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Relying on a tip of men selling drugs in Cleveland, the officers approached defendant and he admitted smoking PCP earlier. That was reasonable suspicion to pat him down for officer safety. State v. Hunter, 2012 Ohio 2302, 2012 Ohio App. LEXIS 2023 (8th Dist. May 24, 2012)*:

[*P19] In our view, the record establishes that the officers proceeded to investigate the area in good faith reliance upon the tip of men selling drugs. During their conversation with the men, defendant was sluggish, appeared dazed and confused, and repeatedly failed to answer the officers' questions. Although the officers demanded that defendant take his hands from his pockets, the record demonstrates that as the officer took a few steps closer to defendant, he quickly detected the distinct odor of PCP from defendant. Defendant then told the officers that he had smoked PCP earlier, and this created a reasonable suspicion, based upon specific and articulable facts, that an individual is or has been engaged in criminal activity such to justify a search of defendant's outer clothing under Terry. Accord State v. Wilson, 8th Dist. No. 94097, 2010 Ohio 5478 (patdown permissible where officers detected odor of PCP); State v. Dunn, 8th Dist. No. 85435, 2005 Ohio 3477.

Hunter is here. What’s this gratuitous use of “good faith” for an encounter? Sloppy appellate court writing--completely unnecessary, and a prosecutor will later use this case to argue the good faith exception applies to warrantless searches.

The product of the wiretap in this case gave probable cause to believe that defendant had drugs in his car when he showed up as predicted. United States v. Carey, 2012 U.S. Dist. LEXIS 72846 (S.D. Cal. May 24, 2012).*

A juvenile’s school photo ID was used in a photo lineup. He claimed an expectation of privacy in it, and the trial court granted a motion to suppress. Remanded for a determination of how all this came about because it can’t be determined whether there is a reasonable expectation of privacy on this record. “Such evidence might also help resolve whether the student identification card and photograph form part of the confidential ‘student record’ under State and Federal education regulations; if they are part of the student record, that fact would also bear on whether the juvenile had a reasonable expectation of privacy in the photograph.” Commonwealth v. Zachary Z., 2012 Mass. LEXIS 370 (May 24, 2012).*

By affidavit in response to the motion to suppress, the government showed that the drug dog was reliable and the motion to suppress is denied without a hearing. United States v. Sandoval, 2012 U.S. Dist. LEXIS 72776 (E.D. Cal. May 24, 2012):

"Based upon [these undisputed facts], the Government has met its burden of proving [Darco's] reliability." United States v. Neatherlin, 66 F. Supp. 2d 1157, 1160-61 (D. Mont. 1999)(stating evidence that the narcotics detection dog trains eight hours every two weeks, is tested and certified annually, and does not alert where no drugs are present "shows, by a preponderance of the evidence, that [the dog] is reliable"); see also Spetz, 721 F.2d at 1464 (stating a "mistake in the affidavit [supporting a search warrant] as to [the narcotics detection dog's] record was unimportant because the difference in figures[, i.e. alerting correctly 56 out of 61 occasions versus 60 out of 66 occasions,] is immaterial and would not have affected the magistrate's judgment of the dog's reliability").

Co-tenant consented to entry that led to defendant’s arrest. Kleckner v. State, 2012 Miss. App. LEXIS 302 (May 22, 2012).*

Bean bag shooting as excessive force was fact dependent, so no qualified immunity. Smith v. Smith, 2012 U.S. App. LEXIS 10498 (5th Cir. May 24, 2012).*

Seizure of cash after detention for suspicious conduct in a casino and finding a Texas parole warrant on defendant was supported by probable cause. Adams v. State, 2012 Ind. App. LEXIS 236 (May 21, 2012).*

The stop and detention of the defendant was justified. Plain view of the interior of the car supported seizure of drugs, not Arizona v. Gant. State v. Burton, 2012 La. App. LEXIS 714 (La. App. 5 Cir. May 22, 2012).*

The CI’s statement was entitled to credit on the probable cause determination by the issuing magistrate because it was based on first hand information and the CI was reliable in the past. State v. Banks, 2012 La. App. LEXIS 713 (La. App. 5 Cir. May 22, 2012).*

