In a civil case, the plaintiff was tentatively permitted to call an expert witness to testify that the execution of a search warrant violated “The Law Enforcement Code of Ethics.” Cvicker v. Meyer, 2008 U.S. Dist. LEXIS 27397 (E.D. Wis. April 4, 2008):

Contrary to Meyer’s assertion, Waller is not merely reciting Krueger’s declaration, but rather is opining whether Meyer’s alleged conduct was in violation of “The Law Enforcement Code of Ethics.” Waller need not be a firsthand witness to offer this opinion. See Daubert, 509 U.S. at 591 (“an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.”). Waller has personal knowledge of the code of ethics, and can provide his opinion regarding the applicability of the code of ethics using the facts as they were provided to him. As such, I am inclined at this point in time to allow Waller to testify as to whether Meyer’s conduct, as laid out in Krueger’s declaration (and as Krueger will presumably testify at trial), would violate the law enforcement code of ethics.

There is no apparent Fourth Amendment requirement that a municipality get a warrant to abate a nuisance, so the defendants were entitled to qualified immunity. Livant v. Clifton, 272 Fed. Appx. 113 (2d Cir. 2008) (unpublished).*

IRS subpoena may have technical failings, but it was not oppressive and would be enforced. Adamowicz v. United States, 531 F.3d 151 (2d Cir. 2008):*

Appellants here have not shown that the summonses at issue present anything approaching such extreme circumstances, and thus there is no support for their claim that the summonses are overbroad. The Adamowicz and Fraser summonses are specific about what information and records are being sought. Although they do request many different documents generated over long spans of time, on their face the requests are not “disproportionate to the end sought.” Theodore, 479 F.2d at 754. Moreover, they sufficiently advise the summoned parties what is required to be produced and permit the parties to respond adequately. See Medlin, 986 F.2d at 467.

The evidence supports the district’s court’s finding that the officers had reasonable suspicion based on pseudophedrine purchases. United States v. Gannon, 531 F.3d 657 (8th Cir. 2008).*

Unproven informants are more trustworthy if their information is corroborated. United States v. Kent, 531 F.3d 642 (8th Cir. 2008).*

Even having standing as a guest does not give defendant an expectation of privacy in the driveway and garage of the house. Pankey v. City of Concord, 2008 U.S. Dist. LEXIS 22889 (N.D. Cal. March 24, 2008):

Pankey did not have a legitimate expectation of privacy as to the Badger residence driveway: the driveway was fully visible from the street and Pankey himself flagged down Officer Nunn. Under these circumstances, it was reasonable for Officer Nunn to stop his car and walk up the driveway to talk to Pankey. Nor did Pankey have a legitimate expectation of privacy as to Badger’s garage. Pankey was not an overnight guest. Rather, the evidence showed that Pankey was merely present in Badger’s garage with Badger’s consent. Accordingly, Pankey cannot assert a Fourth Amendment violation based on the Officers’ entry onto Badger’s driveway or into Badger’s garage.

Defendant did not have standing to challenge the search of a car being towed to his uncle since he could not give his uncle’s name and no VIN could be found on the car. Mere possession is not standing. Alternatively, the officers had probable cause to search the car. United States v. Binder, 2008 U.S. Dist. LEXIS 22722 (D. Utah March 21, 2008).*

On the totality of circumstances, the officer reasonably believed that the defendant was in possession of an automatic AK-47, and that was his probable cause for arrest. United States v. Brooks, 270 Fed. Appx. 382, 2008 FED App. 0154N (6th Cir. 2008) (unpublished).*

Officer’s drug courier profile detention was unreasonable–none of the officer’s justifications for reasonable suspicion contained any weight at all: People driving from California, the most populous state, cannot be assumed to be drug couriers, the driver’s nervousness was based on his fears the passenger might have been an illegal because of the officer’s aggressive questioning, and the nature of the vehicle being driven (a 1996 Mercury Navigator in 2006) were all essentially meaningless. United States v. Urrieta, 520 F.3d 569. 2008 FED App. 0117P (6th Cir. 2008) (2-1).

