp 2d 494 (pier was functional equivalent of border).

§ 28.7 n. 58
    Even state officers have boating safety authority. State v Lecarros (2003) 187 Or App 105, 66 P3d 543 (but search suppressed because state never adopted administrative regulations under statute authorizing stops).

Chapter 29 Seizures and searches of mail and packages

§ 29.6 n. 32
    X-raying mail in transit is a search, but it is reasonable and expected today. United States v Allman (2003, CA7 Ill) 2003 US App Lexis 14178 ("If anything, there is a stronger justification for searching parcels that are traveling alone on a plane than for searching those that are part of a passenger's baggage, since in the first case, if there is a bomb in the parcel set to explode during the flight, there is no personal risk to the bomber. [¶] Certainly, though, they had probable cause to believe that it contained contraband or evidence of crime, and the question is whether x-raying, though a form of search, ... requires a warrant when it is conducted on a parcel in transit. Airline passengers and their luggage are searched on embarking, not arriving; and numerous cases hold that a parcel may not be opened by the authorities without a warrant even if there is probable cause to believe that it contains contraband or evidence of crime. ... But a prima facie case of violation of the Fourth Amendment requires that there be a "reasonable expectation" of privacy in the property searched, Kyllo v. United States, ... [at] 33 ... and we have trouble seeing how, in this age of routine, soon to be universal, x-raying of containers shipped by air, the defendant could have had a reasonable expectation that his package would not be x-rayed at any point during transit." (citations omitted)

§ 29.6 n. 35
    United States v Terriques (2003, CA8 Neb) 319 F3d 1051; United States v Pitts (2003, CA7 Ill) 322 F3d 449 (also, recipient refused package, sender had no identification for name of return address; both had abandoned); United States v Zavala (2003, ED Pa) 2003 US Dist Lexis 2521 (also, sending package with a ficticious return address disclaims an expectation of privacy in the package); United States v Springer (2003, CA AF) 58 MJ 164 (printing on envelope not protected).

§ 29.10 n. 58
    Police in Alaska need reasonable suspicion to take a Fed Ex package out of the normal flow of commerce and subject it to a dog sniff. McGee v State (2003, Alaska App) 2003 Alas App Lexis 93, prior appeal (2002, Alaska App) 51 P3d 970.

§ 29.12, Add text after note 61:
and they even permit law enforcement officers to scan packages moving through their facilities.[fn61.1]
    61.1. United States v DeMoss (2002, CA8 Minn) 279 F3d 632 (DEA officer scanned packages at FedEx facility looking for suspicious packages; picking one up for a dog sniff was not a seizure); United States v Logan (2003, ED Mo) 2003 US Dist Lexis 7026 (Magistrate's R&R; occurred at a private mail drop).

Chapter 30 Seizures and searches of luggage and other containers

§ 30.1 n. 2
    State v Hamilton (2003) 314 Mont 507, 67 P3d 871 (wallet; but see § 30.4 infra).

§ 30.4, Add to end of section:
, or the community caretaking function.[fn51.1]
    51.1. State v Hamilton (2003) 314 Mont 507, 67 P3d 871 (officers could look in lost wallet to find owner; led to finding of drugs).

§ 30.10 n. 74
    State v Henderson (2003, Ohio App) 2003 Ohio 1617, 2003 Ohio App Lexis 1541 (shaving kit).

§ 30.16 n. 104
    State v Alexander (2003) 151 Ohio App 3d 590, 784 NE2d 1225 (innocent circumstances led to detention of bag 100 minutes, so not unreasonable; also there was probable cause for issuance of warrant for bag).

Chapter 31 Inventory searches

§ 31.3 n. 25
    Wilson v State (2003, Tex App.–Houston, 14th Dist) 99 SW3d 767 (search by ER nurse sustained under caretaking function revealed cash, gun, and drugs; a nurse of a public hospital inventorying an emergency room patient's purse for valuables is a governmental actor under Ferguson v City of Charleston (2001) 532 US 67, 76, 149 LEd2d 205, 121 S Ct 1281).

§ 31.5, Add text to end of section:
    The written policy does not need to be introduced into evidence if it is testified to.[fn80.1]
    80.1. People v Gipson (2003) 203 Ill 2d 298, 272 Ill Dec 1, 786 NE2d 540.

§ 31.6 n. 80
    United States v Bridges (2003, SD Iowa) 245 F Supp 2d 1034.

§ 31.6 n. 86
    Commonwealth v Naughton (2003, Mass Super) 16 Mass L Rep 43, 2003 Mass Super Lexis 65 (owner was there to take car so impoundment was unjustified).

§ 31.8, Add to Practice Pointer:
    It has been held that the police have the burden of proving standardized procedures, and the officer's bare testimony that he complied with those procedures is not enough.[fn113.1]
    113.1. Sellman v State (2003, Md App) 2003 Md App Lexis 91 (inventory of backpack finding drugs suppressed; evidence of policy had to be produced by the state (since it carries the burden on a warrantless search)).

§ 31.20, Add text at end of section:
    Moving a vehicle to conduct an inventory does not necessarily invalidate it.[fn212.1]
    212.1. See § 18.17A, supra.

§ 31.21 n. 215
    State v Denoncourt (2003, NH) 2003 NH Lexis 42.

§ 31.21 n. 220
    People v Gipson (2003) 203 Ill 2d 298, 272 Ill Dec 1, 786 NE2d 540 (black plastic bag).

§ 31.22, Add text after note 231:
It has been held, however, that procedures for cataloguing papers allows officers to examine them to itemize them.[fn231.1]
    231.1. Taylor v State (2003, Del) 2003 Del Lexis 262 (unfolding letter that amounted to a confession).

Chapter 32 Airport and bus and train station searches and seizures

§ 32.5 n. 38
    United States v Oliver (2003, ND Ill) 2003 US Dist Lexis 5579 (defendants fit "money courier" profile, and answers given during consensual encounter while they approached gate for LAX flight at Midway led to reasonable suspicion).

§ 32.8 n. 93
    Some times the stop transcends consent and becomes an arrest: A reasonable person would not feel free to leave an airport stop where her traveling companion had bags returned and was allowed to leave. What may have started as a consensual stop became a de facto arrest. United States v Williams (2003, MD Ala) 2003 US Dist Lexis 10624.

§ 32.9 n. 99
    In 2001, with regulations adopted in 2002, airline passenger security screening was delegated to the Transportation Security Administration of the Department of Transportation under the U.S. Department of Homeland Security. TSA's mission is to "protect[ ] the Nation's transportation systems to ensure freedom of movement for people and commerce." Thus, TSA is required to inspect all checked baggage and screen passengers and carry-on luggage. 49 U.S.C. § 44901.
    The relevant regulations are as follows:
    49 C.F.R. § 1540.105, Security responsibilities of employees and other persons: "(a) No person may: (1) Tamper or interfere with, compromise, modify, attempt to circumvent, or cause a person to tamper or interfere with, compromise, modify, or attempt to circumvent any security system, measure, or procedure implemented under this subchapter. (2) Enter, or be present within, a secured area, AOA, SIDA or sterile area without complying with the systems, measures, or procedures being applied to control access to, or presence or movement in, such areas."
   49 C.F.R. § 1540.107, Submission to screening and inspection, provides: "No individual may enter a sterile area without submitting to the screening and inspection of his or her person and accessible property in accordance with the procedures being applied to control access to that area under this subchapter."
    49 C.F.R. § 1540.109, Prohibition against interference with screening personnel, provides: "No person may interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties under this subchapter."
    Observation: Note that it is not a violation of the law or regulation to make snide comments about being targeted for a personal search as long as one submits to it. At least TSA respects free speech.

§ 32.16 n. 140
    State v Alsay (2003, La App 2 Cir) 847 So 2d 144 (putting dog into cargo area of bus during regularly scheduled stop not an interference with possessory interests or a stop).

§ 32.16, Add new 144.2 at end of sentence and renumber following note:
    144.2. United States v Ellis (2003, CA5 Tex) 330 F3d 677 (following Bond and Edmund; squeezing bag during stop is a generalized search for evidence).

§ 32.17 n. 149, Add to note in Supp.:
    See United States v Angulo-Guerrero (2003, CA8 Neb) 328 F3d 449 (Nebraska checkpoint; INS officers stated that they would ask citizenship, and non-citizens should produce their papers; five passengers got off the bus, questioning of defendant was not coercive).

