Where the facts of the case showed clear liability, maybe the plaintiff should have moved for a directed verdict for the plaintiff, but he didn’t. Nevertheless, the verdict is set aside as contrary to the evidence, and a new trial is granted Alvin v. Calabrese, Alvin v. Calabrese (3d Cir. 2011)*:

To be sure, the similarities between the undisputed facts of Brown [448 F.3d 239] and this case, even when viewed in the light most favorable to Calabrese and Karp, are striking. Other undisputed facts — for example, that other police officers, not just a victim, were coming to identify Alvin and that Calabrese held onto Alvin’s identification while waiting for other officers — further the suggestion that Alvin was seized prior to his arrest. Given these undisputed facts, Alvin could have moved for judgment as a matter of law, citing our decision in Brown, as to this particular issue at the close of evidence. See Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 128 (3d Cir. 2003) (noting that whether a seizure has occurred may be determined by a district court, as a matter of law, without resort to the jury). But he did not.

Even if the jury’s verdict was contrary to the great weight of evidence, the “stringent standard” necessary to obtain a new trial in these circumstances requires a showing that “the jury’s verdict resulted in a miscarriage of justice” or that the verdict “cries out to be overturned or shocks our conscience.” Sheridan, 100 F.3d at 1076; Williamson, 926 F.2d at 1353. In light of our decision in Brown and the undisputed facts suggestive of a seizure, we believe the verdict cries out to be overturned. We thus reverse the ruling on Alvin’s motion for a new trial on his Fourth Amendment claim.

Defendant’s rental car was to be towed, and it was to be inventoried, and defendant asked that his stuff be safeguarded. “The officers followed the Seattle Police Department’s standard inventory policy, which requires officers to search for contraband, narcotics, explosives, hazardous materials, perishable items, money and weapons. This necessarily involves looking within closed containers, thus making the officers’ search of defendant’s sealed envelopes reasonable under the Fourth Amendment.” United States v. Unakalu, 455 Fed. Appx. 730 (9th Cir. 2011).

Officers found a vehicle in a one car crash with blood, but no driver or passengers were around. The officers went to the house of the registered owner and found blood on the doorknob and a key in the lock with the door unlocked. They entered to check on the owner and found her in bed with blood on her. She was intoxicated. “‘The right of the police to enter and investigate in an emergency without accompanying intent to either search or arrest is inherent in the very nature of their duties as peace officers. ***.’ United States v. Barone (C.C.A.2), 330 F.2d 543, at 545.” “We find the factual circumstances surrounding the entry into Appellee’s home justified the officer’s entering without a search warrant to ensure Appellee was not in need of medical attention due to injuries sustained in the accident.” State v. Wilson, 2011 Ohio 5371, 2011 Ohio App. LEXIS 4408 (5th Dist. October 18, 2011).

The affidavit for the search warrant here gave absolutely no indication that defendant, who sexually assaulted a child, was in possession of child pornography. The search warrant thus lacked any indicia of probable cause for Leon purposes, and thus failed Herring, too. Not suppressing this search would enable police to engage in fishing expeditions by speculation, and this satisfies Herring‘s culpability requirement. People of the Virgin Islands v. John, 654 F.3d 412, 55 V.I. 1324 (3d Cir. 2011):

Requiring that a warrant applicant state explicitly her belief in the existence of a correlation like the one on which Joseph apparently relied, as well as reasons justifying such a belief, is not inconsistent with the fact that these affidavits are typically drawn by laypersons rather than attorneys. Even police officers who lack legal training are expected to know of the requirement that the factual basis for a probable cause determination must be stated in the affidavit. We demand nothing more than that an officer seeking a warrant explain why she is justified in entering a person’s home and searching through his belongings. This insistence that law enforcement comply with a bedrock principle of the Fourth Amendment cannot be dismissed as the imposition of an unnecessary or hypertechnical obligation.

