Reason.com: John Paul Stevens vs. Elena Kagan on DNA Seizures and the Fourth Amendment by
Damon W. Root:

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Officer doing a knock and talk smelled burning marijuana coming from the house, and he could see marijuana on the coffee table. His entry to preserve the evidence was reasonable since the defendant knew that the officers knew it was there. State v. Miller, 2012 Ohio 5206, 982 N.E.2d 739 (2d Dist. 2012).*

Beer bottles seen in a vehicle during a DUI stop were in plain view and subject to seizure. Commonwealth v. Miller, 2012 PA Super 244, 56 A.3d 424 (2012).*

Following the few cases that have decided the issue, parole officers have qualified, not absolute, immunity for ordering arrests of their charges. Draine v. Leavy, 504 Fed. Appx. 494 (6th Cir. 2012).*

Nexus for a search warrant for defendant’s house was shown by the fact she left her house to go the place for the meet for a prearranged drug deal minutes after the call from the buyer. In other deliveries, she went from the place of the delivery back home. Commonwealth v. Tapia, 463 Mass. 721, 978 N.E.2d 534 (2012).

Once a drug dog alerted, the more intensive search of the car was valid. [Also, this case involved letting the officer testify that defendant’s multiple cell phones, empty pill bottles, and car rental agreements were indicative of drug dealing.] State v. Brooks, 2012 Ohio 5235, 2012 Ohio App. LEXIS 4580 (3d Dist. November 13, 2012).*

Defendant conceded that he was speeding, and that justified his stop. The stop was not overlong and was continued on reasonable suspicion. “Within minutes of the initial traffic stop, Norton provided Agent Campbell with a travel itinerary that seemed improbable; shortly thereafter, Comegys provided a different improbable itinerary and appeared nervous while searching for the car rental agreement.” United States v. Comegys, 504 Fed. Appx. 137 (3d Cir. 2012).*

Defendant was driving a stolen car, and the officer who stopped him was alerted by a license plate reader. He’d robbed a post office and convenience stores of blank money orders. “Although we have not reached the question before, it is hardly surprising that several other courts have held that the possessor of a stolen vehicle lacks standing to challenge a search of the vehicle.” United States v. White, 504 Fed. Appx. 168 (3d Cir. 2012).

Based on wiretaps, officers learned of an impending break-in to steal money from a drug dealer. They came to the scene, and two were running from the house. They had probable cause for the stop and arrest, and the search of the car was valid either as search incident, automobile exception, or the inevitable inventory. United States v. Martinez, 2012 U.S. Dist. LEXIS 163990 (D. Mass. November 16, 2012).*

Probable cause developed and that justified the search of defendant’s automobile under the automobile exception. United States v. Boyd, 2012 U.S. Dist. LEXIS 163187 (W.D. Pa. November 15, 2012).*

Defendant was named in the indictment with using and maintaining drug premises, but this alone was not enough to give him standing to get a hearing on a motion to suppress. He still had to file an affidavit showing his connection to the property to give him standing. “However, ‘[a] defendant’s unsworn assertion of the Government’s representations does not meet [his] burden’ to establish standing to contest the search.” United States v. Marshall, 2012 U.S. Dist. LEXIS 163606 (W.D. N.Y. November 9, 2012).

The CI’s support of reliability was thin, but just barely gets over the hurdle for reasonable suspicion to justify the stop of the vehicle defendant was riding in. United States v. Osorieo-Torres, 2012 U.S. Dist. LEXIS 163901 (D. Kan. November 13, 2012).*

Defendant normally can’t raise an IAC claim on direct appeal. Here, even if he could, he’d lose on the merits. Two issues: (a) typo in a date wasn’t prejudicial; (b) items not listed in the SW were listed in the attached affidavit. United States v. Scott, 504 Fed. Appx. 157 (3d Cir. 2012).*

Defendant who was sitting at his desk and told police that a cooler at his feet had “more weed” in it, and pushed it in the direction of the officers impliedly consented to its search. United States v. Bowser, 505 Fed. Appx. 522 (6th Cir. 2012).*

Defendant’s consent came during the unlawful stop, not after, so reconsideration of the prior opinion is granted and the judgment reversed. State v. Canfield, 251 Ore. App. 442, 283 P3d 438 (2012), reversed. State v. Canfield, 253 Ore. App. 574, 291 P.3d 775 (2012).*