Chapter 33 Lesser intrusive forms of electronic surveillance

RESEARCH REFERENCES
    Thomas K. Clancy, Coping With Technological Change: Kyllo and the Proper Analytical Structure to Measure the Scope of Fourth Amendment Rights, 72 Miss.L.J. 525 (2002).     Tracey Maclin, Katz, Kyllo, and Technology: Virtual Fourth Amendment Protection in the Twenty-First Century, 72 Miss.L.J. 51 (2002).
    Christopher Slobogin, Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity, 72 Miss.L.J. 213 (2002).
    James J. Tomkovicz, Technology and the Threshold of the Fourth Amendment: A Tale of Two Futures, 72 Miss.L.J. 317 (2002).
    Mark G. Young, What Big Eyes and Ears You Have! A New Regime for Covert Government Surveillance, 71 Ford.L.Rev. 1017 (2001).

§ 33.3 n. 13
    Tracey Maclin, Katz, Kyllo, and Technology: Virtual Fourth Amendment Protection in the Twenty-First Century, 72 Miss.L.J. 51 (2002); Christopher Slobogin, Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity, 72 Miss.L.J. 213 (2002).

§ 33.3 n. 18
    United States v Gonzalez (2003, CA9 Cal) 328 F3d 542 (hospital mailroom); United States v Corona-Chavez (2003, CA8 Minn) 2003 US App Lexis 9352 (audio and video recording of drug transaction in snitch's set up in hotel room by police).

§ 33.3 n. 19
    United States v Thomas (2003, D Conn) 2003 US Dist Lexis 7110.

§ 33.4 n. 40
    See DOJ's Procedures for Lawful, Warrantless Monitoring of Verbal Communications (May 30, 2002).

§ 33.4 n. 48
    State v Geraw (2002, Vt) 795 A2d 1219 (recording defendant in his own home violates state constitution).

§ 33.5 n. 49
    State wiretap statute not violated where three way call was made from a prison and the two involved in the opening call were aware of recording. Commonwealth v Ennis (2003) 439 Mass 64, 785 NE2d 677.

§ 33.7 n. 61
    Compare Commonwealth v Duncan (2003) ___ Pa ___, 817 A2d 455 (no expectation of privacy in ownership information held by bank of ATM card under state constitution).

§ 33.10 n. 105
    State v Jackson (2002) 111 Wash App 660, 46 P3d 257, rev gr (2003, Wash) 2003 Wash Lexis 80 (oral argument May 20, 2003).

§ 33.16 n. 138
    People v Ledesma (2003, Ill) 2003 Ill Lexis 1409.

Chapter 34 Administrative and regulatory searches and seizures

ANNOTATION REFERENCES
    Validity of warrantless administrative inspection of business that is allegedly closely or pervasively regulated; cases decided since Colonnade Catering Corp. v. U.S., 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970), 182 ALR Fed 467.

§ 34.4 n. 63
    Annotation: Validity of warrantless administrative inspection of business that is allegedly closely or pervasively regulated; cases decided since Colonnade Catering Corp. v. U.S., 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970), 182 ALR Fed 467.

§ 34.7 n. 134
    Annotation: Validity of warrantless administrative inspection of business that is allegedly closely or pervasively regulated; cases decided since Colonnade Catering Corp. v. U.S., 397 U.S. 72, 90 S. Ct. 774, 25 L. Ed. 2d 60 (1970), 182 ALR Fed 467.

§ 34.8 n. 150
    In the Matter of Eastablishment Inspection of Wedgewood Village Pharmacy, Inc. (2003, D NJ) 2003 US Dist Lexis 11648.
    

§ 34.8 n. 155
    United States v Funaro (2003, D Conn) 253 F Supp 2d 286 (DEA conducted consensual search without administrative warrant).
    Murphy v State (2003) 115 Wn App 297, 62 P3d 533 (pharmacy board did not need warrant to search records of pharmacy already in the hands of the sheriff).

§ 34.9 n. 162
    Commonwealth v Bennett (2003, Pa Super) 2003 PA Super 212, 2003 Pa Super Lexis 1333 (non-liquor law enforcement officers could participate, but, here, officer was standing by outside looking for leaving underage drinkers; defendant refused to stop and bumped officer; cocaine found).
    See State v Childs (2003, Kan) 275 Kan 328, 64 P3d 389 (but, under Kansas law, the remedy for refusal of entry is license revocation and not forcing one's way in; drug evidence suppressed).

§ 34.17, Add text to end of section:
    Florida adopted an administrative warrant required to combat citrus canker, and area wide warrants are constitutional.[fn218.1]
    218.1. Florida Dept. of Agriculture and Consumer Services v. Haire (2003, Fla App D4) 836 So 2d 1040 (no requirement for a warrant for each specific piece of land).

§ 34.26, Add text after note 289:
Finding a meth lab as a likely cause of a fire creates exigent circumstances.[fn289.1]
    289.1. United States v Francis (2003, CA8 Mo) 327 F3d 729 (noting that the court had previously held that the strong odor of a meth lab created exigent circumstances because of the risk of explosion).

§ 34.30 n. 324
    Ordinance that required landlord to submit to entries was facially valid, but unconstitutionally applied where city officials entered without a warrant on landlord's refusal. Commonwealth v Tobin (2003) 2003 Pa Commw Lexis 453.

§ 34.31 n. 338
    See Bleavins v Bartels (2003, CA7 Ill) 326 F3d 887 (Bivens action; tax seizure authorized seizure but maybe not entry onto curtilage; remanded for more fact finding re qualified immunity).

§ 34.36 n. 208
    United States v Springer (2003, CA AF) 58 MJ 164 (holding envelope up to see through the paper not unreasonable; defendant could have used a thicker envelope (not citing rule)).

Chapter 35 Military searches and seizures

RESEARCH REFERENCES
    Rebecca A. Conrad, Searching for Privacy in All the Wrong Places: Using Government Computers to Surf Online, 48 Nav. L. Rev. 1 (2001).

§ 35.5 n. 41
    United States v Geter (2003, N-M Ct Crim App) 2003 CCA Lexis 134 (no standing in government computer).

§ 35.5 n. 44
    United States v Khamsouk (2002, CA AF) 57 MJ 282 (guest who slept on couch 2-3 days had standing).

§ 35.9 n. 61
    A barracks mate conducting search for own ends of finding cocaine is not a governmental agent. United States v Daniels (2003, N-M Ct Crim App) 58 MJ 624.

§ 35.30, Add new text at end of section:
    Accused's on-premises objection to search did not override his wife's off-premises consent. United States v Garcia (2002, N-M Ct Crim App) 57 MJ 716.

§ 35.30 n. 188
    United States v Camacho (2003, N-M Ct Crim App) 58 MJ 624; United States v McMahon (2003, CA AF) 58 MJ 362.

§ 35.54, Add note to end of section:
    See United States v Schnable (2003, N-M Ct Crim App) 2003 CCA Lexis 107 (clothing in sexual assault case could be washed).

§ 35.55 n. 274
     United States v Schnable (2003, N-M Ct Crim App) 58 M.J. 643 (clothing in sexual assault case).

§ 35.59, Add to end of section:
    "[T]he Constitution does not permit military investigators greater power to conduct warrantless entries into the civilian home than their civilian counterparts. See Posse Comitatus Act, 18 USC § 1385."[n289.1]
    289.1. United States v Khamsouk (2002, Ct App Armed Forces) 57 MJ 282, 289.

§ 35.63 n. 306
    United States v Khamsouk (2002, Ct App Armed Forces) 57 MJ 282, 289.

§ 35.64 n. 308
    See United States v Khamsouk (2002, Ct App Armed Forces) 57 MJ 282.

Chapter 36 Foreign searches and seizures

§ 36.7, Add new text at end of section:
    An abduction in violation of the law of nations states a claim under the FTCA.[fn40]
    40. Alvarez-Machain v United States (2003, CA9 Cal) 331 F3d 604 (en banc).

Chapter 37 National Security searches and seizures

§ 37.4 n. 7
    The government admitted in September 2000 to the Foreign Intelligence Surveillance Court that it has made at least 75 materially false applications for FISA warrants, and it admitted in March 2001 to having failed to maintain minimization requirements. In re All Matters Submitted to the Foreign Intelligence Surveillance Court (2002, F.I.S. Ct.) 2002 WL 1949263 *9.

§ 37.4 n. 61
    On March 5, 2003, the Los Angeles Times reported that the Attorney General had approved of 170 "emergency searches" under FISA in the last 17 months. Richard B. Schmidt, "US Covert Searches Expand," LA Times A-1 (Mar. 5, 2003).

Chapter 38 Other searches and seizures authorized by special needs

§ 38.10 n. 118
    In re Micheal R. (2003) 11 Neb App 903, 662 NW2d 632.

