Written proof of an inventory policy is not required for the state to sustain its burden of proving an inventory valid. State v. Chatman, 2008 La. App. LEXIS 619 (2d Cir. April 30, 2008) (Also, this specific issue was not addressed to the trial court, so it was waived.) Comment: I have never been able to agree with this rationale, at all. Everybody has computers, and all police agencies have SOPs. If they have no written inventory policy, they should be held to have no policy. Official policy should be in writing, not part of an oral history. Subpoena the inventory policy and see if it complies with Florida v. Wells.

Defendant’s girlfriend had sufficient common authority, without regard to whether she was the actual lessee, to consent to a search. State v. Thomas, 981 So. 2d 850 (La. App. 2d Cir. 2008).*

The defendant was arrested at a homeless shelter for an aggravated sexual assault, and his bags were seized with him because others could have appropriated them or gotten into them in the shelter. They were properly searched two days later with a search warrant. State v. Drewry, 2008 ME 76, 946 A.2d 981 (2008).*

The state showed probable cause and nexus to the places to be searched within the four corners of the affidavit to search for child porn. The motion court’s reading was too narrow. Commonwealth v. Anthony, 451 Mass. 59, 883 N.E.2d 918 (2008):

Contrary to the defendant’s assertion, the Commonwealth is not asking this court to loosen the standard for finding the requisite nexus between the criminal activity described in the affidavit and the place to be searched where computer-based crimes are involved. We recognize that computer technology has rendered the collection, storage, and dissemination of child pornography more amorphous. Nonetheless, all that is required is the consistent application of our well-established approach to analyzing the four corners of an affidavit for determining whether probable cause exists for a search warrant to issue. Here, we conclude that the motion judge was too rigid in his reading of Detective Donovan’s affidavits.

Defendant had not been seized when he discarded a gun as officers approached him to talk to him. Commonwealth v. Monteiro, 71 Mass. App. Ct. 477, 883 N.E.2d 334 (2008).*

An officer pulled up next to the defendant’s vehicle parked in a convenience store parking lot. No lights were turned on, and the vehicle was not blocked in. The officer ran the vehicle and approached the defendant and asked for his driver’s license and asked for consent. After the defendant admitted possessing drug paraphernalia, the officer Mirandized the defendant. The stop was unlawful and the Miranda warning did not purge the taint. State v. La France, 219 Ore. App. 548, 184 P.3d 1169 (2008).*

An anonymous caller told police that known drug dealers, defendant and two others, were making methamphetamine in defendant’s residence. Subsequently, two police officers stopped defendant and another suspect as they were leaving the residence. The officers obtained defendant’s consent to search her residence, and drugs and other contraband were found. The sheriff’s prior knowledge and his observations of defendant and the other suspect adequately corroborated the anonymous tip. Thus, the officers had the requisite reasonable suspicion that defendant and the other suspect were engaging in criminal activity. The sheriff was aware of the prior criminal activity of the individuals identified in the tip and believed that defendant and the other individual were trying to get away when the officers approached the residence. Commonwealth v. Morgan, 248 S.W.3d 538 (Ky. 2008), released for publication April 28, 2008) (2005-SC-000702-DG).*

“Here, faced with a suspect actively resisting during the course of a valid Terry stop and pat-down, the officers’ use of physical force, including pepper spray and then handcuffs–in that order and after repeated warnings to Fuller–was, in the Court’s view, an objectively reasonable response.” Fuller v. Cuyahoga Metro. Hous. Auth., 2008 U.S. Dist. LEXIS 8730 (N.D. Ohio February 6, 2008).* (Note: The court noted that the Sixth Circuit has held that pepperspraying an already handcuffed suspect can be per se unreasonable; those facts are not present.)

Consent was found valid [apparently with the defense virtually conceding it on appeal]. United States v. Pineda, 265 Fed. Appx. 160 (5th Cir. 2008) (unpublished).*

Probation officer had reason to believe that defendant had been caught on tape doing a drug deal, and that justified a probation search of his dwelling. There was also consent by a third person with apparent authority. United States v. Barnard, 2008 U.S. Dist. LEXIS 8665 (D. Del. February 6, 2008).*

A lesson on getting your argument right: Inventory search issue was not fully explored at the suppression hearing, and the defendant made it clear to the trial court that the real issue was the length of detention after stop under a noise ordinance led to the officer finding the driver without a valid license. [This is an example of make the full argument to the trial court and don’t change your argument on appeal. In some states, the quoted paragraph would not appear because the court would rest on default without elaboration.] State v. McComb, 2008 Ohio 425, 2008 Ohio App. LEXIS 382 (2d Dist. February 1, 2008):

[*P60] Bell testified that the inventory search was performed because the car was going to be towed. Bell’s testimony concerning the nature of the inventory search performed was brief, and it is not altogether clear whether he was describing the nature of an inventory search in general, as prescribed by the regulations and policies of the Dayton Police Department, or whether he was describing the particular nature of the inventory search he performed in this case. Any deficiencies in this regard are understandable in view of the fact that the State was led to believe that the challenge to the search and seizure of the evidence went to the propriety of the initial stop, exclusively.

