Top 5 List: Tenth Circuit's Best Warrantless Search Cases of 2011

We have an aunt in Oklahoma who marvels at the number of meth lab explosions in the state. Apparently, the masses turn to the entrepreneurial spirit and drug production in a stagnant economy.

Between family accounts of meth lab fires, and a few episodes of Breaking Bad, we’ve subconsciously concluded that the Tenth Circuit Court of Appeals only addresses drug appeals — whether qualified immunity challenges or warrantless searches — and Administrative Practices Act appeals from the Sierra Club.

Since the unreasonable or warrantless search cases tend to have the most interesting facts, we’re reflecting on five of our favorite search appeals from this year. Here’s our top five list of the holdings that could make or break your criminal law clients.

1. U.S. v. Rochin. Even though this just happened, we love the appellant's suggestion that police should accurately guess what a suspect has in his pockets before proceeding with a Terry search. Unfortunately for Rochin, the Tenth Circuit wasn't as fond of the idea, and rejected his unreasonable search appeal.
2. U.S. v. Livingston. Cops can conduct a warrantless search of a motel room if one of the occupants consents to the search, even if the room isn't registered to the consenting occupant. The key is whether the police reasonably believed that the occupant had authority to consent to the search.
3. U.S. v. Ayala. A positive alert by a certified drug dog generally provides probable cause for officers to execute a warrantless search of a vehicle. Officers may not, however, rely on a dog's alert if they open part of the vehicle so the dog can enter, or if they encourage the dog to enter.
4. U.S. v. Eusebio Lopez-Estrada. A Kansas police officer has reasonable suspicion to pull a driver over based on a broken taillight or a dangling license plate. If, during the course of the stop, the driver consents to a search of his vehicle, the Tenth Circuit Court of Appeals won't suppress the search.
5. U.S. v. Hunter. When an officer returns documents and says "thank you" at the end of a traffic stop, a driver is free to go. (Just to be certain, it's a good idea to ask, "Am I free to leave now.") So if the cop asks if he can ask more questions, the fruits of those answers -- in the case, drugs -- are likely part of a consensual search.

We hate warrantless searches, but we love a good warrantless search case. Did you find your favorite on our top five list?

Related Resources:

• No Reasonable Person Here: Court Refuses to Suppress Evidence (FindLaw's Tenth Circuit blog)
• No Qualified Immunity in Traffic Misdemeanor Warrantless Search
• Grand Jury Spite Warrants Criminal Contempt Conviction (FindLaw's Tenth Circuit blog)