Because of the “combustible nature” of domestic disturbance calls, the officer could reasonably enter the house to make an assessment of the potential threat to the caller. United States v. Lauderdale, 2010 U.S. Dist. LEXIS 65674 (S.D. Ohio June 9, 2010)*:

The “risk-of-danger” exception to the requirement that a warrant be obtained before searching a home applies in this case. Officers Gross and Blackburn were responding to a peace officer assistance call made by Rogers for assistance in gathering her belongings. In their experience, peace officer assistance calls typically involve domestic disputes which are inherently unpredictable. Further, police protocol dictates that police officers responding to this type of call make a face-to-face contact with the caller to assess any potential threat to the caller.

City zoning ordinance that limited the number of undergraduate students that could live in a building did not invade privacy because there was no enforcement power in the zoning commission. Rosenberg v. City of Boston & Boston Zoning Comm’n, 18 LCR 253, 2010 Mass. LCR LEXIS 50 (Mass. Land Ct. May 25, 2010).*

The smell of Bondo and fresh paint on a vehicle with unusual travel plans was reasonable suspicion. United States v. Garcia-Aleman, 2010 U.S. Dist. LEXIS 65333 (E.D. Tex. June 9, 2010).*

Officers had an arrest warrant for one Hernandez, but they had only an anonymous tip where he would be found, and that was insufficient basis for an entry into defendant’s apartment, since an anonymous tip would not support a Terry stop either. Payton requires a “reasonable belief” that the suspect is home before an entry is permitted. The cases are divided whether that is “reasonable suspicion” or more, like just a little less than probable cause. This court does not have to decide which applies because the state cannot satisfy even the lowest standard of reasonable suspicion. The entry violated the Fourth Amendment and the Indiana Constitution, and the evidence of an unrelated crime is suppressed. Duran v. State, 2010 Ind. LEXIS 408 (June 30, 2010):

The next issue is what the officers must reasonably believe. When the home that officers seek to enter is not that of the subject of the arrest warrant, officers must obtain a search warrant absent exigent circumstances. Steagald v. United States, …. Most jurisdictions require that the police have a reasonable belief that the dwelling is the residence of the subject of the warrant and that the subject is present at the time the officers attempt to enter on authority of an arrest warrant. …

It is well established that a reasonable belief that a suspect lives in an apartment building does not give the police the authority to enter every apartment in that building. Flaherty v. State, 443 N.E.2d 340, 343 (Ind. Ct. App. 1982); Thompson v. State, 198 Ind. 496, 497, 154 N.E. 278, 279 (1926). Residents and owners of units in condominium and apartment buildings enjoy the same Fourth Amendment protection as people who live in single-family homes. This is equally true of large complexes and “very small” apartment buildings. The officers therefore required a reasonable belief that Hernandez resided behind the green door, not merely a reasonable belief that he resided somewhere in 2001 Broadway. …

Duran argues that even under the more relaxed view of “reasonable belief,” equating it to reasonable suspicion required for a Terry stop, the officers’ entry into his apartment violated the Fourth Amendment. The officers had reason to believe that Hernandez was residing in the apartment building at 2001 Broadway based on Hernandez’s mother’s report that he was living with her sister in that general area, and Maldonado’s having personally dropped Hernandez off with his possessions outside the building a few days earlier and seeing an older woman helping him into the building. Hernandez was on crutches and in a full leg cast, so it was reasonable to believe he had not relocated his residence in the few days since his ride home from the hospital.

Despite their reasonable belief as to Hernandez’s residence in the building, the police here lacked even reasonable suspicion that his residence was behind the green door. An anonymous tip, standing alone, does not justify a Terry stop. Alabama v. White, …. The officers had only statements of an unidentified man on the street who may or may not have had any connection to the apartment building. This anonymous informant did not enjoy the credibility that is afforded to one who is identified and is thereby exposed to potential civil or even criminal consequences for false information.