Policing this requirement easily passes the cost-benefit analysis set forth in Herring. Reliance on a warrant affidavit that omits a fact critical to any reasonable belief in the existence of probable cause is the sort of thing we can expect the exclusionary rule to deter: all an investigator must do to avoid exclusion is comply with the well-known duty to spell out the complete factual basis for a finding of probable cause within the affidavit’s four corners. And deterring police from submitting (and magistrates from accepting) affidavits that completely omit crucial factual allegations is a preeminently worthy goal. Reckless or grossly negligent conduct is enough to justify suppression, and Leon and its progeny establish that an officer’s conduct is sufficiently deliberate and culpable when she relies on a warrant that is as devoid of probable cause as this one. See Herring, 129 S. Ct. at 702; Tracey, 597 F.3d at 151. Joseph’s reliance on the warrant was “entirely unreasonable,” Tracey, 597 F.3d at 151; her behavior was, at a minimum, grossly negligent. Moreover, applying Leon in cases like the one at bar would risk encouraging police to seek permission to search for evidence of crimes unrelated to any known facts, based upon nothing more than unstated and unsupported hunches. It would reward law enforcement for grounding warrant applications in unexamined biases and stereotypes rather than in conscientious assessment of the facts and circumstances uncovered by the investigation. Leon and its progeny were never intended to ratify such unjustified intrusions into the privacy safeguarded by the Fourth Amendment. The “good faith” exception does not shield Joseph’s actions here. The evidence obtained pursuant to the invalid portion of the warrant (i.e., the portion authorizing a search for child pornography) must be suppressed.

The prosecution conceded that the search of defendant’s house violated the Fourth Amendment. Nevertheless, his confession 30 days later was valid because time “purged the taint.” Stevens v. People, 55 V.I. 1083 (V.I. App. St. Croix 2011) (three judge panel):

Here, Stevens’ confession was neither in close physical nor temporal proximity to the illegal search. The illegal search occurred at Stevens’ residence. Stevens confessed at a police station. The confession occurred over thirty days after the illegal search. Hence, considerable time and distance attenuated the illegal search and Stevens’ confession. See Maroney, 348 F.2d at 22, 30 (confession obtained five days after Fourth Amendment violation did not have the taint of the poisonous tree); compare Rivera-Padilla, 2010 U.S. App. LEXIS 3125 (confession obtained five hours after the illegal search and without Miranda warning was tainted by Fourth Amendment violation).

The second inquiry calls into question whether intervening circumstances sufficiently purged the primary taint. See, e.g., Brown, 422 U.S. at 602 (emphasis added); Murray v. United States, 487 U.S. 533, 537 (1988). The test is holistic. Brown, 422 U.S. at 602. No single fact is dispositive. Id. The “’workings of the human mind are too complex, and the possibilities of misconduct too diverse’ to allow for an overly technical rule premised on one overriding factor.” Id. at 604. Thus, the question whether a confession is the product of free will must be answered on the facts of each case. Id. at 603.

L. Song Richardson, Police Efficiency and the Fourth Amendment, 87 Indiana Law Journal 1143 (Summer, 2012):

This Article argues that provocative new research in the mind and behavioral sciences can transform our understanding of core Fourth Amendment principles. Recent research in the field of implicit social cognition-a combination of social psychology, cognitive psychology, and cognitive neuroscience -demonstrates that individuals have implicit (nonconscious) biases that can perniciously affect the perceptions, judgments, and behaviors that are integral to core Fourth Amendment principles. Drawing from recent implicit social cognition research and prior work, this Article attempts to solve a conceptual puzzle that continues to stymie courts and Fourth Amendment scholars. How can the reasonable suspicion standard promote efficient policing-policing that protects liberty against arbitrary intrusion while simultaneously promoting effective law enforcement?

The reasonable suspicion standard attempts to strike a delicate balance between individual privacy rights and law enforcement needs. This standard serves law enforcement interests by permitting officers to act on their suspicions of criminal activity even in the absence of probable cause. However, in order to prevent arbitrary police actions, courts impose an articulation requirement that obliges officers to justify the intrusion by stating the facts-not mere hunches-that led them to feel suspicious of the individual’s ambiguous behaviors. Courts then review these facts to determine whether they give rise to a reasonable inference of criminality.