The district court did not plainly err in finding the police had both probable cause and exigent circumstances for their entry, without telling us what it is. United States v. McKoy, 2012 U.S. App. LEXIS 24122 (4th Cir. November 20, 2012).*

Defendant was staying at a house on house arrest, and he did not have a reasonable expectation of privacy as to its storage room to which he had a key. He did not have exclusive access to it, and others came and went. United States v. Gardner, 2012 U.S. Dist. LEXIS 171927 (E.D. N.C. August 9, 2012).*

Inability to name what defendant did what makes it impossible to hold them responsible for a failure to intervene or forced consent search. Bark v. Chacon, 504 Fed. Appx. 741 (10th Cir. 2012).*

Defendant in a car seen seven blocks from a shots fired call matching the description of the car involved was reasonable suspicion. Statements of counsel alone are insufficient to make a question of fact in this district for a hearing; there must be an affidavit of fact. United States v. Russell, 2012 U.S. Dist. LEXIS 172206 (S.D. N.Y. November 14, 2012).*

Plaintiff was a police officer for the RTA charged with falsifying reports about an altercation with a passenger. She sued for false arrest as a Fourth Amendment claim, but her indictment by a state grand jury precludes this claim, even when plaintiff alleges malice. Craig v. Dallas Area RTA, 504 Fed. Appx. 328 (5th Cir. 2012)*:

Precedent clearly establishes that, “if facts supporting an arrest are placed before an independent intermediary such as a magistrate or grand jury, the intermediary’s decision breaks the chain of causation for false arrest, insulating the initiating party.” Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994), overruled on other grounds by Castellano v. Fragozo, 352 F.3d 939, 949 (5th Cir. 2003) (en banc). For our purposes, this means that “even an officer [in Craig’s case] who acted with malice in procuring the warrant or the indictment will not be liable if the facts supporting the warrant or indictment are put before an impartial intermediary such as a magistrate or a grand jury.” Hand v. Gary, 838 F.2d 1420, 1427 (5th Cir. 1988) (internal quotation marks omitted).

The Heck bar to § 1983 relief doesn’t apply if the plaintiff loses his habeas remedy because of release without a decision on the merits. Here, he pled to a lesser, but that may not bar the claim. Poventud v. City of New York, 715 F.3d 57 (2d Cir. 2013):

Since Jenkins and Leather, we have repeatedly affirmed that Heck’s favorable-termination requirement applies only to plaintiffs who are in custody, and that all other claimants—those who have no remedy in habeas—may pursue their claims under § 1983. See McKithen v. Brown, 481 F.3d 89, 101 (2d Cir. 2007) (“Over time, [Heck’s] implicit exception [to § 1983’s otherwise broad coverage] has been carefully circumscribed.”); Huang ex rel. Yu v. Johnson, 251 F.3d 65, 75 (2d Cir. 2001) (“In light of our holding in Leather, and in light of … the fact that the Spencer concurrences and dissent ‘revealed that five justices hold the view that, where federal habeas corpus is not available to address constitutional wrongs, § 1983 must be,’ we conclude that Huang’s Section 1983 claim must be allowed to proceed.”) (quoting Jenkins, 179 F.3d at 26); Green v. Montgomery, 219 F.3d 52, 60 n.3 (2d Cir. 2000) (“We have held … that Heck acts only to bar § 1983 suits when the plaintiff has a habeas corpus remedy available to him (i.e., when he is in state custody). Because it does not appear that Green is presently in state custody, his § 1983 action is not barred by Heck.” (internal citations omitted)).

The facts in this case differ somewhat from the facts in the cases just cited, but not in a way that is material to the issue before us. After Poventud’s original conviction was vacated, but before that vacatur was affirmed on appeal, Poventud pled guilty to a lesser, related offense.2 This fact, however, does not alter the underlying principle that a claimant who cannot seek relief under habeas must be able to seek it under § 1983. Poventud’s guilty plea may (or may not) supply defendants with a defense that no § 1983 violation occurred. But it does not entitle them to summary judgment under Heck.