Defendant’s vehicle with three passengers was stopped for a traffic offense, and the officer saw what appeared to be cocaine in the driver’s hand. That enabled the officer to search the car, and he could get all four out of the car and separate them for safety. State v. Flowers, 2010 Ohio 2952, 2010 Ohio App. LEXIS 2451 (11th Dist. June 25, 2010).*

Drug dog going around the defendant’s car while he was stopped for a traffic offense was not unreasonable. State v. Meredith, 2010 Ohio 3121, 2010 Ohio App. LEXIS 2617 (5th Dist. July 1, 2010).*

The court finds defendant’s afterthought testimony that he told the officers that they could not search his place before his cotenant agreed so he could rely on Randolph to be incredible. United States v. Penlton, 2010 U.S. Dist. LEXIS 65750 (E.D. Wis. May 20, 2010)*:

A significant fact that is not captured in the transcript of this exchange is that between the court’s question of whether the police said anything else, (denoted by an asterisk in the excerpt above), and Penlton beginning his response, there were, by the court’s estimation, five full seconds of thought by Penlton. This substantial period of contemplation and deliberation was entirely inconsistent with the tempo and tenor of Penlton’s other testimony. This suggests that once Penlton realized he had neglected the key component of his claim, he changed his testimony and included this refusal of consent in place of what had previously been merely a statement that it did not matter who was in the house. Such a seemingly conscious alteration of testimony is not indicative of truthfulness.

Today is the 26th anniversary of United States v. Leon and the good faith exception.

When I remembered that this morning, I had a flash back to the last CLE I did for prosecutors about 1990 where the speaker after me referred to July 5th as “Independence Day from the Fourth Amendment.” There was rousing applause from the audience. This was in Memphis, and it is a telling commentary on the thinking of law enforcement and the Fourth Amendment.

Perhaps it is fitting that the good faith exception was created in 1984.

As I stated two days ago, “Close only applies in horseshoes, nuclear war, and the good faith exception.” The good faith exception to the exclusionary rule is judicial recognition of “close enough for government work.”

A roadblock set up to catch a fleeing bank robber was constitutional, and the court denied subpoenas on the constitutional question before the suppression hearing. “See City of Indianapolis v. Edmond, 531 U.S. 32. 44 (2000) (‘[T]he Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to … catch a dangerous criminal who is likely to flee by way of a particular route.’).” At the suppression hearing, the defendant tried to show the traffic backup made it unconstitutional, but the court finds that traffic backing up for 10 miles with a 20-30 minute delay alone does not make it so. Merrett v. Dempsey, 1993 WL 774466 (N.D. Fla. Apr. 2, 1993), aff’d, Merrett v. Moore, 58 F.3d 1547 (11th Cir. 1995). The tracking device gave probable cause. United States v. Rodger, 2010 U.S. Dist. LEXIS 65850 (S.D. Ga. April 16, 2010):

[T]his exception emphasized by the Supreme Court in Edmond is applicable to the facts of this case. Indeed, an armed robbery suspect is no doubt a dangerous criminal, and the record establishes that police knew that the suspect was fleeing west on I-20 based on the signal from the electronic tracking device. See United States v. Abbott, 265 Fed. App’x 307, 309 (5th Cir. 2008) (finding that a roadblock set up to catch a bank robber was constitutional where, inter alia, the defendant’s vehicle was located in dense traffic where electronic tracking devices embedded in stolen money suggested the car was to be found). The fact that Defendant matched the description of the robbery suspect and the presence of the electronic tracking device in his vehicle also undermines Defendant’s argument that police did not possess “individualized suspicion” to investigate him further.

Truthout’s July 3d Restoring the Fourth Amendment: How We, the People, Can Win Over Washington is a thought provoking piece focusing on the Bush Administration’s hostility to the Fourth Amendment and the Obama Administration’s inability to change it. The article promotes citizen action to restore the Fourth Amendment.

But let’s step back to look at the larger picture of why the government does not now, nor ever has, respected the values of the Fourth Amendment.

We as a society have to change the government’s thinking about the Fourth Amendment. But, don’t blame Bush or Obama; blame yourself. If the government never has much respected the values of the Fourth Amendment, apparently “We the People,” the collective we, haven’t either.