§ 38.12 n. 130
    Rinker v Sipler (2003, MD Pa) 2003 US Dist Lexis 8324 (§ 1983 case; escalating justifications about marijuana use at school led to partial strip search and UA; summary judgment for defendants on merits).

§ 38.13 n. 135
    It has been held in some states that a student has a reasonable expectation of privacy in his locker, subject to measures necessary to the educational mission. State v Jones (2003, Iowa) 2003 Iowa Sup Lexis 134 (search valid; winter break clean out of all lockers).

§ 38.14, Add text after note 141:
or a gun in a car on school grounds.[fn141.1]
    141.1. People v Williams (2003, Ill App 2d Dist) 274 Ill Dec 516, 791 NE2d 608.

§ 38.18 n. 175.1.
    School drug testing policy admittedly valid under Vernonia and Earls is subject to no different analysis under NJ Constition: Joye v Hunderdon Cent. Regional High Sch. Bd. of Educ. (2003, NJ) 2003 NJ Lexis 687 (4-3, over vigorous dissent).

§ 38.23 n. 195
    In re A.T.H. (2003, Tex App–Austin) 106 SW3d 338 (police officer conducting criminal search on school property based on anonymous tip).

§ 38.27 n. 236
    Wiley v DOJ (2003, Fed Cir) 328 F3d 1346 (a prison parking lot is a part of the workplace under O'Connor v Ortega; thus reasonable suspicion is required for a search of an employee's car; anonymous tip that teacher employee kept a gun in car on parking lot did not support search, so his refusal to submit to one was not grounds for discharge).

§ 38.29 n. 246
    See Morgan v United States (2003, CA9 Cal) 323 F3d 776.

§ 38.31, Add new text after note 249:
    A metal detector alert at skating rink manned by an off-duty officer did not justify a patdown without first giving the person a chance to empty his pockets.[fn249.1]
    249.1. United States v Ford (2003, CA7 Ind) 333 F3d 839 (officer said to step forward, and defendant stepped back; officer pushed his arms up and patted him down; patdown unreasonable).

§ 38.31 n. 250
    Williams v Brown (2003, ND Ill) 2003 US Dist Lexis 11263 (anonymous tip that one person at field house had a weapon did not justify wholesale searches of all occupants; § 1983 case).

E. Other Searches and Seizures Warranted by "Special Needs" [New heading]

§ 38.32. Domestic violence calls [New section]
    A domestic violence call is an implied consent from the caller for a police entry.[fn252] It also qualifies as a "special need" for a police entry, and reasonable suspicion may permit officers to search for and seize weapons which could be used against the complainant.[fn253]
    Domestic violence calls that result in an arrest justify a search incident.[fn254] Consents can also occur.[fn255] It has been held, however, that a domestic violence call that has settled down by the time the police arrive does not justify an entry on a "community caretaking" excuse.[fn256]
    252. See, e.g., State v Chiampo (2003, Ohio App) 2003 Ohio 2422, 2003 Ohio App Lexis 2253.
    253. State v Perkins (2003) 358 NJ Super 151, 817 A2d 364 (applying state statute; the court went on to hold that the officers' search was narrow, strictly confined to where the complainant said guns could be found, and there was no ransacking of the house; nevertheless, the "special need" present does not justify using the product of the search and seizure in a criminal case "unless the factual circumstances justify a search under a recognized exception to the warrant requirement, a search and seizure under N.J.S.A. 2C:25-21d(1) and (2) is deemed reasonable and thereby passes constitutional muster so long as the results are not used to facilitate a criminal prosecution." The statute also contemplated seizures beyond the scope of the criminal law. Plain view also not satisfied).
    See also State v Christensen (2003) 2003 SD 64, 663 NW2d 691 (order of protection that gave 48 hours to remove weapons or police could enter to do it authorized their entry; plain view of child porn sustained).
    254. Wright v State (2003) 276 Ga 454, 579 SE2d 214.
    255. State v Rice (2003, Ohio App) 2003 Ohio 2860, 2003 Ohio App Lexis 2554 (stepdaughter told police of marijuana stash, and defendant consented to a search for it).
    256. State v Keilen (2003, ND) 649 NW2d 224.

§ 38.33. Child abuse investigations [fn254] [New section]
    The Fourth Amendment applies to child abuse investigations, and they are governed by the special needs exception.[fn256] That is, entry into a place where there is an expectation of privacy[fn256] for the seizure of a child suspected of being a victim of child abuse requires a warrant or exigent circumstances.[fn257]
    254. Michael R. Beeman, Note, Investigating Child Abuse: The Fourth Amendment and Investigatory Searches, 89 Colum. L. Rev. 1034 (1989); Brian D. Gallagher, "The Right of the People . . ." The Exclusionary Rule in Child Abuse Litigation, 4 T.M. Cooley J. Prac. & Clinical L. 1 (2000).
    255. See, e.g., Roe v Texas Dept. of Protective and Regulatory Services (2002, CA5 Tex) 299 F3d 395; Good v Dauphin County Soc. Servs. (1989, CA3 Pa) 891 F2d 1098; Doe v Heck (2003, CA7 Wis) 327 F3d 492; Frans v Lytle (1993, CA10 Kan) 997 F2d 784; Roska v Peterson (2002, CA10 Utah) 304 F3d 982; New Jersey Div. of Youth & Family Servs. v B.W. (1978) 165 NJ Super 492, 398 A2d 611.
    256. Obviously, a warrant or exigent circumstances are required for entry into a home; see cases cited in note 255, supra; but even a day care center is a place with an expectation of privacy. Doe v Heck, supra (parents and child have an expectation of privacy at a day care center because of role of protector of center over child while there).
    257. See cases cited in note 255, supra.

Chapter 39 Subpoena duces tecum

§ 39.2A. Subpoenas issued under treaties [New][fn20.1]
    The United States has entered into treaties with other countries to permit the member nations to subpoena records for criminal investigations in each other's countries. The treaties are equal in stature to statute and are implemented[fn20.2] via 28 U.S.C. § 1782(a).[fn20.3]
    It is not required that there actually be a pending proceeding in the requesting jurisdiction; an investigation is enough.[fn20.4] The district court has the discretion to refuse to issue the subpoena under § 1782, and refusal is reviewed for abuse of discretion.[fn20.5] The subpoena should issue if there is a likelihood that a criminal prosecution might result.[fn20.6]
    A target in the United States has a right to notice and an opportunity to attend depositions.[fn20.7] A subpoena to a bank does not implicate a privilege of the account holder.[fn20.8]

    20.1. See generally Brian Bomstein & Julie Levitt, Much Ado About 1782: A Look at the Recent Problems with Discovery in the United States for Use in Foreign Litigation under 28 U.S.C. § 1782, 20 U. Miami Inter-Am. L. Rev. 429 (1989).
    20.2. In re Request for Assistance from Ministry for Legal Affairs of Trinidad and Tobago (1988, CA11 Fla) 848 F.2d 1151; In re Commissioner's Subpoenas (2003, CA11 Fla) 325 F3d 1287..
    20.3. 28 U.S.C. § 1782(a) provides as follows:
    "§ 1782. Assistance to foreign and international tribunals and to litigants before such tribunals
    "(a) The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.
    "A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege."
    20.4. Re Letter of Request from Crown Prosecution Service of the United Kingdom (1989) 276 US App DC 272, 870 F2d 686; United States v Sealed 1 (2000, CA9 Wash) 235 F3d 1200.
    20.5. United States v Sealed 1, supra; In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, supra.
    20.6. In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, supra; In re Letter of Request from the Crown Prosecution Service of the United Kingdom, supra.
    20.7. Re Letter of Request from Supreme Court of Hong Kong (1991, SD NY) 138 FRD 27 (order to US Attorney and Hong Kong to suppress transcripts for lack of notice).
    20.8. In re Request for Judicial Assistance from Seoul District Criminal Court (1977, CA9 Cal) 555 F2d 720.

§ 39.7 n. 107
    United States v Jones (2002, CA9 Cal) 286 F3d 1146 (in executing subpoena for records, closed office door was ordered opened and records were found; suppressed).

§ 39.19, Add text at end of section:
    Subpoenas to health care providers are now subject to new federal regulations which may govern production and notice to the subject of the records.[fn225.1]
    225.1. 45 CFR § 164.501 et seq., particularly § 164.512.

Chapter 40 Searches and seizures of documents

RESEARCH REFERENCES
    John R. Vacca, Computer Forensics: Computer Crime Scene Investigation (2002).

ANNOTATION REFERENCES
    Validity of search of seizure of computer, computer disk, or computer peripheral equipment, 84 ALR5th 1.