Driver of a rented van who was not on the rental contract was still found to have a reasonable expectation of privacy in the van. State v. Bass, 2013 OK CR 7, 300 P.3d 1193 (2013):

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Defendant was stopped coming out of an apartment building because he was the same race as a man wanted in an arrest warrant who was thought to be there. Defendant refused to give his name. Parole officers came to the scene and recognized defendant, not as the man wanted, but as a PV. He was searched and drugs were found. The stop of the defendant was for merely being the same race as a wanted man, with no other sign of criminality. Under the Brown v. Illinois attenuation factors, this was not attenuated. Applying the exclusionary rule is necessary to protect privacy of the people. The search incident to the PV warrant is suppressed. State v. Shaw, 213 N.J. 398, 64 A.3d 499 (2012):

Although the exclusionary rule “may vindicate the Fourth Amendment rights of a particular defendant, and more generally the privacy rights of all persons,” it also may “depriv[e] the jury or judge of reliable evidence that may point the way to the truth.” Id. [State v. Williams, 192 N.J. 1, 16, 926 A.2d 340 (2007)] at 14-15, 926 A.2d 340 (citations omitted). Because of the high price exacted by suppressing evidence, “the exclusionary rule is applied to those circumstances where its remedial objectives can best be achieved.” Id. at 15, 926 A.2d 340 (citing Calandra, supra, 414 U.S. at 348, 94 S. Ct. at 620, 38 L. Ed. 2d at 571). Thus, when law enforcement officials secure evidence that is sufficiently independent of the illegal conduct — evidence that is not tainted by the misdeed — then withholding evidence from the trier of fact is a cost that may not be justified by the exclusionary rule. Badessa, supra, 185 N.J. at 311, 885 A.2d 430.

. . .

Significantly, two of the courts cited above suggested that the random stopping of people in the hope of picking up some on outstanding warrants is the type of flagrant or purposeful conduct that would weigh against a warrant serving as a determinative intervening circumstance. See Brendlin, supra, 195 P.3d at 1082; McBath, supra, 108 P.3d at 249. In Brendlin, supra, the California Supreme Court indicated that where a seizure is “undertaken as a fishing expedition, the third Brown factor will make it unlikely that the [State] would be able to demonstrate an attenuation of the taint of the initial unlawful seizure.” 195 P.3d at 1082. The Brendlin court contrasted the “fishing expedition” scenario with “a chance discovery of an outstanding arrest warrant in the course of a seizure that is later determined to be invalid.” Ibid. (internal quotation marks and citations omitted).

Similarly, the Alaska appellate court in McBath, supra, observed that an arrest warrant may not constitute a determinative intervening circumstance “where the police conducted an unjustifiable ‘dragnet’ investigative stop of many people, hoping to find some for whom there were outstanding arrest warrants.” 108 P.3d at 249. In such a case, “the flagrance of the police misconduct may still require suppression of the evidence.” Ibid.

There is a difference between an unlawful motor vehicle or investigatory stop in which, incidental to the stop, the police learn about an outstanding warrant and, as here, an unlawful stop executed for the specific purpose of ascertaining whether a suspect is the subject of an arrest warrant. That is a point clearly made in People v. Mitchell, 355 Ill. App. 3d 1030, 824 N.E.2d 642, 291 Ill. Dec. 786 (Ill. App. 2005) (cited with approval in Brendlin, supra, 195 P.3d at 1082).

People v. Brendlin, 45 Cal. 4th 262, 85 Cal. Rptr. 3d 496, 195 P.3d 1074 (2008)
McBath v. State, 108 P.3d 241, 242, 248 (Alaska App. 2005)

A motorcycle checkpoint program in New York State was shown to be justified by special needs. Wagner v. Sprague, 489 Fed. Appx. 500 (2d Cir. 2012) [but this is a memorandum opinion with no facts].

The government justified a protective sweep of defendant’s house by showing his history of violence. This one took less than two minutes. United States v. Davis, 906 F. Supp. 2d 545 (S.D. W.Va. 2012)*:

The officers’ check of the rooms was prudent, cursory, and over and done with in about two minutes. Given the Defendant’s past history of violence, his evasive behavior upon the officers’ arrival at the home, and the presence of a fully loaded assault weapon fitted with a large, unsheathed bayonet that was within easy reach of a potential hidden attacker, the officers had every reason to be concerned for their safety. In light of these facts, the officers’ limited precautionary check of the spaces immediately adjoining the point of arrest was constitutionally reasonable.