Ultimately, the standard fails to protect against unjustified encroachments upon individual liberty because it treats suspicion as an objective concept. Courts assume that it is possible to objectively determine whether people are acting suspiciously. They also assume that only people who are behaving suspiciously will be accosted by the police and restrained in their freedom to walk away. This assumption is crucial to the efficacy of the safeguards against arbitrary policing offered by the reasonable suspicion standard.

This Article makes the case, however, that the assumptions driving Fourth Amendment stop-and-frisk jurisprudence are flawed; they are based upon a critical misunderstanding of the nature of suspicion. Implicit social cognition research demonstrates that implicit biases can affect whether police interpret an individual’s ambiguous behaviors as suspicious. For instance, studies repeatedly reveal that people evaluate ambiguous actions performed by non-Whites as suspicious and criminal while identical actions performed by Whites go unnoticed. The current operation of the articulation requirement does not ameliorate the problem because an officer will likely be unaware that nonconscious biases affected his or her interpretation of ambiguous behavior. Thus, an officer who acts on his suspicions can easily point to the specific facts that he believes made him feel suspicious without even realizing that implicit biases affected how he interpreted the behavior.

. . .

My argument unfolds in three parts. Part I introduces the science of implicit social cognition and examines its relevance to core Fourth Amendment principles. Part II scrutinizes the reasonable suspicion standard and exposes its weaknesses. Part III draws from implicit social cognition research to reconceptualize the reasonable suspicion standard. It ends by considering some of the benefits and shortcomings of this new approach.

Via Race, Racism, and the Law.

WaPo: Profiled at airport? There’s an app for that:

A Sikh advocacy group launched a free mobile application Monday that allows travelers to complain immediately to the government if they feel they’ve been treated unfairly by airport screeners. Launched at midnight Monday by the Sikh Coalition, the FlyRights app had fielded two complaints by 10 a.m.

ACLU news release: Government Settles Charity’s Lawsuit Over Unconstitutional Terrorism Probe:

The U.S. Treasury Department has settled a lawsuit brought by KindHearts for Charitable Humanitarian Development, an Ohio-based charity that was under investigation for alleged ties to terrorism.

After a string of legal victories for the group, including court findings that the government’s actions violated its due process and Fourth Amendment rights, the government has agreed to remove it from a blacklist and let it distribute funds raised for humanitarian causes consistent with the intent of donors. Details of the agreement were announced today.

This is the first time the government has agreed to de-list a frozen organization as a result of a lawsuit, and to then allow it to distribute its assets.

The last Kindhearts case is here.

Officers responding to a shooting call were validly in the defendant’s residence. They did a protective sweep that extended into the attic, and it was valid. Guns and drugs were in plain view in the attic and seized. United States v. Cruz, 2012 U.S. Dist. LEXIS 59708 (N.D. Ga. March 19, 2012).

The inventory of defendant’s car was proper because it was being towed because it would have been left blocking traffic. Defendant’s mother arrived after the inventory started, and the officer was not obliged to let her have it. [Although, I’m sure he could have, but the inventory would still have been valid up until then, like the withdrawn consent after something found.] State v. Pullen, 2012 Ohio 1858, 2012 Ohio App. LEXIS 1631 (2d Dist. April 27, 2012).*

In a search warrant for child sexual exploitation with photographs on a camera, cell phone, or computer, the fact that the victim was referred to as a “juvenile” was enough for probable cause. It would have been better to have listed the DOB of the juvenile, but close enough for government work. The court also chides defense counsel for the lateness of the motion to suppress, but doesn’t rely on that because it invites an IAC claim. [Not to mention the government may not have quickly provided the search warrant materials; try getting them around here sometimes, especially if a state court issued the warrant and the feds are using it.] United States v. Gleaves, 2012 U.S. Dist. LEXIS 59508 (N.D. Iowa April 27, 2012).*