§ 40.6 n. 66
    Fink v State (2003, Del) 817 A2d 781 (search of law office computer in case where bar officers suspected lawyer of conversion of client funds was sufficiently specific when other records did not reveal all the records there should be; search produced indication of child porn and officers sought an additional warrant for those files).

§ 40.7 n. 69
    See United States v Debbi (2003, SD NY) 244 F Supp 2d 235 (discussed in § 44.26 n. 274, infra (unnecessarily seized records from defendant's house ordered returned immediately; hearing to be held on officers' good faith in seizing quantity of records that they did)), 258 F Supp 2d 313, motion den (2003, SD NY) 2003 US Dist Lexis 8062.

§ 40.9 n. 102
    Annotation: Validity of search of seizure of computer, computer disk, or computer peripheral equipment, 84 ALR5th 1.

§ 40.9 n. 103
    Observation: Police are always tempted to seize computers if they can fathom the slightest justification. See Burnett v State (2003, Fla App D2) 2003 Fla App Lexis 7134 (just because the defendant videotaped young boys for child porn did not translate into his having it on his computer; more of a showing of nexus was required), in § 42.10 n. 80. See § 40.11 n. 119.2.

§ 40.10 n. 112
    See DOJ's Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (July 2002).

§ 40.10 n. 114
    United States v Geter (2003, N-M Ct Crim App) 2003 CCA Lexis 134 (no expectation of privacy or standing in government computer, even one password protected).

§ 40.10 n. 117
    Rogers v State (2003, Tex App–San Antonio) 2003 Tex App Lexis 4857 (defendant took his computer to a repair shop to get a virus removed and asked them to back up his .jpg files had no reasonable expectation of privacy in them (see also § 40.10 n. 119)).

§ 40.10 n. 119
    State v Wible (2002) 113 Wash App 18, 51 P3d 830 (computer repair person was citizen informant on search warrant for child porn; computer was searched at CompUSA); Rogers v State, supra note 117; People v Emerson (2003, Monroe Co.) 2003 NY Misc Lexis 885 (repairman was given computer to eliminate viruses, and defendant virtually warned him of content; also, police did not expand the private search).

§ 40.10, Add text at end of section:
    The nexus requirement[fn119.1] to the crime under investigation applies.[fn119.2]
    119.1. See § 42.10 n. 80.
    119.2. United States v Wong (2003, CA9 Cal) 2003 US App Lexis 12926 (information in murder investigation was sufficient to justify search of defendant's computers).

§ 40.11 n. 120
    United States v Clough (2003, D Me) 246 F Supp 2d 84 (warrant for all text files in computer was overbroad; no description of alleged crime under investigation).
    Warrant for evidence of illegal cable box operation did not authorize opening computer files labeled "Fake ID." People v Carratu (2003, Nassau Co.) 194 Misc 2d 595, 755 NYS2d 800.

§ 40.11 n. 122
    Fink v State (2003, Del) 817 A2d 781 (search of law office computer in case where bar officer's suspected lawyer of conversion of client funds was sufficiently specific when other records did not reveal all the records there should be; search produced indication of child porn in .jeg files, and officers sought an additional warrant for those files).

§ 40.17, Add text at end of section:
Delegating the search to third-parties with the expertise to narrow the search is also reasonable, and, probably, desirable because it narrows the search and prevents rummaging.[fn173.1]
    173.1. See §§ 44.22 n. 230 & 44.22A, infra.

Chapter 41 Warrant requirement in general

§ 41.5, Add text to end of section:
    The fact a magistrate has not rejected any warrants presented to him or her does not show that the magistrate is not neutral and detached because it could mean that the police are doing their job in presenting adequate warrant requests.[fn65.1]
    65.1. United States v Pennington (2003, CA6 Tenn) 324 F3d 438.

§ 41.7 n. 7
    State v Acosta (2003, Tex App–Corpus Christi) 99 SW3d 301.

§ 41.8, Add text at end of section:
    A warrant must specify something in particular to seize.[fn98.1]
    98.1. State v Miller (2003, Ore App) 2003 Ore App Lexis 871 (warrant said "to search" but never said "to seize" and court refused to imply it).

§ 41.9 n. 103
    United States v Pennington (2003, CA6 Tenn) 324 F3d 438 (Tennessee Judicial Commissioner).

Chapter 42 Applications for warrants

§ 42.3 n. 15
    A Louisiana Commissioner appointed by the courts cannot issue search warrants because it is delegation of judicial power. State v Umezulike (2003, La App 3d Cir) 2003 La App Lexis1041.

§ 42.3, Add at end of section:
    There is no reason why a federal law enforcement officer could not apply for a state search warrant.[fn16.1]
    16.1. State v Joiner (2003) 2003 Ohio 3324, 2003 Ohio App Lexis 3038.

§ 42.3 n. 18
    Distinguishing Scott is United States v Pennington (2003, CA6 Tenn) 324 F3d 438 (magistrate appointed by local legislative body which could revoke commission can still be neutral and detached).

§ 42.3 n. 21
    A tribal court judge lacks authority to issue a search warrant. United States v LaFountain (2003, D ND) 252 F Supp 2d 883 (BIA search; but GFE faith applied).

§ 42.3 n. 25
    State v Nunez (2003, Ida) 2003 Ida Lexis 51 (warrant was not served before expiration; officers reapplied with additional facts, so it was a new warrant, not merely a reissue).

§ 42.5 n. 37
    A grand jury's petition alone not is not a basis for search warrant. Commonwealth v Williams (2003, Mass) 2003 Mass Lexis 528 (affidavit or other sworn showing still required); Commonwealth v Williams (2003, Mass) 2003 Mass Lexis 527, *14-16: "Finally, we turn to the hearing itself, and the judge's order allowing the petition. Presented with a petition from the grand jury, the judge must hold a hearing before deciding whether to order the extraction of the samples, and, as noted above, must be satisfied that there is a 'reasonable basis for believing' that the blood sample will "significantly aid" the grand jury's investigation. Williams contends that the judge must also weigh other considerations, and that the judge's order reflected neither the required finding of a 'reasonable basis' nor such a weighing. This argument appears to be based on language contained in Matter of Lavigne, 418 Mass. 831, 836, 641 N.E.2d 1328 (1994). In that case, which involved an application for a search warrant, we stated that the Commonwealth needed not only to establish "probable cause" (not relevant here) and that the evidence sought would aid in the investigation before authorizing the warrant, but also that, in considering the application, the judge "must'weigh the seriousness of the crime, the importance of the evidence to the investigation, and the unavailability of less intrusive means of obtaining it, on the one hand, against concern for the suspect's constitutional right to be free from bodily intrusion on the other.' Matter of Lavigne, supra at 836 (citation omitted). In Matter of a Grand Jury Investigation, 427 Mass. 221, 224, 692 N.E.2d 56 (1998), the issue of additional considerations was not directly before the court but we noted, 'other considerations pointing to the allowance of the grand jury's request,' including the minimal degree of bodily intrusion, the high degree of relevance of the evidence on the question of guilt or innocence, and the lack of a better source for evidence of such strength. We view these considerations to be in essence the same as those enumerated in Matter of Lavigne, supra at 836, and appropriate for the judge to weigh in ruling on petitions like the one at issue here."

§ 42.7, Add text to end of section:
    State law may prohibit the use of oral testimony to supplement an affidavit.[fn54.1]
    43.1. Page v State (2003, Wyo) 63 P3d 904.

§ 42.9 n. 65
    Land v State (2003, Ga App) 259 Ga App 860, 2003 Ga App Lexis 289 (suppression hearing testimony about additional factors of probable cause may not be considered in support of probable cause).

§ 42.10 n. 80
    There must be a nexus between the probable cause and the place to be searched. State v Maddox (2003, Iowa App) 2003 Iowa App Lexis 329; State v Walczyk (2003, Conn App) 76 Conn App 169, 818 A2d 868 (also, no showing of probable cause in totality of affidavit); Burnett v State (2003, Fla App D2) 2003 Fla App Lexis 7134 (just because the defendant videotaped young boys for child porn did not translate into his having it on his computer; generalizations not enough and more was required to search computer); Straughn v State (2003, Ala Crim App) 2003 Ala Crim App Lexis 138 (marijuana patch not on defendant's property did not give nexus to search his house; while affidavit deficient, however, GFE saved it); People v Green (2003, Colo) 2003 Colo Lexis 496 (defendant was wearing stolen Rolex taken in a string of burglaries; PC to search house).
    Controlled drug buys from a car and observation of the defendant driving to his home immediately thereafter showed nexus to search the house. United States v Pina (2003, D Mass) 2003 US Dist Lexis 8649.

