Officer’s pause during ticket writing to ask some questions did not unreasonably extend the stop. United States v. Turvin, 517 F.3d 1097 (9th Cir. 2008) (2-1):

Christensen’s brief pause in the ticket-writing process was reasonable, as was the duration of the detention until consent was given. We will not accept a bright-line rule that questions are unreasonable if the officer pauses in the ticket-writing process in order to ask them. The Supreme Court has “consistently eschewed bright-line rules [in the Fourth Amendment context], instead emphasizing the fact-specific nature of the reasonableness inquiry.” Robinette, 519 U.S. at 39. It is true that in Mendez, the officers managed to ticket and question detained drivers simultaneously. See Mendez, 476 F.3d at 1078-79. That has been true in situations considered by other circuits as well. See, e.g., United States v. Soriano-Jarquin, 492 F.3d 495, 501 (4th Cir. 2007) (“In this case, [the Trooper’s] request for identification did not prolong the stop, as it occurred while the police trainee checked the driver’s license and registration and prepared his citations”). It does not follow, however, that those are the only circumstances in which it is reasonable to ask unrelated questions. The Supreme Court does not set such a narrow rule, and neither do we. An officer who asks questions while physically writing a ticket will likely be slowed down just as an officer who briefly pauses to do so. There is no principled reason why the second situation is unconstitutional but not the first.

A registered guest of the renter of a motel room (guest of a guest) has common authority to consent. United States v. Caldwell, 518 F.3d 426, 2008 FED App. 0092P (6th Cir. 2008):

Caldwell’s primary response is that the record is silent as to whether Meyer had a room key at the time she consented to the search, precluding the conclusion she had actual authority over the room. But the presence or absence of a room key is not the be-all of actual authority, as anyone who has ever misplaced a room key knows. The issue is not whether she had a room key at the time of the search; the issue is whether she had authority to get one. Because she was registered as “Guest 2,” because her possessions were there and because she was staying there for the night, she assuredly had authority to enter the room–even if it meant asking the hotel clerk to let her in or to make a new key. Just as a tenant assumes the risk that a co-tenant might get a spare key from the landlord and admit an unwanted person, a hotel guest assumes the risk that his roommate might obtain a key from the hotel manager and do the same. See Matlock, 415 U.S. at 171 n.7 (noting that, when individuals enter a co-occupant relationship, they “assume the risk that one of their number might permit [a] common area to be searched”).

Warrantless search of plaintiff’s vehicle was with probable cause, so it was valid. Crull v. City of New Braunfels, 267 Fed. Appx. 338 (5th Cir. 2008) (unpublished).*

Civil commitment order justified officers’ entry to take custody of plaintiff under the Fourth Amendment. Montgomery v. Morgan County, 2008 U.S. Dist. LEXIS 15846 (S.D. Ind. February 29, 2008):

Other federal courts have found no Fourth Amendment violation in connection with forced entries carried out in order to enforce civil orders related to the commitment of the mentally infirm. In McCabe v. Life-Line Ambulance Service, Inc., 77 F.3d 540 (1st Cir. 1996), an elderly woman died as she was being removed from her home after a forced entry by city police officers and an ambulance crew. The forced entry was made to execute a ten-day involuntary commitment order or “pink paper,” which is issued in Massachusetts after an expert medical finding that the person poses a likelihood of potential serious harm. Id. at 547-48. They were acting under an established City policy, permitting forcible, warrantless entries to enforce involuntary civil commitment orders. Id. At 542. The district court granted summary judgment for the woman’s estate on its § 1983 claim that the policy violated the Fourth Amendment. Id. at 543. On appeal, the First Circuit reversed, finding that the policy fell under the “special needs” exception to the presumption against warrantless entry. Id. at 550-54; see also Doby v. DeCrescenzo, 171 F.3d 858, 871 (3rd Cir. 1999) (found that involuntary commitment of those deemed dangerous to themselves or others qualifies as a “special need” permitting county to act, in compliance with the Fourth Amendment, without a warrant).

Even if this court were not to give the order of apprehension in this case the same authority and effect as it would an arrest warrant, the circumstances that existed, with an escaped or recalcitrant, court ordered, mental health patient refusing to cooperate with law enforcement, were such that an exception existed to the presumption of a need for a warrant before entering the residence at 8389 N. Briarhopper Road. Probable cause to find Montgomery a danger existed at the time his involuntary commitment was ordered by the same court that issued the order of apprehension. Certainly neither the deputies or the Sheriff’s department had reason to expect that the court would have issued an apprehension order without assessing whether Montgomery continued to pose that danger to others or himself. Accordingly, the entry into the residence did not violate Montgomery’s Fourth Amendment rights.

In another case, however, the Fourth Cirucit held that the officer violated plaintiff’s constitutional rights in executing a civil commitment order against her, but he was entitled to qualified immunity because the law was not clear at the time. Bates v. Harvey, 518 F.3d 1233 (11th Cir. 2008).*

Officers lawfully and inevitably looked in defendant’s backpack that was thrown clear after an accident during a highspeed chase where he wrecked his car. Inevitable discovery was not raised in the district court until a prior remand from the Third Circuit, and defendant had the opportunity to litigate it. United States v. Sinkler, 267 Fed. Appx. 171 (3d Cir. 2008) (unpublished).*

“[A] trooper who effected a traffic stop because an out-of-state temporary registration permit was not displayed on the rear of the car, as required by Kansas law, did not act unreasonably for purposes of the Fourth Amendment.” United States v. Martinez, 518 F.3d 763 (10th Cir. 2008).*

Probation search of third party’s specific private area was unlawful. While the probation officers could enter, their authority was limited to common areas or the specific room that the probationer stayed in. Searching the other person’s room violated his rights. State v. McKague, 143 Wn. App. 531 (2008):

In this case, the officers did not seek Schultz’s or Ken’s permission to search the premises in general or Ken’s shed, specifically. Even giving the State the benefit of the doubt about whether Jay, who was under DOC supervision, resided in his mother’s house, Ken was owed the full protections of our constitution and the Fourth Amendment, and he was entitled to an expectation of privacy within his portion of the home, whether it was a bedroom in the main house or in the shed. Therefore, had law enforcement been able to legally gain entry into the house because Jay was a probationer living there, the search had to be limited to common areas and to those areas Jay was known to occupy. See Hocker, 95 Wn.2d at 826; Winterstein, 140 Wn. App. at 692 n.5. As such, the officers had no justification to search the shed, particularly after Schultz specifically told them that only Ken stayed in it.

