Consent to search a suitcase for drugs includes containers inside that could hide drugs

Consent to search a suitcase for drugs revealed two candles that appeared to the officer to have been tampered with because they looked tampered with. Inside was drugs. The consent to search for drugs in a suitcase includes any closed containers inside that could contain drugs. United States v. Santana-Aguirre, 2007 U.S. Dist. LEXIS 47760 (D. Neb. June 29, 2007), following United States v. McKines, 933 F.2d 1412, 1423 (8th Cir. 1991) (en banc) (soft drink bottle inside suitcase contained drugs).

Plaintiff doctor came back to work at a university medical center from a life threatening illness, and she was transferred to another department. Her supervisor ordered that university police search her office and retrieve her university computer from her home so the hard drive could be copied. Plaintiff alleged a Fourth Amendment violation that apparently defeats qualified immunity. Maes v. Folberg, 504 F. Supp. 2d 339 (N.D. Ill. 2007):

Once we determine a reasonable expectation of privacy, we must consider whether plaintiff has sufficiently pled a violation of her Fourth Amendment [*20] rights. In O’Connor, the Supreme Court articulated a reasonableness standard for workplace searches. 480 U.S. at 725. The O’Connor court held that “public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.” Id., at 725-26. The O’Connor reasonableness standard requires both justification in the inception and reasonableness of scope. Id., at 726. Plaintiff contends that the search was not justified in its inception, nor was it reasonably related in scope to the circumstances.

Plaintiff’s complaint suggests no justification for a search of her computer. In fact, the complaint alleges that the search was taken in retaliation for plaintiff’s exercise of her First Amendment and FMLA rights. Taking the complaint as fact, as we must, we find that Folberg’s search was not justified in its inception, and therefore, violative of O’Connor‘s first prong. But compare Gossmeyer v. McDonald, 128 F.3d 481 (7th Cir.1997) (workplace search was justified in its inception because anonymous tip of employee misconduct showed sufficient signs of reliability); Clark v. Regents of the University of California, 1997 WL 564066 (N.D. Cal. 1997) (receipt of tips from two employees as to plaintiff’s misconduct justified search under O’Connor). Nor are we convinced that Folberg’s search was reasonable in its scope. While escort by UIC police officers may not have created Fourth Amendment liability as to plaintiff’s person, the use of a police escort may be considered unreasonably intimidating. But see Clark, 1997 WL 564066, at *4 (university supervisor’s decision to choose plaintiff’s supervisor as an escort to his house to retrieve university-owned computer was less intimidating than a university police officer or member of the audit team, and therefore, reasonable in scope).

[The officer had to know that the search was likely illegal, so qualified immunity denied.]

The presentment of claim requirement of the California Tort Claims Act does not apply to § 1983 claims. Barsch v. O’Toole, 2007 U.S. Dist. LEXIS 47538 (N.D. Cal. June 21, 2007).