Just because the police have probable cause to get a search warrant does not mean they have to—they can still attempt to get consent. United States v. Hall, 2011 U.S. Dist. LEXIS 133522 (S.D. Fla. November 16, 2011)*:

First, the Court agrees that the police’s failure to obtain a warrant in this case even though they could have done so does not violate the Fourth Amendment. As the Supreme Court stated in King, “[f]aulting the police for failing to apply for a search warrant at the earliest possible time after obtaining probable cause imposes a duty that is nowhere to be found in the Constitution.” 131 S.Ct at 1861. The King Court also stated that requiring a search warrant whenever the police have probable cause “unjustifiably interferes with legitimate law enforcement strategies” because “ [t]here are many entirely proper reasons why police may not seek a warrant but instead knock on the door and seek either to speak with an occupant or to obtain consent to search.” Id. One of the reasons the court lists is that “the police may want to ask an occupant of the premises for consent to search because doing so is simpler, faster, and less burdensome than applying for a warrant.” Id. This is analogous to this situation where the police believed it was simpler, faster and less burdensome to go to Defendant’s home and ask him to come down to the station with them.

Pro se plaintiff’s cryptic complaint stated a claim for excessive force under § 1983 that the defendant officer entered his property and shot him without provocation. Hall v. Burney, 454 Fed. Appx. 149 (4th Cir. 2011) (unpublished).*

Defendant saw police officers and reached for his pocket. They asked him what was in his pocket, and he said “a gun,” and that justified his patdown. He was not stopped or detained when he gave himself up. United States v. Allen, 447 Fed. Appx. 118 (11th Cir. 2011) (unpublished).*

In order to obtain a search warrant for a DNA sample, the government does not need to conclusively demonstrate the existence of an unknown DNA sample: “it suffices that the state has established that its evidence, removed from defendant’s residence, contains recoverable biological samples that may, but not necessarily will, provide a DNA profile useful for forensic purposes” (a blood stain and a hair with follicular matter). Also, the taking of DNA by buccal swab is no longer considered intrusive. State v. Franklin, 11-1909 (La. December 16, 2011).

The search warrant was issued with probable cause and the place to be searched was described with sufficient particularity to reasonably find it to search it. State v. Turner, 82 So. 3d 449 (La. App. 2d Cir. 2011).*

The officer had reasonable suspicion for detention of defendant after his stop for driving a couple of miles 10-15 mph below the speed limit in the left lane of a highway. State v. Lee, 2011 La. App. LEXIS 1555 (La. App. 2d Cir. December 14, 2011)*:

The factors which Sgt. Parker identified, for his suspicion of possible drug courier activity were: the nervousness of Morris; the varying and incomplete accounts of the defendants’ trip to and from Texas; the varying accounts of Morris’s length of time in driving the vehicle; the multiple air fresheners in the vehicle; the ownership of the vehicle by a party who was not traveling with the defendants in the cross-country trip; and the prior criminal records of Morris and Smith involving illegal drugs. These facts allowed a permissible shift in the trooper’s focus and were adequate to create a reasonable suspicion of separate illegal drug activity.

In a pro se § 1983 case over an officer allegedly banging on and kicking a door to the point of damaging it to get access, but did not get access, the court agrees with the district court that there was no seizure or interference with liberty. This damage was de minimus, and it did not rise to the level of a Fourth Amendment violation. Porter v. Jewell, 453 Fed. Appx. 934 (11th Cir. 2012) (unpublished):

The Constitution, however, “is not concerned” with de minimis violations. Ingraham v. Wright, 97 S.Ct. 1401, 1414 (1977); see also United States v. Hernandez, 418 F.3d 1206, 1212 n.7 (11th Cir. 2005) (stating that “[o]f trifles the law does not concern itself: De minimis non curat lex”); United States v. Purcell, 236 F.3d 1274, 1279 (11th Cir. 2001) (concluding that a de minimis delay during a traffic stop did not violate the Fourth Amendment); Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000) (stating that “the application of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment”). Although we have not addressed the amount of property damage required to constitute a “seizure” of that property under the Fourth Amendment, we are convinced — based on our decisions in these other contexts — that a de minimis amount of damage does not rise to the level of a Fourth Amendment violation.

