The Supreme Court held today in Pearson v. Callaghan, 07-751, 2008 U.S. Lexis 591 (U.S. January 21, 2009), that the Saucier v. Katz two step analysis was not required in every case. The district court was free to determine the determinative second question first. Here, the question of “consent-once-removed” was still developing and unresolved in the circuit, and holding the officers liable for it when the issue was not clearly established was erroneous. The decision, by Alito, was unanimous. From the Court’s syllabus:

After the Utah Court of Appeals vacated respondent’s conviction for possession and distribution of drugs, which he sold to an undercover informant he had voluntarily admitted into his house, he brought this 42 U.S.C. § 1983 damages action in federal court, alleging that petitioners, the officers who supervised and conducted the warrantless search of the premises that led to his arrest after the sale, had violated the Fourth Amendment. The District Court granted summary judgment in favor of the officers. Noting that other courts had adopted the “consent-once-removed” doctrine — which permits a warrantless police entry into a home when consent to enter has already been granted to an undercover officer who has observed contraband in plain view — the court concluded that the officers were entitled to qualified immunity because they could reasonably have believed that the doctrine authorized their conduct. Following the procedure mandated in Saucier v. Katz, 533 U.S. 194, the Tenth Circuit held that petitioners were not entitled to qualified immunity. The court disapproved broadening the consent-once-removed doctrine to situations in which the person granted initial consent was not an undercover officer, but merely an informant. It further held that the Fourth Amendment right to be free in one’s home from unreasonable searches and arrests was clearly established at the time of respondent’s arrest, and determined that, under this Court’s clearly established precedents, warrantless entries into a home are per se unreasonable unless they satisfy one of the two established exceptions for consent and exigent circumstances. The court concluded that petitioners could not reasonably have believed that their conduct was lawful because they knew that (1) they had no warrant; (2) respondent had not consented to their entry; and (3) his consent to the entry of an informant could not reasonably be interpreted to extend to them. In granting certiorari, this Court directed the parties to address whether Saucier should be overruled in light of widespread criticism directed at it.

Held:

1. The Saucier procedure should not be regarded as an inflexible requirement. Pp. 5-19.

(a) Saucier mandated, see 533 U.S., at 194, a two-step sequence for resolving government officials’ qualified immunity claims: A court must decide (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) if so, whether that right was “clearly established” at the time of the defendant’s alleged misconduct, id., at 201. Qualified immunity applies unless the official’s conduct violated such a right. Anderson v. Creighton, 483 U.S. 635, 640. Pp. 5-7.

(b) Stare decisis does not prevent this Court from determining whether the Saucier procedure should be modified or abandoned. Revisiting precedent is particularly appropriate where, as here, a departure would not upset settled expectations, see, e.g., United States v. Gaudin, 515 U.S. 506, 521; the precedent consists of a rule that is judge-made and adopted to improve court operations, not a statute promulgated by Congress, see, e.g., State Oil Co. v. Khan, 522 U.S. 3, 20; and the precedent has “been questioned by Members of th[is] Court in later decisions, and [has] defied consistent application by the lower courts,” Payne v. Tennessee, 501 U.S. 808, 829-830. Respondent’s argument that Saucier should not be reconsidered unless the Court concludes that it was “badly reasoned” or that its rule has proved “unworkable,” see Payne, supra, at 827, is rejected. Those standards are out of place in the present context, where a considerable body of new experience supports a determination that a mandatory, two-step rule for resolving all qualified immunity claims should not be retained. Pp. 7-10.

(c) Reconsideration of the Saucier procedure demonstrates that, while the sequence set forth therein is often appropriate, it should no longer be regarded as mandatory in all cases. Pp. 10-19.

(i) The Court continues to recognize that the Saucier protocol is often beneficial. In some cases, a discussion of why the relevant facts do not violate clearly established law may make it apparent that in fact the relevant facts do not make out a constitutional violation at all. And Saucier was correct in noting that the two-step procedure promotes the development of constitutional precedent and is especially valuable for questions that do not frequently arise in cases in which a qualified immunity defense is unavailable. See 533 U.S., at 194. Pp. 10-11.

(ii) Nevertheless, experience in this Court and the lower federal courts has pointed out the rigid Saucier procedure’s shortcomings. For example, it may result in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the case’s outcome, and waste the parties’ resources by forcing them to assume the costs of litigating constitutional questions and endure delays attributable to resolving those questions when the suit otherwise could be disposed of more readily. Moreover, although the procedure’s first prong is intended to further the development of constitutional precedent, opinions following that procedure often fail to make a meaningful contribution to such development, as where, e.g., a court of appeals decision is issued in an opinion marked as not precedential. Further, when qualified immunity is asserted at the pleading stage, the answer to whether there was a violation may depend on a kaleidoscope of facts not yet fully developed. And the first step may create a risk of bad decisionmaking, as where the briefing of constitutional questions is woefully inadequate. Application of the Saucier rule also may make it hard for affected parties to obtain appellate review of constitutional decisions having a serious prospective effect on their operations. For example, where a court holds that a defendant has committed a constitutional violation, but then holds that the violation was not clearly established, the defendant, as the winning party, may have his right to appeal the adverse constitutional holding challenged. Because rigid adherence to Saucier departs from the general rule of constitutional avoidance, cf., e.g., Scott v. Harris, 550 U.S. 372, 388, the Court may appropriately decline to mandate the order of decision that the lower courts must follow, see, e.g., Strickland v. Washington, 466 U.S. 668, 697. This flexibility properly reflects the Court’s respect for the lower federal courts. Because the two-step Saucier procedure is often, but not always, advantageous, those judges are in the best position to determine the order of decisionmaking that will best facilitate the fair and efficient disposition of each case. Pp. 11-17.