Officers had probable cause to believe that defendant illegally possessed a firearm based on the known facts and defendant’s criminal history. United States v. Booker, 270 Fed. Appx. 176 (3d Cir. 2008) (unpublished).*

Officer had exigent circumstances to enter house to retrieve a child who was with an alleged sexual predator. He knocked on the door to ask about the child, and the lights inside went out and it sounded like the occupant was hiding. United States v. Kenfield, 270 Fed. Appx. 695 (9th Cir. 2008)*:

Deputy Cameron’s search meets the Snipe test. First, he had a reasonable basis for concluding that there was an immediate need to protect a minor female from serious harm. Cameron was searching for the girl at the request of her grandmother. The sheriff’s office had received an anonymous phone call saying the girl was out getting drunk with Kenfield. He first established that the girl had lied to her grandmother about her whereabouts. By the time he arrived in front of Kenfield’s trailer, Cameron had good reason to believe the girl was there with two other older male friends of hers, one of whom owned the pickup truck parked in front of the trailer. Cameron had seen the three of them driving together in the same pickup truck on prior occasions. He also knew that Kenfield had “proclivities to have young girls,” and that Kenfield had a history of sexually deviant behavior. As Cameron approached Kenfield’s trailer, he smelled marijuana and, when he knocked on the door, heard the music inside stop playing, saw the lights go out, and heard running feet. We agree with the district court that, considering the totality of the circumstances, Cameron reasonably believed that he had to act quickly to retrieve the juvenile. Indeed, “[t]his is a case where the police would be harshly criticized had they not investigated.” United States v. Black, 482 F.3d 1035, 1040 (9th Cir. 2007).

The second Snipe prong is also satisfied. Once inside Kenfield’s trailer, Cameron confined his search to locating the juvenile and the other people inside. He observed Kenfield’s attempts to flush what appeared to be drugs down the sink, and noted other drugs and drug paraphernalia in open view in the course of this search, but the search itself was confined to what was necessary to locate and protect the juvenile.

Officers had reasonable suspicion from furtive movements and nonsensical answers to questions about travel to detain the defendants and ask for consent. While the officers applied a crass stereotype to the defendants’ Middle Eastern ethnicity and claimed on radio that they had suicide bombers wandering around Florida and were concerned that they were driving with a Qur’an in their laps, the officers got consent to search and found cut PVC pipe usable for pipe bombs which had “a potassium nitrate explosive mixture. The government also contends a forensic analysis of the laptop computer revealed Mohamed in a video explaining how to construct a remote-controlled explosive device.” The search was valid, even discounting the racial stereotyping. United States v. Megahed, 546 F. Supp. 2d 1324 (M.D. Fla. 2008)*:

FN5. Obviously, holding a Qur’an (or any religious item for that matter) while in an automobile should not arouse suspicion. But Blakely’s other observations within this quote present unbiased reasons for furthering the investigation. Accordingly, for the sake of completeness, I have included Blakely’s inappropriate comments as well as his rational observations.

FN6. At the suppression hearing, Blakely and Taylor characterized these comments as crude “jokes” and in retrospect recognized their comments were offensive and “unprofessional.” Despite their after-the-fact mea culpas, the two admitted they were concerned for their safety (although their reasons were mainly based on their stereotypical ethnic-based misconceptions). Blakely’s apprehension, although unwarranted, is evident from his comments: “Dude, shut up. All right. I don’t like stopping these (expletive) anyway (T. 5:38:46) … I’m going to get him (Mohamed) out of the car; I’m gonna search his car, and you got to help me, Bill (Fields) (T. 5:39:01).”

State trial court’s finding that a frisk of plaintiff was unreasonable was not preclusive to whether there was probable cause to arrest plaintiff in the first place. Here, there was probable cause and that permitted a search incident, so plaintiff’s claim fails. Randolph v. City of East Palo Alto, 2008 U.S. Dist. LEXIS 15607 (N.D. Cal. March 1, 2008).*

On getting out of a car in a high crime area, defendant saw the police, hunched over, and reached to the small of his back. The officer could reasonably conclude he was reaching to check on a weapon or drugs and not just putting his wallet away. United States v. Pearce, 2008 U.S. App. LEXIS 14187, 2008 FED App. 0240P (6th Cir. July 3, 2008):

Officer Johnson reasonably suspected that “Johnson had a weapon and was getting ready to fire.” J.A. at 75-76. Indeed, even from a layman’s perspective, Johnson’s behavior, while susceptible of an innocent explanation–Johnson may have simply been trying to put his wallet away–might also have been reasonably viewed as an attempt to conceal a weapon and/or other contraband material, such as narcotics, from a police officer who had just appeared on the scene. See Arvizu, 534 U.S. at 277 (“A determination that reasonable suspicion exists … need not rule out the possibility of innocent conduct.”). When combined with the fact that Johnson was engaged in such behavior in an area known for criminal activity and on a street where a crime-related homicide had recently occurred, Officer Shaughnessy’s observations provided a sufficient basis for temporarily detaining Johnson to determine whether or not he was actually engaged in wrongdoing. ,,,