It’s always the other guy’s privacy rights at issue, never yours. That short sighted thinking for the life of this country is what got us in this Constitutional mess. The rights of every citizen are protected when the rights of any one of us are. This is the boiling frog syndrome in action–what little rights we have we don’t even try to protect because we don’t see them slipping away when it is always the other guy who’s rights are violated.

We always have had “ends justifies the means” policy of government and law enforcement that has been around as long as there has been government desire to monitor its citizens. George W. Bush just capitalized on fear to take away our liberties.

Government hostility to individual privacy is endemic for government employees and officials, and it long pre-dates the Fourth Amendment. The general warrants used by the King of England to collect customs taxes here in the colonies before the Revolution were the impetus for the adoption of the Fourth Amendment, two years after the Constitution.

The Founding Fathers understood the threats of general warrants and writs of assistance, and that is why we have a Fourth Amendment. Making government respect the Fourth Amendment is the rub. We can make them say the words, but, as yet, we cannot make them do it.

How was George W. Bush fundamentally any different than King George in 1761?

Since the exclusionary rule was effectively recognized (well, sort of) in 1886 in Boyd v. United States, government and its law enforcement arm have been constantly trying to find ways to nullify it, and the courts are complicit and let them. We have judges appointed and elected because they promise to be ‟law and order,” like Chief Justice Warren E. Burger, appointed by President Nixon to promote that agenda because Nixon thought the Supreme Court was ‟seriously hamstringing the peace forces in our society and strengthening the criminal forces.”

With cases like the Court’s 1967’s recognition of the “reasonable expectation of privacy” in Katz v. United States? Today, we take this concept for granted. Richard Nixon apparently hated it that government couldn’t just listen in on Katz’s call from a telephone booth, and a bookie’s case became harder to prosecute.

Burger early made it clear in his opinions, like in Bivens first suggesting the good faith exception in 1971, that he despised the Fourth Amendment’s exclusionary rule. After three more quick Nixon appointments to the Court, what little progress that had been made under the Fourth Amendment was in serious trouble.

American law enforcement officers and politicians only respect the Fourth Amendment and individual privacy when made to, or maybe embarrassed into it. The courts rule case-by-case, but even a finding the government violated a citizen’s rights does little or nothing to alter its behavior. What happens the next time? Likely the same thing.

So, Nixon, too, was capitalizing on fear to take away civil liberties–demonize the Constitution by demonizing some of the beneficiaries. It always works.

And that’s exactly how government and ninety percent of all politicians think: Fear of the other guy is how most politicians believe you get elected; not that you can do a better job.

And the voters fall for it. Politicians know that people collectively are dumb. If a judge upholds the Fourth Amendment against the government, Republicans immediately call that judge “activist,” their political epithet.

Upholding the Constitution is being an “activist”? What country to you think this is?

To get government to respect the Fourth Amendment as a government policy will take a seismic shift in American thinking. The civil libertarians couldn’t do it, President Obama can’t do it, and the Tea Partiers and government won’t do it. I don’t see Americans today doing it because individual privacy is not a “hot button” issue for anybody in 2010 except for the person who just lost his or her privacy. Apparently the right to possess a gun is more important and fundamental a right to the Supreme Court and some people than the right to be free from unreasonable searches and seizures. My gun is my gun; I don’t care about your privacy.

It is folly to think that any one person can change any of this. It is the responsibility of every citizen in this Nation to hold local, state, and the federal government accountable under the Fourth Amendment. When they violate it, tell them or make them accountable in civil or criminal cases, but litigation takes too long.

You can complain to their superiors. But don’t hold your breath. Police departments might discipline an officer for an egregious violation of the Fourth Amendment, but not the small ones. As Ninth Circuit Judge Alex Kozinski wrote in 1989,

Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.