(iii) Misgivings concerning today’s decision are unwarranted. It does not prevent the lower courts from following Saucier; it simply recognizes that they should have the discretion to decide whether that procedure is worthwhile in particular cases. Moreover, it will not retard the development of constitutional law, result in a proliferation of damages claims against local governments, or spawn new litigation over the standards for deciding whether to reach the particular case’s merits. Pp. 17-19.

2. Petitioners are entitled to qualified immunity because it was not clearly established at the time of the search that their conduct was unconstitutional. When the entry occurred, the consent-once-removed doctrine had been accepted by two State Supreme Courts and three Federal Courts of Appeals, and not one of the latter had issued a contrary decision. Petitioners were entitled to rely on these cases, even though their own Federal Circuit had not yet ruled on consent-once-removed entries. See Wilson v. Layne, 526 U.S. 603, 618, 119 S. Ct. 1692, 143 L. Ed. 2d 818. Pp. 19-20.

ScotusWiki here. The question presented, per ScotusWiki:

Whether, for qualified immunity purposes, police officers may enter a home without a warrant on the theory that the owner consented to the entry by previously permitting an undercover informant into the home. (Note: in addition to the questions presented, the Court directed the parties to brief and argue the following question: “Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?”)

Mike Luckovich, Atlanta Journal-Constitution, Nov. 6, 2008.

The Supreme Court has granted certiorari on Friday in the Ninth Circuit’s Redding v. Safford Unified School District case to decide the legality of an anonymous tip from a student used to strip search a student for ibuprofen. The SCOTUSBlog summary:

In reopening the issue of public school students’ rights of privacy, the Court agreed to hear an appeal by an Arizona school district arguing that the Ninth Circuit Court has created a new rule requiring public school officials to have more evidence of illegal possession of drugs or weapons at school than an unproved tip from a student. The case grows out of the strip-search of a 13-year-old girl at school after one of her classmates said that prescription drugs found on that other student belonged to the girl who was searched. The case is Safford Unified School District v. Redding (08-479).

The opinion below: Redding v. Safford Unified School District, 531 F.3d 1071 (9th Cir. 2008) (en banc, 6-5), posted here.

LATimes article is here.

SCOTUSBlog and SCOTUSWiki have not posted serious discussions of this case yet, but they will shortly. When they do, their postings will be posted on the sidebar.

In a little noticed move, the federal government started taking DNA samples from arrestees and immigration detainees without regard to conviction. See the Chicago Tribune. Few other papers mentioned it.

The proposed regulation is here posted April 18, 2008. The summary states:

SUMMARY: The Department of Justice is publishing this proposed rule to implement amendments made by section 1004 of the DNA Fingerprint Act of 2005 and section 155 of the Adam Walsh Child Protection and Safety Act of 2006 to section 3 of the DNA Analysis Backlog Elimination Act of 2000. This rule directs agencies of the United States that arrest or detain individuals, or that supervise individuals facing charges, to collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States. Unless otherwise directed by the Attorney General, the collection of DNA samples may be limited to individuals from whom an agency collects fingerprints. The Attorney General also may approve other limitations or exceptions. Agencies collecting DNA samples are directed to furnish the samples to the Federal Bureau of Investigation, or to other agencies or entities as authorized by the Attorney General, for purposes of analysis and entry into the Combined DNA Index System.

DNA is to be taken at fingerprinting:

Accordingly, the Attorney General is directing all agencies of the United States that arrest or detain individuals or supervise individuals facing charges to collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States, pursuant to 42 U.S.C. 14135a(a)(1)(A), if the agency takes fingerprints from such individuals.

The Department recognizes, however, that there may be some circumstances in which agencies collect fingerprints but in which the collection of DNA samples would not be warranted or feasible. For example, in relation to non-arrestees, DHS will not be required to collect DNA samples from aliens who are fingerprinted in processing for lawful admission to the United States, or from aliens from whom DNA-sample collection is otherwise not feasible because of operational exigencies or resource limitations. If any agency believes that such circumstances exist within its sphere of operations, the agency should bring these circumstances to the attention of the Department, and exceptions to the DNA-sample collection requirement may be allowed with the approval of the Attorney General.

Maybe one reason it has not been in the news is that some articles only focused on the testing of arrested suspected illegal immigrants, as in the LATimes and Washington Post. The NY Times never mentioned it.

This April 2008 article mentioned the DOJ plan which was authorized by statute. So does the regulation’s notice.

DOJ did not have a press release on it.