Defendant was found in a condemned building. He had no reasonable expectation of privacy from the police coming in to roust the people unlawfully there. People v. Antwine, 293 Mich. App. 192, 809 N.W.2d 439 (2011) (citing Cross v Mokwa, 547 F.3d 890 (8th Cir. 2008)).

Reasonable suspicion on the totality from: (1) physical domestic disturbance call (2) from a high crime neighborhood; (3) defendant’s evasive behavior as officers approached; (4) his reaching for his waistband like for a gun or drugs as they approached. United States v. Smith, 427 Fed. Appx. 413, 2011 FED App. 0428N (6th Cir. 2011) (unpublished).*

Physical force used on plaintiff, as shown by the video of the stop, was reasonable. The officer had qualified immunity. Neal v. Melton, 453 Fed. Appx. 572, 2011 FED App. 0430N (6th Cir. 2011) (unpublished).*

A guest consented to a search of the house he was visiting. The items at issue were found in a box in the master bedroom and a car in the garage. The district court ultimately failed to make findings on whether the guest had apparent authority over these items, largely because of defense counsel’s failure to argue them, and the search issue is remanded. United States v. Arreguin, 453 Fed. Appx. 678 (9th Cir. 2011) (unpublished)*:

Defense counsel managed to obscure the relevant legal issues in this case through his borderline “assistance.” Indeed, the district court initially denied the suppression motion without a hearing because counsel failed to follow relevant local rules. The district court allowed defense witnesses to testify only after counsel threatened that his own failure to proffer testimony in a timely fashion would otherwise amount to ineffective assistance of counsel. While the Government suggests the violation of local rules is an alternative basis upon which to affirm, the district court ultimately did not rely on this issue in denying the motion. Under the circumstances, however, it is understandable how the primary issues in this matter—the viability and scope of Valencia’s apparent authority—became lost, as defense counsel failed to even mention them at oral argument before the district court or here.

This child pornography investigation involved search warrants for AOL emails, a subpoena for subscriber information, then a search warrant for the offending computer as it is supposed to be done. The only issue was whether the first search warrant for the emails was stale where the information was six months old. As an aside, the court notes that defendant probably did not have standing because the account was not in his name, and the issue is saved for another day. Commonwealth v. Hoppert, 2012 PA Super 21, 39 A.3d 358 (2012), n.3:

We further note that while neither party nor the trial court raised the issue, we question whether Appellant had an expectation of privacy in the AOL records that were the subject of the first search warrant. “[A]s a preliminary matter, [a defendant] must show that he had a privacy interest in the area searched.” Commonwealth v. Jones, 874 A.2d 108, 117 (Pa. Super. 2005). Here, the AOL account was registered to Sallie Hoppert, not Appellant.

Although it does not appear that Pennsylvania courts have addressed the expectation of privacy in computer user accounts, we note that another panel of this Court recently examined the issue in relation to cellular phone records in Commonwealth v. Benson, 10 A.3d 1268 (Pa. Super. 2010). In Benson, the defendant sought to suppress records related to a cellular phone owned by his then-girlfriend, on a cell phone primarily used by him. We ultimately concluded:

[W]hile Appellant had use of the telephone, the bills in question were not his telephone bills. …Appellant had no legal right to request or control access to the information from the telephone company because he was not the owner of the telephone. He had no legitimate expectation of privacy in them.

Id. at 1273-1274 (emphasis in original). Moreover, our decision in Benson relied upon a 2008 Washington Court of Appeals case wherein that court held that “a defendant did not have a legitimate expectation of privacy in telephone bills in the name of defendant’s wife.” Id. at 1273 (emphasis added).