Officer approached a vehicle that was parked in a closed park with a flashlight on the occupants, and the defendant did not put his hands out where they could be seen, despite repeated requests, so the officer could remove him from the car, pat him down, and handcuff him. State v. Renard, 982 So. 2d 157 (La. App. 5th Cir. 2008).*

A traffic stop revealed the driver was underage and the smell of alcohol coming out of the car justified a detention. State v. Johnson, 2008 Ohio 1147, 2008 Ohio App. LEXIS 1018 (3d Dist. March 17, 2008).*

Defendant’s use of a fictitious name to ship a package of drugs manifested a lack of an expectation of privacy in the package. United States v. Knuckles, 2008 U.S. Dist. LEXIS 32415 (M.D. Pa. March 24, 2008).*

Officers conducted a consent search of a room looking for a person. In plain view, syringes were found, and the seizure was lawful and not outside the scope of the original consent since the officer did not have to open another container or move something to see them. United States v. Troxel, 547 F. Supp. 2d 1190 (D. Kan. 2008).*

Defendant’s stop was valid based on a license discrepancy, and the officer had reasonable suspicion to extend the stop. United States v. Garrison, 2008 U.S. Dist. LEXIS 32523 (S.D. Ohio April 4, 2008).*

Defendants’ stop was based on a specific citizen complaint of brandishing a weapon and casing a place to rob it, so it was reasonable to stop defendants’ car which matched the description. United States v. Gadsden, 2008 U.S. Dist. LEXIS 32432 (M.D. Pa. March 24, 2008).*

Defendant accused of aiding terrorist organization fails to get access to FISA warrant materials on national security grounds. United States v. Warsame, 547 F. Supp. 2d 982 (D. Minn. 2008):

II. MOTION TO DISCLOSE FISA MATERIALS

Warsame moves for the disclosure of all FISA applications, orders, and related documents as an “aggrieved person” under the Act. See 50 U.S.C. §§ 1806(e), 1825(f). Warsame asserts that disclosure of the FISA applications and orders is necessary for him to fully support his motion to suppress the evidence obtained from the surveillance and searches. Warsame contends that meaningful review cannot be accomplished through an in camera, ex parte review of the documents. Warsame further asserts that denial of disclosure would violate his right to due process.

In response to Warsame’s request for disclosure, former Attorney General Alberto Gonzales filed an affidavit stating under oath that disclosure of such materials would harm national security. See 50 U.S.C. §§ 1806(f), 1825(g). In support of its claim of privilege, the United States submitted to the Court the sealed, classified declaration of John E. Lewis, Acting Assistant Director, Counterterrorism Division, Federal Bureau of Investigation. Under FISA, the filing of an Attorney General affidavit triggers an in camera, ex parte procedure to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted. 50 U.S.C. §§ 1806(f), 1825(g). The Court’s careful review of the sealed, classified materials fully supports the Attorney General’s sworn assertion that the sealed materials filed with the Court contain

sensitive and classified information concerning United States intelligence sources and methods and other information relating to efforts of the United States to conduct counterintelligence investigations, including the manner and means by which those investigations are carried out; [and that] to reveal such information reasonably could be expected to cause serious and exceptionally grave damage to the national security of the United States.

(Declaration and Claim of Privilege of the Attorney General of the United States, at 3.)

Once the in camera, ex parte procedure is triggered, the reviewing court may disclose such materials “only where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” 50 U.S.C. § 1806(f); see also 50 U.S.C. § 1825(g). The legislative history explains that such disclosure is “necessary” only where the court’s initial review indicates that the question of legality may be complicated by factors such as

indications of possible misrepresentation of fact, vague identification of the persons to be surveilled, or surveillance records which include a significant amount of nonforeign intelligence information, calling into question compliance with the minimization standards contained in the order.

United States v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982) (quoting S. Rep. No. 95-701, 95th Cong., 2d Sess. 64 (1978)).

No United States District Court or Court of Appeals has ever determined that disclosure to the defense of such materials was necessary to determine the lawfulness of surveillance or searches under FISA. See United States v. Rosen, 447 F. Supp. 2d 538, 546 (D. Va. 2006) (collecting cases). Warsame attempts to distinguish these cases by pointing to recent government admissions that numerous FISA applications have included misstatements and critical omissions. See In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F. Supp. 2d 611, 620-21 (Foreign Int. Surv. Ct. 2002) (discussing errors discovered in more than 75 FISA applications). Warsame further argues that the consistency of these case holdings demonstrates that the FISA process is a “sham,” and that adversarial proceedings are particularly important here because of the complexity of the issues presented to the Court.

The Court is receptive to Warsame’s concerns about the one-sided nature of the FISA process, and has engaged in a comprehensive and careful review of the FISA applications, orders, and other related materials. However, the Court has found that the issues presented by the FISA applications are straightforward and uncontroversial, and present none of the concerns that might warrant disclosure. The fact that the government has included misstatements and critical omissions in other FISA applications not at issue here cannot justify disclosure in this case. Without some indication that the congressionally mandated FISA procedures were not followed here, the government’s legitimate national security interest in maintaining the secrecy of the information contained in the FISA applications bars disclosure of the materials to Warsame.

The Court further concludes that the ex parte procedure complies with due process.

(And, this is the 2,000th post since this website converted to a blog format. That means reading over 10,000 cases.)

During a traffic stop, the officer did not act unreasonably in asking the names of the passengers and then separately asking the passengers their names. After that, the driver consented to a search of the car, and each of the persons in the car consented to a patdown. State v. Perry, 2008 Tenn. Crim. App. LEXIS 317 (April 28, 2008).*

Affidavit for search of several residences was “bare bones” because there was almost nothing to show a nexus to them and crime. Other search warrants taking information from these searches and adding them to the master affidavit fared no better. These include taking saliva samples. As to one residence there was probable cause. United States v. Stearn, 548 F. Supp. 2d 182 (E.D. Pa. 2008).*

Officer’s search of a cardboard box did not exceed the scope of a prior private search. The officer opened a clear plastic bag, however, but its contents could already be seen, and that was not unreasonable. United States v. Oliver, 2008 U.S. Dist. LEXIS 34255 (N.D. Tex. April 25, 2008).*

Plaintiff’s receipt of a citation that was not sworn to when he received it was not a Fourth Amendment violation. Amarkarian v. City of Glendale, 2008 U.S. Dist. LEXIS 34268 (C.D. Cal. April 23, 2008).*

Use of a ruse of looking for a missing girl invalidated defendant’s consent to enter his hotel room to look around. Once inside, officers asked for consent to look for weapons, and then looked in a bag and found heroin which led to defendant’s indictment. The court distinguished other valid ruses from this one. United States v. Montes-Reyes, 547 F. Supp. 2d 281 (S.D. N.Y. 2008) (PACER link):

Based on the facts found at the April 7 hearing and the Fourth Amendment standards described above, the consent Montes-Reyes gave to Agent Luna cannot be considered voluntary, as the “missing girl” ruse used by Agent Luna created a false sense of exigent circumstances similar to that raised in a “gas leak” scenario. The Government’s attempts to distinguish these two scenarios are unavailing.