Attempted murder conviction reversed because the trial court failed to conduct a suppression hearing on defendant’s motion which made a prima facie case. Defendant did not even request a hearing in the motion. Somee v. State, 187 P.3d 152, 124 Nev. Adv. Rep. 42 (2008).*

Officer put foot in door and grabbed plaintiff’s arm to keep door from shutting. This violated the plaintiff’s Fourth Amendment rights in the security of his home, but the officer was entitled to qualified immunity because of a conflict in the circuits. Hameline v. Wright, 2008 U.S. Dist. LEXIS 49643 (W.D. Mich. June 30, 2008).*

Stop for a cracked windshield led to a warning ticket, and the officer’s suspicions were aroused. The officer told defendant he was free to leave and returned all the papers, and the defendant started to walk back to his car. The officer asked if he could ask some questions, and the defendant consented. The officer asked about searching for drugs, and the defendant agreed, signing a consent form. The search was by consent. People v. Castaneda, 187 P.3d 107 (Colo. 2008).*

Trial court erred in suppressing defendant’s confession. The police had probable cause, and they obtained a search warrant and arrested defendant on its execution. After being Mirandized, he gave a voluntary statement at the police station, and it was not excludable as a product of an illegal arrest. People v. Davis, 2008 Colo. LEXIS 685 (June 30, 2008).*

Failure to have a search warrant in hand is not a Fourth Amendment violation as long as its terms are complied with. State v. Wilson, 984 So. 2d 870 (La. App. 5th Cir. 2008):

The Fourth Amendment does not require that the accused be served with a copy of the search warrant before the search and seizure occurs. See Katz v. United States, 389 U.S. 347, 355 n.16, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); United States v. Bonner, 808 F.2d 864, 869 (1st Cir. 1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1632, 95 L.Ed.2d 205 (1987); United States v. Woodring, 444 F.2d 749, 751 (9th Cir. 1971).

Protective search of defendant’s gym bag in vehicle during traffic stop was justified by officer safety. McDowell v. State, 179 Md. App. 666, 947 A.2d 582 (2008):

The search of the gym bag during Trooper Gussoni’s roadside traffic stop clearly falls within the parameters of Long. Accordingly, we must consider “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Long, 463 U.S. at 1050 (internal quotation omitted). Under Long, “[t]o engage in an area search, which is limited to seeking weapons, the officer must have an articulable suspicion that the suspect is potentially dangerous.” Id. at 1052 n.16.

Exigent circumstances required the taking of GSR off defendant’s hands, and it was not an unreasonable search. United States v. Simmons, 2008 U.S. Dist. LEXIS 27301 (N.D. W.Va. April 3, 2008).*

Defendant probationer’s arrest for possession of marijuana in his car justified probation search of his house for more, and the gun found there was admissible. United States v. Walley, 271 Fed. Appx. 966 (11th Cir. 2008) (unpublished).*

Officer’s sticking head inside car when he smelled marijuana to smell it better was not an illegal entry; it was all supported by the initial smell. State v. Lewis, 980 So. 2d 251 (La. App. 3d Cir. 2008).*

Defendant’s stop was without reasonable suspicion, and it is suppressed. United States v. Cooley, 552 F. Supp. 2d 1284 (N.D. Ala. 2008):

When Fortson pulled up behind the Defendants’ vehicle, he knowingly and effectively blocked their exit; as it was his determination to interview them.

The officers emerged from their marked patrol vehicle and approached the Defendants’ vehicle in a manner which would suggest to a reasonable person that the Defendants were not free to leave. The officers were in uniform; and they approached each side of the Defendants’ vehicle.

As the officers advanced on the Defendants’ vehicle, and Defendant Cooley opened the door to leave the vehicle, Detective Fortson gave him “a direct order” not to leave the vehicle. The order was given in a military tone. As of the time that the order was given, there was no basis for a reasonable suspicion of criminal activity. The only basis for reasonable suspicion occurred after the direct order not to leave the car.

