Detaining the passengers was unlawful under Brendlin. There was cause to detain the driver, but not the passengers, and the officer would not let them leave. State v. Baker, 2008 UT App 115, 182 P.3d 935, 601 Utah Adv. Rep. 6 (2008):

Moreover, the desire to check the vehicle for controlled substances did not require the presence of the passengers, 4 yet Officer Robertson admitted that the passengers were not free to leave while the K-9 unit was en route. Thus, the officers needed some reasonable articulable suspicion to lawfully detain Baker and the other passengers while awaiting the K-9 unit’s arrival. At the time Officer Robertson requested a K-9 unit, the officers had seen only one knife in a passenger’s possession (and not in Baker’s possession). While it was the early morning hours, and there were four passengers in the car, nothing in the officers’ testimony indicates any particularized suspicion involving criminal activity on the part of the passengers; thus, continued detention was impermissible.

Drug interdiction officer who admitted targetted car with out of state license to follow it until it committed a traffic violation was authorized to investigate traffic offenses as well, despite narrowly drawn statutes on their authority, because of the potential of vehicle forfeiture. King v. State, 2008 OK CR 13, 182 P.3d 842 (April 4, 2008).*

Since the initial stop produced reasonable suspicion, a twenty minute delay in arrival of a drug dog after defendant refused consent was not unreasonable. Love v. State, 252 S.W.3d 684 (Tex. App. — Texarkana 2008).*

Consent was voluntary and the request to look in the car permitted the officer to look in the trunk where he found cocaine in a supermarket bag. The stop was handled quite quickly from obtaining the driver’s license to getting back the information by radio. The fact that the officer would have sought a drug dog if consent was refused was never communicated to the defendant, so it was not a factor. Caraway v. State, 255 S.W.3d 302 (Tex. App. — Eastland 2008).*

Password protected files have more privacy, but when the password is shared with others, the other has apparent authority to consent to a search of the protected files. United States v. Cole, 2008 U.S. Dist. LEXIS 57437 (D. Me. July 24, 2008):

In the personal computer context, any limit on the authority of one user of a computer to consent to a search of another user’s files is likely to turn on the presence of password protection and/or encryption of files. Password protected computers or files have been likened to private, locked compartments, so that where officers know that the person offering consent lacks the key, or password, they cannot reasonably conclude that the person in question has the authority to consent to a search of any “locked” areas. See, e.g., United States v. Andrus, 483 F.3d 711, 713-14, 718-19 (10th Cir. 2007) (considering whether defendant’s father had authority to consent to a search of a computer, where the agents conducted a forensic search of the hard drive that overrode any password restriction on user access). Password protection is a factor in this case, but it does not weigh in favor of a finding that Presby, as someone with unfettered access to all files on the computer, did not have actual authority to consent to the search in question. Nor did the mere existence of password protection give rise to ambiguity as to whether Presby had authority to consent to a search of Cole’s files, where Presby was able to promptly enter the password to enable access to the files in question.

Search warrant based on probable cause to believe the defendant received child porn did not prohibit the police from looking for child porn images beyond those defendant actually received. United States v. Patt, 2008 U.S. Dist. LEXIS 57318 (W.D. N.Y. July 24, 2008):

An argument similar to that raised by Patt was recently considered and rejected by the Tenth Circuit in United States v. Grimmett, 439 F.3d 1263 (10th Cir. 2006). In Grimmett, a confidential informant had observed a video containing child pornography on the defendant’s computer. A search warrant then issued for the defendant’s entire residence, specifically referencing computer hardware and software. During the subsequent search, law enforcement agents made a copy of the defendant’s computer hard drive for forensic analysis and seized videotapes and other non-computer related property. The defendant filed a motion to suppress, arguing that the search should have been restricted to the child pornography contained on his computer. The Tenth Circuit rejected the defendant’s argument, finding that the warrant was not overbroad because it had properly required a nexus between the items to be seized and child pornography. United States v. Grimmett, 439 F.3d at 1271.