First, the Government emphasizes that, unlike a ruse involving a gas leak, Agent Luna’s ruse did not lead Montes-Reyes to believe that his own safety was at risk. The message conveyed, however, by Agent Luna’s misrepresentation and his display of the “Endangered Missing” poster — i.e., that a four-year-old girl is lost and, necessarily, in serious danger — must be considered no less alarming. A false claim of a missing child is precisely the kind of “extreme” misrepresentation of investigatory purpose by which a person is “deprive[d] … of the ability to make ‘a fair assessment of the need to surrender his privacy.” LaFave et al., Criminal Procedure § 3.10(c). Indeed, federal law and the laws of all fifty states recognize both that the problem of missing children is a profoundly serious one and that private persons may be counted on to assist law enforcement in locating such children. See Prosecutorial Remedies and Other Tools To End the Exploitation of Children Today (PROTECT) Act of 2003, tit. III, Pub. L. No. 108-21, 117 Stat. 650, 660-67 (providing federal standards and oversight for the AMBER Alert system used to find missing children); Press Release, Dep’t of Justice, AMBER Alert Plans in Place in All 50 States (Feb. 17, 2005), available at http://www.amberalert.gov/newsroom/pressreleases/ojp_05_0217.htm (“No matter where a child is missing, concerned Americans stand ready to help.”). Thus, the fact that it was the four-year-old girl pictured on the flier and not Montes-Reyes himself that was supposedly endangered is of little significance.

Second, the Government argues that Montes-Reyes knew that there was no girl is his room, and thus he could have withheld his consent safe in the knowledge that he was not thereby endangering anyone. To the contrary, Montes-Reyes would have had every reason to believe that his failure to consent to the search would hinder or delay the efforts to resolve safely (what appeared to be) a grave emergency about which the authorities were sufficiently concerned that they dispatched a squad of agents to investigate. In such a scenario, the decision to allow the police into the premises cannot be “the product of an essentially free and unconstrained choice.” Schneckloth, 412 U.S. at 225 (citation omitted).

This is not to underestimate the difficulty of “ferreting out those organized criminal activities,” such as drug trafficking, “that are characterized by covert dealings with victims who either cannot or do not protest.” Lewis, 385 U.S. at 210. But, as the Court recognized long ago in Boyd v. United States, 116 U.S. 616 (1886),

[i]t may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely: by silent approaches and slight deviations from legal modes of procedure. … It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.

Id. at 635 (quoted in Schneckloth, 412 U.S. at 228-29). With this admonition in mind, and recognizing the need to “reconcil[e] the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion,” Schneckloth, 412 U.S. at 229, it must be concluded that Montes-Reyes did not “voluntarily” consent to the search of his room.

Defendant was illegally stopped for suspicion of alien smuggling for merely being near an illegal alien. United States v. Varela-Delgado, 547 F. Supp. 2d 704 (W.D. Tex. 2008):

In fact, the only evidence of an immigration violation with any connection to Hernandez relates to Varela’s unlawful presence in the United States. However, this fact alone does not justify stopping and extensively detaining Hernandez because Varela had already been detained, and there was no evidence at the time that Hernandez knew of Varela’s illegal status. While courts are “reluctant to second guess the actions of law enforcement,” it is telling that neither Gomez nor Cardoza attempted to confirm Hernandez’s contention that the children were hers or that they were all United States citizens. See United States v. Troop, 514 F.3d 405, 2008 WL 134120, at *4 (5th Cir. 2008) (finding a search of a house unreasonable and noting that none of the agents appeared to believe reasonable grounds existed to justify the intrusion). The agents’ inaction in this respect suggests to the Court that Hernandez was stopped for the sole purpose of obtaining her consent to search 2028 Pueblo Nuevo. 18 Upon review of all the facts and circumstances known to the agents prior to the stop, the Court finds no objective basis to constitute reasonable suspicion that any of the occupants in Hernandez’s vehicle were illegal aliens, or that Hernandez or her children were otherwise connected with alien smuggling or harboring. Thus, the Court concludes that the stop of Hernandez’s vehicle occurred in violation of the Fourth Amendment.

On an appeal from a USMJ’s conviction of the defendant for misdemeanor marijuana possession of a civilian on a military base, the District Court finds that the defendant’s stop lacked reasonable suspicion. The USMJ also found it at the “outer limits” of reasonableness, but did not suppress. United States v. Winger, 2008 U.S. Dist. LEXIS 32992 (D. Kan. April 18, 2008).*

The Tenth Circuit holds that a false affidavit for arrest can underlie a false arrest and malicious prosecution claim under the Fourth Amendment. Plaintiff showed sufficient facts to survive summary judgment, even against a claim of qualified immunity. [False facts with malice would not support qualified immunity.] (Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (4th ed.), for the plaintiff.) Wilkins v. DeReyes, 528 F.3d 790 (10th Cir. 2008):

Depending on the circumstances of the arrest, a plaintiff can challenge the institution of legal process as wrongful in one of two ways. If arrested without a warrant–and thus triggering “the Fourth Amendment require[ment of] a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest,” Gerstein v. Pugh, 420 U.S. 103, 114, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975)–a plaintiff can challenge the probable cause determination made during the constitutionally-required probable cause hearing. See, e.g., Reed v. City of Chicago, 77 F.3d 1049, 1053-54 (7th Cir. 1996) (concluding the plaintiff failed to state a malicious prosecution claim when he challenged only the warrantless arrest, but not the subsequent institution of legal process). Or, if arrested pursuant to a warrant, plaintiff can challenge the probable cause determination supporting the warrant’s issuance. See, e.g., Meacham, 82 F.3d at 1562 (analyzing the Fourth Amendment malicious prosecution claim “that the affidavit prepared … in support of the arrest warrant contained deliberately false statements and omissions, thereby misleading the judge into issuing the arrest warrant”). Either way, the allegation would state a Fourth Amendment violation sufficient to support a § 1983 malicious prosecution cause of action.FN5

FN5 Because a person unlawfully arrested without legal process can bring a Fourth Amendment claim sounding in false imprisonment, Wallace, 127 S. Ct. at 1095, the malicious prosecution framework in a sense allows a second Fourth Amendment claim to come on the heels of the first one. Mondragon, 519 F.3d at 1083 n.4 (noting, in a case dealing with a forged arrest warrant, “[w]e do not foreclose the additional, though unlikely, possibility of a second Fourth Amendment claim, arising after the first one ends” (citing Wallace, 127 S. Ct. at 1096 n.2)). But because the institution of legal process separates the two claims–and thus makes them legally distinct–we think the two claims, though grounded in the same constitutional provision, can coexist.