I personally doubt the constitutionality of something as intrusive as a DNA sampling without individualized probable cause for it. An arrestee has been convicted of nothing, so all the case law on the special needs exception has utterly no application. And what about a pretextual arrest for something else just to get the DNA of somebody the police cannot show probable cause as to a specific crime? The states will get on the bandwagon, too.

School strip search for ibuprofen clearly violated the Fourth Amendment. Therefore, there was no qualified immunity. Redding v. Safford Unified School District, 531 F.3d 1071 (9th Cir. 2008) (en banc, 6-5):

On the basis of an uncorroborated tip from the culpable eighth grader, public middle school officials searched futilely for prescription-strength ibuprofen by strip-searching thirteen-year-old honor student Savana Redding. We conclude that the school officials violated Savana’s Fourth Amendment right to be free from unreasonable search and seizure. The strip search of Savana was neither “justified at its inception,” New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985), nor, as a grossly intrusive search of a middle school girl to locate pills with the potency of two over-the-counter Advil capsules, “reasonably related in scope to the circumstances” giving rise to its initiation. Id. Because these constitutional principles were clearly established at the time that middle school officials directed and conducted the search, the school official in charge is not entitled to qualified immunity from suit for the unconstitutional strip search of Savana.

. . .

Nowhere does the T.L.O. Court tell us to accord school officials’ judgments unblinking deference. Nor does T.L.O. provide blanket approval of strip searches of thirteen-year olds remotely rumored to have had Advil merely because of a generalized drug problem. Rather, the Court made it clear that while it did not require school officials to apply a probable cause standard to a purse search, it plainly required them to act “according to the dictates of reason and common sense.” Id. As discussed below, the public school officials who strip searched Savana acted contrary to all reason and common sense as they trampled over her legitimate and substantial interests in privacy and security of her person.

. . .

Nor was the strip search “reasonably related in scope to the circumstances which justified the interference in the first place.” T.L.O., 469 U.S. at 341 (internal quotation mark and citation omitted). The scope of a search is permissible only if “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” Id. at 342 (emphasis added). Here, the public school authorities adopted a disproportionately extreme measure to search a thirteen-year-old girl for violating a school rule prohibiting possession of prescription and over-the-counter drugs. We conclude the strip search was not reasonably related to the search for ibuprofen, as the most logical places where the pills might have been found had already been searched to no avail, and no information pointed to the conclusion that the pills were hidden under her panties or bra (or that Savana’s classmates would be willing to ingest pills previously stored in her underwear). Common sense informs us that directing a thirteen-year-old girl to remove her clothes, partially revealing her breasts and pelvic area, for allegedly possessing ibuprofen, an infraction that poses an imminent danger to no one, and which could be handled by keeping her in the principal’s office until a parent arrived or simply sending her home, was excessively intrusive.

Along with our sister circuits, we have long recognized the psychological trauma intrinsic to a strip search. “The feelings of humiliation and degradation associated with forcibly exposing one’s nude body to strangers for visual inspection is beyond dispute.” Thompson v. City of Los Angeles, 885 F.2d 1439, 1446 (9th Cir. 1989) (challenging a strip search of an adult after arrest for grand-theft auto). As the Tenth Circuit has explained, “[t]he experience of disrobing and exposing one’s self for visual inspection by a stranger clothed with the uniform and authority of the state … can only be seen as thoroughly degrading and frightening.” Chapman v. Nichols, 989 F.2d 393, 396 (10th Cir. 1993) (challenging strip search policy of Oklahoma jail). That Savana’s search took place in a nurse’s office in front of two women does not remove the sting of the procedure. See Hunter v. Auger, 672 F.2d 668, 674 (8th Cir. 1982) (“Indeed, a strip search, regardless how professionally and courteously conducted, is an embarrassing and humiliating experience.”).

These concerns, pressing and legitimate when strip searches are conducted on adults in prison, are magnified when strip searches are performed on schoolchildren.

See ABAJournal.com: En Banc 9th Circuit Strikes Girl’s Strip Search.

Defendant’s mother’s consent allowing the police to search her home was voluntary despite the police officer telling the mother that he would get a warrant and that he would seal the property. State v. Berg, 223 Ore. App. 387, 196 P.3d 547 (2008).*

Officer’s merely failing to take steps to confirm person he arrested was the correct suspect did not show malice for punitive damages against him. Houghton v. Forrest, 183 Md. App. 158, 959 A.2d 816 (2008).*

A consent to search as a condition of bail was used as a method of finding consent in United States v. Doody, 2008 U.S. Dist. LEXIS 89669 (D. Me. August 6, 2008), but the court did not determine the legality of that condition, just that defendant was well-versed in the criminal justice system, therefore, not somebody easily taken advantage of by the police.