Stop was justified by obscured temporary tag, and what followed was all reasonable, including the slight delay. United States v. Daniels, 265 Fed. Appx. 219 (5th Cir. 2008)* (unpublished):

Appellants argue that the arrest was unreasonably extended by an arbitrarily delayed initiation of the computer check and Officer Esqueda’s pre-computer check questioning, that Officer Esqueda should not have run the computer check on the passenger’s license, and that the traffic stop should have concluded when Officer Esqueda declared an intention to issue a warning citation. All these arguments are foreclosed by Brigham and Shabazz, which hold that an officer may run computer checks on the driver and passengers of a car, and that there is no unlawful detention prior to completion of those computer checks. Here, Officer Esqueda initiated the computer check a short number of minutes after stopping Appellants. Because an officer need not immediately initiate a computer check on a car’s driver and its occupants, and because the questioning and consent to search occurred before the computer check was complete, Officer Esqueda did not unlawfully extend the detention of Appellants.

Houston P.D. roadblock for bank robbery suspect was valid under Edmund and Lidster where it was set on the escape route from the bank robbery based on the signal from the beeper pack. United States v. Abbott, 265 Fed. Appx. 307 (5th Cir. 2008) (unpublished):

With respect to the roadblock, the district court likewise did not err. Roadblocks designed to address specialized law-enforcement purposes may be permissible without the presence of individualized suspicion, provided the court finds a favorable balance between “the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty”. Brown v. Texas, 443 U.S. 47, 50-51, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979); see also Lidster, 540 U.S. at 424.

The roadblock was a targeted law-enforcement effort designed to address a specific and dangerous crime–an armed bank robbery–about which the HPD had particularized knowledge. Utilizing the ETDs, the Officers were able to narrow their search to a relatively small area in which there was a high likelihood of apprehending the suspects. Thus, the roadblock was properly tailored to detect evidence of a particular criminal wrongdoing rather than for general crime control. See Lidster, 540 U.S. at 424; see also Edmond, 531 U.S. at 44 (“an appropriately tailored roadblock set up to … catch a dangerous criminal who is likely to flee by way of a particular route” would “almost certainly” be permissible). Accordingly, it was not unconstitutional per se.

Further, the roadblock was not unreasonable under the circumstances, and it satisfies the requirements of the Brown balancing test. The public concern of apprehending armed bank robbers was substantial; the roadblock was tailored in both time and place, based on evidence extracted from the ETDs; and any objective intrusion on civil liberties was minimal and brief.

Probable cause existed for defendant’s car, and it was continuing up to the time the search occurred. It was reasonable to believe that the defendant would come back into possession of the car. United States v. Scott, 516 F.3d 587 (7th Cir. 2008).*

Defendant’s statement and consent to search were voluntary and not coerced. United States v. Richardson, 265 Fed. Appx. 52 (3d Cir. 2008)* (unpublished).

Officer had probable cause to arrest defendant once a computer check showed an outstanding warrant on him. Search incident of his car was valid. United States v. Miller, 265 Fed. Appx. 5 (2d Cir. 2008)* (unpublished).

Stop was unreasonably extended, but a dog sniff was not a “but for” cause. “Because Peralez’s prolonged seizure for questioning about drug trafficking was not a but-for cause of obtaining the evidence, suppression is not warranted. See Olivera-Mendez, 484 F.3d at 511 (holding, in the alternative, that evidence discovered after a dog sniff should not be suppressed because the dog sniff, and not an earlier arguably unreasonable extension of the traffic stop, caused the discovery of the contraband).” United States v. Peralez, 526 F.3d 1115 (8th Cir. 2008). As to extending the stop:

Our cases recognize two instances when an officer may extend or expand the scope of a traffic stop beyond the original justification for the stop. First, if the encounter becomes consensual, the stop may be extended. See, e.g., Morgan, 270 F.3d at 630 (conversation after the conclusion of traffic stop was consensual, and therefore extension of the stop was not unconstitutional). Second, if the officer develops reasonable suspicion that other criminal activity is afoot, the officer may expand the scope of the encounter to address that suspicion. See, e.g., Sanchez, 417 F.3d at 975 (reasonable suspicion developed during the course of the stop, warranting expansion). We do not face either of those circumstances. The government does not claim on appeal that the drug interdiction questions posed to Peralez or the van’s driver occurred during a consensual encounter. Nor does the government contend that Trooper Schlueter had reasonable suspicion that the van’s occupants were engaged in illegal activities when the trooper began asking drug interdiction questions. Indeed, Trooper Schlueter testified at the suppression hearing that he did not have any reason to suspect illegal activity when he shifted the focus of his inquiries. The question presented by the facts of this case is whether Trooper Schlueter’s “blended process” of conducting a drug interdiction investigation during the course of a run-of-the-mill traffic stop violated the Fourth Amendment.

In Olivera-Mendez we acknowledged a split among the circuit courts as to whether an officer conducting a traffic stop based upon probable cause violates the Fourth Amendment “by asking a few questions about matters unrelated to the traffic violation, even if this conversation briefly extends the length of the detention.” 484 F.3d at 510. Three circuits have found such a brief extension does not constitute a violation, United States v. Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir. 2006); United States v. Burton, 334 F.3d 514, 518-19 (6th Cir. 2003); United States v. Childs, 277 F.3d 947, 951-54 (7th Cir. 2002) (en banc), while one has reached the contrary conclusion, United States v. Pruitt, 174 F.3d 1215, 1220-21 (11th Cir. 1999).

We need not decide whether a brief extension would comport with the Fourth Amendment in the context of a probable-cause stop, because the delay caused by Trooper Schlueter’s questions cannot be categorized as brief. The cases where our sister circuits found a brief extension consistent with the Fourth Amendment did not involve as extensive a departure from routine, traffic-related questions as this case. Cf. Alcaraz-Arellano, 441 F.3d at 1259 (off-topic questioning while the officer wrote out a warning ticket did not “appreciably lengthen” the detention); Burton, 334 F.3d at 518-19 (“a handful of questions” about illegal activity not unreasonable); Childs, 277 F.3d at 954 (one question about marijuana did not make seizure unreasonable). Here, Trooper Schlueter engaged in a “blended process” of conducting a routine traffic stop and a drug interdiction investigation. The off-topic questions more than doubled the time Peralez was detained. The video recording of the traffic stop makes clear the questions unrelated to the traffic violation constituted the bulk of the interaction between the trooper and the van’s occupants. This was not a brief extension. The extent and duration of the trooper’s focus on non-routine questions prolonged the stop “beyond the time reasonably required” to complete its purpose. Caballes, 543 U.S. at 407. This violated Peralez’s Fourth Amendment right to be free from unreasonable seizures.

Children have a reasonable expectation of privacy from searches of their bodies while on the premises of their private school. Consent to talk to the children about child abuse is not consent to search their persons for evidence. Michael C. v. Gresbach, 526 F.3d 1008 (7th Cir. 2008):

Applied to the case sub judice, the inquiry is whether it was reasonable for Gresbach to believe that Reetz’s consent to interview the children included consent to conduct a search of the children’s bodies. We find that it was not. Based on Gresbach’s representations that she needed to “see the children” to investigate a child abuse allegation, and that Reetz need not be present for the interview, Reetz allowed Gresbach to speak to the children privately in order to obtain their statements about an allegation of child abuse. A reasonable person would not have interpreted this to mean that Reetz authorized Gresbach to search the children’s bodies. It is undisputed that Gresbach did not ask Reetz for permission to search the children for injuries. Gresbach argues that Reetz’s “general consent” to interview included the consent to inspect the children’s bodies, but she cites to no supporting relevant authority, and we are unaware of any case under Fourth Amendment jurisprudence that proscribes this notion.

In some instances, the line implicating Fourth Amendment concerns is blurred when it applies to the government and child abuse investigations. See Heck, 327 F.3d at 514 (acknowledging that there are circumstances in which the law of warrant and probable cause does not work effectively in the child removal or child examination context); Landstrom, 892 F.2d at 676 (holding that a search or seizure of a child by a state social worker must be “reasonable,” but that does not necessarily require probable cause or a warrant); Daryl H., 801 F.2d at 902 (stating that the government must fulfill its responsibility to protect the young under difficult circumstances). Recognizing the sensitive nature of these types of investigations, officials may make a search or seizure under exigent circumstances, where they have reason to believe life or limb is in jeopardy. See Brokaw, 235 F.3d at 1010. We do not exempt child welfare workers from adhering to basic Fourth Amendment principles under non-exigent circumstances–to do so would be imprudent. In these circumstances, caseworkers can take preliminary steps short of searches, such as interviewing the child and a parent, or obtaining a warrant either personally to conduct a search or to have a doctor perform the search. See Roe v. Texas Dept. of Protective and Regulatory Services, 299 F.3d 395, 407 (5th Cir. 2002).