. . .

a. Existence of Fact Questions as to Malice

Reviewing the officers’ motion for summary judgment, the district court determined Plaintiffs presented sufficient evidence to create a fact question as to whether the officers fabricated evidence to arrest and prosecute them. In finding a factual basis for the theory that the officers coerced false testimony, the court pointed to the following evidence: Nieto’s and Popeleski’s susceptibility to the tactics employed in the interrogations because of their age and lack of education; other circumstances of the interrogations; and numerous statements by the officers, at times threatening harm to Nieto and Popeleski or their families and at other times promising help and safety.

Exiting freeway at a ruse checkpoint with nerviousness and no license is reasonable suspicion for continuing a stop. United States v. Loya, 528 F.3d 546 (8th Cir. 2008):

In this case, the circumstances known to the trooper when he questioned Lopez and Loya about guns-and-drugs and sought permission to search the vehicle were that: the vehicle exited the interstate at a ruse checkpoint, see United States v. Carpenter, 462 F.3d 981, 987 (8th Cir. 2006), cert. denied, 127 S. Ct. 2029, 167 L. Ed. 2d 772 (2007) (exiting just after checkpoint signs may be considered as one factor in the totality of circumstances, although, standing alone, it is not a sufficient basis to justify a seizure); several exits prior to the ruse checkpoint possessed a full range of services, while it had none; the vehicle was being followed too closely by the vehicle traveling with it; the vehicle was not local; after exiting the interstate, the vehicle drove north to Highway 34 and turned west, the opposite direction from its travel direction; though the two vehicles were traveling together and the trooper attempted to execute a double stop, the black car did not stop; when the trooper asked Lopez why they had left the interstate, he stated that “they just wanted to drive around for a little bit;” Loya had no license; the vehicle did not belong to Loya or Lopez; Lopez indicated that the owner of the vehicle was someone named Juan, but the registration listed Geraldo Gonzales as the owner, see id. (stating that a “discrepancy between documents and a driver’s explanation is a legitimate basis for suspicion”); Gonzales was not present and neither Loya or Lopez knew where Gonzales was; Lopez had no identification; and Loya appeared nervous.

Under the totality of the circumstances, Trooper Allen, with 16 years experience as a traffic officer, possessed more than a “hunch” that criminal activity was afoot. See Sokolow, 490 U.S. at 7. Rather, he had reasonable suspicion to expand the scope of the stop and prolong its duration in order to investigate the potential presence of contraband. Furthermore, assuming that Trooper Allen’s questioning constituted a “broadened inquiry [that] must be reasonable,” United States v. Ward, 484 F.3d 1059, 1062 (8th Cir. 2007), in that “[t]he investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Id. (quoting Bloomfield, 40 F.3d at 916), his approach was “a minimally intrusive way of addressing his reasonable suspicion ….” United States v. Donnelly, 475 F.3d 946, 953 (8th Cir. 2007).

Reading the warrant as a whole, it was unreasonable to search the defendant miles away from the place described in the warrant. United States v. Young, 263 Fed. Appx. 710 (10th Cir. 2008) (unpublished):

We acknowledge the possibility that the use of the term “premises” in the command line was boilerplate, and that the omission of Young from the command line was a mere oversight on the part of the Utah judge. We are hesitant to place too great an emphasis on the command line of the warrant, standing alone, which threatens to value technical precision over practical accuracy. Cf. Angelos, 433 F.3d at 745. We therefore reaffirm that in reviewing a warrant, we should and do take into account all parts of the warrant. United States v. Callwood, 66 F.3d 1110, 1113 (10th Cir. 1995). Our reading of the command line as permitting only a search of the apartment, however, is strengthened by reference to the affidavit Officer Miller submitted to the magistrate judge. See United States v. Ortega-Jiminez, 232 F.3d 1325, 1329 (10th Cir. 2000) (“[A]n affidavit … may be used to clarify with ‘practical accuracy’ the meaning of a disputed term in a warrant when the same person is both affiant and executing officer.”). As the district court recognized, “the facts submitted to the magistrate in support of Officer Miller’s request for a warrant to search Ms. Young are sparse.” Order & Memo. Decision, Aplt. Br., Appx. C, at 5. While Officer Miller’s CI claimed that he had both purchased methamphetamine from Young and observed Young travel to other locations to conduct narcotics transactions, the only information that Officer Miller’s subsequent investigation corroborated was that narcotics transactions took place at Young’s apartment. Based on this fact, it is entirely plausible that the magistrate judge who issued the warrant did not find probable cause to search Young apart from her apartment, and that the omission of Young’s person from the command line was intentional.

We therefore conclude that the warrant permitted no more than a search of the apartment, and that the search of Young several miles away from her apartment exceeded the scope of the warrant. For purposes of this appeal, we need not address the hypothetical question of whether Young could have been searched at her apartment, had her apartment been searched pursuant to the warrant.

“While we continue to recognize that the ‘ideal course’ is for a magistrate to actually review the subject photographs in child pornography cases, we likewise continue to adhere to the view that the failure to do so is not fatal to probable cause where, as here, the pictures are sufficiently described in the affidavit.” United States v. Pena, 266 Fed. Appx. 574 (9th Cir. 2008)* (unpublished).

A federal search warrant for a computer of a member of the military seized from his apartment off base on an oral search authorization was valid. Appellant had taken pictures at a party where a sexual assault was alleged to have occurred, and OSI was investigating. He voluntarily showed them pictures on his computer, but they felt that there were more. They came back and seized the computer because there was evidence on it. He was not a suspect in any crime. After the seizure, OSI figured out that they should get a written search authorization. At the time the warrant was issued, the USMJ asked whether the hard drive of the computer had been searched, and they said it hadn’t. The officers, however, had clicked on photographs which was beyond the authority in the oral search authorization because she was curious whether child pornography was on the computer. The search was thus invalid. United States v. Osorio, 66 M.J. 632 (A.F. C.A. 2008):

Here we find SA JL exceeded the scope of the search warrant the minute she opened the thumbnail to, in her own words, “make sure it was not contraband.” SA JL admitted on cross-examination that she opened the thumbnail to verify if the picture was child or adult pornography, not to verify it was a mirror image of the other computer or to review a photograph taken on February 12, 2005. Having testified that she was not aware of the terms of the warrant and that once she opened the picture directory tree, her job was done, we find that SA JL was not acting within the scope of the warrant at the time of the discovery of the first suspect image.