In a case found unique, but governed by basic principles, defendant was peddling drugs at a music festival on a campground from tarp and metal frame structure built over a Hummer. This was sufficiently like a tent to have a reasonable expectation of privacy, and the structure is not governed by the automobile exception since the vehicle is within the structure. People v. Hughston, 168 Cal. App. 4th 1062, 85 Cal. Rptr. 3d 890 (1st Dist. 2008):

The particular arrangement of the vehicle and tarp structure in this case is unusual if not unique in Fourth Amendment jurisprudence. However, we conclude the tarp structure is equivalent to a large camping tent. There are superficial differences from common camping tents: the structure was makeshift, it was large enough to encompass smaller tents and an eating area, and its design incorporated the entirety of the Hummer. Nevertheless, the structure was functionally identical to a camping tent, in that it was a temporary structure designed to provide its occupants a degree of protection from the elements and privacy while staying outdoors. No California court has ruled on whether a person has a reasonable expectation of privacy in a camping tent, but other courts have extended Fourth Amendment protections to them. U.S. v. Gooch (9th Cir. 1993) 6 F.3d 673 (Gooch) held a defendant had an objectively reasonable expectation of privacy in a tent pitched in a legal public campground. Gooch declined to analogize the tent to a mobile home, which may be subject to the automobile exception. (Id. at p. 677.) In U.S. v. Sandoval (9th Cir. 2000) 200 F.3d 659, 660 (Sandoval), the court extended the holding in Gooch to reach a “makeshift tent” that was “located on Bureau of Land Management … land.” (See also People v. Schafer (Colo. 1997) 946 P.2d 938, 944 [tent pitched on “unimproved, publicly accessible land”]; Alward v. State (1996) 112 Nev. 141, 150 (Alward), overruled on another ground in Rosky v. State (2005) 121 Nev. 184, 191 & fn. 10 [tent pitched on Bureau of Land Management (BLM) land].)

Respondent relies on People v. Thomas (1995) 38 Cal.App.4th 1331 to argue appellant was required to show he and his friends were camped lawfully, and asserts “where a tent is pitched on public property without permits or permission or in violation of law there can exist no reasonable expectation of privacy.” But Thomas held only that a homeless man living in a cardboard box on a public sidewalk, in violation of a law expressly prohibiting him from doing so, did not have a reasonable expectation of privacy in the box. (Id. at pp. 1333-1334; see also United States v. Ruckman (10th Cir. 1986) 806 F.2d 1471, 1472-1473 (Ruckman) [person occupying natural cave on federal land does not have reasonable expectation of privacy].) The defendant in Thomas was aware of the illegality because the city previously had removed another box he had occupied from the same location. (Thomas, at pp. 1333-1334.)

Thomas’s holding provides little support for respondent’s contention that appellant was required to prove his occupancy of the searched site was legal by showing he had paid required camping fees and erected a structure of permissible size.

Community caretaking function is not found here to justify a stop in California. The question is left open for the future. People v. Madrid, 168 Cal. App. 4th 1050, 85 Cal. Rptr. 3d 900 (1st Dist. 2008):

In any event, assuming that the community caretaking exception may justify the stop of a moving vehicle, we conclude that given the facts known to Perez a reasonable officer would not have perceived a need to do so in this case. “[R]easonableness ‘depends “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers,”‘ [citations].” (Maryland v. Wilson (1997) 519 U.S. 408, 411-412.) In engaging in this weighing process, courts must act as vigilant gatekeepers to ensure that the community caretaking exception does not consume the warrant requirement. (See Ray, supra, 21 Cal.4th at p. 477.)

. . .

The stop of appellant’s vehicle fails the reasonableness test. Initially, we note the stop was based on the officer’s observations of the passenger. Clearly the balance would weigh more heavily in favor of the officer’s action if the officer believed the driver was in great distress; an extremely ill driver is a danger not only to himself but to other members of the public as well. (See Wright I, supra, 7 S.W.3d at p. 158 (dis. opn. of Johnson, J.)
(emphasis the court’s)

Defendant’s generalized motion to suppress and result of the hearing left the District Court and the Court of Appeals in the dark as to the specific issue being presented as to a violation of the defendant‘s rights. United States v. Jarvi, 537 F.3d 1256 (10th Cir. 2008):

In light of the burden of proof, this lack of information dooms Mr. Jarvi’s motion for suppression. To suppress evidence as the fruit of his unlawful detention or unlawful search, Mr. Jarvi “must make two showings: (1) that the detention [or search] did violate his Fourth Amendment rights; and (2) that there is a factual nexus between the illegality and the challenged evidence.” … If he makes those showings, then the government may attempt to show that the taint has nonetheless been dissipated by inevitable discovery, attenuation, or the like. … In other words, Mr. Jarvi must show that if police had not searched his truck (or unlawfully detained him, if that violation were shown), they would not have ended up questioning Ms. Higgins and learning about the drugs in his house. See, e.g., Pulliam v. United States, 405 F.3d 782, 787 (9th Cir. 2005) (setting forth the various ways the defendant could have shown a nexus, including by demonstrating that “the statements he made … prompted the officers to search the car or enabled them to find evidence in it that otherwise would have remained hidden”). In his appellate briefs, Mr. Jarvi claims that “it’s clear that Ms. Higgins[‘s] statements would not have been made but for the illegal detention[,] arrest and search of the appellant.” Aplt’s Br. at 16. But he offers no reason why this would be true, and the record reveals none. Absent any information presented at the hearing about whether his detention was illegal, or how the questioning of Ms. Higgins related to the arguably illegal detention and the concededly illegal search, we cannot conclude that Mr. Jarvi met his burden before the district court.