Reasonable suspicion of criminal activity was created by defendant and his passenger giving inconsistent explanations regarding their travels, they were obviously nervous, there was a strong odor of air freshener and defendant had a criminal record. State v. Burney, 2012 La. App. LEXIS 684 (La. App. 2 Cir. May 23, 2012).*

When doing a knock-and-talk, officers smelled ammonia and this was probable cause of meth production and exigency. “The existence of ammonia has been recognized as constituting exigent circumstances due to its explosive nature.” State v. Cortez, 2012 La. App. LEXIS 701 (La. App. 5 Cir. May 22, 2012).*

Defendant was Mirandized and signed a consent form when the officers talked in a conversational tone, so the record supports the conclusion that the consent was voluntary. United States v. Ortiz, 2012 U.S. App. LEXIS 10482 (3d Cir. May 24, 2012).*

The affidavit for the search warrant showed probable cause. In executing warrant, officers were found to have knock-and-announced. The trial court credited the officers rather than somebody inside. The doors were not locked. State v. McDivitt, 2012 Ohio 2243, 2012 Ohio App. LEXIS 1980 (11th Dist. May 21, 2012).*

Officers responding to a 911 call saw a person on a child’s toy scooter and stopped him thinking that he was a juvenile out after curfew. When stopped, defendant was shocked to see the officer and highly nervous and shaking. That was reasonable suspicion and then he consented to a search of his person. Mwangi v. State, 2012 Ga. App. LEXIS 479 (May 23, 2012).*

GPS was used to follow defendant to his home and then a dog sniff on the front porch violated his privacy rights under the Fourth Amendment. United States v. Peter, 2012 U.S. Dist. LEXIS 72485 (N.D. Ind. May 24, 2012):

While the precedent clearly teaches that a canine sniff-whether of a suitcase, an automobile, or a residence-is not itself a search within the meaning of the Fourth Amendment and therefore does not require any independent justification, the overall police action is still subject to constitutional constraints. Thus, in Place, although the dog sniff of the defendant's luggage did not constitute an unlawful search, the 90-minute detention of that luggage "went beyond the narrow authority possessed by police to detain briefly luggage reasonably suspected to contain narcotics." 462 U.S. at 710. In Caballes, the Court "accept[ed] the state court's conclusion that the duration of the stop ... was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop," and held that the dog sniff did not transform the otherwise lawful traffic stop into an unlawful search. 543 U.S. at 408. And in Indianapolis v. Edmond, 531 U.S. 32 (2000), although the use of a drug-detection dog at drug interdiction checkpoints was not a search, the checkpoint program itself was unconstitutional because it was justified neither by road-safety concerns nor individualized suspicion. Similarly, in Brock, the Seventh Circuit reiterated that dog sniffs that detected only contraband were insignificant for Fourth Amendment purposes but stressed that "critical to our holding that the dog sniff in this case was not a Fourth Amendment search is the fact that police were lawfully present inside the common areas of the residence with the consent of Brock's roommate." 417 F.3d at 697.

In this case, Peter's front porch was unquestionably his private property, and the police came onto that property without express consent or a search warrant. As noted above, before the Supreme Court's recent decision in Jones, this fact would simply have been one factor among many relevant to determining whether the police action infringed the reasonable expectation of privacy protected by the Fourth Amendment. Although the origins of Fourth Amendment jurisprudence lie in the law of trespass, and at one time its protections were thought to limit only searches of tangible property, the Supreme Court long ago rejected "the premise that property interests control the right of the Government to search and seize" and has developed a more expansive protection for a person's "reasonable expectation of privacy." Katz v. United States, 389 U.S. 347, 352-53 (1967). Following Katz, the prevailing assumption of the courts was that the new privacy-based formulation replaced the older property-based one, such that "privacy [came] not merely to supplement but to eclipse property as the interest protected by the Fourth Amendment." United States v. Redmon, 138 F.3d 1109, 1131 (7th Cir. 1998) (Posner, J., dissenting) (collecting cases). While property rights remained a relevant, even important, consideration in determining Fourth Amendment rights, property's role was "relegated to that of furnishing evidence of the reasonableness of a defendant's expectation of privacy." Id.