Surveying the cases, the general rule is that “residence” in a search warrant is synonymous with “premises” and includes outbuildings and vehicles on the premises. Defendant’s truck on the street was separately subjected to a dog alert, and that was enough for it. United States v. Hibbs, 905 F. Supp. 2d 862 (C.D. Ill. 2012).

Defendant’s and passenger’s travel plans and history revealed during a general conversation while waiting for his DL information to come back was reasonable suspicion. State v. Stover, 388 S.W.3d 138 (Mo. 2012).*

Defendant filed a motion to suppress GPS and medical records, and the government responded that it would only use the evidence for impeachment if the defendant testified, which it could do. This made the motions moot. United States v. Baumgartner, 2012 U.S. Dist. LEXIS 136949 (E.D. Tenn. August 30, 2012).*

Swabbing defendant’s face for GSR 16 hours after shooting was reasonable warrantless search considering the evanescent nature of GSR. Sen v. State, 2013 WY 47, 301 P.3d 106 (2013):

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Officers had a no-knock warrant based on defendant’s firearms in the house. The use of a flash-bang device indoors was not objectively unreasonable on these facts. State v. Rockford, 213 N.J. 424, 64 A.3d 514 (2013):

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Inevitable discovery of briefcase seized in ongoing investigation that supposedly contained a videotape of sexual abuse of a child saved the search in this case. The investigation was ongoing. The officer had a civilian obtain the briefcase for them so they could hold it to get a search warrant. Even assuming the briefcase was seized unlawfully, it was inevitable it would have been lawfully found. Wilder v. State, 320 Ga. App. 497, 740 S.E.2d 241 (2013), on remand from Wilder v. State, 290 Ga. 13, 717 S.E.2d 457 (2011).

The police adequately inquired into the third party consenter’s control over the upstairs living area, and she affirmed that she had control. That was sufficient to obtain her consent. It turned out that defendant asked her to lie about it. “Moreover, the record demonstrates that Wheeler wanted police to believe that Bates had authority over the upper unit. It is undisputed that Wheeler instructed Bates to lie to police and claim that she lived in the upper unit. To argue now that police wrongly relied on Bates’s authority, when Wheeler orchestrated the attempt to mislead police, is disingenuous.” State v. Wheeler, 2013 WI App 53, 830 N.W.2d 278 (2013).*

Defendant neither did nor said anything that qualified as consent. Implied consent from his failure to object when the officer was doing something anyway was not consent. United States v. Harvey, 902 F. Supp. 2d 681 (N.D. W.Va. 2012), R&R 2012 U.S. Dist. LEXIS 153474 (N.D. W.Va. September 28, 2012):

In the absence of any gestures or conduct that could reasonably be construed as consent, Harvey’s implied consent would have to be premised exclusively on his silence and lack of resistence to Officer Ammons’ actions. Notably, the government has cited to no case stating that consent to search can, in the first instance, be inferred solely from the silence of a defendant who was never asked. Rather, the weight of authority holds that “‘the government may not show consent to enter from the defendant’s failure to object to the entry. To do so would be to justify entry by consent and consent by entry.'” United State v. Gonzalez, 71 F.3d 819, 830 (11th Cir. 1996) (quoting Shaibu, 920 F.2d at 1427), overruled on other grounds by Arizona v. Gant, 556 U.S. 332 (2009); see also United States v. Little, 431 F. App’x 417, 420-421, 2011 WL 2518674, *3 (6th Cir. 2011) (no implied consent where officer “merely followed Defendant into the house when Defendant went in to get additional clothing”); Roe v. Texas Dept. of Protective and Regulatory Services, 299 F.3d 395, 402 (5th Cir. 2002) (“Silence or passivity cannot form the basis for consent to enter.”).

Here, the sole evidence is that, after the defendant mentioned the location of his identification, he was either led or escorted into his home by law enforcement. It is undisputed that he was “detained” and “not free to leave” pursuant to the ongoing investigation centered around the original traffic stop. (Dkt. No. 44 at 46-47). There is no evidence that Harvey said or did anything which would give rise to a reasonable inference of consent, or that Officer Ammons said or did anything which would give rise to a reasonable inference that consent was requested. A reasonable person under these circumstances would have believed that the Officer was legally authorized to either lead or escort him into the home.