District court found two reasons to sustain the search, but only one was argued on appeal, and that is not enough to reverse. United States v. George, 291 Fed. Appx. 803 (9th Cir. August 14, 2008) (unpublished).*

Tip received by the officer did not specify any criminality, and only innocent details were corroborated. Defendant’s later consent did not purge the taint. United States v. Benavides, 291 Fed. Appx. 603 (5th Cir. August 27, 2008) (unpublished):

The anonymous tip that Joe Benavides received alleged no criminal activity. It merely described the truck, the truck’s location, and the fact that the truck was being loaded with unknown cargo. Although the government relies heavily on the specificity and accuracy of the tip, it can point to no specific assertion of illegality, much less a verifiable assertion of illegality. The only further articulation of reasonable suspicion made by Benavides was that the area in which the truck was loaded was not a warehouse district. Thus, the facts alleged by the government to support its claim of reasonable suspicion show that Oscar Benavides and another man put unidentified bundles into crates and carried out these activities at an address that was not located in a warehouse district. 2 The tip alone therefore alleges only identifying information, insufficient under J.L. for a finding of reasonable suspicion. See 529 U.S. at 271-72 (finding no reasonable suspicion for seizure where anonymous tip accurately identifying a person further alleged only that the identified person was illegally carrying a gun). And the police did not improve on these bare facts in order to find reasonable suspicion before the traffic stop was made.

It was not shown that defendant revoked his consent after officers found an after market concealed compartment. The state bears the burden of proof on non-withdrawal of consent. State v. Petion, 992 So. 2d 889 (Fla. App. 2d Dist. October 24, 2008)*:

Thus, we conclude that HN7if a defendant raises the issue of withdrawal of consent by nonverbal communication, the State must prove by a preponderance of the evidence that the defendant did not engage in the type of nonverbal communication that an objectively reasonable officer would interpret as a withdrawal of consent. In this case, Mr. Petion’s conduct can be fairly summarized as a passive failure to object. Reviewing this issue de novo and relying on the circuit court’s historical findings, we conclude that he did not revoke or withdraw his consent by any nonverbal communication after the deputies found the secret compartment.

Knock and talk was valid. Credibility call here goes to the government because the officers’ versions were consistent [and what about getting their stories together?], and the defendant’s version is not believed. United States v. Maes, 2008 U.S. Dist. LEXIS 103676 (D. Utah December 17, 2008).*

There is no requirement under the collective knowledge doctrine of Hensley and Whiteley that all the information be spread to the others. United States v. Olmedo, 552 F. Supp. 2d 1347 (S.D. Fla. March 20, 2008).*

Traffic stop was justified, and the gun protruding from defendant’s pocket was in plain view when he got out of the car. United States v. Cintron, 2008 U.S. Dist. LEXIS 101677 (D. Mass. December 15, 2008).*

Defense counsel was not ineffective for not filing a motion to suppress that would have failed as a matter of law. United States v. Perez-Luna, 2008 U.S. Dist. LEXIS 101516 (S.D. N.Y. December 10, 2008).*

Voting rights case Fourth Amendment claim unsupported by any allegation of unlawful search and seizure was dismissed. Oh v. Phila. County Bd. of Elections, 2008 U.S. Dist. LEXIS 101656 (E.D. Pa. October 31, 2008).*

“[W]e have not yet determined the specific question of the applicability of the Fourth Amendment’s Warrant Clause to overseas searches. Faced with that question now, we hold that the Fourth Amendment’s warrant requirement does not govern searches conducted abroad by U.S. agents; such searches of U.S. citizens need only satisfy the Fourth Amendment’s requirement of reasonableness.” Also, national security is a valid reason to limit a defendant’s ability to see evidence in a suppression motion. In re Terrorist Bombings of United States Embassies in East Africa (Fourth Amendment Challenges) (United States v. Odeh), 548 F.3d 276 (2d Cir. November 24, 2008):

The question of whether a warrant is required for overseas searches of U.S. citizens has not been decided by the Supreme Court, by our Court, or, as far as we are able to determine, by any of our sister circuits. While never addressing the question directly, the Supreme Court provided some guidance on the issue in United States v. Verdugo-Urquidez, where the Court examined whether an alien with “no voluntary attachment to the United States” could invoke the protections of the Fourth Amendment to suppress evidence obtained through a warrantless search conducted in Mexico. 494 U.S. 259, 274-75 (1990). Relying on “the text of the Fourth Amendment, its history, and [the Court’s] cases discussing the application of the Constitution to aliens and extraterritorially,” the Supreme Court held that the Fourth Amendment affords no protection to aliens searched by U.S. officials outside of our borders. Id. at 274. With respect to the applicability of the Warrant Clause abroad, the Court expressed doubt that the clause governed any overseas searches conducted by U.S. agents, explaining that warrants issued to conduct overseas searches “would be a dead letter outside the United States.” Id. …

. . .

These observations and the following reasons weigh against imposing a warrant requirement on overseas searches.