Plaintiff stated a claim for relief of police officers searching a bar and blocking the entrance so customers could not leave. The seizure was initially justified by the defendants under the state ABC law, but then changed their argument, which the court found disingenuous at best. Watson v. Abington Township, 2008 U.S. Dist. LEXIS 58044 (E.D. Pa. July 31, 2008).*

Multiple affidavits for search warrants showed the informant was sufficiently corroborated. State v. Oros, 2008 Ohio 3885, 2008 Ohio App. LEXIS 3282 (4th Dist. July 9, 2008).*

After traffic stop was over and officer heard car shift into gear, he walked back to the car to ask more questions, and the driver said “We’re done.” Officer then told him to put the car in park. That was another seizure. And, with apologies to the experience of the officer, it was without reasonable suspicion. United States v. Diaz, 2008 U.S. Dist. LEXIS 59708 (D. Kan. August 5, 2008):

After the purpose of the traffic stop is complete, however, “further detention for purposes of questioning unrelated to the initial stop” is generally impermissible. Bradford, 423 F.3d at 1156-57. In general, “lengthening the detention for further questioning beyond that related to the initial stop is permissible in two circumstances. First, the officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring. Second, further questioning unrelated to the initial stop is permissible if the initial detention has become a consensual encounter.” Hunnicutt, 135 F.3d at 1349.

In this case, Duffey’s further questioning of Diaz was not consensual. Diaz had placed the car in gear to drive away when Duffey asked him if he could ask more questions. Diaz did not agree to further questioning and was ordered to put the car in park and surrender the keys. A reasonable person in Diaz’ position would not have felt free to leave. Indeed, he couldn’t leave. Therefore, Diaz’ conduct cannot be considered consensual. Id. at 1310. Thus, the validity of the search and subsequent seizure of the methamphetamine turns on the existence of a reasonable and articulable suspicion of illegal activity.

. . .

Based on many cases such as this one, the court knows that experienced, well-trained officers such as Trooper Duffey have the ability to distinguish between innocent and suspicious circumstances. The court is always reluctant to make a ruling which seems to be second-guessing an officer who was on the scene. Nevertheless, this is one of those relatively rare cases where the totality of the circumstances does not give rise to reasonable suspicion. Accordingly, defendants’ joint motion to suppress is granted. (Doc. 28). Defendants’ joint motion to suppress the cell phone searches (Docs. 29 and 30) is moot.

In n. 1, the court also said this about “source cities”: “While this is undoubtedly true, its relevance is becoming shopworn because, based on the testimony in dozens of similar motions, virtually every large city in every state has become a ‘known drug source.'”

Comment: This is proof positive, at least to me, that the “Columbo gambit” of “just a few more questions” is intended by the police to be a further stop. Here, the defendant didn’t fall for it, and then the officer told him to put the car in park, effectively seizing him again.

Negligent maintenance of erroneous information into NCIC that resulted in defendant’s arrest by another law enforcement agency did not justify exclusion of evidence under Leon. United States v. Hulsey, 2008 U.S. Dist. LEXIS 61357 (S.D. Ill. August 12, 2008):

In the instant case, the Court finds that even if the “error” regarding the validity of Defendant’s warrant was likely made by law enforcement personnel, it was personnel from a different law enforcement agency — it was not the agency that actually arrested Defendant, relying upon the faulty NCIC database entry. The facts also show this type of error rarely occurred and was corrected upon its discovery. Thus, the Court looks to whether application of the exclusionary rule would result in an appreciable deterrence of police error and whether the benefit of excluding the evidence would outweigh the costs to society. Herring, 492 F.3d at 1217 (citing Leon, 468 U.S. at 909-10). The error by law enforcement, as in Herring, arose out of negligent behavior rather than deliberate intent to ignore or subvert the Fourth Amendment. Further, the Government states that the “flawed” communication system between MEGSI and the St. Clair County Court has already been addressed and is no longer in use; a new system is in place where MEGSI enters all of their warrants from St. Clair County through the Illinois State Police.

The Court finds, therefore, that applying the exclusionary rule will not likely result in appreciable deterrence of this type of negligent behavior in law enforcement personnel. Certainly, its application will not create enough benefit to outweigh the costs in suppressing the evidence. It also finds that the arresting officer objectively and in good faith relied upon the inaccurate NCIC database information when arresting Defendant. In sum, the purpose of the exclusionary rule is to deter police misconduct. Its application in this case would not deter misconduct, only negligence, and the law enforcement agency that suffers would not be the agency that committed the negligent act. As such, suppressing evidence would not serve to alter the behavior of the arresting officer — except to possibly make the officer less confident in the information relayed regarding any outstanding warrants, which, in turn, may make that officer less likely to do his or her job efficiently. For these reasons, the Court chooses to apply the good faith exception to this warrantless search and seizure.