As such, the Court concludes that, under the circumstances of this case, Harvey’s silence and lack of resistence in response to Officer Ammons’ accompaniment evinces, at most, a mere acquiescence to a show of lawful authority. See, e.g., Cole, 195 F.R.D. at 634 (suspect told that police “needed” his identification simply acquiesced to lawful authority); see also United States v. Vasquez, 638 F.2d 507, 526-27 (2d Cir. 1980) (when police told defendant they were going to take him home to arrest his wife, defendant did not consent to entry, as the matter was “presented to him as a fait accompli”); United States v. Mapp, 476 F.2d 67, 78 (2d Cir. 1973) (when police told woman at her apartment that “we want the package” consent was not voluntary, in part because this “was an outright demand-without ifs, ands or buts”); United States v. Gwinn, 46 F.Supp.2d 479, 484 (S.D. W. Va. 1999) (defendant’s “mere acquiescence to the search was not enough to constitute implied consent”).

“Officer Ammons therefore did not violate Defendant’s rights by requesting his name and date of birth.” Defendant didn’t have his DL on him, saying it was in his “crib.” The officer asked for it, but wouldn’t let defendant go in the house to get it alone for officer safety. Thus, he followed defendant into the house. That was an illegal entry. The consent argument fails, too, because there was no express or implied consent to enter. The court notes similar cases. Marijuana was smelled and a warrant obtained. United States v. Harvey, 901 F. Supp. 2d 681 (N.D. W.Va. 2012), adopted 902 F. Supp. 2d 681 (N.D. W.Va. 2012):

In the case at bar, Defendant was not under arrest and was not believed to have committed any crime. No one was injured or needed assistance in the residence. There was no arrestable “underlying offense” in this case as regards Defendant. The driver of the car was driving without a license and the officers smelled burnt marijuana in the car. The officers found a bong in the trunk. Defendant was a passenger in the car. There was no evidence Defendant had committed any crime. He was not connected to the bong or the marijuana smell. The police did not find any marijuana in the car and did not test the bong for residue or fingerprints. Whether Defendant provided a false name or Officer Ammons heard the name incorrectly, Defendant’s offer that his ID was in his “crib” was an insufficient reason for a warrantless entry into his home.

Accordingly, the undersigned concludes on the totality of the facts of this case that the United States has failed to carry its burden of proving that exigent circumstances existed or that an emergency existed which justified the warrantless police entry into Defendant’s home on the date in question.

Defendant’s patdown led to finding drugs before the actual arrest. The fact it preceded the arrest is not error here because he was going to be arrested. Also, the officer making the stop did it pretextually, but validly, because they were hiding the fact of an ongoing wiretap from him and others who might be aware of the stop and search. United States v. Welch, 2013 U.S. Dist. LEXIS 5938 (D. Me. January 15, 2013).*

A 22 month old child was taken to the ER with a report of injuries caused in the home, likely at the hands of the mother’s boyfriend. There was a newborn in the house, too. Police went to the house to check on the child, and, while people were inside, nobody would come to the door, and then defendant tried to go out the window. Officers also discovered defendant was under investigation for another battery. Based on all this, an entry was justified, and defendant was found to be a FIPF. United States v. Duhon, 503 Fed. Appx. 874 (11th Cir. 2013).*

The stop for hitting the fogline was valid despite defendant’s arguments. His consent thereafter was otherwise voluntary. State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696 (2012).*

Federal officers arresting defendant were alleged to have used excessive force. Plaintiff was arrested as he was planning a violent felony, and taking the proof most favorably to him, the force here was not unreasonable considering what the officers knew when he was arrested. Williams v. Bauer, 503 Fed. Appx. 858 (11th Cir. 2013)*:

Even viewing the facts alleged by Williams in the light most favorable to him, Defendants’ use of force was not excessive and did not violate the Fourth Amendment. Defendants arrested Williams on the day they believed he intended to commit a serious crime. They also had reason to believe that Williams would harm them and others. Williams had informed Zayas, who was working undercover, that he was going to rob a stash house and “the plan was to kill everyone present in the stash house.” Williams said that police in the area would not be able to “handle” him. Shortly before the arrest, Zayas saw that the man in the passenger seat of Williams’s car, Mercutio Stokes, had a rifle. Zayas informed the arresting agents that Stokes had a gun in the car. Stokes admitted that he had a rifle “between the seat.”