First, there is nothing in our history or our precedents suggesting that U.S. officials must first obtain a warrant before conducting an overseas search. El-Hage has pointed to no authority–and we are aware of none–directly supporting the proposition that warrants are necessary for searches conducted abroad by U.S. law enforcement officers or local agents acting in collaboration with them; nor has El-Hage identified any instances in our history where a foreign search was conducted pursuant to an American search warrant. This dearth of authority is not surprising in light of the history of the Fourth Amendment and its Warrant Clause as well as the history of international affairs. As the Verdugo-Urquidez Court explained, “[w]hat we know of the history of the drafting of the Fourth Amendment … suggests that its purpose was to restrict searches and seizures which might be conducted by the United States in domestic matters.” 494 U.S. at 266. In addition, the Warrant Clause appears to have been invested with a meaning at the time of the drafting that differs significantly from our modern view of the requirement. Justice White observed that “at the time of the Bill of Rights, the warrant functioned as a powerful tool of law enforcement rather than as a protection for the rights of criminal suspects,” and “it was the abusive use of the warrant power, rather than any excessive zeal in the discharge of peace officers’ inherent authority, that precipitated the Fourth Amendment.” Payton v. New York, 445 U.S. 573, 604-14, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) (White, J., dissenting) (documenting the history of the Fourth Amendment’s warrant requirement). Accordingly, we agree with the Ninth Circuit’s observation that “foreign searches have neither been historically subject to the warrant procedure, nor could they be as a practical matter.” United States v. Barona, 56 F.3d 1087, 1092 n.1 (9th Cir. 1995).

Second, nothing in the history of the foreign relations of the United States would require that U.S. officials obtain warrants from foreign magistrates before conducting searches overseas or, indeed, to suppose that all other states have search and investigation rules akin to our own. As the Supreme Court explained in Verdugo-Urquidez: …. The American procedure of issuing search warrants on a showing of probable cause simply does not extend throughout the globe and, pursuant to the Supreme Court’s instructions, the Constitution does not condition our government’s investigative powers on the practices of foreign legal regimes “quite different from that which obtains in this country.” Id.

Third, if U.S. judicial officers were to issue search warrants intended to have extraterritorial effect, such warrants would have dubious legal significance, if any, in a foreign nation. Cf. The Schooner Exchange v. M’Faddon, 11 U.S. 116, 135, 3 L. Ed. 287 (1812) (“The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.”). As a District Court in this Circuit recently observed, “it takes little to imagine the diplomatic and legal complications that would arise if American government officials traveled to another sovereign country and attempted to carry out a search of any kind, professing the authority to do so based on an American-issued search warrant.” United States v. Vilar, No. 05-CR-621, 2007 U.S. Dist. LEXIS 26993, 2007 WL 1075041, at *52 (S.D.N.Y. Apr. 4, 2007). We agree with that observation. A warrant issued by a U.S. court would neither empower a U.S. agent to conduct a search nor would it necessarily compel the intended target to comply. It would be a nullity, or in the words of the Supreme Court, “a dead letter.” Verdugo-Urquidez, 494 U.S. at 274.

On a motion to reclaim seized property, “[w]e thus conclude that a party seeking to compel the return or restoration of seized property based on a ‘valid claim to rightful possession’ pursuant to ORS 133.643(4) must establish that (1) the item is ‘no longer needed for evidentiary purposes’ and (2) the person is ‘entitled’ to the return or restoration of–that is, can lawfully possess–the item sought to be recovered.” Claimant was not entitled to a deer shot without a hunting license. In re One Black-Tailed Doe Deer Named “Snowball” (Filipeti v. Dep’t of Fish & Wildlife), 224 Ore. App. 122, 197 P.3d 535 (2008).*

Stop was not unreasonably extended when officer found a warrant on the passenger. Drug dog arrived nine minutes later. Henderson v. State, 960 A.2d 627 (Md. App. November 26, 2008).*

Information from CIs, one who was new, about their hand-to-hand drug deals with the defendant was probable cause. United States v. Miller, 2008 U.S. Dist. LEXIS 96555 (E.D. Pa. November 24, 2008).*

Covenant not to sue barred later civil rights action. MK Ballistic Systems v. Simpson, 2009 U.S. Dist. LEXIS 1244 (N.D. Cal. January 6, 2009).*

Habeas petitioner’s strained theory about a Fourth Amendment violation by his counsel did not show that defense counsel was ineffective. Kerr v. Smith, 2009 U.S. Dist. LEXIS 1725 (N.D. Ohio January 12, 2009).*

Officer had reason to stop defendant in a stolen car. He was furtive in his hand movements and tried to sideswipe the police car. United States v. Fernandez-Torres, 2008 U.S. Dist. LEXIS 106338 (D. P.R. July 8, 2008)* (hard to believe this issue was seriously presented).

Yes Virginia, there is a Barney Fife exception to the exclusionary rule.

In Herring v. United States, 07-513, the Supreme Court decided today, 5-4, holding that a constitutional violation that is only negligent is not subject to the exclusionary rule. The implications of this go beyond the recordkeeping issue presented. See The Surpassing Significance of Herring on SCOTUSBlog.