Whatever basis that assumption had, however, it did not survive the holding in Jones that the Katz reasonable expectation-of-privacy test supplemented, but did not replace, the older understanding that the Fourth Amendment "embod[ies] a particular concern for government trespass upon the areas ('persons, houses, papers, and effects') it enumerates." Jones, 132 S.Ct. at 950. ...

Warrantless pre-Jones GPS monitoring was illegal, and the good faith exception would not be applied. United States v. Lee, 2012 U.S. Dist. LEXIS 71205 (E.D. Ky. March 22, 2012), adopted 2012 U.S. Dist. LEXIS 71204 (E.D. Ky. May 22, 2012):

The Court, on referral, considers a motion to suppress. In sum, this is a case about legitimate law enforcement objectives pursued in an illegitimate way. Eight months after receiving a tip that Defendant was engaged in marijuana trafficking, law enforcement attached a global positioning tracking device on Defendant's car, believing that the law allowed for the installation of that device without a warrant. That belief turned out to be wrong. Although the Supreme Court held that such a warrantless installation of a tracking device violates the Fourth Amendment after the investigation giving rise to this case, the exclusionary rule applies and requires the suppression of evidence obtained through the installation and use of that tracking device. Unfortunately, the cost of suppression is high—Defendant was found with large quantities of marijuana and made damaging admissions, which support a Class A felony marijuana trafficking charge. Defendant's criminal history category, previously determined by this Court to be the worst possible under the Guidelines, underscores Defendant's propensity for dangerous criminal behavior. Indeed, Defendant admitted to marijuana trafficking while on supervised release from a previous Judgment of this Court.

For a variety of reasons, however, the deterrence benefits of suppression outweigh its heavy costs. This is so primarily because no unequivocal precedent allowed for the warrantless installation of the tracking device. Instead, law enforcement interpreted various cases to support their decision not to seek a warrant. Of course, it is the business of the courts to interpret the law. In the absence of unequivocal precedent allowing for the government's installation of the tracking device, suppression is necessary. Thus, as more fully described below, having reviewed the evidence, briefs, and arguments submitted by counsel, the Court RECOMMENDS that the District Court GRANT the motion to suppress.

Defendant was illegally stopped for a traffic offense, but it was not flagrantly illegal. When the defendant’s DL was run, an outstanding warrant was found on him, and he was arrested for that. After surveying the law, the court decides that there is no per se rule requiring the finding of the outstanding warrant be suppressed. It is a concern that its holding would potentially encourage illegal stops, but the court is not persuaded that always is the case. Remanded for further proceedings. State v. Mazuca, 2012 Tex. Crim. App. LEXIS 697 (May 23, 2012) (dissent here and here):

We agree with the Arizona Supreme Court's general assessment. In our view, the first Brown factor is certainly relevant, but, even though it usually favors suppression of evidence that is discovered in the immediate aftermath of an illegal pedestrian or roadside stop, it will sometimes prove to be, in the context of the seizure of physical evidence, "the least important factor"—at least relative to the other two. And while we are hesitant to confirm as a categorical matter that the intervening circumstance of a valid arrest warrant is "of minimal importance"—after all, without it, there can usually be no attenuation of taint when physical evidence is unearthed immediately after an illegal stop—we agree that it should not be overemphasized to the ultimate detriment to the goal of deterrence that animates the exclusionary rule. Finally, we agree that the more important factor is the purposefulness and flagrancy, vel non, of the primary illegal conduct—whether the police have deliberately perpetrated what they know to be an illegal stop in the specific hope or expectation that it will generate some legitimate after-the-fact justification to arrest and/or search, or they have otherwise conducted themselves in particularly egregious disregard of the right to privacy and/or personal integrity that the Fourth Amendment protects. For, when this is the case, to admit the physical evidence because of the fortuity that an arrest warrant happens to come to light before the evidence is discovered perversely serves to encourage, rather than discourage, official misconduct and renders the Fourth Amendment toothless.