§ 42.13 n. 104
    White v State (2003, Miss) 842 So 2d 565 (also, GFE not intended to apply to this type of error, even if it was, which it was not).

§ 42.13 n. 117
    State v Dunbar (2003, SC App) 581 SE2d 840 (search suppressed based on information given to the magistrate over the telephone that another officer went to the magistrate and swore to and obtained the warrant; no showing that the oral information in the call was given under oath, and the officer signing the affidavit had no personal knowledge; the application thus failed the "oath or affirmation requirement").

§ 42.14 n. 119
    United States v Bach (2002,CA8 Minn) 301 F3d 1063, discussed in § 44.22A, infra (faxing warrant to ISP for child e-mails in child porn investigation was not unreasonable under the Fourth Amendment); Florida Dept. of Agriculture and Consumer Services v. Haire (2003, Fla App D4) 836 So 2d 1040 (electronic signature of judge valid).

§ 42.17 n. 142
    United States v McGuire (2003, D Me) 2003 US Dist Lexis 9753 (a Franks challenge fails without an offer of proof).

§ 42.17 n. 145
    State v Frost (2003, Super Ct) 2003 Del Super Lexis 2.

§ 42.18 n. 145
    United States v McCain (2003, ND Cal) 2003 US Dist Lexis 12305 (Franks violation found for describing wiretap information as coming from a person, officer presented own interpretation of facts rather than wiretap's; suppressed).

§ 42.18 n. 149
    Failure to mention in the affidavit that the defendant's apartment was under surveillance is hardly a material falsity to a finding of probable cause. Jones v State (2003, Ind) 783 NE2d 1132.

§ 42.19 n. 151
    United States v Perez (2003, SD NY) 247 F Supp 2d 459 (Franks violation where officer indicated in form child porn affidavit that all persons who went to websites received child porn when, in fact, they had to subscribe to get it, and not all who went there got it; government conceceded falsity of statement); United States v Stauser (2003, ED Mo) 247 F Supp 2d 1135 (same).

§ 42.20 n. 156
    Ex parte Parker (2003, Ala) 2003 Ala Lexis 8, on remand at, remanded by Parker v. State (2003, Ala Crim App) 2003 Ala Crim App Lexis 77 (false statement that controlled buy occurred three days earlier vitiated probable cause); United States v McCain (2003, ND Cal) 2003 US Dist Lexis 12305 (Franks violation found for describing wiretap information as coming from a person, officer presented own interpretation of facts rather than wiretap's; suppressed).

§ 42.21, Add Recommentation at end of section:
    Recommendation: A court could always conduct a hearing on whether a Franks violation occurred, and analyze the issue by retesting the probable cause and under both theories: that there was or was not a Franks violation. The government will usually prevail by showing probable cause at the end of the hearing, and this will enable the trial court to fully flesh out the proof and give the accused a hearing that likely could cut off, or at least greatly simplify, an appellate issue.[fn165.1]
    165.1. Compare United States v Shorter (2003, CA4 Va) 328 F3d 167, where the trial court gave a Franks hearing where one was not required, and gave the appellate court findings that enabled it to resolve the issue both ways.

§ 42.24 n. 177
    The defendant has a right to know the probable cause, and statute may require the affidavit be attached if it is incorporated by reference. State v Allen (2003, Nev) 119 Nev Adv Rep 21, 69 P3d 232 (sealed affidavit was incorporated by reference but not attached; also GFE did not apply).

Chapter 43 Form, content, and construction of warrants

ANNOTATION REFERENCES
    Error, in either search warrant or application for search warrant, as to address of place to be searched as rendering warrant invalid, 103 ALR5th 463.

§ 43.14, Add new note 94.1 to section heading:
    Annotation: Error, in either search warrant or application for search warrant, as to address of place to be searched as rendering warrant invalid, 103 ALR5th 463.

§ 43.14 n. 103
    United States v Gilbert (2003, SD Ind) 2003 US Dist Lexis 5285 (street name was incorrect in some places in papers, but officer knew the right place).

§ 43.14 n. 105
    United States v Gilbert, note 103, supra.

§ 43.16 n. 115
    Commonwealth v Dominguez (2003) 57 Mass App Ct 606, 785 NE2d 387.

§ 43.16, Add text at end of section:
    When the place to be searched is a business and part of it turns out to be a residence, officers are justified in searching the residential part if there is cause to believe that the residential part would hold evidence of the crime under investigation.[fn115.1]
    115.1. Long v State (2003, Tex App–Tyler) 108 SW3d 424 (gambling premises search; from outside, residential part was practically indistinguishable, and warrant for "premises" included all of it, and it was reasonable to assume that business records would be located where they looked).

§ 43.18 n. 121
    People v McGhee (2003) 255 Mich App 623, 662 NW2d 777.

§ 43.21 n. 142
    See § 3.18A on a DNA profile as a particular description.

§ 43.21 n. 147
    "All persons" on premises warrant valid if all persons would logically have a connection to offense: State v Perkins (2003) 2003 Ohio 3156, 2003 Ohio App Lexis 2833:
    "[The warrant application] must carefully delineate the character of the premises, for example, its location, size, the particular area to be searched, means of access, neighborhood, its public or private chater and any other relevant fact. It must specifically describe the nature of the illegal activity believed to be conducted at the location, the number and behavior of persons observed to have been present during the times of day or night when the warrant is sought to be executed. [¶] The application should also state whether any person apparently unconnected with the illegal activity has been seen at the premises. The warrant itself must limit the locus of the search to the area in which the criminal activity is believed to be confined and, according to the circumstances, may also specify the time for the search."

§ 43.23 n. 159
    State v Overholt (2003, Ohio App) 2003 Ohio 3500, 2003 Ohio App Lexis 3179.

§ 43.25 n. 164
    State v Kramer (2003) 260 Ga App 546, 2003 Ga App Lexis 418 ("instruments used in crimes of child molestation" and listing of a computer and videotapes and pictures was overbroad when there was no probable cause to believe that anything like that was involved in alleged crime).

§ 43.26 n. 106
    State v Adams (2003, NC App) 2003 NC App Lexis 1513 (video camara found hidden in bedroom; defendant said the tapes showed him having sex; tapes could be seized to show who was in control of premises).

§ 43.31 n. 190
    United States v Lora-Solano (2003, CA10 Utah) 330 F3d 1288 (error in address was corrected by officer consulting with informant, so right house would be searched; also GFE saved the search).

§ 43.32, Add text at end of section:
Electronic signatures have been sustained.[fn 209.1]
    209.1. Florida Dept. of Agriculture and Consumer Services v. Haire (2003, Fla App D4) 2003 Fla App Lexis 227.

§ 43.33 n. 210
     Ramirez v Butte-Silver Bow Co. (2002, CA9 Mont) 298 F3d 1022 (per Kozinski, J.), pet. for cert filed Nov. 22, 2002 (02-811), cert. granted Mar. 3, 2003 on other grounds (qualified immunity).

Chapter 44 Conduct of searches and execution of warrants

ANNOTATION REFERENCES
    Search warrant as authorizing search of other structures on property other than main house or other building or location other than designated portion of building, 104 ALR5th 165.

§ 44.2, Page 699 of supp.
Delete text in supplement and replace with:
    See § 44.13A, infra.

§ 44.3 n. 69
    "We fully recognize that Richards and its progeny emphasize the State's proof of particular exigent circumstances justifying a no-knock entry is 'not high,' Richards, 520 U.S. at 394, but the proof must at least indicate an unequivocal knowledge on the part of the authorities of the particular exigent circumstance(s) asserted." Ballard v State (2003, Tex App–Beaumont) 2003 Tex App Lexis 4210, *27 (generalized assertions about meth manufacturers not enough to dispense with knock-and-announce).

§ 44.6 n. 8
    See FBI's Legal Handbook for Special Agents § 5-2.2.2 quoted in § 44.8, infra.

§ 44.8 to end of section:
    The FBI's Legal Handbook for Special Agents § 5-2.2.2 provides as follows:
    "Title 18, USC, Section 3109, requires an Agent to announce his/her identity, authority and purpose before entry to execute a search warrant. Theannouncement need not be lengthy or elaborate but shoudl be conveyed in amanner to make it unmistakable that the person behind the know knows what is taking place. Following announcement of the identity, authority, and purpose, and Agent should demand entry. The following statement would suffice: 'FBI–we have a warrant to search your apartment–open the door.' A loud annoucement is essential; electronic devices designed to amply the voice should be used in cases where difficult communication is anticipated. Where several Agents participate in the execution of a search warrant, one should be designated to make the announcement. The same rules apply with respect to entries into prfemises to make an arrest. See section 3-7."