Defendant who ignored three requests to stop reaching to the floorboard and to put his hands where the officer could see them, and the officer on the third time pulled his gun on the defendant was not seized until the gun was pulled and he was ordered out of the car, not the first request he ignored. He did not acquiesce to lawful authority. Jones v. Commonwealth, 2008 Va. App. LEXIS 410 (August 26, 2008).*

Defendant had an expectation of privacy in a laundry hamper in the back seat of the car (although suggesting the expectation would be stronger if it were in the trunk, rather than under her watchful eye). United States v. Villa, 2008 U.S. Dist. LEXIS 65116 (D. Kan. July 30, 2008).*

Plaintiff’s attached garage is part of the curtilage of the house. Coffin v. Brandau, 2008 U.S. Dist. LEXIS 64952 (M.D. Fla. July 31, 2008):

The Coffins’ garage is attached to the house itself, and it holds their cars, motorcycles, and other household items that are typically kept in a garage. Unless the garage door is up, no passersby can see into the garage. Under the rationale of Dunn, the Coffins treated the garage as part of their home, and certainly its location and construction as an attachment to the house with an interior door into the kitchen could not be considered anything other than part of the dwelling unit. For all intents and purposes, the Coffins’ garage is unequivocally part of their dwelling unit with the expectation of privacy afforded one’s home.

Knock-and-talk led to consent search of computer and valid seizure of child pornography. United States v. Bach, 2008 U.S. Dist. LEXIS 65131 (D. Me. August 25, 2008).*

Child porn investigation was initiated after defendant moved out of an apartment he lived in for ten years and left photographs. Most of the information the police had was ten years old, but there was a calendar left behind that indicated a current interest in similar activities of young girls at a school. The current information was enough to show probable cause. United States v. Morgan, 2008 U.S. Dist. LEXIS 64676 (E.D. Mich. August 21, 2008):

Here, the totality of the circumstances convince the court that the reviewing magistrate could easily conclude that Defendant had left behind salacious materials and was the kind of person who had a long-standing affinity for pornographic images of very young females. He could reasonably conclude that probable cause existed to search Defendant’s Franklin Street home for evidence of ongoing activity as reflected in the 2007 calendar mark-ups and comments. He could conclude that evidence of the identity of one or more of the girls photographed in Ohio with the genitals (or genital areas) exposed might be located and secured.

Deference is afforded to a magistrate’s determination of probable cause, and will only be reversed if arbitrarily exercised. Allen, 211 F.3d at 973. Given the facts outlined above, the magistrate had, at least, “a substantial basis for … concluding that a search would uncover evidence of wrongdoing.” Id. (alterations and quotations omitted). The determination was not arbitrary. The search warrant was validly approved.

Looking in the attic above a garage was justified by protective sweep. Police responded to a shots fired call and found no one who could have fired the shot. United States v. Bradford, 2008 U.S. Dist. LEXIS 63906 (N.D. Iowa August 12, 2008).*

Probable cause was lacking, but not so lacking that a reasonable officer could not rely on the warrant. United States v. Byers, 2008 U.S. Dist. LEXIS 63904 (M.D. N.C. August 20, 2008).*

Officer discovered an out-of-state warrant for a person he stopped in a traffic offense, and that justified a patdown and handcuffing. United States v. Boyce, 2008 U.S. Dist. LEXIS 63944 (N.D. Ind. August 20, 2008).*

School teacher’s restraints of developmentally disabled student were reasonable. C.N. v. Willmar Pub. Schs, ISD No. 347, 2008 U.S. Dist. LEXIS 63673 (D. Minn. August 19, 2008):

In this case, plaintiffs argue that Van Der Heiden seized C.N. by employing restraint techniques, a “thinking desk,” and a seclusion room and that defendant school officials failed to stop such seizures. Defendants maintain that such procedures are not seizures because they were used as educational techniques consented to as part of C.N.’s IEP. The court need not decide the issue, however, because such actions, if seizures, were reasonable.