There is no doubt, but that Defendant Cooley was not free to leave his vehicle after Fortson gave the direct order not to do so. The inescapable truth of this finding is that when Cooley disobeyed the order, Fortson tried to block his exit and pursued him thereafter.

When Defendant Jackson left the car, in the absence of reasonable suspicion of criminal activity on the part of the officers, he was ordered to the ground by Prevo. When he got up and tried to leave, Prevo shot him with a Tazer pistol.

Reconsideration of a court’s prior decision is only appropriate if “(1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent manifest injustice.” This was only an allegation the court was wrong. United States v. Robare, 2008 U.S. Dist. LEXIS 57191 (N.D. N.Y. July 25, 2008).*

Search incident to a suspended license arrest was invalid under Wyoming Constitution. The diminished expectation of privacy in a car is not total [citing Treatise § 18.4]. Holman v. State, 2008 WY 54, 183 P.3d 368 (2008).

Seconds of flailing arms does not show a fight was going on in the vehicle stopped, so the stop was invalid. State v. Martin, 291 Ga. App. 548, 662 S.E.2d 316 (2008).*

Defendant’s stop and patdown were illegal, so his abandonment of what was in his pocket was ineffective. Also, this is not inevitable discovery.
Erickson v. State, 181 P.3d 1117 (Alas. App. 2008).

Defendant walked into a house that was being searched under a warrant in a high crime area. There was no reasonable suspicion as to defendant to justify his patdown. State v. Locklear, 2008 Ohio 4247, 2008 Ohio App. LEXIS 3583 (8th Dist. August 21, 2008):

[*P29] HN5That the house was located in a high-crime area “do[es] not diminish the requirements of the Fourth Amendment or its interpretation in Terry. The facts and circumstances before the officer must yet reasonably suggest that some specific criminal misconduct is afoot. That specificity requirement focuses on the criminal character of the act, not on its setting. Acts that are essentially neutral or ambiguous do not become specifically criminal in character because they occur in a high-crime area. Acts that are not specifically criminal in character do not become criminal because they are inapposite to their setting and, therefore, ‘suspicious.’ The setting can inform the officer’s judgment, but it does not make the act criminal. In order to detain an individual to investigate for crime, some nexus between the individual and specific criminal conduct must reasonably exist and must be articulated by the officer.” State v. Maldonado (Sept. 24, 1993), 2nd Dist. No. 13530, 1993 Ohio App. LEXIS 4673.

Search of defendant was illegal, and the evidence of guilt without it was not overwhelming under harmless error analysis, so a new trial is granted. State v. McDougald, 2008 N.C. App. LEXIS 1530 (August 19, 2008).*

Defendant’s 37 minute detention was justified by reasonable suspicion. The rental car he was driving was a month overdue. The defendant’s travel plans also were suspicious. Defendant’s consent to search including squeezing a large teddy bear. State v. Kruip, 2008 Iowa App. LEXIS 515 (July 30, 2008):

The fact the rental agreement expired over a month earlier created a reasonable suspicion that defendant was driving the car without the consent of Avis and that she may have illegally converted the car to her own use, justifying the officer’s decision to take the time to contact Avis. The first call failed to verify defendant’s claim she had Avis’ permission to drive the car. The officer had not yet received the promised return call from the Minnesota office when he asked for consent to search the car. Defendant was lawfully detained at this point as the officer was conducting a reasonable investigation into the suspicions raised by defendant’s possession of the car and an expired rental agreement.

Record shows that defendant consented to taking a DNA swab. (He did not object at trial, so reviewed for plain error.) State v. Bell, 2008 Ohio 3959, 2008 Ohio App. LEXIS 3332 (7th Dist. July 25, 2008).*

The Eleventh Circuit grants rehearing in the Tampa Bay NFL stadium entry search case, a year after the original opinion (490 F.3d 820), and files a substitute opinion. The court holds that the NFL dictates the policy, and the policy leads to consent searches; the ticketholder does not have to enter if he or she refuses the search. Thus, the plaintiffs fail on their burden of proof for a preliminary injuction as to showing a likelihood of success on the merits. Alternatively, a “vital [public] interest” was shown for the consent entry searches. Johnston v. Tampa Sports Authority, 530 F.3d 1320 (11th Cir. 2008):