Kozinksi was channeling Justice Brandeis’s words dissenting in United States v. Olmstead, 85 years ago last week that still ring true today:

Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

The Bill of Rights lives case by case; whether it is the drug test of the railroad employee or unemployment benefits recipient, spying on a student at home through the student’s laptop’s camera, or looking at the messages on a government owned pager. Government thinking probably won’t change without a court telling it that it was wrong, and even then, they’ll try to find a way around it. Count on nothing with the Roberts Court. He’s Warren Burger with a brain.

It is the nature of government to thwart individual liberties, and the Founding Fathers thought the United States would be different. They were only partly right. If the Tea Partiers would ever take up the mantel of the Fourth Amendment, I might even join them. But, when one is a “constitutionalist” for only part of the Constitution in a way that makes me believe that person never read it, well, you lost me.

Yes, the Bill of Rights was a 1791 afterthought to our Constitution, and to far too many it still is.

The question is: how do we change our collective thinking?

Today is the fifth anniversary of this website, or blog, if you will. Today is also the 237th anniversary of James Otis’ argument at the Boston Old State House against the writs of assistance in Paxton’s Case. Apparent transcripts of the argument are here and here. I was never able to get the exact date until about a month ago here; all I knew was February 1761, and the Boston Statehouse Museum did not have a specific date, either.

On October 27, 2006, I had this post about being in the room where Otis argued that case.

Various websites talking about this historic event in American history and the conception of the Fourth Amendment are in the specific links above.

For five years I’ve been diligently trying to report on the state of the law of search and seizure, and it has been an interesting journey, seeing the matrix of case law from the entire country as it develops. Some days it takes 30 minutes, some days three hours.

If I had not spent all this time on the website, the treatise would be well into a Fourth Edition. I’m working on it.

As an aside, today is also the 205th anniversary of Marberry v. Madison.

Arrest warrant for defendant’s boyfriend permitted police to enter the motel room they were living in when the officers had current and reliable information they were staying there. Webb v. State, 2010 Ark. App. 373, 2010 Ark. App. LEXIS 406 (May 5, 2010)* [Court cites Fourteenth Amendment, not Fourth Amendment.]

The grand jury subpoena in this case was hardly used to conduct a search and seizure or violate due process. Voluntary surrender of the documents was permitted and done before the appearance. United States v. Mower, 2010 U.S. Dist. LEXIS 43966 (D. Utah April 27, 2010).*

Once blood is taken under the implied consent law, there is no reasonable expectation of privacy in it. Harrison v. Comm’r of Pub. Safety, 781 N.W.2d 918 (Minn. App. 2010).*

—Semmes Luckett, a Clarksdale, Mississippi lawyer (who I am informed represented many Mississippi school districts in resisting desegregation, which is borne out by looking at his cases on Westlaw or Lexis)

Today, read Thomas Paine’s Common Sense, February 14, 1776, and then the Declaration of Independence.

This is my July 4th ritual.

Correction and Update: In a discussion Feb. 24, 2010 with Gerald Goldstein, I discovered that this quote is from Semmes Luckett the younger, the son of the lawyer mentioned above. This Semmes Luckett was a 1959 college roommate and longtime friend of Hunter S. Thompson. See Conversations with Hunter S. Thompson (Beef Torrey and Kevin Simonson, eds.) 77-78 (2008).

Exclusionary rule does not apply to revocation of federal supervised release, analogizing parole and probation revocation cases. United States v. Jimenez-Torres, 2010 U.S. Dist. LEXIS 65741 (D. P.R. June 30, 2010):

In his motion to suppress, Jimenez-Torres first attempts to distinguish his case by arguing that Scott is specifically about parole hearings and there is no parole in the federal system. See Docket No. 28 at page 5. The Defendant adds that different from parole proceedings, federal revocation proceedings are adversarial, and thus the exclusionary rule should apply therein. Id. at 4.