Where an authorized professional’s treatment of a disabled individual “is not a substantial departure from accepted professional judgment, practice, or standards,” her actions are reasonable. See Heidemann, 84 F.3d at 1030 (qualified immunity proper for substantive due process claim against defendant who recommended use of blanket restraint on disabled student). C.N.’s IEP–developed by educational specialists in conjunction with J.N. and approved of annually by J.N.–detailed educational and behavioral methods for C.N.’s teachers and set the standard for accepted practice. As noted, the IEP allowed the use of restraint holds and seclusion. Van Der Heiden, therefore, was not substantially departing from accepted professional judgment when she used such methods on C.N. See Couture v. Bd. of Educ. of Albuquerque Pub. Schs., No. 07-2133, — F.3d –, 2008 U.S. App. LEXIS 16648, 2008 WL 3092955, at *5-11 (10th Cir. Aug. 7, 2008) (granting qualified immunity on fourth amendment seizure claim when IEP called for timeouts and seclusion). Indeed, Van Der Heiden was required to follow the IEP and use these techniques to help manage C.N.’s behavior. See Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 (8th Cir. 2003) (IDEA violation when school fails to follow essential IEP elements); see also Couture, 2008 U.S. App. LEXIS 16648, 2007 WL 3092955, at *7 (“If we do not allow teachers to rely on a plan specifically approved by the student’s parents and which they are statutorily required to follow, we will put teachers in an impossible position – exposed to litigation no matter what they do.”). Accordingly, plaintiffs have not set forth facts establishing a cognizable Fourth Amendment violation, and the individual defendants are entitled to qualified immunity on this claim.

Line officers executing a search warrant were entitled to qualified immunity when following superviser’s directions to search a particular place under a search warrant and whether sufficient announcement had been given. Mendoza v. Whitehouse, 2008 U.S. Dist. LEXIS 63988 (N.D. Cal. August 21, 2008).*

Similarly, reliance on the erroneous determination of an assistant state’s attorney that there was probable cause for arrest entitled the arresting officer to qualified immunity. Poulakis v. Rogers, 2008 U.S. Dist. LEXIS 63732 (M.D. Fla. August 20, 2008).*

Tasering man who was a danger to no one other than himself was unreasonable. Oliver v. City of Orlando, 2008 U.S. Dist. LEXIS 63923 (M.D. Fla. August 20, 2008):

Oliver had committed no crime and was considered a danger only to himself. Fiorino’s taser was employed numerous times without warning and with no intervening attempt to use conventional means of physical restraint. Under these circumstances, any reasonable officer would have known that the amount of force used against Oliver was excessive and, therefore, unconstitutional.

Today’s Cleveland Plain Dealer, a reprise of a story that ran a week ago: Raid on Cleveland law office incites concern among defense attorneys; Attorneys see threat to lawyer-client bond.

Still on the road, but Friday’s postings have started.

Second stop of the defendant was without any additional reasonable suspicion. Also, the officer called for a drug dog before the stop was over, and that continued it. First stop was in Wyoming and second was in South Dakota with knowledge of the first. United States v. Hernandez-Mendoza, 2008 U.S. Dist. LEXIS 63059 (D. S.D. June 30, 2008)*:

The court concludes that Trooper Swets’ continued detention of the defendants in this case was illegal under the above precedent. Trooper Swets had a right to stop the vehicle for speeding, as discussed above, however, he had to have a reasonable, articulable suspicion to expand the traffic stop and continue to detain the defendants once he stopped them. The only information Trooper Swets had to rely upon as his basis for continued detention of the defendants was all the same information that Captain Hodge had relayed to him. No new information was discovered or revealed to Trooper Swets to justify the continued detention. Once the first officers, Captain Hodge and Trooper Boumeister in Wyoming, had exhausted those grounds for detaining defendants, they could not be subject to serial detentions by other officers based on the same information. Place, 462 U.S. at 717; Terry, 392 U.S. at 30; Garcia, 23 F.3d at 1334-1336; Peters, 10 F.3d at 1522-1523. Cf. United States v. Ilazi, 730 F.2d 1120, 1125 (8th Cir. 1984) (stating that successive investigatory stops, though each limited sufficiently in duration and scope to satisfy Terry, can collectively become “so intrusive as to be tantamount to an arrest.”). See also United States v. Morin, 665 F.2d 765, (5th Cir. 1982), abrogated on other grounds as recognized in United States v. Corral-Franco, 848 F.2d 536 (5th Cir. 1988) (holding that a second Terry stop by a second set of police officers but based on the same information as the first Terry stop rendered the second stop an arrest for which probable cause was required; since officers had only a reasonable suspicion and not probable cause, the second serial stop was an illegal arrest).