Whether consent is voluntary is a fact question determined according to the totality of the circumstances. Schneckloth, 412 U.S. at 226-27; Iaccarino, 767 So. 2d at 476; United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989). Consent is determined on a case-by-case basis. Blake, 888 F.2d at 798; United States v. Garcia, 890 F.2d 355, 360 (11th Cir. 1989). Both the federal and Florida courts have enumerated non-exhaustive lists of factors to be considered in performing the analysis. We have previously identified the following non-exhaustive factors to consider in determining voluntariness: whether the person is in custody, the existence of coercion, the person’s awareness of his right to refuse consent, the person’s education and intelligence, and whether the person believes incriminating evidence will be found. Blake, 888 F.2d at 798 (quoting United States v. Chemaly, 741 F.2d 1346, 1352 (11th Cir. 1984)). Florida courts look for the existence of express or implied consent and consider the following implied consent factors: (1) whether the defendant was aware his conduct would subject him to search; (2) whether the search was supported by a “vital interest;” (3) whether the searching officer had apparent authority to search and arrest; (4) whether the defendant was advised of his right to refuse; and (5) whether refusal would result in a deprivation of a benefit or right. Iaccarino, 767 So. 2d at 476. Consent is not voluntary if the government conditions receipt of a right or a benefit on the relinquishment of a constitutional right. Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir. 2004) (citing Adams v. James, 784 F.2d 1077, 1080 (11th Cir. 1986)); Iaccarino, 767 So. 2d at 479.

For the purposes of our analysis of whether this warrantless search was unconstitutional under the United States and Florida constitutions, we accept the District Court’s conclusion that the search was performed by agents of the State. Johnston, 442 F. Supp. 2d at 1264. The question then is whether the District Court abused its discretion in misapplying the consent exception to the facts of this case. We hold that Johnston voluntarily consented to the pat-down searches and thus has not shown a substantial likelihood of success on the merits.

Johnston knew well in advance that he would be subjected to a pat-down search by the Authority if he presented himself at an entrance to the Stadium to be admitted to a Buccaneers game. That is, he chose to submit voluntarily to the search on two occasions, stating only a verbal objection followed by his submission to the pat-down search process and his ultimate entry into the Stadium to watch Buccaneers football games.

The factors we enumerated in United States v. Blake demonstrate the voluntariness of Johnston’s consent. Johnston was not in custody at the time of the search, rather, he presented himself willingly at the search point. The screeners did not coerce Johnston, they merely performed the search to which Johnston submitted. Johnston was well aware of his right to refuse to submit to the pat-down search and did in fact express his objection to the searches to specific screeners and over the telephone to the Buccaneers before the searches were implemented. At the search point, Johnston pulled his shirt up (apparently to show that he was not wearing an IED) and asked not to be patted down. When screeners insisted on the pat-down before permitting Johnston to enter, Johnston elected to be patted down and thereby gain entrance to the Stadium. Johnston appears from the record to be a man of heightened intelligence and well-educated. The record shows he did not believe that the search would disclose incriminating evidence, as shown by his attempt to show screeners he was not carrying any suspicious devices under his shirt.

Johnston also impliedly consented to the search under the factors for implied consent developed by Florida courts. Johnston was well-aware his insistence in entering the Stadium would cause him to be subject to a search. The record also reflects that Johnston was aware of his ability to refuse to be searched and leave the Stadium. There is no evidence that the Authority would have detained Johnston if he refused, or that Johnston otherwise believed the searches to be compulsory.

We also conclude the searches supported a “vital interest.” The NFL and the Buccaneers instituted the pat-down policy specifically to guard against mass casualties at NFL games from a potential terrorist attack. We cannot doubt the NFL’s interest in protecting its patrons. Unlike the searches for drugs, bottles, and cans considered in Iaccarino, 767 So. 2d at 473, the pat-down searches in this case supported an interest well beyond general law enforcement.