Faced with the same objection, the Fourth Circuit Court of Appeals noted that “parole and supervised release are ‘analogous contexts.'” Armstrong, 187 F.3d at 394 (citing United States v. Woodrup, 86 F.3d 359, 361 (4th Cir.1996)) (holding exclusionary rule did not apply to federal supervised release revocation proceedings after drugs and weapons were discovered in defendant’s car during routine traffic stop). Accordingly, the court in Armstrong found that “[a]lthough supervised release revocation proceedings, unlike parole revocation proceedings, do take place before a judge, they are characterized by the same ‘flexibility’ that the Supreme Court found significant in Scott.” Armstrong, 187 F.3d at 394. See also Scott 524 U.S. at 365 (“The exclusionary rule, … , is incompatible with the traditionally flexible, administrative procedures of parole revocation).

Moreover, the District Court of Massachusetts, analyzing a similar inquiry to the one before this Court, stated that “[a]s the standards and interests involved are essentially the same in the parole, probation, and supervised release revocation contexts, the reasoning underlying cases concerning the admissibility of evidence in one type of hearing are applicable to the other two as well.” Gravina, 906 F.Supp. at 53 n. 1 ….

Search and seizure claim not Heck barred [Heck’s n. 7] arose at the time of the event, not prevailing in the case. Hall v. Elrod, 2010 U.S. Dist. LEXIS 65426 (W.D.Ark. February 1, 2010)*:

In this case, all actions that Hall alleges are unconstitutional stem from his arrest on August 27, 2004, and the report of the officers about the arrest. Hall’s allegation about the officers’ false testimony is based on the fact that at later court proceedings they offered testimony consistent with their report.

Hall’s illegal search and seizure claims were not barred by Heck and the causes of action accrued on August 27, 2004. See e.g., Moore v. Sims, 200 F.3d 1170, 1171-72 (8th Cir. 2000)(noting footnote seven and concluding unlawful search and seizure claims are not barred by Heck); Venegas v. Wagner, 704 F.2d 1144, 1146 (9th Cir. 1983)(cause of action for illegal search or seizure accrues when act occurs).

Defendant could not show standing to challenge the search of a vehicle by his mere possession of an allegedly borrowed vehicle without showing the authority of the person who allegedly loaned it to him. However, he still has standing to challenge the stop even if the person who loaned it to him stole it. United States v. Gardeley, 2010 U.S. Dist. LEXIS 64260 (D. Nev. May 11, 2010):

Gardeley does not own the vehicle, nor has he established that he was in lawful possession of the vehicle. Although Gardeley claims he was given permission by a friend to use the vehicle, he has failed to show that the friend had authority to give that permission. There is nothing in the record indicating that Gardeley’s friend owned the vehicle or was in lawful possession of the vehicle prior to giving Gardeley permission to use it. Indeed, the record shows that Gardeley’s friend matches the description of the person suspected of stealing the vehicle from a rental agency. Thus, to the extent Gardeley is challenging the search of the vehicle, he has not carried his burden to show that he has standing to do so.

However, it appears that Gardeley’s Fourth Amendment challenge is aimed at the stop, not the search, of the vehicle. Occupants of a vehicle have standing to challenge the stop of the vehicle even if they have no possessory or ownership interest in the vehicle. United States v. Colin, 314 F.3d 439, 442-43 (9th Cir. 2002) (finding that both the driver and passenger of a vehicle had Fourth Amendment standing to challenge the stop of a vehicle the police suspected was stolen); United States v. Pulliam, 405 F.3d 782, 787 (9th Cir. 2005) (citing United States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir. 2001) for the proposition that “[a]lthough a defendant may lack the requisite possessory or ownership interest in a vehicle to directly challenge a search of that vehicle, the defendant may nonetheless contest the lawfulness of his own detention and seek to suppress evidence found in the vehicle as the fruit of the [defendant’s] illegal detention.”); United States v. Twilley, 222 F.3d 1092 (9th Cir. 2000) (finding that the defendant could challenge the stop of the vehicle on Fourth Amendment grounds even with no possessory or ownership interest in the vehicle). Thus, although Gardeley does not have standing to challenge the search directly, he has standing to argue that the initial stop violated the Fourth Amendment, and that the evidence seized as a result of the stop is subject to suppression. Twilley, 222 F.3d at 1095.

On the Phoenix newspaper blog today: SB 1070 injunction hearing set for July 22 in U.S. District Court.