However, because the precise issue was not squarely before the trial court, we do not reach a decision as to whether Appellant had an expectation of privacy in the AOL records held in his wife’s name. We merely note this threshold requirement for future guidance for both bench and bar.

Defendant removed a hard drive from a computer and gave it to his mother while still living with her. He moved out about six months later, not taking the hard drive with him. His twin brother told mom to get rid of it because it probably had child pornography on it. She gave it back to defendant. Defendant moved in with his older brother, and ultimately stole his truck and took off. He left the hard drive and other stuff behind. The older brother sold his stuff at a garage sale, but mom retrieved the hard drive. Ultimately she gave it to the police who locked it away and looked for defendant, not finding him. Finally, mom consented to a search of the hard drive, and child porn was found. The court of appeals found the computer was not abandoned, State v. Gould, 131 Ohio St. 3d 179, 2012 Ohio 71, 963 N.E.2d 136 (6th Dist. 2010) (posted here), but the Ohio Supreme Court reversed finding that it was. Forensic analysis of the hard drive showed him sexually assaulting a seven year old, and he was charged with rape and possession of child porn. The state argued that Herring should dictate the exclusionary rule should not apply because the police were not negligent or reckless. The court declined and went right to abandonment. State v. Gould, 2012 Ohio 71, 131 Ohio St. 3d 179 (January 17, 2012):

{¶ 34} As in Hershenow, Freeman, Chandler, and Davis, here the evidence similarly weighs against a finding that Gould had an objectively reasonable expectation of privacy in the hard drive. He left the hard drive in his apartment with his other belongings when he stole his brother’s truck and left Toledo sometime in August 2006. From the time he left Toledo until his arrest by federal marshals sometime before June 3, 2007, Gould never inquired about the hard drive or attempted to assert control over it or its location, he concealed his whereabouts, and he never knew the hard drive had been removed from his apartment when his brother sold his other belongings.

{¶ 35} And even if we consider the period of time from when Gould left Toledo until Detective Dec searched the hard drive in December 2006, the facts reveal that Gould had not made any inquiry about the hard drive or asserted control over it for almost four months. Hence, the police could have reasonably concluded that Gould had abandoned it.

[Note: One cannot disagree with this outcome under the facts and prior authority. The state hedged its bets by going with its Herring argument when the abandonment issue was pretty clear.]

An officer did not violate the Fourth Amendment by coming up to property the subject of a 911 domestic disturbance call from the side and looking in a broken window seeing a gun. United States v. Moore, 453 Fed. Appx. 401 (4th Cir. 2011) (unpublished):

Here, Ayers was responding to a 911 call indicating that there was a domestic disturbance ongoing at Moore’s residence. Although another police officer had already responded to and resolved the incident, the officer had not alerted police dispatchers, and Ayers arrived on the scene, believing himself to be the first officer to respond. At the suppression hearing, Ayers testified that he approached the residence from the side, rather than proceeding to the front door, for his own safety, and decided to investigate further after seeing a broken window and hearing voices from inside. We conclude that Ayers’s action in proceeding to the side of the home and looking inside was not “so incompatible with the scope of [his] original purpose that any evidence inadvertently seen by [him] must be excluded as the fruit of an illegal search.” United States v. Anderson, 552 F.2d 1296, 1300 (8th Cir. 1977) (citing United States v. Bradshaw, 490 F.2d 1097, 1100 (4th Cir. 1974)).

“It is a hallmark of Fourth Amendment jurisprudence that the possibility of a threat to the safety of law enforcement officers may constitute exigent circumstances justifying a warrantless search or seizure.” United States v. Legg, 18 F.3d 240, 244 (4th Cir. 1994); see also Bellotte v. Edwards, 629 F.3d 415, 422-23 (4th Cir. 2011) (listing cases addressing the justification for no-knock entries that speak primarily in terms of threats or danger to officer safety). “For police officers successfully to assert the exigent circumstances doctrine, they need only possess a reasonable suspicion that such circumstances exist at the time of the search or seizure in question.” Figg v. Schroeder, 312 F.3d 625, 639 (4th Cir. 2002) (internal quotation marks omitted). Courts should not “engage in unreasonable second-guessing of the officers’ assessment of the circumstances that they faced.” Id. (internal quotation marks omitted). We have reviewed the record and conclude that the officers were justified in entering the home when Ayers observed one of Moore’s companions pointing a firearm at the front door where other deputies stood. Indeed, they acted entirely reasonably under the circumstances.