Finding of adult porn in defendant’s house is not reasonable suspicion to believe that child porn would be found on his computer. However, the computer use agreement he signed for probation permitted computer searches without reasonable suspicion, so the search was valid. People v. Thornburg, 2008 Ill. App. LEXIS 814 (2d Dist. August 12, 2008).*

Detaining the mailed package in this case was permissible under Van Leeuwen because of reasonable suspicion. United States v. Alexander, 2008 U.S. App. LEXIS 17546, 2008 FED App. 0298P (6th Cir. August 18, 2008):

In this case, Detective Cook’s suspicion was reasonable. On this particular package, the signature was waived with an “X” mark, the package seemed “dense,” the label was handwritten, the package was coming from Las Vegas and going to Shaker Heights, and the return address was fictitious. Given these circumstances, we hold that there was sufficient evidence of criminal activity afoot to warrant detaining the package for further investigation. Alexander argues that the address may actually have been valid, and that Cook was mistaken. However, the fact that the return address may actually have been valid is irrelevant. “The reasonableness of an official invasion of the citizen’s privacy must be appraised on the basis of the facts as they existed at the time that invasion occurred.” Jacobsen, 466 U.S. at 115. At the time he detained the package and subjected it to a dog sniff, Cook had made a reasonable effort to verify the address and received a report that it was fake. Thus, reasonable suspicion existed to justify detaining the package pending a dog sniff, which occurred within approximately twenty minutes of the time Cook first noticed the package.

Roadblock to stop a parolee apparently eluding the police was valid because of the parolee’s lesser expectation of privacy and general lack of freedom. Barlow v. State, 2008 Miss. App. LEXIS 471 (August 12, 2008):

P16. Barlow contends that the drugs that were seized during the traffic stop and those that were seized from the Beard Road residence are fruits of an unlawful search and seizure that should not have been admitted into evidence. Barlow argues that the officers did not have reasonable suspicion or probable cause to make the warrantless stop, and that the roadblock was violative of the Fourth Amendment because it was pretextual, as it was set up solely to apprehend him. Barlow cites Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) for the proposition that roadblocks that are set up solely to trap drug offenders have been found to violate the Fourth Amendment. In Edmond, the City of Indianapolis instituted a vehicle checkpoint operation in which roadblocks were set up “in an effort to interdict unlawful drugs.” Id. at 34. The United States Supreme Court held that the vehicle checkpoints violated the Fourth Amendment because their primary purpose was “to advance ‘the general interest in crime control.'” Id. at 44 n.1.

P17. Barlow’s reliance on Edmond is misplaced, as he fails to consider that because he is a parolee, he has a lesser expectation of privacy. While we recognize that the Fourth Amendment mandates that searches be reasonable, “the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.'” United States v. Knights, 534 U.S. 112, 118-19 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999)). In Samson v. California, 547 U.S. 843, 850 (2006), the United States Supreme Court held that:

[P]arolees are on the “continuum” of state-imposed punishments. [Knights, 534 U.S. at 119], 122 S. Ct. 587, 151 L. Ed. 2d 497 (internal quotation marks omitted). On this continuum, parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment. As this Court has pointed out, “parole is an established variation on imprisonment of convicted criminals. … The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abides by certain rules during the balance of the sentence.” Morrissey [v. Brewer, 408 U.S. 471, 477, 92 S. Ct. 2593, 2598 33 L. Ed. 2d 484, 492 (1972)]. “In most cases, the State is willing to extend parole only because it is able to condition it upon compliance with certain requirements.”

Further, in Robinson v. State, 312 So. 2d 15, 18 (Miss. 1975), the Mississippi Supreme Court concluded that “courts generally hold that although an inmate is released on parole, the parole authorities may subject him, his home and his effects, to inspection and search as may seem advisable to them.” This issue lacks merit.

How does government show the proverbial well-trained dog under Caballes? An uncontradicted affidavit is enough. Perfection is not required. United States v. High Wolf, 2008 U.S. Dist. LEXIS 62190 (D. S.D. August 11, 2008):

First, where High Wolf’s vehicle was properly stopped for a traffic violation, the use of Officer Waln’s dog to sniff around the exterior of the car for contraband could occur, even in the absence of any suspicion of drug activity. Illinois v. Caballes, 543 U.S. 405, 409-10 (2005) (relying on United States v. Place, 462 U.S. 696, 707 (1983)). The court in Caballes permitted the use of a drug dog under such circumstances because it did not “expose non-contraband items that otherwise would remain hidden from public view.” Caballes, 543 U.S. at 409. Similarly, the use of Jansen to sniff around High Wolf’s vehicle did not reveal information other than the location of a substance that High Wolf lacked any right to possess. See id. at 410. Accordingly, Magistrate Judge Moreno properly found that the sniff did not amount to a Fourth Amendment intrusion.