From the Court’s syllabus:

Officers in Coffee County arrested petitioner Herring based on a warrant listed in neighboring Dale County’s database. A search incident to that arrest yielded drugs and a gun. It was then revealed that the warrant had been recalled months earlier, though this information had never been entered into the database. Herring was indicted on federal gun and drug possession charges and moved to suppress the evidence on the ground that his initial arrest had been illegal. Assuming that there was a Fourth Amendment violation, the District Court concluded that the exclusionary rule did not apply and denied the motion to suppress. The Eleventh Circuit affirmed, finding that the arresting officers were innocent of any wrongdoing, and that Dale County’s failure to update the records was merely negligent. The court therefore concluded that the benefit of suppression would be marginal or nonexistent and that the evidence was admissible under the good-faith rule of United States v. Leon, 468 U. S. 897.

Held: When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply. Pp. 4–13.

(a) The fact that a search or arrest was unreasonable does not necessarily mean that the exclusionary rule applies. Illinois v. Gates, 462 U. S. 213, 223. The rule is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free. Leon, 468 U. S., at 908–909. For example, it does not apply if police acted “in objectively reasonable reliance” on an invalid warrant. Id., at 922. In applying Leon’s good-faith rule to police who reasonably relied on mistaken information in a court’s database that an arrest warrant was outstanding, Arizona v. Evans, 514 U. S. 1, 14–15, the Court left unresolved the issue confronted here: whether evidence should be suppressed if the police committed the error, id., at 16, n. 5. Pp. 4–7.

(b) The extent to which the exclusionary rule is justified by its deterrent effect varies with the degree of law enforcement culpability. See, e.g., Leon, supra, at 911. Indeed, the abuses that gave rise to the rule featured intentional conduct that was patently unconstitutional. See, e.g., Weeks v. United States, 232 U. S 383. An error arising from nonrecurring and attenuated negligence is far removed from the core concerns that led to the rule’s adoption. Pp. 7–9.

(c) To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. The pertinent analysis is objective, not an inquiry into the arresting officers’ subjective awareness. See, e.g., Leon, supra, at 922, n. 23. Pp. 9–11.

(d) The conduct here was not so objectively culpable as to require exclusion. The marginal benefits that might follow from suppressing evidence obtained in these circumstances cannot justify the substantial costs of exclusion. Leon, supra, at 922. Pp. 11–13.

Comment: Whether the Court intends it or not, in effect, it is promising in the future to reward sloppy police work. Ironically, that’s one of the kinds of conduct the exclusionary rule was created to correct. It’s the “Barney Fife” exception to the Fourth Amendment. This case is the subject of my NACDL President’s Column from the Nov.-Dec. issue: The Barney Fife Exception to the Exclusionary Rule.

(By the way, SCOTUS cases prior to 2007 have been removed from the sidebar.)

In a civil case over an alleged unlawful probationer search, the court believes the Ninth Circuit will find that probationers have sufficiently less expectation of privacy and that the search here was lawful. While Samson deals with parolees and it is different than Knights, and the Supreme Court has not equated them yet, it probably will. Sanders v. Bishop, 2008 U.S. Dist. LEXIS 104507 (E.D. Cal. December 29, 2008).*

Defendant, instead of pulling over, slowed down to 10 mph and jumped out of his truck and fled on foot. That was an act of abandonment. The only inference the court can draw is that his jumping from the truck was a diversion to get the officer to deal with the driverless truck to buy time to escape. United States v. Leunen, 2008 U.S. Dist. LEXIS 104583 (D. Ariz. November 17, 2008).

Defendant had standing to challenge the stop of the car he was riding in, and it was valid. He had no standing in the area around his feet in the car he was riding in. Being directed to roll down the windows at the time of the stop does not offend the Fourth Amendment. United States v. Smith, 2008 U.S. Dist. LEXIS 104578 (S.D. Ga. November 10, 2008).*

Defendant’s arrest was based on an invalid state warrant that clearly failed to show probable cause. Thus, the court had to determine whether the arrest was valid as a warrantless arrest. There was probable cause for the arrest, but Payton was implicated. The exclusionary rule would not be applied, however, because the search was attenuated from the unlawful arrest. United States v. Alfaro, 2008 U.S. Dist. LEXIS 105535 (S.D. Ohio December 24, 2008):

Considering these factors, the Court notes that there were no significant intervening circumstances in the instant case. Nor did a significant amount of time pass between Alfaro’s arrest and his grant of consent. However, the Court finds that in the instant case, the remaining two factors tilt the scales toward finding that the causal chain was broken. First, Alfaro was read his Miranda rights prior to consenting to the search and that Alfaro indicated that he understood those rights. Second, as to the flagrancy of the misconduct, the Court finds that the officers did not act with a blatant disregard for the law. The arresting officers relied upon warrants approved by a judicial officer in Ohio. The arresting officers were not present when the warrants were secured, and therefore had no idea what Officer Crock stated to the judge when applying for the warrants or whether any affidavits separate from the complaints were provided. Instead, they believed that they had probable cause to arrest Alfaro and that valid warrants had been secured. As such, the officers were entitled to rely upon the warrants in good faith and the arrest of Alfaro was not an egregious violation of his rights.