Plaintiff was not entitled to judgment as a matter of law on an excessive force claim for being shot during execution of a search warrant just because a gun was not found on him after the shooting. Officers knew that he had a propensity for violence, and an officer not involved in the shooting had yet “shots fired.” A gun was later found outside a window. Carvajal v. Mihalek, 453 Fed. Appx. 69 (2d Cir. 2011) (unpublished)*:

Finally, we are not persuaded by Carvajal’s argument that no reasonable jury could have concluded that a warning was not feasible before shots were fired. See Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985) (holding that, if officers have probable cause to believe suspect poses threat of serious physical harm, “deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given”); accord Hemphill v. Schott, 141 F.3d 412, 417 (2d Cir. 1998). First, Carvajal’s contention rests on a false premise that no warning was given. In fact, when police entered the apartment, Mihalek, Rizza, and other armed officers repeatedly warned Robert and Joseph Carvajal to “get down,” which they disobeyed. … Assuming arguendo that a further warning was required, a reasonable jury could have found that such a warning was not feasible in light of the rapidly evolving scenario in which an armed Robert Carjaval and his reputedly violent brother refused to comply with the “get down” order and appeared to be positioning themselves to use deadly force to resist arrest.

In sum, Carvajal was not entitled to judgment as a matter of law. As the district court correctly observed, the Bivens claim depended on an assessment of the parties’ credibility, which a reasonable jury could resolve in favor of defendants. On such a determination, a reasonable jury could conclude from the evidence that defendants’ use of force was objectively reasonable and, therefore, consistent with the Fourth Amendment.

Defendant did not have a complete reasonable expectation of privacy in an icy fishing shanty because it was not a place where people slept. A conservation officer approached the shanty and overhead the occupants talking about the quality of their “weed,” and he entered. Motion to suppress denied. People v. Slavin, 964 N.E.2d 150, 2011 IL App (2d) 100764 (2011):

[**P17] Defendant contends that, although the occupants of the shanty were not living or camping there, in many cases a person’s expectation of privacy in a dwelling does not depend on where he or she sleeps. See Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (referring to “the mistaken premise that a place must be one’s ‘home’ in order for one to have a legitimate expectation of privacy there”). Defendant asserts that activities of a personal nature take place in a shanty just as they do in a tent, despite there not being any sleeping arrangements (see Larsen, 650 N.W.2d at 149), and that many fishermen seek isolated areas for their pursuits because they do not want to be disturbed (Pruss, 181 P.3d at 1236). …

[**P18] We observe that, unlike in the cases cited by defendant, where the tent-like structures were used for dwelling purposes, the shanty in this case bore no similarities to a dwelling place. The shanty did not even contain a sleeping bag, which could indicate that defendant had expected to stay the night. As pointed out by the State, there is a distinction between overnight guests, who have a reasonable expectation of privacy, and people with a mere transitory presence on the premises at the time of a search, and this distinction is crucial to the fact that a person in this particular ice shanty had no expectation of privacy as someone in a camping tent would. See, e.g., People v. Brown, 277 Ill. App. 3d 989, 994-95, 661 N.E.2d 533, 214 Ill. Dec. 679 (1996) (mere transitory presence on the premises at the time of the search is insufficient to establish a legitimate expectation of privacy); People v. Delgado, 231 Ill. App. 3d 117, 119, 596 N.E.2d 149, 172 Ill. Dec. 870 (1992) (mere status as the sole occupant of girlfriend’s mother’s residence at time of search is not sufficient to establish a legitimate expectation of privacy); United States v. Rigsby, 943 F.2d 631, 636 (6th Cir. 1991) (presence of tent, in which no one was apparently residing, did not create a privacy interest in the otherwise nonprivate area surrounding it).