The target of a subpoena gets all its records back because the government used a grand jury subpoena as a search warrant. The court also cited 1906’s Hale v. Henkel. In re Grand Jury No. 09-1, 2010 U.S. Dist. LEXIS 63667 (M.D. Fla. June 10, 2010):

More importantly, the grand jury’s subpoena is improper on procedural grounds. Throughout its papers, the U.S. Attorneys’ Office ignores a rather fundamental (but perhaps increasingly ignored) proposition of law: a subpoena is not a search warrant. With the exception of exemplars and other limited classes of physical evidence, see 1 Sara Sun Beale et al., GRAND JURY LAW AND PRACTICE § 6:5 (2d. ed. 2008), a grand jury subpoena duces tecum — without more — cannot be used to simply seize a witness’s property. Documents, records and tangible evidence remain the exclusive property of the person required to produce them before the grand jury and, absent a court order or stipulation between the witness and the government, the witness has the right to remove his evidence at the end of each day of the grand jury’s proceedings and at the end of the grand jury’s session. See, e.g., Application of Mesta Machine Company, 184 F.2d 375, 375-76 (3d Cir. 1950); Application of Bendix Aviation Corp., 58 F.Supp. 953, 954 (S.D.N.Y. 1945). For this reason, U.S. Attorneys are specifically cautioned:

[I]t is strongly recommended that an impounding order be obtained at the initiation of the grand jury investigation (or at least before the return of any documents to the grand jury) and that it impound the documents at least for the life of that grand jury. This will obviate any claim by a subpoena recipient that it has complied with the subpoena by delivering the documents to the grand jury and has a right to remove the documents at the end of that session.

U.S. Department of Justice, Antitrust Division, Grand Jury Manual, Ch. IV, § E., 1. c., http://www.justice.gov/atr/public/guidelines/206826.htm#IVE1. In contrast, a search warrant, which is supported by probable cause and interposes a neutral magistrate between a citizen and law enforcement, permits an officer to literally seize and take immediate possession of one’s property. …

. . .

Neither the grand jury nor the U.S. Attorneys’ Office acting on its behalf may simply take possession of Signature’s property through a subpoena. When Signature’s property was seized (unlawfully) by the State of Florida pursuant to invalid search warrants, the property came into the possession of the State Court. The State Court did not lose possession of the property simply because the U.S. Attorneys’ Office took physical custody of it and issued a subpoena on behalf of the federal grand jury. The State Court lost possession, of its own accord, when it decided to dispose of the property in a final order requiring the property to immediately be returned to Signature.

Under the facts and circumstances here, a frisk of the vehicle for a possible weapon was permissible under Long. Gant did not change Long. United States v. Lewis, 2010 U.S. Dist. LEXIS 63716 (W.D. N.C. March 24, 2010).*

Defense counsel was not ineffective for not forecasting Gant. Torres v. United States, 2010 U.S. Dist. LEXIS 63457 (W.D. N.C. June 5, 2010).*

Officers had a search warrant for defendant’s house, and they entered with guns drawn. A vehicle outside was not listed in the search warrant as a place to be searched. “After the tense initial sweep of the residence, the testimony of Special Agent Price, Special Agent Hooker, Lathey, and Defendant all indicate that the atmosphere was relaxed. It was during this time, with Defendant and Lathey sitting on their couch engaging in small talk with the officers, that Special Agent Price requested consent to search the vehicle.” That search was by consent. United States v. Dean, 2010 U.S. Dist. LEXIS 63852 (S.D. W.Va. June 25, 2010)* [normally a SW for premises includes vehicles that belong there; that’s not discussed].

They are a little jumbled, but they are back.

Plaintiff’s arrest was with probable cause of bank fraud. His argument that they could not know his intent fails. Painter v. City of Albuquerque, 2010 U.S. App. LEXIS 12878 (10th Cir. June 23, 2010) (unpublished):

At the end of the day, the hard fact confronting Mr. Painter is that probable cause “does not deal with hard certainties, but with probabilities.” Gates, 462 U.S. at 231. “Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction.” Adams v. Williams, 407 U.S. 143, 149, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). And the facts known to the officers here, while not pointing uniformly in the same direction or metaphysically dispositive of Mr. Painter’s intent, were sufficient for an objectively reasonable officer to think that Mr. Painter probably harbored the intent to cash a check he knew not to be valid.