If a drug dog is reliable, its positive indication alone establishes probable cause for the presence of a controlled substance. United States v. Sundby, 186 F.3d 873, 875 (8th Cir. 1999). An affidavit stating that the dog has been trained and certified to detect drugs sufficiently establishes a dog’s reliability. Id. at 876 (citing United States v. Kennedy, 131 F.3d 1371, 1377 (10th Cir. 1997)). In Sundby, the court found that even though no information was offered about continued training, continued certification, reliability, or error rates for the drug dog, the dog was nonetheless reliable, because the affidavit only needed to state that the dog was trained and certified to detect narcotics. Id. at 874-76. Here, to an extent even greater than in Sundby, the government offered evidence demonstrating the reliability of Officer Waln’s drug dog. At the suppression hearing, Magistrate Judge Moreno considered evidence that on July 14, 2006, Jansen successfully completed training and was certified for narcotics detection, as well as being re-certified on March 19-21, 2007. Hrg. Tr. 39-43. He also considered Jansen’s “real life” performance data for the seven-week time period prior to the April 23, 2007, stop of High Wolf, which showed the dog’s accuracy rate as exceeding 90 percent. R&R Tr. at 5. Finally, Magistrate Judge Moreno considered the disparity in Jansen’s performance between the periods of July 2006 until April 2007 (54 percent accurate), and May 2007 until December 2007 (97.5 percent accurate), finding Officer Waln’s explanation for the difference logical and credible. Id. Jansen was a competent, qualified, and reliable drug indicator at the time of High Wolf’s stop. Thus, the court adopts Magistrate Judge Moreno’s findings regarding Jansen’s reliability and the search of High Wolf’s vehicle.

Plaintiff stated a claim for unnecessary damage during execution of a search warrant where he showed officers used a pry bar to open the trunk of a car and apparently kicked in a closet door on a camper. Caviness v. Johnson, 2008 U.S. Dist. LEXIS 62225 (E.D. Okla. August 14, 2008):

Clearly, “officers … on occasion must damage property in order to perform their duty.” Dalia v. United States, 441 U.S. 238, 258 (1979). Additionally, if the property damage results from mere negligence, no constitutional violation is demonstrated. Bergguist v. County of Cochise, 806 F.2d 1364, 1369 (9th Cir. 1986). However, in this case, Johnson has failed to provide evidence that either the damages resulting from the search were reasonable and necessary or that any damage that did occur was attributable to negligence alone. Consequently, this Court concludes Caviness has stated a Fourth Amendment constitutional claim as a result of the damages to his property which occurred during the execution of the search warrant.

Driver of car had apparent authority to consent to a search of a tote bag behind the defendant’s seat where neither admitted to the bag being theirs. Consent to search includes closed containers. United States v. Sparks, 2008 U.S. App. LEXIS 17490 (2d Cir. July 24, 2008) (unpublished):

On the specific facts of this case, it was reasonable for the arresting officer to believe that Martin, who was driving and produced rental papers for the car, had such authority. The reasonableness of this belief could have been dispelled if, for example, either Sparks or Martin had indicated that the Tote Bag behind Sparks’s seat was his. But neither gave any indication that the Tote Bag belonged to Sparks, nor did the evidence suggesting that Sparks owned a separate suitcase on the back seat serve to indicate that he also owned the Tote Bag. Accordingly, we conclude that the officer reasonably believed that Martin had authority over the Tote Bag, and that this apparent authority validated Martin’s consent.

Plaintiff did not state a claim for violation of Fourth and Sixth Amendment rights because the police recorded a telephone call between him and his lawyer while awaiting a breath test. An officer was in the room, and he was being videorecorded at the time. The events leading up to the breath test was not a critical stage. Mattson v. Becker County, 2008 U.S. Dist. LEXIS 61510 (D. Minn. August 12, 2008):

The Eighth Circuit’s holding in Sherbrooke dictates that Mattson’s claim of being subjected to an unconstitutional search and seizure fails and Defendants are granted summary judgment on this claim. Mattson knew that Haverkamp was in the room during his conversation with his attorney and thus could not reasonably expect that his conversation was private. Further, Mattson testified that he knew he was being recorded because the camera was above him in plain view. Mattson Dep. at 52. Accordingly, Mattson was not subjected to an unreasonable search and seizure and his Fourth Amendment rights were not violated.