§ 44.9 n. 111
    United States v Pinson (2003, CA6 Tenn) 321 F3d 558 (10 seconds not per se unreasonable under the facts of the case; since defendant could see the officers coming, it was reasonable to enter that quickly).

§ 44.9 to end of section:
    The FBI's Legal Handbook for Special Agents § 5-2.2.4 provides as follows:
    "The manner of entry to conduct the search will depend upon the response of the person against whom the search is directed. If the person complies with the entry demand, the Agents may enter immediately and conduct the search. If the person refuses to comply, an immediate forcible entry should be made. The degree of force used must be reasonable; that is, it must be sufficient to promptly and safely gain access, but no more. Ordinarily, this means breaking open the door. Devices such as pry bars, axes, and battering rams may be used if necessary to make immediate entry. If the person behind the door remains silent or responds ambiguously to the entry demand, Agents must wait a reasonable time before making the forcible entry. Examplies of ambiguous responses are: 'I'm getting dressed' or 'Take it easy' or 'What's the rush.' A reasonable time depends upon the circumstances, particularly on the object of the search. What may be reasonable with to stolen typewriters may not be reasonable where gambling records on flash paper or water-soluble paper are sought. As a general practice, Agents should document the amount of time that lapses between the entry and the forcible entry itself. If, durign the announcement procedure, the Agents have reason to believe the evidence is in the process of destruction, and immediate entry may be made. Agents are under no obligation to argue or negotiate with any person whoses property is to be searched. Nor should they display credentials though peepholes, slide a copy of the warrant under the door, or otherwise delay the execution of the warrant beyond the procedure described above."

§ 44.10
    Caution: The Supreme Court granted cert. on February 24, 2003 in a case to decide whether a SWAT team's battering down a door after a 15-20 second delay after announcing, finding the defendant in the shower, was reasonable. The Ninth Circuit suppressed the search finding that the accused did not have sufficient notice. Also, the officers had no evidence justifying any exigency, and they apparently could not hear the shower running. United States v Banks (2002, CA9 Nev) 282 F3d 699, pet. for cert. filed Sept. 21, 2002 (02-473), cert. granted Feb. 24, 2003.
    Compare State v Reynoso-Hernandez (2003, Me) 816 A2d 826 (20 seconds enough); United States v Pennington (2003, CA6 Tenn) 324 F3d 438 (noting cert. grant in Banks and refusing to adopt a fixed rule; discussed in note 148);

§ 44.11 n. 138
    Commonwealth v Sespedes (2003, Mass App) 58 Mass App Ct 907, 789 NE2d 153 (officers collected information placed in affidavit for no-knock warrant; as they approached, defendant fled, so entering without announcing was a useless gesture).

§ 44.11 n. 140
     State v Cassells (2003, Fla App D2) 835 So 2d 397 (defendant was arrested in driveway before entry and he told officers no one was home; officers announced and waited 10 seconds before entry; knock-and-announce rule satisfied); State v Lockhart (2003, Tenn Crim App) 2003 Tenn Crim App Lexis 624 (officers knocked on outside door and got no answer; door unlocked and they came in; knocked again on inside door, and defendant answered; entry valid).

§ 44.12 n. 148
    United States v Pennington (2003, CA6 Tenn) 324 F3d 438 (sounds of people running away from door justified wait of only 8-10 seconds); State v Kelley (2003) 265 Neb 563, 658 NW2d 279.

§ 44.12, Add text to end of section:
    An unanncounced entry using a no-knock warrant based solely on the belief that the drugs could be easily destroyed, without independent factual basis for that conclusion, is invalid.[fn152.1]
    152.1. Price v State (2002, Tex App–1st Dist (Houston)) 93 SW3d 358; State v Jones (2003) 358 NJ Super 420, 818 A2d 392; Kellom v State (2003, Fla App 1D) 2003 Fla App Lexis 8929; Brown v State (2003, Tex App–10th Dist) 2003 Tex App Lexis 6732.

§ 44.13 n. 163
    United States v Sargent (2003, CA1 Me) 319 F3d 4 (presence of knives and defendant's known ability to use them justified only 5 second delay); United States v Hernandez (2003, D Kan) 2003 US Dist Lexis 4475 (defendant had recently threatened to shoot neighbor if he reported meth lab (other factors found, too)); Ilo v State (2002) 350 Ark 138, 85 SW3d 542 (information about potential presence of gun was not stale; nature of possession of a weapon makes it less likely to be stale).

§ 44.13 n. 164
    United States v Nabors (1990, CA6 Mich) 901 F2d 1351, cert den (1990) 498 US 871, 112 L Ed 2d 154, 111 S Ct 192; United States v Marts (1993, CA8 Iowa) 986 F2d 1216, 1218 (also, good faith exception does not apply); United States v Murphy (1995, CA8 Mo) 69 F3d 237, 243, cert den (1996) 516 US 1153, 134 L Ed 2d 109, 116 S Ct 1032; United States v Moore (1996, CA10 Kan) 91 F3d 96, 98; People v Gastelo (1967) 67 Cal 2d 586, 63 Cal Rptr 10, 12, 432 P 2d 706, 708; People v Dumas (1973) 9 Cal 3d 871, 109 Cal Rptr 304, 309, 512 P 2d 1208, 1213 (the officers' belief that a weapon was present and could be used "must be based on specific facts and not broad, unsupported assumptions"); Brown v State (2003, Tex App–10th Dist) 2003 Tex App Lexis 6732; State v Attaway (1994) 117 NM 141, 870 P2d 103, 115; State v Johnson (1999, ND) 590 NW2d 192, 195.

§ 44.13A. Application of inevitable discovery [New]
    Courts have split on application of the inevitable discovery rule to violations of knock-and-announce. The majority of cases finds that a violation of knock-and-announce is not subject to inevitable discovery,[fn164.1] and a minority finds that it is.[fn164.2]
    Observation: The majority rule is the better and only logical rule because of the weighty interests served by the knock-and-announce rule of necessity makes inevitable discovery inapplicable. Moreover, application of inevitable discovery would essentially nullify the knock-and-announce rule because it would create a per se exception to the rule applicable in every case. The knock-and-announce rule cannot be nullified.[fn164.3]
    164.1. See, e.g., United States v Cantu (2000, CA5 Tex) 230 F3d 148, 153; United States v Dice (2000, CA6 Tenn); 200 F3d 978, 984-85; United States v Marts (1993, CA8 Iowa) 986 F2d 1216, 1220; United States v Becker (1994, CA9 Ore) 23 F3d 1537, 1541; United States v Shugart (1995, ED Tex) 889 F Supp 963, 973-75, affd (1997, CA5 Tex) 117 F3d 838, 844; Mazepink v State (1999) 336 Ark 171, 987 SW2d 648, 657, cert denied (1999) 528 US 927, 145 L Ed 2d 250, 120 S Ct 321; People v Tate (2001) 323 Ill App 3d 905, 257 Ill Dec 152, 753 NE2d 347, 352; State v Lee (2003, Md) 821 A2d 922, 946; State v Taylor (1999) 135 Ohio App 3d 182, 733 NE2d 310, 312.
    See also District of Columbia v Mancouso (2001, DC App) 778 A2d 270, 275 n.10; Commonwealth v Mason (2001) 535 Pa 560, 637 A2d 251, 257 (concurring opinion).
    164.2. United States v Jones (2000, CA7 Ill) 214 F3d 836, 838; United States v Brown (2003, CA7 Wis) 333 F3d 850; United States v Sutton (2003, CA7 Wis) 2003 US App Lexis 14030; People v Stevens (1999) 460 Mich 626, 597 NW2d 53, 56; State v Zesiger (2003) 2003 Utah App 37, 65 P3d 314.
    See also People v Hoag (2000, 3d Dist) 83 Cal App 4th 1198, 100 Cal Rptr 2d 556 (concurring opinion); Richardson v State (2001, Fla App D2) 787 So2d 906, 910 (concurring opinion).
    164.3. For what it is worth, the parties in both Wilson and Richards briefed this issue, but the Court never specifically dealt with it.

§ 44.15 n. 181
    United States v Harris (2003, CA8 Mo) 324 F3d 602 (warrant provided for nighttime search, but various factors made it reasonable; execution occurred "at approximately 10 p.m."; not shown to be unreasonable).

§ 44.15, Add text after note 185:
a prior search,[fn185.1]
    185.1. United States v Andrews (2003, D Me) 2003 US Dist Lexis 11447 (execution of search warrant four days earlier helped justify nighttime search because of increased likelihood defendants would be wary of potential police action).
    Comment: Why is this not a "police created exigency"? At least some other courts would so hold.

