The officers had probable cause to get a state search warrant, but it was not served at the time of the execution of the warrant. Even assuming this might be a constitutional violation, “it was not a ‘but-for cause’ of seizure of the evidence” under Hudson, so suppression is no remedy. The District Court suppressed based on analysis of Ninth Circuit cases that indicated that failure to comply with the formalities of warrant execution was a constitutional violation. United States v. Hector, 474 F.3d 1150 (9th Cir. January 25, 2007):
The causal connection between the failure to serve the warrant and the evidence seized is highly attenuated, indeed nonexistent, in this case. After the decision in Grubbs II, the only legitimate interest served by the presentation of a warrant appears to be the one we adopted in United States v. Gantt, 194 F.3d 987, 1004 (1999): “The purpose of handing the occupant … the warrant [under Rule 41(d)], like that of the ‘knock and announce’ rule is to head off breaches of the peace by dispelling any suspicion that the search is illegitimate” (quoting Stefonek, 179 F.3d at 1035) (internal quotation marks omitted). This interest does not implicate the seizure of evidence described in the search warrant nor would it be vindicated by suppression of the evidence seized.
Finally, the social costs of excluding relevant evidence obtained pursuant to a valid search warrant are considerable. In contrast, the deterrent benefit associated with suppressing the evidence is relatively small in the case of failure to present a copy of the warrant. As noted in Hudson, “[t]he value of deterrence depends upon the strength of the incentive to commit the forbidden act.” 126 S. Ct. at 2166. Assuming, as here, that a valid warrant has been obtained, the decision to present or not present the warrant bears little on the validity of the search. Indeed, the officers’ failure to present the warrant to Hector was not unreasonable in light of the department policy that explicitly stated that no presentation of the warrant was required. See supra note 2.
In light of the rationale of the exclusionary rule and the considerations set out by the Supreme Court in Hudson, we conclude that suppression was not an appropriate remedy in this case, and that the district court should have granted the government’s motion for reconsideration. The district court’s order for a new trial on Counts One and Three should be reversed.
Comment: The overwhelming majority of cases before this one and Hudson held that service of the warrant was a matter of notice to the target of the search and it seldom, if ever, rose to any level of prejudice to warrant suppression. Clients, however, always came in with high hopes that a failure to properly or timely serve a search warrant was going to extricate them from their predicament.
Officer had reasonable suspicion for prolonging detention because of various factors (numerous air fresheners in the car, three cellphones, improbable story about trip) and in the conversation the officer asked to talk some more and the defendant promptly consented to a search. The officer lifted the rear tire, and it was heavier than normal. When he got it out, he could hear hard objects rolling around inside. He cut the tire open and found packaged meth. The videotape showed the consent was voluntary. United States v. Flores, 474 F.3d 1100 (8th Cir. January 25, 2007).*
Apparent authority existed for mother’s consent to search her adult son’s bedroom. While, at the time of the search, she did not have a key in hand, she generally had access to the room and a key. She owned the building, and the son stayed there only at her sufferance. Lack of a key in hand is not determinative. Pratt v. United States, 214 Fed. Appx. 532 (6th Cir. 2007)* (unpublished).
Search warrant issued after two warrantless entries on to property near the border by Border Patrol agents had what the government admitted was false information in it. When that information was purged from the affidavit, probable cause still remained for issuance of the warrant. United States v. Stockton, 2007 U.S. App. LEXIS 1555 (9th Cir. January 22, 2007)* (unpublished).
Handcuffing plaintiff for obstructing an arrest of plaintiff’s son when the officer ran into plaintiff pursuing him through the house. The officer was unaware of a prior injury exacerbated by pulling his arms back. The use of force was “de minimus” [at least in police terms; but see what is de minimus], and summary judgment was granted for the officer. Hall v. Neal, 2007 U.S. Dist. LEXIS 5100 (M.D. Fla. January 24, 2007):
The Eleventh Circuit has repeatedly recognized that “the application of de minimis force, without more, will not support a claim for excessive force.” Durruthy, 351 F.3d at 1094-95 (finding de minimis force where police officer pulled plaintiff to the ground, pinned his arms behind him, kneed him in the back, and handcuffed him); see Vinyard v. Wilson, 311 F.3d 1340, 1349 (11th Cir. 2002) (finding de minimis force where officer grabbed plaintiff’s arm, jerked her out of a chair, handcuffed her behind her back, and later dragged her into the jail by either her shirt, arm or hair); Nolin v. Isbell, 207 F.3d 1253, 1258 (11th Cir. 2000) (finding de minimis force where officer grabbed plaintiff from behind, threw him against a van, kneed him in the back, pushed his head into the side of a van, searched his groin, and handcuffed him); Jones v. City of Dotham, 121 F.3d 1456, 1460 (11th Cir. 1997) (finding “minor” amount of force where officers threw plaintiff against a wall, kicked his legs apart, required him to raise his arms above his head, and pulled a wallet from his pants, causing pain to plaintiff who received minor medical treatment in his arthritic knee after the incident). Further, “what would ordinarily be considered reasonable force does not become excessive force when the force aggravates (however severely) a pre-existing condition the extent of which was unknown at the time [to the officer].” Durruthy, 351 F.3d at 1095 n. 10.
Defendant Neal struck the Plaintiff in the back in an attempt to pass by the Plaintiff and through a doorway to apprehend the Plaintiff’s son, who had an outstanding arrest warrant for violent felony offenses. Defendant Neal, continuing his pursuit, reversed direction, turned in the doorway without looking behind, and again collided with the Plaintiff. After unsuccessfully pursuing the Plaintiff’s son, Defendant Neal returned to arrest the Plaintiff for obstructing an officer without violence. In effectuating a full custodial arrest and placing handcuffs on the Plaintiff, Defendant Neal pulled the Plaintiff’s hands behind his back and towards his neck in a way that caused him pain. Defendant Neal used no further force on the Plaintiff. While Defendant Neal may have re-injured the Plaintiff’s back by striking him during the initial pursuit, that re-injury does not make the force used excessive where, as here, there is no evidence or allegation that Defendant Neal was aware of the Plaintiff’s back condition. The force used in this case was clearly less than that determined to be de minimis in Durruthy, Vinyard, Nolin and Jones.