Alleged serial killer’s statements when he was removed from the jail by the police to come to the Chicago Police station to put him in a room and talk to another person so the police could overhear the conversations were the products of illegal arrests, and nothing broke the chain of illegality. He was in the custody of the Sheriff of Cook County in the jail, and he was taken in handcuffs to the police station, and the removal was an arrest, during which he insisted on his right to counsel. People v. Hunt, 381 Ill. App. 3d 790, 886 N.E.2d 409 (4th Dist. 2008).*

Defense counsel was not ineffective for not challenging the search under defendant’s car’s hood. There was probable cause for the search of the car, and that search was not improper. State v. Contreras, 2008 Ohio 1413, 2008 Ohio App. LEXIS 1245 (8th Dist. March 27, 2008).*

The affidavit for the search warrant for defendant’s property for child pornography showed a fair probability that child porn would be found, so the judgment is affirmed. State v. Ingold, 2008 Ohio 1419, 2008 Ohio App. LEXIS 1232 (10th Dist. March 27, 2008).* (Comment: I don’t think I’ve seen an affidavit for a search warrant in the course of my practice that actually failed to show PC in a long time, considering the “soft standard” of Gates. I did succeed in arguing that an affidavit for arrest pending an extradition failed to show probable cause just a month ago. These are almost impossible issues to win, except when the affidavit is just devoid of facts.)

On remand from United States v. Groves, 470 F.3d 311 (7th Cir. 2006), the district court expanded its findings that the consenter had apparent authority to consent to a search of the property, and the findings are not clearly erroneous. This included a nightstand that defendant said was his. In addition, the defendant had objected to the initial attempt of the police to get consent, and the police failed in their efforts to get a search warrant. They waited until he was at work and got consent from one with apparent authority, and Randolph was not violated because the police did nothing to procure his absence. Randolph should be read narrowly. (Randolph was decided after the search occurred.) United States v. Groves, 530 F.3d 506 (7th Cir. 2008):

… The district court had no opportunity at the time of the motion to suppress to consider the question because Randolph was decided after the case came to us on appeal. Consistent with our remand, the district court considered whether the police officers here “procured Groves’ absence for the purpose of avoiding an objection” such that Randolph would be triggered. Groves I, 470 F.3d at 321. The court found that the officers did nothing to procure Groves’ absence from the premises and so Randolph provides no relief.

In addition to the officers playing no active role in securing Groves’ absence, Groves was not objecting at the door, as Randolph requires. Indeed, a few weeks had passed since he had refused the officers’ first attempts to obtain his consent. Moreover, that the government agents waited until Groves was at work to seek Foster’s consent did not undermine the validity of the search because they had no active role in securing Groves’ absence. This fact is critical, as it makes this case even further removed from the facts of Randolph than either Wilburn, 473 F.3d 742, or United States v. DiModica, 468 F.3d 495 (7th Cir. 2006), in which this court declined to apply Randolph where the defendants were in valid police custody at the time consent was sought from co-tenants. At bottom, Randolph expressly disinvites anything other than the narrowest of readings; because the facts here are readily distinguishable, Randolph does not render Foster’s consent invalid.

USMS acted reasonably in mistaking plaintiff for the person they wanted at the address where he was found. El Bey v. Roop, 530 F.3d 407, 2008 FED App. 0234P (6th Cir. 2008):

We conclude, based on this evidence, that the officers on the scene did not act unreasonably in mistaking El Bey for Ray when El Bey answered their knock on the door. The officers’ actions, as alleged by El Bey, leave little doubt that they could have acted with more care in determining whether the person who answered the door was actually the subject of the arrest warrant. Nevertheless, we conclude that the officers–who already had reason to believe that Ray would be at 1580 Greenlake Drive–formed a reasonable, albeit mistaken, belief that El Bey was the subject of the arrest warrant in question.

Even after viewing the facts in the light most favorable to El Bey, the officers were therefore justified in entering the residence to execute the arrest warrant, and they did not violate El Bey’s constitutional rights when they handcuffed him until they could determine whether or not he was the subject of the valid warrant that they possessed. See Hill v. California, 401 U.S. 797, 802, 91 S. Ct. 1106, 28 L. Ed. 2d 484 (1971) (concluding that the officers acted reasonably in arresting a person who was in the apartment and fit the general description of a suspect for whom they had probable cause to arrest, and affirming the principle that “[w]hen the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest” (alteration in original) (internal quotation marks omitted)). The officers are therefore entitled to qualified immunity on this claim. See Saucier, 533 U.S. at 201 (“If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.”).