Noted in Network World.

The relaxed justification for a stop of a DUI suspect on an anonymous tip is based on exigency. That standard was not satisfied here because a parked car is less exigent. Suppression affirmed. Defendant here was ratted out by a woman he had an argument with on a date. People v. Smulik, 964 N.E.2d 183, 2012 IL App (2d) 110110 (2012):

[**P11] We note that there is authority that the threat that intoxicated drivers pose to public safety justifies some relaxation of the corroboration requirement. See People v. Shafer, 372 Ill. App. 3d 1044, 1052-53 (2007). Courts taking this view have distinguished anonymous tips concerning drunk drivers from tips concerning individuals carrying weapons. In this regard, the Shafer court relied, in part, on Rutzinski, in which the Wisconsin Supreme Court cited the following passage from State v. Boyea, 765 A.2d 862 (Vt. 2000):

“‘In contrast to the report of an individual in possession of a gun *** an anonymous report of an erratic or drunk driver on the highway presents a qualitatively different level of danger, and concomitantly greater urgency for prompt action. In the case of a concealed gun, the possession itself might be legal, and the police could, in any event, surreptitiously observe the individual for a reasonable period of time without running the risk of death or injury with every passing moment. An officer in pursuit of a reportedly drunk driver on a freeway does not enjoy such a luxury. Indeed, a drunk driver is not at all unlike a “bomb,” and a mobile one at that.’” Rutzinski, 2011 WI 22, ¶ 35, 623 N.W.2d 516 (quoting Boyea, 765 A.2d at 867).

That reasoning does not apply here. Defendant’s vehicle was not moving and Johnson could have attempted to initiate a consensual encounter in order to determine whether the tip relayed by the dispatcher was reliable. See generally People v. Luedemann, 222 Ill. 2d 530, 544 (2006). The urgency that would have existed if defendant’s vehicle had been in motion was absent here.

Note to Illinois practitioners: Lexis’s citation of the Illinois public domain citation in this case is incorrect. 2012 IL App (2d) 110110 means 2d Dist case number 11-0110. On the Illinois courts opinion page, this case is 2011 IL App (2d) 110110, not 2012, even though the case was decided in 2012. Go figure. Which is correct?

In a search warrant for “guns, drugs, and ammunition,” officers searched a box and opened folded papers finding child pornography. This was valid as a plain view because the officers have the authority to look in folder papers for drugs. United States v. McManaman, 673 F.3d 841 (8th Cir. 2012):

Under a warrant to search McManaman’s home for guns, drugs, and ammunition, officers would have had the authority to search in any closet, container, or other closed compartment in the building large enough to contain the possible contraband. See United States v. Ross, 456 U.S. 798, 820-21 (1982). We have applied the plain view doctrine in similar circumstances where a search warrant “authorized the police to seize, among other things, drugs and drug paraphernalia, either of which could have been stored in a box in a closet. The police were, therefore, acting within the scope of the warrant when they opened the box containing [incriminating] photos.” United States v. Evans, 966 F.2d 398, 400 (8th Cir. 1992). Even if the pictures in the present case were folded up in the box, it seems reasonable to conclude, as the magistrate judge did, that “officers would have had reason to unfold the documents to determine whether they contained drugs, which often are contained within folded pieces of paper.” United States v. McManaman, No. CR10-4024-MWB, 2010 WL 3717288 at *7 n.2 (N.D. Iowa Sept. 15, 2010).

The officers came across the photographs and the videotape with McManaman’s step-daughter’s name on it within the scope of a search that would have been proper had they obtained a search warrant. Because the incriminating nature of this evidence was immediately apparent to the officers, they were entitled to seize it under the plain view doctrine. Therefore the district court did not err in denying McManaman’s motion to suppress because of the inevitable discovery doctrine.