. . .

At the time Mattson spoke with his counsel, his Sixth Amendment right to counsel had not yet attached. Kirby v. Illinois, 406 U.S. 682, 689, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972) (holding that the Sixth Amendment right to counsel attaches upon the commencement of formal judicial proceedings); see also City of Belle Plaine v. Stradcutter, 568 N.W.2d 545, 547 (Minn. Ct. App. 1997) (discussing State v. Nielsen, 530 N.W.2d 212 (Minn. Ct. App. 1995), and explaining that “the process of chemical testing in a DWI investigation is not a ‘critical stage’ upon which the right to counsel attach[es]” because the defendant does not have a choice to refuse testing). Because Mattson’s right to counsel had not yet attached, the County did not violate his constitutional rights when Haverkamp remained in the room while Mattson spoke to his attorney or when it recorded Mattson’s portion of the conversation.

911 call about man with a gun from an identified source was exigent circumstance for entry. United States v. Sodagar, 2008 U.S. Dist. LEXIS 60566 (N.D. Ill. July 23, 2008):

The government relies on the “risk of danger” exigency. See Brigham City, 547 U.S. at 403 (“[o]ne exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury.”); United States v. Kempf, 400 F.3d 501, 503 (7th Cir. 2005) (“[a]n example of exigent circumstances is when police reasonably fear for their safety or the safety of someone inside the premises.”). The Seventh Circuit has explained that “911 calls reporting an emergency can be enough to support warrantless searches under the exigent circumstances exception, particularly where, as here, the caller has identified himself.” United States v. Richardson, 208 F.3d 626, 630 (7th Cir. 2000). The court also noted that 911 calls fit “neatly with a central purpose of the exigent circumstances (or emergency) exception to the warrant requirement, namely, to ensure that the police or other government agents are able to assist persons in danger or otherwise in need of assistance.” Id. at 629. In keeping with the purpose of the 911 emergency alert system, officers should be able to fully respond to a person’s cry for help, which could reasonably include looking for a weapon which was used in violent threat. See, e.g., United States v. Elder, 466 F.3d 1090, 1091 (7th Cir. 2006) (finding that officers’ entry into an outbuilding housing a possible meth lab was reasonable after a 911 call was placed because “consideration of safety–the caller’s and the officer’s–made a look-see prudent.”). Additionally, 911 calls conveying a threat of gun violence can be a further indicator of exigency. The Supreme Court stated in Welsh v. Wisconsin, a case dealing with exigent circumstances in the context of a warrantless arrest, that “an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made.” 466 U.S. 740, 753, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984); see also Biernacki, No. 95 C 1694, 1996 U.S. Dist. LEXIS 18695, 1996 WL 727396, at *5 (police responding to a 911 call about a husband refusing to give a wife her car keys with no report of violence did not qualify as exigent circumstances such that the police could enter).

In this case, the police were at Sodagar’s home because of Saarum’s 911 call. During this call Saarum reported that Sodagar had threatened him with a gun. Saarum repeated this to the officers when they arrived on the scene and Sodagar confirmed that the two had been fighting, although he denied he possessed a gun. Seema, however, told the police that the gun might be in the bedroom closet, corroborating the possibility that a gun was involved. Although the supplemental police report stated that “the incident deescalated very quickly and all occupants were cooperative with police requests,” the officers on the scene were nonetheless there to investigate “any domestic violence.” Def.’s Mot. to Suppress, Ex. C; see also United States v. Martinez, 406 F.3d 1160, 1164 (9th Cir. 2005) (“[t]he volatility of situations involving domestic violence make them particularly well-suited for an application of the emergency doctrine”); United States v. Reed, 935 F.2d 641, 643 (4th Cir. 1991) (discussing a few examples where the Fourth Circuit as well as the Eleventh, Ninth, and Eighth Circuits found that “the presence of guns” can “justify searches and seizures on the basis of exigent circumstances.”). From the officers’ perspective, they reasonably could have anticipated that if they had left the scene, the conflict could have reignited, and if there was a gun inside Sodagar might have later acted on the threats reported by Saarum.