As in Carey, the terms of the first warrant did not authorize SA JL to conduct a general search. She was only authorized to search for photos that related to a specific date. Thus we find that the military judge erred when she found that the scope of the warrant included clicking on any nude photos. While the affidavit mentions photos of nude or partially nude people, the warrant does not reference or authorize a search for any “nude photos” unrelated to the specific date included in the warrant. The federal magistrate limited the scope by the date of the photos. Searching beyond that date exceeded the warrant’s scope. To conclude otherwise would invalidate our conclusion that the warrant was sufficiently specific to be valid.

Furthermore, we find that the intent of SA JL during her search is significant on the issue of scope. SA JL’s intent in clicking on the nude photographs was, in her own words, to determine if it was “contraband” and child pornography. As she was unaware of the terms of the warrant, it is clear she was not opening the files to see if the pictures related to the 12 February party. Similar to the investigator in Carey, SA JL was conducting a “general search” of the thumbnails for pictures of child pornography and looking for child pornography, instead of pictures of the 12 February 2005 party. See Carey, 172 F.3d at 1273.

Defendant was stopped for loitering, and he was asked about his probationary status, and this was reasonable. Miller v. State, 922 A.2d 1158 (Del. 2007):

During the initial lawful detention of Miller to enforce the loitering statute, Probation Officer Kelly asked Miller whether he was on probation. In Muehler v. Mena, the United States Supreme Court held that questioning someone who was being lawfully detained about her immigration status was not a Fourth Amendment violation even though her immigration status was not related to her detention:

“We have held repeatedly that mere police questioning does not constitute a seizure. Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search his or her luggage. As the Court of Appeals did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.”

Similarly, it was permissible for Officer Kelly to ask Miller if he was on probation, while Miller was lawfully detained initially to enforce the loitering statute.

Because a narcotics officer makes a valid traffic stop is not pretextual. Probable cause developed. United States v. Cruz-Rivera, 2006 U.S. Dist. LEXIS 95885 (D. P.R. September 13, 2006).*

Complusory blood draw when there is a vehicular homicide or aggravated DUI is reasonable. State v. Diaz, 144 Idaho 300, 160 P.3d 739 (2007).*

In dealing with a two edged sword, the defendant successfully argued his shed was outside the curtilage and therefore not subject to the search warrant for the premises, and gets the search of the shed suppressed. (Usually, being outside the curtilage means no reasonable expectation of privacy, but it depends upon the facts.) United States v. Gilman, 2007 U.S. Dist. LEXIS 32524 (D. Haw. May 2, 2007):

4. “Every curtilage determination is distinctive and stands or falls on its own unique set of facts.” Depew, 8 F.3d at 1426. In United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987), the Supreme Court stated that questions of curtilage should be

“resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included in an enclosure surrounding the home, the nature of the uses to which the area is put, the steps taken by the resident to protect the area from observation by people passing by.”

These factors “cannot be mechanically applied, but are merely useful analytical tools to determine whether an area is to be protected from unconstitutional searches and seizures.” Johnson, 256 F.3d at 901 (quoting Dunn, 480 U.S. at 301).

5. The Government’s only argument against suppressing the evidence obtained from Gilman’s shed is that the shed falls within the curtilage of Gilman’s home and is therefore covered by the search warrant.

The misstatements in the affidavit for the search warrant were not substantial enough to deny the officer qualified immunity. There unquestionably was probable cause from observation of the plaintiff’s marijuana grow operation, albeit for medical purposes. Plaintiff’s claim of excessive force and unreasonable conduct by the officers was sufficient to survive summary judgment. Wood v. Kitsap County, 2007 U.S. Dist. LEXIS 32634 (W.D. Wash. May 3, 2007).*

Swearing match between defendant and officers goes to the police, and their testimony is found more credible that the defendant consented to the search and it was completely nonconfrontational. United States v. Espinoza-Flores, 2007 U.S. Dist. LEXIS 32573 (D. Ore. April 30, 2007).*

911 call of a battery in progress in a driveway brought officers to defendant’s house. A man in the driveway denied knowledge of any such occurrence, and he said that there were people inside. Officers went to the porch and asked the man who came to the door, and he denied knowledge of the occurrence. The testimony of the officers differed at this point, and one ended up inside arresting defendant for “obstructing my investigation.” The search of the house thereafter was unreasonable. Wheeler v. State, 956 So. 2d 517 (Fla. App. 2d Dist. 2007).*

Defense counsel’s failure to object to defendant’s exercise of his right to not consent to a search was a “fundamental error” but harmless under the facts of this case. State v. Christiansen, 144 Idaho 463, 163 P.3d 1175 (2007):

The same rationale that precludes evidence of an accused’s assertion of his or her Fifth Amendment Rights offered for the purpose of either impeachment or inferring guilt precludes evidence of the accused’s assertion of his or her Fourth Amendment rights offered for the same purposes. The State concedes that the prosecuting attorney’s sole purpose for eliciting this testimony was to have the jury infer that Christiansen’s refusal to consent to the search showed consciousness of guilt. The State also agrees that eliciting such testimony was improper and that the prosecuting attorney could not reasonably have believed that such evidence was admissible in this case. We hold that the prosecutor’s questioning as to Christiansen’s refusal to consent to the search of his business premises constituted fundamental error when the purpose for such testimony is to show consciousness of guilt.

Defendant’s counsel’s concessions at close of the suppression hearing that the officer who obtained the search warrant was a sworn law enforcement officer in the jurisdiction waived the argument for appeal [which likely was factually a loser anyway]. State v. Alton, 2007 Ohio 2109, 2007 Ohio App. LEXIS 1969 (8th Dist. May 3, 2007).*

Smoldering fire was exigent circumstance for entry into a building occupied by several people. Firemen and investigators may come and go during the course of the initial investigation. State v. Smith, 144 Idaho 482, 163 P.3d 1194 (2007):

The exigency in this case was a threat of fire rather than an actual fire, but the principle is the same. See O’Keefe, 143 Idaho at 285, 141 P.3d at 1154 (finding that there may be a need for immediate investigation to detect continuing dangers). Both Blubaum and Watson testified that the couch fire could have extended into the structure without necessarily being visible. The burn marks in the stairway carpet corroborated their testimony. According to Blubaum, smoldering can occur in walls or floors or under carpets for hours or days after something else has been on fire in an apartment. Although Blubaum saw no flames or smoke, the facts known to him indicated there was an appreciable, immediate risk of fire within the building. The presence of multiple tenants in the building compounded the urgency. See Michigan v. Clifford, 464 U.S. 287, 297 n.8, 104 S. Ct. 641, 649 n.8, 78 L. Ed. 2d 477 (1984); Tyler, 436 U.S. at 510 n.6, 98 S. Ct. at 1950 n.6.