To summarize: When police find and seize physical evidence shortly after an illegal stop, in the absence of the discovery of an outstanding arrest warrant in between, that physical evidence should ordinarily be suppressed, even if the police misconduct is not highly purposeful or flagrantly abusive of Fourth Amendment rights. Under this scenario, temporal proximity is the paramount factor. But when an outstanding arrest warrant is discovered between the illegal stop and the seizure of physical evidence, the importance of the temporal proximity factor decreases. Under this scenario, the intervening circumstance is a necessary but never, by itself, wholly determinative factor in the attenuation calculation, and the purposefulness and/or flagrancy of the police misconduct, vel non, becomes of vital importance. To the extent that our pre-Brown analysis on direct appeal in Johnson placed practically exclusive emphasis on the intervening circumstance of an arrest warrant to justify the admission of evidence following an illegal stop, we disapprove it.

. . .

The court of appeals nevertheless affirmed the judgment of the trial court out of what it deemed an overriding concern that a contrary ruling would "encourage" the police to undertake unlawful stops on a pretext, "for the purpose of establishing probable cause or discovering the existence of arrest warrants." We certainly share that concern. However, we think that prioritizing the purposefulness and flagrancy factor satisfactorily addresses that concern without fashioning a rule that would altogether remove the intervening discovery of an arrest warrant as a factor relevant to the attenuation of taint analysis, as the court of appeals opinion tended to do. The court of appeals adopted an approach that would effectively presume purposeful and/or flagrant police misconduct from the fact of the primary illegality alone rather than assessing the character of that illegality, and of any subsequent police conduct, to determine whether it indicates that they actually behaved purposefully or flagrantly in the particular case. We hold that the court of appeals erred to rely upon this de facto presumption to affirm the trial court's ruling on the appellee's motion to suppress. Applying the appropriate analysis today, we hold that the trial court should have denied that motion.

There were no objective manifestations that the place to be searched was actually two residences. It was one with defendant staying as a guest, and the search warrant for the building was particular. United States v. Melton, 2012 U.S. Dist. LEXIS 71151 (E.D. Tenn. February 7, 2012):

Nevertheless, even assuming there were two residences, the Court finds nothing that would have put Investigator Butler on notice that the River Road house contained two dwellings. The house was a single family dwelling, not an apartment building, a duplex, or a townhouse. The affidavit states [Exh. 1, ¶3] that the officers verified the confidential informant's description of the residence. The record is devoid of evidence that the residence had two mailboxes, driveways, or other physical indication that it contained two residences. The confidential informant's statement to Investigator Butler that he lived in the downstairs portion of the residence did not indicate that the informant was renting a separate residence, rather than staying as Ms. Burgess and the Defendant's guest. ...

The reason for defendant’s traffic stop was a reasonable mistake of fact, and defendant was acting furtively when the officer walked up on him. The furtive gestures justified a frisk of the vehicle producing a gun, then a search warrant issued for the vehicle. United States v. Jenkins, 2012 U.S. App. LEXIS 10431 (1st Cir. May 23, 2012).*

Identification of person to be arrested in the arrest warrant by street name and description and where to find him was particular enough. United States v. Dunaway, 2012 U.S. App. LEXIS 10244 (3d Cir. May 22, 2012):

Here, the warrant did not include the appellant's proper name, Nisia Dunaway, referring to him instead merely as "BLIZZ." But the warrant did provide a physical description of him, including his height, skin color, hair style and color, and build— though not, as Dunaway points out, his age. Further, the warrant specified that he would be found arriving by train in Johnstown at 6:00 pm on April 10, 2010.

The warrant's physical description of "Blizz" and the specific location where he would be found at a precise time were, together, sufficiently particular that an executing officer could identify the appellant with reasonable certainty. Compare Doe, 703 F.2d at 747 (holding that warrant to arrest "John Doe a/k/a "Ed?" was unconstitutional for lack of particularity), with Ferrone, 438 F.2d at 389 (upholding search of defendant's person pursuant to warrant to search "John Doe, a white male with black wavy hair and stocky build observed using the telephone in Apartment 4-C 1806 Patricia Lane, East McKeesport, Pennsylvania"). See also 2 LaFave, supra, § 4.5(e), at 598 n.134 (collecting cases). Thus, we reject Dunaway's contention that the warrant to search his person was so lacking in particularity as to be an unlawful general warrant.