§ 45.18, Add new note 91.1 to sentence after note 91:
    91.1. Wilcox v State (2003, Tenn Crim App) 2003 Tenn Crim App Lexis 517 (IAC claim denied because defense counsel wanted to use the evidence allegedly illegally seized to show the defendant cooperated).

§ 44.21 n. 219
    United States v Celestine (2003, CA9 Cal) 324 F3d 1095 (warrant and attachments dictate scope of search; affidavit adds nothing).

§ 44.21 n. 226
    Compare United States v Briley (2003, CA8 Ark) 319 F3d 360 (stop of defendant to inform him of execution of search warrant at his property was permissible).

§ 44.21A n. 266.1
    Members of Congress are considering introducing USA PATRIOT Act 2 which would repeal the sunset provisions, but nothing has been introduced yet. (see "Justice Dept. Drafts Sweeping Expansion of Anti-Terrorism Act" on the website of the Center for Public Integrity).

§ 44.21A, add new text at end of section:
    The government reported to Congress on its use of surveillance powers under the USA PATRIOT Act as required by the Act.[fn266.7]
    266.7. In the DOJ report, quoted in the N.Y. Times, Justice Dept. Lists Use of New Power to Fight Terror (May 21, 2003):
    "The report analyzed the new tools made available to the federal government under the Patriot Act, and found that the department had made widespread use of surveillance and eavesdropping tools to track suspected terrorists. [¶] In the first year after the attacks, for instance, Mr. Ashcroft approved 113 emergency authorizations for secret foreign intelligence warrants for electronic or physical surveillance, compared with fewer than 50 in the previous 23 years. [¶] In addition, according to the report, the Justice Department sought 248 times to delay having to notify the target of an investigation that a warrant had been executed. The department said it was never turned down by a court in its requests to delay the notification, and the delays sometimes amounted to 90 days or more.[¶] The department said the delays were necessary to avoid endangering sources and informants, jeopardizing undercover operations, or preventing the destruction of evidence."
    The problem with the 248 "sneak and peak warrants" is that the USA PATRIOT Act does not limit them to terrorism investigations: 18 U.S.C. § 3103a(b) ("to search for and seize any property or material that constitutes evidence of a criminal offense in violation of the laws of the United States, any notice required, or that may be required, to be given may be delayed if—"). Apparently even the vaunted NY Times does not know that.

§ 44.22 n. 230
     See § 44.22A, infra.

§ 44.22A. Service with the officer present or by fax [New section]
   18 USC § 3105 and some state statutes require that the officer be present at the time of the execution of the warrant. It has been held that this is not required by the reasonableness clause of the Fourth Amendment because civilians with expertise can more readily find what is sought and protect the privacy of others.[fn 233.1] This, it has been held that serving a search warrant by fax on a third party record holder and allowing the third party to conduct the search is reasonable under the Fourth Amendment because it protects privacy.[fn233.2]
    233.1. United States v Bach (2002, CA8 Minn) 310 F3d 1063 (Internet service provider for child porn records), citing Harris v State (1991) 260 Ga 860, 401 SE2d 263 (dentist could search for his own x-rays), Schalk v State (1988, Tex App) 767 SW2d 441, cert den 503 US 1006, 1189 LEd2d 425, 112 SCt 1763 (software expert was more capable of conducting a specific search than was a police officer), State v Kern (1996) 81 Wash App 308, 914 P2d 114 (bank records search delegated to bank employees). See § 44.22 n. 230, supra.
    233.2. United States v Bach, 310 F3d at 1067.
    Bach is discussed in "You've Got Warrants" on Law.Com on May 22, 2003.

§ 44.23, Add text to end of section:
    If the warrant is potentially overbroad and the officers seize evidence outside the warrant, the defendant is not prejudiced if the disputed evidence is not admitted at trial.[fn237.1]
    237.1. State v Maddox (2003) 116 Wn App 796, 67 P3d 1135.

§ 44.24, Add new note 237.1 to section heading:
    237.1. Annotation: Search warrant as authorizing search of other structures on property other than main house or other building or location other than designated portion of building, 104 ALR5th 165.

§ 44.24 n. 256
    Baker v Commonwealth (2003, Ky) 2003 Ky Lexis 98 (warrant for child porn permitted seizure of camera which proved to contain pictures of child, even though cameras were not listed in the warrant; also, the child was present at the time of the search and pointed out the camera to officers and said it was used).

§ 44.24 n. 259
    United States v Pugh (2003, D Conn) 2003 US Dist Lexis 8673 (toolshed).
     Annotation: Search warrant as authorizing search of other structures on property other than main house or other building or location other than designated portion of building, 104 ALR5th 165.

§ 44.25 n. 265
    United States v Ridge (2003, CA6 Tenn) 2003 WL 21134680 (driving into scene drug of search after officers overheard call someone was coming with money was reasonable suspicion; plain view of gun on seat sustained); Dashnell v State (2003, Md) 821 A2d 372 (and finding it on these facts).

§ 44.25 n. 266
    Three hour handcuffed setention after search by SWAT team of one person living on premises but not related to the criminal activity of the others was unlawful. Mena v City of Simi Valley (2003, CA9 Cal) 332 F3d 1255 (in addition, bring along INS officer who engaged in prolonged questioning added to it; § 1983 case).
    Search of pockets of person in control of premises permissible under warrant for premises. Carr v State (2003, Ga App) 2003 Ga App Lexis 907 (it was clear this alleged store was a front for drug sales, and Carr made a "threatening move" when officers came in with warrant; reasonable suspicion standard inapplicable).

§ 44.26 n. 272
    Baker v Commonwealth (2003, Ky) 2003 Ky Lexis 98 (see § 44.24 n. 256).

§ 44.26 n. 274
    United States v Debbi (2003, SD NY) 244 F Supp 2d 235 (the drastic remedy of suppression of everything is appropriate only where the search "greatly exceeds the bounds of the warrant and is not conducted in good faith," quoting United States v Shi Yan Liu (2000, CA2) 239 F3d 138, 141; hearing to be held on that issue), motion den (2003, SD NY) 258 F Supp 2d 313, motion den (2003, SD NY) 2003 US Dist Lexis 8062.

§ 44.27 n. 294
    The use of flash bang devices may or may not be unreasonable under the circumstances. Molina v Cooper (2003, CA7 Ill) 325 F3d 963 (§ 1983 case).

§ 44.28, Add new note 294.1 after "should end," in the first sentence:
     294.1. FBI's Legal Handbook for Special Agents § 5-2.2.6.

Chapter 45 Litigating the Motion to Suppress

§ 45.29 n. 120
    United States v Shaw (2003, ED NY) 260 F Supp 2d 567 (Second Circuit rule requiring an affidavit from someone with knowledge of the facts underlying the illegality of the search is not satisfied by an affidavit from counsel), motion denied (2003, ED NY) 2003 US Dist Lexis 10904.

§ 45.30 n. 125
    The motion to suppress set out facts, and that put the state on notice as to the search issue sufficient to litigate it. Burrell v State (2003, Ga App) 2003 Ga App Lexis 743.

§ 45.30 n. 126
    Watts v Carey (2003, Ga App) 2003 Ga App Lexis 593 (defendant's failure to allege sufficient facts as required by statute to show the search unlawful did not require the state to put on proof to rebut what was put on).

§ 45.30 n. 132
    Compare (two cases decided the same day): People v Pagan (2003, 3d Dept) 2003 NY App Div Lexis 4119 (taken at face value, motion had to be denied) with State v Whiting (2003) 2003 WI App 101; 663 NW2d 299 (error to deny motion without a hearing where defendant alleged violation of knock-and-announce rule; trial court simply asked for briefs on the merits of no-knock application).

§ 45.31 n. 130
    Review of waiver or relief from alleged waiver is governed by the abuse of discretion standard. United States v Tekle (2003, CA9 Cal) 2003 US App Lexis 10445.

§ 45.32 n. 131
    Rule 41 motion for return of property after conclusion of criminal case is treated as request for injunctive relief. Sanchez-Butriago v United States (2003, SD NY) 2003 US Dist Lexis 11853 (but this claim was time-barred); United States v Morales (2003, SD NY) 2003 US Dist Lexis 12455 (same; even assuming a 6 year limitations period).
    United States v Pantelidis (2003, CA3 Pa) 2003 US App Lexis 13980 (DeBella (369 US 121)) exception met: this was an independent proceeding not tied to a criminal prosecution, so the order was final and appealable under 28 USC § 1291).

§ 45.32 n. 135
    United States v Search of Law Office (Brown) (2003, CA5 Tex) 2003 US App Lexis 15483 (now Rule 41(g)).