School search was not excessive or overly intrusive where school official felt inside wasteband of defendant’s pants. Search was otherwise justified. In re A. H. A., 2008 Tex. App. LEXIS 9715 (Tex. App.—Austin December 30, 2008).*

The defendant was in a car in a high crime area and he went to a drug house. That alone was not reason enough to stop him. More significantly, the officer’s statement the area was a high crime area was conclusory. State v. Roberts, 947 So. 2d 167 (La. App. 4th Cir. December 13, 2006):

Had Captain Wiltz and Deputy Stolis articulated in their testimony the facts that supported their conclusions (1) that it was a known drug buyer whose car Mr. Roberts exited, (2) that it was a known drug seller whose trailer Mr. Roberts entered, and (3) that the area in which Mr. Roberts was seen was a high crime area, the record might have supported the assertion that Captain Wiltz had reasonable suspicion to conduct an investigatory stop. What we have, however, is a record that is devoid of the articulable facts from which Officer Wiltz could have drawn reasonable inferences that Mr. Roberts was involved in an illegal drug transaction. To justify an investigatory stop, the Dank case requires the articulation of the facts upon which the conclusions reached by Captain Wiltz and Deputy Stolis were based. The stop may have, in fact, been justified, but the State has the burden of proving that it was, and the State has not carried its burden of proof. La. C.Cr.P. art. 703(D).

Without any factual basis to support the conclusion that Mr. Roberts was in a car and a trailer belonging to a known drug buyer and a known drug seller, respectively, there is nothing in the record to indicate that the parties were, in fact, what they were said to be. There is nothing in the record to evidence that either party had been arrested, charged, or convicted in connection with any illegal drug activity. Similarly, there was nothing in the record, other than the conclusory statement that Mr. Roberts had been in a high crime area, to evidence that the area was, in fact, a high crime area. There was nothing in the record to reflect what crimes had been committed in the area or even that there had been any arrests in the area.

When Captain Wiltz was asked why he conducted a “pat down” of Mr. Roberts, Captain Wiltz stated that he did so “[f]or the reason that he was in and out of a high crime area.” He further said that “[h]e had given me a lie [about bumming a ride] basically about where he had been and why he was there.” Although Captain Wiltz’s testimony reflected that he was concerned for his safety, being in a “high crime area” without more does not lead to a reasonable suspicion sufficient to justify an investigatory stop. Additionally, an unverified statement likewise does not lead to such reasonable suspicion. (bracketed material added)

A South Carolinian was stopped in Georgia for an obscured license plate, and the officer had the driver get out to see. The defendant was a passenger in the vehicle. The driver consented to a search of the vehicle during the stop, and the defendant was unusually fumbling with his coat. The officers became suspicious of that, and it was confirmed by the videotape. They decided to patdown the occupants, and plain feel gave away the kilo. State v. Davis, 283 Ga. App. 200, 641 S.E.2d 205 (January 5, 2007).*

Defendant was stopped for speeding, and a records check revealed that defendant was the subject of two restraining orders for domestic violence. As officers approached the vehicle, they could see shotgun shells on the dashboard and shotguns visible in the back. When defendant was asked why he was speeding, he said it was because he had to get to a town in that direction because his nephew had been in an accident. The officer remembered a radio report of an injured boy, and the officer told the defendant that the injured boy had been released from the hospital. The defendant was excessively nervous and would make no eye contact. The first officer filling out the ticket asked the second officer to get the name of the nephew, and the defendant did not know it. At that point, they considered a frisk for officer safety, which the court found reasonable. “The pat-down in turn led to the discovery of the contraband on Yeomans’ person, which, in turn, indisputably provided probable cause to arrest Yeomans. A thorough search of the car, as well as a further search of Yeomans’ person at the jail, inevitably and properly followed.” The motion to suppress was properly denied. (n.7: A motion to reconsider was filed after the codefendant succeeded in state court on his search issue, but it was denied.) United States v. Yeomans, 211 Fed. Appx. 753 (10th Cir. 2007)* (unpublished).

Plaintiff first sued under § 1983 in federal court and lost. He then refiled in state court and added state law claims. The state case was barred by res judicata. Parks v. City of Chattanooga, 2007 Tenn. App. LEXIS 5 (January 4, 2007)*:

The state law claims asserted in the present case certainly could have been asserted in the previous two lawsuits and they would have been decided by the federal district court given that the federal district court exercised its supplemental jurisdiction in both cases and did not decline to decide any of the state law issues. The state law claims in the previous lawsuits were given the federal district court’s full attention and were decided on the merits. The federal district court had the power to afford the plaintiff the full relief sought by him in those previous cases and could have done so had the previous lawsuits contained the present state law claims. Therefore, there was no “formal barrier” preventing the plaintiff from bringing all of his claims together. The final judgments on the merits in the first two cases were rendered by a court of competent jurisdiction and involved the same defendants that are sued in the present case. All of the claims asserted in all three lawsuits arise out of the same series of events. We conclude that the claims in the present case fall squarely within the claim preclusion doctrine. Therefore, the trial court correctly dismissed the present case because the claims are barred by the doctrine of res judicata.

Because we conclude that all of the claims asserted by the plaintiff in the present lawsuit are barred by res judicata, we need not decide whether those claims were filed outside the statute of limitations period or whether a genuine issue of material fact had been created. Accordingly, the plaintiff’s remaining two issues are pretermitted.