An IP address traced to defendant’s house was probable cause for a search warrant for computers hooked up to the premises for child pornography. Barrett v. State, 2012 Tex. App. LEXIS 3988 (Tex. App. – Amarillo May 15, 2012).*

The fact that defendant pursued a motion to suppress at the state trial court level shows that he had a full and fair opportunity to litigate the search claim, so he could not make a Fourth Amendment habeas claim. Kidwell v. Martin, 2012 U.S. App. LEXIS 10172 (10th Cir. May 21, 2012).*

(1) It was 1:15 a.m.; (2) criminal activity had recently increased in the area; (3) defendant was standing on the private property of an auto body shop; (4) the shop was closed; (5) no other businesses in the area were open; (6) no other people were nearby; (7) the officer heard a loud crash; (8) defendant fled; and (9) defendant was carrying bags. The officer reasonably concluded that he had reasonable suspicion that a theft had occurred. The motion to suppress was improperly granted. People v. Funez-Paiagua, 2012 CO 37, 2012 Colo. LEXIS 350 (May 21, 2012).*

Faint smell of marijuana on defendant’s DL was not probable cause to search the car. United States v. Hickman, 2012 U.S. Dist. LEXIS 71330 (D. Idaho May 21, 2012):

The Ninth Circuit has held that "a strong odor of marijuana emanating from a vehicle can constitute probable cause to search the vehicle." United States v. Guzman-Padilla, 573 F.3d 865, 886 n. 5 (9th Cir. 2009). The Court, however, concludes in this case that the faint smell of marijuana on Hickman's license did not justify a search of his car. When questioned about the smell of marijuana on his license, Hickman explained that his roommate has a prescription for medical marijuana. While this explanation standing alone may not have excused Hickman, other factors support a finding of no probable cause: Hickman passed the field sobriety test; he was never resistant or confrontational; he appeared coherent in the video; and neither his clothes nor his car smelled of marijuana. Even Officer Cox, who was present at the scene, questioned whether he had probable cause to search the vehicle. While this has no legal bearing on the issue because the existence of probable cause is based on objective facts, it suggests that perhaps that the proper level of justification did not exist for the search.

Defendant’s detention on the side of the road evolved into a custodial interrogation because of the officer’s actions in telling defendant she wasn’t going anywhere until the drug dog did its thing and denied her use of the phone and cigarettes. While basic traffic detentions are not custodial interrogations, they can become one and this one did. United States v. Ramos, 2012 U.S. Dist. LEXIS 71259 (D. Vt. May 21, 2012) (See Howes v. Fields, 132 S. Ct. 1181, 1190, 182 L. Ed. 2d 17 (2012) (holding that "the roadside questioning of a motorist who was pulled over in a routine traffic stop did not constitute custodial interrogation."); Berkemer v. McCarty, 468 U.S. 420, 436, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) (holding that while motorists subject to routine traffic stops do not generally feel free to leave they are not in custody for Miranda purposes); see Arizona v. Johnson, 555 U.S. 323, 333, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009) ("An officer's inquiries into matters unrelated to the justification for the traffic stop ... do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.");

Defendant was detained too long considering the alleged justification, and his subsequent consent was tainted by the overlong detention. United States v. Petersen, 2012 U.S. Dist. LEXIS 71551 (D. Utah May 22, 2012).*

HuffPo: FBI Web Surveillance: Bureau Creates Unit To Eavesdrop On Internet Communications by Sara Gates:

With the Federal Bureau of Investigation's recent push for web wiretaps and increased Internet surveillance, the U.S. seems to be edging closer to the fictional state described in George Orwell's "1984."

As CNET reported earlier this week, the FBI recently created a secret web-surveillance unit, the Domestic Communications Assistance Center, aimed at creating tech that would allow the authorities to more easily eavesdrop on Internet and wireless communications. The DCAC will act as hub for all web surveillance, but will not be directly involved in executing Internet wiretapping court orders or operating investigations if proposed legislation passes as planned.