Forfeiture claimant had standing but for taking the Fifth on everything other than possession. This was thus mere unexplained ownership, and that’s not enough. United States v. $133,420.00 in United States Currency, 2010 U.S. Dist. LEXIS 62270 (D. Ariz. June 23, 2010)*:

In this case, Louis’ assertion of ownership in his responses to the Government’s special interrogatories together with the fact that the currency was seized from the car he was driving would be enough to establish standing under $148,840.00. However, as the Government points out in its motion to strike Louis’ discovery responses, Louis responded to the Government’s special interrogatories only where advantageous to his cause. He conclusorily claimed an ownership interest in response to the Government’s inquiries into the nature of his property interest in the currency, but declined, on Fifth Amendment self-incrimination grounds, to respond to follow-up questions about the details of that ownership interest, including how, why, or where he obtained the funds. Louis’ invocation of the Fifth Amendment is therefore indistinguishable from that of the claimant in $148,840.00 and is a clear example of the impermissible use of the privilege as both a shield and a sword. Louis cannot be permitted to respond where it benefits his standing position yet shield that response from further scrutiny, thereby using the Fifth Amendment privilege “to mutilate the truth.” Parcels of Land, 903 F.2d at 43.

The Court will therefore exercise its discretion to strike Louis’ interrogatory responses and therefore his evidentiary assertion of ownership. What remains is the undisputed fact that Louis was in physical possession of the currency when it was seized. Louis has provided no explanation of that possession. Mere unexplained possession is insufficient for standing at any stage of the proceeding. See $191,910.00 in U.S. Currency, 16 F.3d at 1058; $148,840.00 in United States Currency, 521 F.3d at 1275-76.

The Court is mindful that the rules of decision proposed by both sides in this case are open to abuse. …

“The Fifth Circuit instructs that when a defendant moves to suppress evidence on the ground that the search warrant was not supported by probable cause, ‘principles of judicial restraint and precedent dictate that, in most cases, we should not reach the probable cause issue if a decision on the admissibility of evidence under the good-faith exception to the exclusionary rule will resolve the matter.’ U.S. v. Flanders, 468 F.3d 269, 270 (5th Cir. 2006).” [You know where this is going.] Any entry prior to the issuance of the search warrant is mooted by the independent source doctrine. United States v. Jones, 2010 U.S. Dist. LEXIS 61625 (E.D. La. May 27, 2010).*

Knock-and-talk consent was valid, and it was accompanied by a statement that consent could be refused. United States v. Kopf, 2010 U.S. Dist. LEXIS 61461 (E.D. Mo. May 27, 2010).*

Direct appeal of a Fourth Amendment question is law of the case for § 2255. United States v. Edgerson, 2009 U.S. Dist. LEXIS 127617 (E.D. Mich. August 27, 2009).*

Officers stopped defendant for suspicion of shoplifting, and defendant refused to consent to a search of the car. The officers noted that the license was expired, so the car was impounded. An inventory of the car revealed an energy drink can that felt like it had a false compartment. The can was properly opened. State v. Colopy, 2010 Ohio 2804, 2010 Ohio App. LEXIS 2310 (5th Dist. June 14, 2010).

Defendant did not receive IAC from defense counsel for not filing a motion to suppress that would not have prevailed. The person who consented to the search to locate a recently discharged firearm had apparent authority as far as the police were concerned. State v. Pettaway, 2010 Ohio 2798, 2010 Ohio App. LEXIS 2305 (6th Dist. June 18, 2010).*

Defendant’s traffic offenses admittedly happened, so pretext is not an issue. State v. Howard, 2010 Ohio 2817, 2010 Ohio App. LEXIS 2345 (11th Dist. June 18, 2010).*