Smith argues that the holding of Tyler that a firefighter may remain in a building to investigate the cause of a fire after entering to extinguish it does not apply because Blubaum entered after the fire had been extinguished. The distinction does not aid Smith. The fact that the fire was extinguished by someone other than the firefighter indicates a need to investigate to ensure that it will not rekindle. This is especially so when the tenant who attempted to extinguish the fire was absent and the fire appeared to have persisted in his absence.

. . .

It is clear that Watson was continuing Blubaum’s initial investigation. Once Blubaum was lawfully inside the apartment, he was permitted to remain there for a reasonable time, not only to ensure that the fire was out, but to investigate its cause. The fact that Watson replaced Blubaum during the process is of no constitutional significance. A superior officer’s decision to take over the investigation does not “clearly detach” the remainder of the investigation from the subordinate’s initial inspection. Likewise, the fact that Blubaum met Watson outside rather than waiting for Watson to join him in the apartment is immaterial. Blubaum left the apartment because he saw through the window that Watson had arrived, not because he had concluded a full investigation. The entries were only minutes apart. The only purpose served by requiring Blubaum to remain inside the apartment would be to remove any doubt about the legality of Watson’s later entry. Watson’s presence in the apartment was a continuation of Blubaum’s initial entry. Watson was lawfully present in the apartment.

Informant who was named and gave specific, first hand information gave a substantial basis for finding probable cause. United States v. Evans, 2007 U.S. Dist. LEXIS 52838 (E.D. Mich. July 23, 2007):

Presented with the rationale of Pellham, the Court must conclude that when an affidavit sets forth recently obtained, first-hand knowledge from a named individual, attesting to the existence of contraband at a particular location, the magistrate judge has a substantial basis for determining probable cause exists. Id. …

In the present case, Armando Tapia was specifically named in the affidavit. Affidavit, PP 3-7. The facts in the affidavit indicate that Tapia had recently been to the Hunters Circle residence, within the last twenty-four hours. Id. at P 6. Tapia had first-hand knowledge that illegal drugs would be present at the residence because he personally delivered one hundred and twenty-five pounds of marijuana to 4068 Hunters Circle East earlier that day. Id. Therefore, pursuant to Pellham and Miller, based upon the information provided by Tapia, there was a “substantial basis” for the magistrate to conclude that probable cause existed to believe that there was a “fair probability” that illegal drugs would be found at the Hunters Circle residence. See Pellham, 801 F.2d at 876; Miller, 314 F.3d at 270; Gates, 462 U.S. at 238.

Conclusory allegation of ineffective assistance for not pursuing a suppression motion and subpoenaing the state judge as a witness failed as a matter of law. Bailey v. United States, 2007 U.S. Dist. LEXIS 53063 (E.D. Mo. July 23, 2007).*

Suppression issues litigated on direct appeal could not be brought in a 2255. Cannon v. United States, 2007 U.S. Dist. LEXIS 53069 (W.D. Mo. July 20, 2007).*

Bailbondsman was the citizen informant on defendant’s stop, but the bondsman mistook defendant for another person. The stop and detention was reasonable at its inception, but a frisk was not because the officer did not have sufficient reason to know that defendant was the wanted man. A search incident was not justified either because there was no probable cause for an arrest. State v. Baxter, 144 Idaho 672, 168 P.3d 1019 (2007):

The totality of the information available to the officer at the time he conducted the frisk raised a reasonable suspicion that the man he was detaining might be J.H and the subject of the outstanding warrant. We cannot conclude, however, that there was sufficient information for a reasonably prudent officer to believe that the man being detained was actually J.H. and that his arrest pursuant to the warrant was reasonable absent further investigation. Therefore, we conclude that probable cause to arrest Baxter did not exist prior to the frisk of his person, and the frisk cannot be justified as a search incident to arrest.

Excessive force claim against officers by plaintiff who was convicted of resisting was barred by Heck. Alternatively, the officers had qualified immunity. Plaintiff had a seizure disorder which led to them believing she was resisting, and she was convicted of a related offense. Ryan v. Hazel Park, 2007 U.S. Dist. LEXIS 29237 (E.D. Mich. April 20, 2007).*

Search warrant for premises authorized search of defendant’s bedroom wihtin the premises. United States v. Harrison, 2007 U.S. Dist. LEXIS 29337 (W.D. Va. April 20, 2007)*:

Instead, the evidence before the court shows that the entire residence was rented by Harrison. There is no evidence that Harrison’s access to the room used by St. Pierre was limited in any way. In particular, there was no evidence that the room had a separate entrance or that the door to the room had a lock, which allowed restricted access to the room. That being the case, I find that the Fourth Amendment was not violated by the search of St. Pierre’s room because I find that the search warrant at issue described the place to be searched with the necessary particularity and was supported by a finding of probable cause. See United States v. Canestri, 518 F.2d 269, 273 (2nd Cir. 1975) (search warrant for a single-family residence cannot be frustrated by a declaration that one of the rooms belongs to a party not named in the warrant); United States v. Jordan, 349 F.2d 107, 109 (6th Cir. 1965) (search of entire residence pursuant to warrant reasonable where no indication that residence had been divided into more than one living unit and one person rented the entire residence); see also United States v. Ayers, 924 F.2d 1468, 1480 (9th Cir. 1991) (a search warrant for the entire premises of a single family residence is valid notwithstanding the fact that it was issued based on information regarding the alleged illegal activities of one of several occupants of the residence). Therefore, I recommend that the court deny the Motion insofar as it seeks to suppress any evidence seized from St. Pierre’s bedroom in the search of 330 Lowry Drive pursuant to this search warrant.