When an IAC search claim is filed, the petitioner has to show what the search was and that he would prevail and the verdict would be different. Fuller v. United States, 2012 U.S. Dist. LEXIS 70813 (S.D. Ill. May 22, 2012) (citing Johnson v. Thurmer, 624 F.3d 786, 792-93 (7th Cir. 2010) (citing Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986))).

Stopping car in the middle of the street was reasonable suspicion for a stop. State v. Foster, 2012 Tenn. Crim. App. LEXIS 323 (May 17, 2012).*

The anticipatory warrant in this case was valid, despite a typographical error in the tracking number because of the otherwise specific description of the package and the place to be searched. State v. Davidson, 2012 Tenn. App. LEXIS 323 (May 17, 2012).*

Under Miller v. Harget, 458 F.3d 1251 (11th Cir. 2006), a police car pulling behind defendant’s car did not per se effect a seizure without more, such as lights and officers’ aggressive actions. United States v. Flores-Uriostegui, 2012 U.S. Dist. LEXIS 71162 (N.D. Ga. May 22, 2012):

Based on these facts, the Eleventh Circuit held that "[c]onsidering the fact that the first contact between [the suspect] and [the officer] did not occur until [the suspect] lowered the window, the fact that [the officer] pulled up behind [the suspect] and turned on his 'window lights' does not demonstrate that [the suspect] was coercively detained." Id. at 1258.

The facts here are similar to the relevant circumstances in Miller. In both instances, the officers pulled their marked patrol car behind a suspect's vehicle in such a way that the suspect could not leave. Unlike the officer in the Miller case, however, Officers Gray and Turman did not turn on their "window lights" or otherwise alert defendants to their presence. Thus, their approach was less intrusive than was the Miller officer's approach. There is also nothing in the record to suggest that the delay here between the parking of the patrol car and the approach of defendants' vehicle was anything other than "extremely brief." Perhaps most important to the Miller court's analysis was the absence of any display of authority prior to approaching the vehicle. Like the law enforcement official in Miller, Officers Gray and Turman did not draw their guns, give any directions to defendants, or activate their patrol car lights before approaching the vehicle.

CBSDC: Groups Concerned Over Arming Of Domestic Drones:

With the use of domestic drones increasing, concern has not just come up over privacy issues, but also over the potential use of lethal force by the unmanned aircraft.

Drones have been used overseas to target and kill high-level terror leaders and are also being used along the U.S.-Mexico border in the battle against illegal immigration. But now, these drones are starting to be used domestically at an increasing rate.

Warrantless GPS tracking before Jones was a fishing expedition, and, “[i]n this case, the DEA agents had their fishing poles out to catch Lee.” The exclusionary rule had to apply, and the good faith exception would not be applied for lack of binding precedent in the circuit. United States v. Lee, 2012 U.S. Dist. LEXIS 71204 (E.D. Ky. May 22, 2012):

Finally, the "purpose and flagrancy of the official misconduct" weighs against attenuation. Brown, 422 U.S. at 604. This last factor is often the "most important," United States v. Shaw, 464 F.3d 615, 630 (6th Cir. 2006), because "[t]he primary focus of attenuation analysis is whether or not the deterrent purpose of the exclusionary rule is served by suppression," United States v. Gray, 491 F.3d 138, 155 (4th Cir. 2007) (Wilkinson, J.). Although the DEA agents' misconduct was not flagrant, the Sixth Circuit has explained that police officers act with an unlawful purpose when they perform an "investigatory" search, that is, "when officers unlawfully seize a defendant "in the hope that something might turn up.'" United States v. Williams, 615 F.3d 657, 670 (6th Cir. 2010) (quoting Brown, 422 U.S. at 605); see also Shaw, 464 F.3d at 631 (noting that "Brown made it clear that the requisite "quality of purposefulness' can be demonstrated when the [misconduct], in design and execution, is investigatory in nature"). The Seventh Circuit agrees that an illegal search has an unlawful purpose when it is "undertaken in an effort to advance the investigation or to embark on a fishing expedition." United States v. Reed, 349 F.3d 457, 465 (7th Cir. 2003).