§ 45.32, Add text after note 138:
    The government can be held in contempt for not complying with an order to return seized property.[fn138.1]
    138.1. Ramirez v United States (2003, D Minn) 2003 US Dist Lexis 8551.

§ 45.36 n. 175
    Including the record of the prior suppression hearing necessary to support a collateral estoppel claim. Guajardo v State (2003, Tex Crim App) 2003 Tex Crim App Lexis 157.

§ 45.36 n. 176
    United States v Redman (2003, DC Cir) 331 F3d 982; United States v Burton (2003, CA6 Tenn) 2003 US App Lexis 13426; State v Smith (2003, Ore App) 2003 Ore App Lexis 870 ("Because the defendant in a criminal case is the proponent of the motion to suppress, 'it is the defendant who bears the responsibility of framing the issues contemplated by the motion.' ... Defendant failed to frame before the trial court the only issue that she raises on appeal. Accordingly, we decline to address the merits of her assignment of error." Defendant took one course before trial court and another on appeal.); State v Lockhart (2003, Tenn Crim App) 2003 Tenn Crim App Lexis 624; Sasser v City of Richland (2003, Miss App) 2003 Miss App Lexis 627 (failure to raise state constitutional argument in trial court defaults use on appeal).

§ 45.37 n. 182
    Caution: "Failing to object at trial is not a waiver of the motion to suppress grounds, but affirmatively stating there is no objection in effect concedes the point." Nowlin v State (2003, Ga App) 260 Ga App 903, 2003 Ga App Lexis 521 (emphasis in original).

§ 45.39, Add new note 190 to end of Practice Pointer:
    190.1. In some states, the rules concerning conditional pleas are overly strictly construed. Hill v State (2003, Ark App) 100 SW3d 84 (see Griffen, J., concurring) (defense counsel wrote "conditional" on plea statement and crossed out line about waiving right to appeal which should have been enough under prior case law, but the appellate court seized on last clause of plea statement not stricken that defendant "waive[d] all my rights"; conditional pleas are "strictly construed" in Arkansas).

§ 45.43 n. 212
    A suppression issue submitted on affidavits of the witnesses is subject to the same standard of review as a hearing; i.e., the credibility of the witnesses is determined from the affidavits alone. Carter v State (2003, Tex App–Houston (1st Dist)) 2003 Tex App Lexis 1772.

§ 45.44 n. 218
    People v Redmond (2003, Ill App 1st Dist) 2003 Ill App Lexis 841 (for purposes of issuance of a warrant, the magistrate did not have to inherently not believe the tale of a "lying, thrice-convicted felon and gang member with 23 arrests and a strong motive to save his own skin by placing full responsibility for the crime on Redmond"; magistrates reviewing probable cause are viewed like judge's making credibility determinations after a suppression hearing).

§ 45.45 n. 232
    A trial judge who terminated a suppression hearing in the middle of the officer's testimony and granted the motion to suppress abused his discretion. The judge's initial skepticism about the stop may have been eliminated by the state's additional witnesses. Commonwealth v Moreau (2003) 57 Mass App Ct 250, 782 NE2d 44.

§ 45.45, Add text to end of section:
    New York permits hearing an informant's testimony in camera to protect his identity if safety is an issue without defendant or his counsel present if counsel get to at least submit questions.[fn244.1]
    244.1. People v Merejildo (2003, App Div, 1st Dept) 2003 NY App Div Lexis 4947 (sealed record showed full examination and protection of defendant's interests on balancing of need of secrecy).

§ 45.48, Add text after note 261:
but it has been held that the prosecution cannot immunize a co-conspirator and then deny immunity so the defendant can use the co-conspirator to establish standing.[fn261.1]
    261.1. People v Rosenberg (2003, Ill App 3d Dist) 2003 Ill App Lexis 886 (this case fits the narrow exception to the rule that the state can decide who gets immunity; use here for its benefit and denying defendant an opportunity to show standing violated due process).

§ 45.52 n. 276
    See Londono v Commonwealth (2003, Va App) 2003 Va App Lexis 254 (evidence was suppressed in federal prosecution which was dismissed, and state picked the case up; suppression motion was properly denied; since collateral estoppel was not raised by parties, it was not decided (id. at *37 n. 6)).

§ 45.52 n. 279
    State v March (2003) 265 Neb 447, 658 NW2d 20 (after grant of motion and single judge appeal under state law, defendant must file notice of reconsideration to preserve for appeal).

§ 45.52 n. 281
    United States v Gagnon (2002, ND NY) 230 F Supp 2d 260, reconsideration den (2003, ND NY) 251 F Supp 2d 15 (reconsideration of suppression grant denied as untimely under local rules, particularly since government knew of new evidence before hearing).

Chapter 46 Appellate and Post Conviction Review

§ 46.11 n. 99
    Page v State (2003, Wyo) 63 P3d 904.

§ 46.12, Add text after note 111:
there was a "uncconscionable breakdown" in state processes barring litigation of the claim,[fn111.1]
    111.1. Angeles v Greiner (2003, ED NY) 2003 US Dist Lexis 10404.

§ 46.12 n. 115
    Ineffective assistance has been found where an overlooked search issue was definitely arguable but was not presented to the trial court: Evans v State (2003, Md App) 2003 Md App Lexis 73.
    If the search issue lacks merit, in cannot be ineffective assistance to not pursue it. Scarberry v State (2003, Iowa App) 2003 Iowa App Lexis 555.

Chapter 47 Civil and Other Remedies to Illegal Searches

§ 47.3 n. 29
    United States v $174,206 in U.S. Currency (2003, CA6 Ohio) 320 F3d 452 (forfeiture action); Bourdon v Roney (2003, ND NY) 2003 US Dist Lexis 3234 (civil rights claim).

§ 47.3 n. 29
     Berry v Chaves (2003, ED Pa) 2003 US Dist Lexis 12104 (also, can't relitigate criminal case in civil case).

§ 47.3 n. 30
    Compare Hass v Neth (2003) 265 Neb 321, 657 NW2d 11 (denial of opportunity to litigate search and seizure in DUI administrative hearing over license suspension not unconstitutional; right retained in criminal case which would bind administrative proceeding).

§ 47.3 n. 32
    Marshall v Chief of Police (2003, CA5 Tex) 2003 US Dist Lexis 12627 (pro se inmate complaint suing officer for illegal search dismissed under Heck because it implies unconstitutional conviction).

§ 47.9 n. 84
    Gonzalez v Reno (2003, CA11 Fla) 325 F3d 1226 (Attorney General Reno and subordinates have qualified immunity for Elian Gonzalez raid under INS adminstrative warrant to seize child to return him to father in Cuba).

§ 47.9 n. 86
    Williams v County of Santa Barbara (2003, CD Cal) 2003 US Dist Lexis 11990 (exceedingly overbroad warrant); Maudsley v State (2003) 357 NJ Super 560, 816 A2d 189.

§ 47.9 n. 87
    Hatheway v Thies (2003, CA10 NM) 2003 US App Lexis 14496 (arrest without PC, aggressive questioning to get him to confess, refused multiple requests to be allowed to leave; city alleged consent; no qualified immunity)
    Police officers not entitled to qualified immunity where force used on person in apparent diabetic shot was excessive on face of record. Thompson v Douds (2003, Fla App 2D) 2003 Fla App Lexis 10880 (plaintiff was not even arrested but was being aided for walking confused on highway, he walked away to go home two blocks away and was

subdued by two officers; also, it didn't help that the officers deviated in their depositions from their IAD statements).
    Savard v Rhode Island (2003, CA1 RI) 2003 US App Lexis 15515 (equally divided en banc First Circuit holds that officials could not have predicted case law that made it unconstitutional to strip search on a body attachment (erroneously not recalled) [Note: this decision is suspect at best]).

§§ 47.9-47.11
    The Supreme Court granted cert. on March 3, 2003 in a case to decide the liability of ATF officers in a Bivens action in the face of a claim of immunity. The Ninth Circuit held that the rank and file officers at the scene had immunity but the supervisors did not for a clear failure of particularity in a search warrant. Ramirez v Butte-Silver Bow Co. (2002, CA9 Mont) 298 F3d 1022 (per Kozinski, J.), pet. for cert filed Nov. 22, 2002 (02-811), cert. granted Mar. 3, 2003 (will not be argued until Fall 2003).

§ 47.14, Add new text to end of section:
    Even a small compensatory award can justify attorney's fees.[fn147.1]
    147.1. Williams v Kaufman County (2003, ND Tex) 2003 US Dist Lexis 5974 (judgment of $300 compensatory and $45,000 punitive justified $373,555 award).