Officers followed defendant to her home suspecting her of DUI. When she answered the door and admitted driving the car, they had probable cause to arrest her, and, because DUI is a jailable offense, hot pursuit applied and they could go after her. The court surveys the cases and distinguishes Welsh. State v. Robinson, 144 Idaho 496, 163 P.3d 1208 (2007):

Accordingly, the misdemeanor driving under the influence (DUI) offense of which Robinson was suspected, which carries a penalty of up to six months jail time, I.C. § 18-8005, falls under the category of a jailable offense within the exigent circumstances doctrine. The distinction between felony and misdemeanor for purposes of the exigent circumstances doctrine no longer has a valid basis in state or federal law.

Justification for a warrantless entry hinges upon whether the intrusion was objectively reasonable under the circumstances. Brigham City, 126 S. Ct. at 1947. The magistrate found Robinson’s person contained evidence that was evanescent in nature and would quickly dissipate if time were taken to seek a warrant. See Welsh, 466 U.S. at 753; Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (warrantless blood alcohol test reasonable where delay would cause loss of evidence); State v. Woolery, 116 Idaho 368, 370, 775 P.2d 1210, 1212 (1989) (“destruction of the evidence by metabolism of alcohol in the blood provides an inherent exigency ….”). The magistrate further concluded, however, that the officers’ actions exceeded the scope of the evidence preservation exigency.

We apply an objective standard to determine whether the action taken was appropriate for a person of reasonable caution given the facts known to the official at the time of entry, along with reasonable inferences drawn therefrom. State v. Barrett, 138 Idaho 290, 293, 62 P.3d 214, 217 (Ct. App. 2003). The exigent circumstances exception does not apply where there is time to secure a warrant. See Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978); State v. Worthington, 138 Idaho 470, 472, 65 P.3d 211, 213 (Ct. App. 2002). In Welsh, the police arrested the defendant for DUI within a half-hour from his reported drunken driving incident. This made it unlikely that Welsh “could cast substantial doubt on the validity of a blood or breath test by consuming additional alcohol upon arriving at his home.” Welsh, 466 U.S. at 763 (White, J., dissenting). In the case at hand, the officers arrived promptly at Robinson’s home. Officer Moore arrived minutes later, and entered the home to arrest Robinson only after she refused either to come outside or to allow the officers to perform field sobriety tests inside the home. The officers further testified regarding the impracticability of obtaining a warrant at such a late night hour, saying it ordinarily took several hours. Compare Vale v. Louisiana, 399 U.S. 30, 35, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970) (finding warrantless home entry unreasonable where practical to obtain warrant).

Officers came in with permission to look for a lead on a missing person (not likely dead, just missing). They had reason to believe defendant had marijuana, too. They looked under defendant’s recliner with a flashlight while in his house looking for papers from the missing person, and found rolling papers and marijuana. They asked for consent which was refused. They got a search warrant based on the observation, and it was upheld. The minimal ruse was not constitutionally unacceptable. United States v. Trower, 2007 U.S. Dist. LEXIS 30890 (W.D. Mo. March 28, 2007):

Inasmuch as the incriminating nature of the marijuana plate was readily apparent, the critical issue is whether Officer Rorebeck was “‘in a place where the officer ha[d] a right to be.'” United States v. Criswell, 696 F.2d 636, 640 (8th Cir.1983) (quoting Washington v. Chrisman, 455 U.S. 1, 5, 102 S.Ct. 812, 816 (1982)). Under the facts presented, the Court finds that Officer Rorebeck (and the other two law enforcement officers were voluntarily) invited by Trower into his house, in part, for the purpose of locating the letter left by Ms. Aguilar. At no time prior to the plain view discovery of the marijuana did Trower make any effort to limit the scope of his consent. As such, Officer Rorebeck had a right to be in the Trower living room and to look under the chair (where the letter could have been lying). Compare United States v. Johnson, 707 F.2d 317, 322 (8th Cir. 1983) (“[The defendant] seems to be arguing that the firearms were not in ‘plain view’ because they were hidden in and under the bed, and were not openly visible when the officers entered the room. However, the firearms can still fall within the plain view doctrine because they were discovered in a place where the officer ha[d] a right to be.”).

The Court further concludes that the application of the plain view doctrine is permissible even though the law enforcement officers sought Trower’s permission to enter his residence with some belief that they would find marijuana under the recliner in the living room. In United States v Wright, 641 F.2d 602 (8th Cir. 1981), the Eighth Circuit found that some “minimal deception” by law enforcement officers is acceptable. In Wright, undercover agents, during the course of their drug investigation, knocked on the defendant’s motel door, pretending to have car trouble, asking to borrow some tools, and saw a white powdery substance and drug paraphernalia in plain view within the motel room. After employing the ruse, the agents obtained a search warrant, which was executed that night, and which yielded a shotgun, quantities of powdery substances, some pills, a cutting mirror and other drug paraphernalia, and a small notebook listing various drugs, their quantities, and prices. The court found that the undercover officers, by standing in the open door of the motel unit, like any member of the public, could see inside and observe various items in plain view. Although the undercover officers did not reveal their true identity or true purpose, and to that extent did lie, the Wright court said that it recognized the necessity for some kinds of undercover police activity; the officers did not engage in any conduct inconsistent with that expected or contemplated by the defendant when he opened the door. The fact that the officers approached the defendant with a lawful purpose, namely “fixing” their car, rather than an unlawful one, such as buying drugs, did not make their ruse unacceptable. Similarly, in this case, the officers’ legitimate efforts in investigating the disappearance of Ms. Aguilar does not invalidate the plain view doctrine.

Officers responded to a noise complaint of teenagers running through back yards. At the defendant juvenile’s house, they saw suspicious behavior which caused them to believe that perhaps a burglary was in progress and they came into the back yard, where defendant became belligerent and refused to cooperate and committed battery on a law enforcement officer. His motion to dismiss for the entry into the yard was dismissed and affirmed on appeal. P.B.P. v. State, 955 So. 2d 618 (Fla. 2d Dist. 2007):

The circumstances here compel a similar conclusion and support the trial court’s denial of P.B.P.’s motion to dismiss. At 3:00 a.m., the police officers responded to a disturbance call involving juveniles running through backyards. As the officers tried to determine whether juveniles were in the open backyard area, they saw suspicious circumstances at P.B.P.’s house, including an open window with the screen to the side, someone “peeping through” a window then trying to hide, and someone trying to hide under a counter. At this point, the officers were standing between two homes, and it is unclear whether they had actually entered P.B.P.’s yard.