In this case, the DEA agents had their fishing poles out to catch Lee. Admittedly, the agents did not intend to break the law. But they installed a GPS device on Lee's car without a warrant "in the hope that something might turn up." Williams, 615 F.3d at 670. (quoting Brown, 422 U.S. at 605). When suspicious behavior did, in fact, turn up, they alerted the Kentucky State Police. By doing so, they set in motion a chain of events that ended with Lee's arrest. Their unlawful purpose means that the third attenuation factor also weighs in favor of suppression.

Moreover, the Gross panel pointed out that allowing "post-hoc rationalization" by police would create the "perverse" incentive for police officers to detain any individual going about their daily routines in the hope of turning up an outstanding warrant. Gross, 662 F.3d at 405. The same perverse incentive is present here: if Lee's seatbelt violation were an intervening circumstance, police could install tracking devices with impunity so long as they waited until the subject of their surveillance commits a minor traffic violation. Accord Maryland v. Wilson, 519 U.S. 408, 423 (1997) (Kennedy, J., dissenting) (describing the "almost countless circumstances" that allow the police to stop a vehicle). At that point, the police could stop them and search for evidence of illegal activity. Thus, the Court agrees with Judge Ingram that the police misconduct was guided by an impermissible purpose. See R. 33 at 16. Because none of the three factors favor attenuation, the Court must suppress all evidence that derived from Metzger's illegal search, including the traffic stop, the search of Lee's car, and his subsequent confession.

. . .

This Court is also not the first district court to confront the question of whether to apply the good-faith exception after Jones. In the Ninth Circuit, where binding circuit precedent authorized warrantless GPS monitoring, three district courts have applied the good-faith exception to defeat the defendant's motion to suppress. United States v. Aquilar, No. 4:11-cr-298-BLW, 2012 WL 1600276, at *2 (D. Idaho May 7, 2012); United States v. Leon, No. CR 09-00452, 2012 WL 1081962, at *3 (D. Haw. Mar. 28, 2012); United States v. Nwobi, No. CR 10-952(C)GHK-7, 2012 WL 769746, at *3 (C.D. Cal. Mar. 7, 2012). A district court in the Eighth Circuit did the same, also holding that the officer's reliance on binding circuit precedent triggered the good-faith exception. United States v. Amaya, No. CR-11-4065-MWB, 2012 WL 1188456, at *7-8 (N.D. Iowa Apr. 10, 2012). But in the Third Circuit, where there was no appellate ruling on warrantless GPS tracking, one district court refused to extend the good-faith exception. United States v. Katzin, No. 11-226, 2012 WL 1646894, at *9-10 (E.D. Pa. May 9, 2012). Applying the good-faith exception in the absence of binding appellate precedent would, in that court's eyes, "effectively eviscerate the exclusionary rule." Id. at *9. If law enforcement could "rely on non-binding authority, particularly in the face of other, contrary non-binding authority," officers would "beg forgiveness rather than ask permission in ambiguous situations involving ... basic civil rights." Id.

See Wired.com: Pot Prosecution Goes Up in Smoke Due to Warrantless GPS Tracking by Kim Zetter.

Prosecutor’s opening statement reference to defendant’s refusal to consent to a search was reversible error in a possession case where the defendant denied knowledge a gun was in the car. Rose v. State, 2012 Fla. App. LEXIS 8026 (Fla. 1st DCA May 22, 2012):

We hold that the trial court erred by overruling Appellant's objection and that this error was not harmless here. See Bravo v. State, 65 So. 3d 621 (Fla. 1st DCA 2011) (reversing conviction where trial court allowed impermissible testimony regarding defendant's refusal to consent to search of home without a warrant); Gomez v. State, 572 So. 2d 952, 953 (Fla. 5th DCA 1990) (holding "[c]omment on a defendant's denial of permission to search a vehicle, although not exactly the same thing as comment on a defendant's right to remain silent, since the Fourth Amendment is involved rather than the Fifth, constitutes constitutional error of the same magnitude.") (footnote omitted); see also Ramet v. State, 209 P.3d 268 (Nev. 2009) (holding that state may not introduce evidence that defendant refused to consent to warrantless search, as "defendant's invocation of his Fourth Amendment right cannot be used as evidence of a crime or consciousness of guilt," and citing Gomez and other federal and state decisions, but recognizing that error may be harmless).