A zipped jacket manifests an expectation of privacy in what is underneath so it is a search. Here, officers unzipped appellant’s jacket to facilitate a showup. In the process, the officer bumped into a hard object but did not go futher, and defendant was moved to nearby spot for the showup. The search thus violated Dickerson. United States v. Askew, 529 F.3d 1119 (D.C. Cir. 2008) (en banc):

The disputed search of appellant in this case cannot be distinguished in any meaningful way from the impermissible search in Dickerson. Here, as in Dickerson, neither the constitutionality of the initial stop nor the protective frisk was at issue. In addition, neither the frisk of Dickerson nor the frisk of appellant produced any evidence of a weapon. Nevertheless, in each case, the police undertook a further search aimed at determining whether certain physical evidence would identify the stopped individual as the perpetrator of the crime in question. In Dickerson, the police officer manipulated the outside of the suspect’s jacket pocket to determine whether the small lump in that pocket felt like crack cocaine. Here, the police manipulated appellant’s jacket, partially unzipping and opening it, so that the complainant could see the sweatshirt underneath appellant’s jacket. In each case, the goal of the officer was to obtain information about a physical object in the suspect’s possession that the officer believed might identify the suspect as having committed the crime in question. In other words, the officer’s goal in each case was to determine whether the object of the search, the lump in Dickerson and the sweatshirt here, had particular incriminating characteristics that would contribute to a probable cause determination. And in each case, the officer sought to accomplish this goal pursuant to a search that exceeded the bounds of Terry.

A background check is not likely going to be found a Fourth Amendment search, so plaintiffs will not likely prevail on the merits. Therefore, a preliminary injunction is denied. Nelson v. NASA, 530 F.3d 865 (9th Cir. 2008):

C. Fourth Amendment Claim

We also agree with the district court’s conclusion that Appellants are unlikely to succeed on their Fourth Amendment claims, because the government’s actions are not likely to be deemed “searches” within the meaning of the Amendment. An action to uncover information is generally considered a “search” if the target of the search has a “reasonable expectation of privacy” in the information being sought, a term of art meaning a “subjective expectation of privacy … that society is prepared to recognize as reasonable.” United States v. Diaz-Castaneda, 494 F.3d 1146, 1151 (9th Cir. 2007) (citing Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring)). One does not have a “reasonable expectation of privacy” in one’s information for Fourth Amendment purposes merely because that information is of a “private” nature; instead, Fourth Amendment protection can evaporate in any of several ways. See, e.g., United States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976) (holding that there is no reasonable expectation of privacy in bank records in part because the information was voluntarily disclosed to the bank). To succeed on their Fourth Amendment claim, therefore, Appellants must demonstrate that either the Form 42 inquiries sent to third parties or the SF 85 questionnaire itself violates a “reasonable expectation of privacy” so as to be considered a “search” within the meaning of the Amendment.

1. Form 42 Inquiries

. .

In the challenged background investigations, the government will send written Form 42 inquiries to the applicant’s acquaintances. Through these inquiries, the third parties may disclose highly personal information about the applicant. As in White and Miller, the applicant presumably revealed this information to the third party with the understandable expectation that this information would be kept confidential. Nonetheless, these written inquiries appear to fit squarely under Miller‘s bright-line rule and therefore cannot be considered “searches” under the Fourth Amendment.

2. SF 85 Questionnaire

The SF 85 questionnaire required of the applicant is also unlikely to be considered a Fourth Amendment “search.” Requiring an individual to answer questions may lead to the forced disclosure of information that he or she reasonably expects to keep private. Historically, however, when “the objective is to obtain testimonial rather than physical evidence, the relevant constitutional amendment is not the Fourth but the Fifth.” Greenawalt v. Ind. Dep’t of Corr., 397 F.3d 587, 591 (7th Cir. 2005) (holding that a psychological examination required for continued government employment was not a search under the Fourth Amendment).

As Judge Posner notes in Greenawalt, direct questioning can potentially lead to a far greater invasion of privacy than many of the physical examinations that have in the past been considered Fourth Amendment “searches.” Id. at 589-90. Nonetheless, applying the Fourth Amendment to such questioning would force the courts to analyze a wide range of novel contexts (e.g., courtroom testimony, police witness interviews, credit checks, and, as here, background checks) under a complex doctrine, with its cumbersome warrant and probable cause requirements and their myriad exceptions, that was designed with completely different circumstances in mind. Id. at 590-91. Moreover, declining to extend the Fourth Amendment to direct questioning will by no means leave individuals unprotected, as such contexts will remain governed by traditional Fifth and Sixth Amendment interrogation rights, and the right to informational privacy described below. See id. at 591-92.

Because neither the written inquiries directed at third parties nor the SF 85 questionnaire directed at the applicants will likely be deemed “searches,” Appellants are unlikely to succeed on their Fourth Amendment claims.