Officer Perrone went to the front door while Officer Bruce remained in the rear area between P.B.P.’s house and a neighbor’s house. Although P.B.P. responded to the front door after a few minutes delay, he then went back into the house and to the rear door, where he called out to Officer Bruce using “colorful language.” The officers still did not know P.B.P.’s identity, whether he had been involved in the earlier disturbance, or whether he was trespassing in or burglarizing the house. Officer Bruce approached P.B.P. at the rear only after P.B.P. called out. Neither Officer Bruce nor any of the officers tried to enter the house. Instead, when they tried to ascertain P.B.P.’s identity to determine whether he actually lived in the house, P.B.P. struck Officer Bruce. Under the totality of these circumstances, we conclude that the trial court did not err in determining that the officers were engaged in the lawful performance of their duties and in denying P.B.P.’s motion for judgment of dismissal.

The government investigating a computer hacking offense in Arizona contacted Yahoo! to have them segregate records. A search warrant was issued from the U.S. District Court in Arizona for Yahoo!’s records in Sunnydale, California under 18 U.S.C. § 2703(a). The issue was one of first impression in the Ninth Circuit, so the court followed an unpublished order from the M.D. Fla. § 2703 was amended by the USA Patriot Act as was F. R. Crim. P. 41 to authorize federal search warrants to cross court jurisdictional lines. In re, Yahoo, Inc., 701 First Ave., Sunnyvale, California 94089, 2007 U.S. Dist. LEXIS 37601 (D. Ariz. May 21, 2007), following In Re Search Warrant, 2005 U.S. Dist. LEXIS 44507 (M.D. Fla, Dec. 23, 2005).

Plaintiffs stated a Fourth Amendment claim on behalf of their autistic son who was placed in a room without windows for what they contended were excessive periods of time. The school argued that schools have control over the movements of students all the time. At the pleading stage, the court was not inclined to dismiss it. A.C. v. Independent Sch. Dist. No. 152, 2007 U.S. Dist. LEXIS 37681 (D. Minn. May 22, 2007).*

Summary judgment on liability and qualified immunity denied officers in stop claim on whether they had reasonable suspicion at the time of the stop. SMJ Towing, Inc. v. Village of Midlothian, 2007 U.S. Dist. LEXIS 37416 (N.D. Ill. May 21, 2007).*

A temporary permit on a vehicle does not give reasonable suspicion to believe that the vehicle is improperly registered. Defendant’s stop was based on that alone and was unreasonable. State v. Salois, 144 Idaho 344, 160 P.3d 1279 (Ida. App. 2007).*

A statutory violation of a sealing order of a state wiretap led to suppression of evidence, which was affirmed by the state supreme court, which criticized the state’s laxity in handling the evidence so shodily. State v. Oster, 922 A.2d 151 (R.I. 2007).*

Indiana holds that a search warrant based on a trash pull in violation of Litchfield but otherwise in good faith under Leon would not be suppressed. Bowles v. State, 867 N.E.2d 242 (Ind. App. 2007):

We conclude that police lacked reasonable suspicion to search Bowles’ trash as is required under Litchfield and, therefore, issuance of a search warrant based on what was found in the trash was improper. However, the good faith exception to the exclusionary rule fully applies in this case because police clearly relied on the warrant in objective good faith under the legal standards in existence at the time. The trial court did not err in admitting the evidence recovered under the search warrant.

Fourth Amendment claim by state prison inmate concerning a search of his cell for his legal materials fails as a matter of law because the Fourth Amendment does not apply in prison. McNeil-El v. Digulielmo, 2007 U.S. Dist. LEXIS 39528 (E.D. Pa. May 30, 2007):

[T]he Amended Complaint describes an incident in which Officers Soto and White searched Plaintiff’s prison cell and seized certain materials. n9 It is clear, however, that “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell.” Hudson v. Palmer, 468 U.S. 517, 526 (1984). This is because the traditional notion of a right of privacy “is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order.” Id. at 527-28. The Supreme Court held that “wholly random searches are essential to the effective security of penal institutions,” and do not violate an inmate’s Fourth Amendment rights. Id. at 529. Therefore, Plaintiff’s Fourth Amendment claim must fail.

Motion to suppress sending seized clothing to the crime lab for testing raised during trial was determined by the trial court to be untimely and unmeritorious. The trial court did not abuse its discretion in determining the motion was waived. Young v. State, 2007 Ark. LEXIS 340 (May 31, 2007). Comment: Waiver for an untimely motion should not woodenly be applied, for that was an issue in Kimmelman v. Morrison, where a motion was raised during trial when a newly discovered fact arose. Here, it would have been better to have just denied the motion on the merits because it was clearly unmeritorious.

Viewing the VIN of a vehicle that required opening the door of a car was reasonable under the Idaho Constitution, following New York v. Class. State v. Metzger, 144 Idaho 397, 162 P.3d 776 (2007).*

“We hold the Fourth Amendment does not require police to corroborate an anonymous tip before seeking consent to enter and search a residence. Even if acting on an anonymous, uncorroborated tip, police may knock on the door of a residence, speak with the occupant, and request permission to enter and search.” People v. Rivera, 41 Cal. 4th 304, 59 Cal. Rptr. 3d 473, 159 P.3d 60 (2007).

Defendant parolee moved in with his girlfriend without telling his parole officer. The parole officer confirmed defendant lived there, so he conducted a parole search, which was valid. State v. Cruz, 144 Idaho 906, 174 P.3d 876 (2007):

We hold that Cruz was entitled to no greater Fourth Amendment protections as a house guest in his girlfriend’s apartment than he would have received in his own home. See Taylor, 482 F.3d at 318. Because a search supported by a reasonable suspicion of possible parole violations would have been upheld had it occurred at Cruz’s own residence, Cruz cannot obtain suppression of the items seized in his girlfriend’s apartment. In sum, Cruz’s Fourth Amendment rights were not violated because the government’s substantial interest in supervising parolees outweighs Cruz’s significantly diminished expectation of privacy in his girlfriend’s apartment.

Officer had reasonable suspicion based on numerous factors for detaining the defendant. United States v. Bivins, 2007 U.S. Dist. LEXIS 42695 (M.D. Ala. June 11, 2007)*:

Here, however, Trooper Burch had much more than a mere hunch. He knew that Bivens had lied to him about his criminal history for drug offenses, and he knew that Bivens was not listed on the vehicle’s rental agreement for reasons which Burch knew were not valid. n3 These indicators in addition to the other indicators fully establish the necessary articulable and reasonable suspicion necessary to support Burch’s continued questioning of Bivens after the reason for the stop was concluded.

Court analyzes in detail the facts of consent and compares the credibility of the witnesses, finding the officers more credible for several reasons. United States v. Burns, 2007 U.S. Dist. LEXIS 42618 (D. Ore. June 11, 2007).*