One person’s assertion of control over a duffel bag created apparent authority to search it, even though they didn’t have authority. United States v. Purcell, 526 F.3d 953, 2008 FED App. 0202P (6th Cir. 2008):

In the case at hand, when the agents began their search of the luggage in the hotel room, they had a good-faith basis to believe that Crist had authority to consent. Crist asserted that the duffel bag that yielded the marijuana was hers, and her purse was sitting on top of the duffel bag. Crist’s statements created apparent authority for the officers, and their search of the duffel bag was justified because they acted in good-faith reliance upon Crist’s assertions. Purcell acknowledges in his brief that the officers reasonably relied upon Crist’s assertion of authority over the duffel bag.

Reasonable suspicion that all occupants of a vehicle were involved in carrying contraband justified extending the stop. This was not mere propinquity to somebody else for which there was reasonable suspicion, a different situation. United States v. Rivera, 2008 U.S. Dist. LEXIS 41613 (D. Conn. May 27, 2008).*

Defendant was under surveillance and was seen retrieving a gun from behind bushes and getting into a taxicab which he had called. The cab changed lanes without signaling and the officer pulled it over. He got the passenger out and got consent from the driver. While defendant had a reasonable expectation of privacy in the cab, the court finds that Matlock on apparent authority to consent applies to taxicabs. The gun was found hidden under the floor mat. That showed defendant believed he had a reasonable expectation or privacy, but the cab driver had apparent authority to permit a search of the common interior. United States v. Harris, 526 F.3d 1334 (11th Cir. 2008) (Matlock previously applied to a vehicle in United States v. Dunkley, 911 F.2d 522, 525-26 (11th Cir. 1990)).

The Iowa Supreme Court holds that a magistrate-lawyer with a conflict of interest in issuing a search warrant for an adverse party in a private case was not a “neutral and detached magistrate” under the Fourth Amendment. State v. Fremont, 749 N.W.2d 234 (Iowa Sup. 2008). The court discussed the due process cases from SCOTUS and the Canons of Judicial Ethics, too:

D. Application of Fourth Amendment Principles. In light of the above, we must now consider whether the facts of this case establish a Fourth Amendment violation. The magistrate in this case was simultaneously representing the putative father against one of the targets of the search in a child custody proceeding. A successful search of the home, which sought to find evidence of drug offenses, could make the position of the mother more difficult in the child custody matter and advance the position of the father. There was therefore a clear nexus between the magistrate’s private representation and his official action in this case.

The case is thus similar to Ward, where the mayor did not receive a direct benefit when he engaged in judicial acts adverse to defendants, but the city that the mayor served was benefited by the mayor’s actions. Ward, 409 U.S. at 57, 93 S. Ct. at 80, 34 L. Ed. 2d at 267. Moreover, this case contrasts with situations where the magistrate was involved in past representations of parties affected by the warrant decision, and thus the decision could have no impact on the outcome of the prior proceedings or where a challenge is based upon the mere acquaintance of judge with the accused. Guthrie, 184 Fed. App’X. at 804; Outler, 659 F.2d at 1312; Mandravelis, 325 A.2d at 794.

We also believe this case is distinguishable from Slaughter, 315 S.E.2d at 865. Here, there is a very clear nexus between the current representation and the issuance of a search warrant. The issuance of the warrant could lead to a drug charge against Destiny Fremont. A drug charge in a child custody dispute is a very serious matter and goes to the core of the fundamental question in child custody matters—the best interests of the child. Further, unlike in Slaughter, the magistrate in this case was aware of his representation adverse to one of the accused.

Under the unusual circumstances of this case, we conclude that the magistrate had a nonpecuniary personal interest in the matter that objectively cast doubt on his ability to hold the balance, nice, clear, and true, between the state and the accused. Tumey, 273 U.S. at 532, 47 S. Ct. at 444, 71 L. Ed. at 758. A probable cause determination must be made by a person unfettered by other potentially conflicting professional commitments. Cf. People v. Payne, 424 Mich. 475, 381 N.W.2d 391, 395 (Mich. 1985) (holding that magistrate’s status as a deputy sheriff rendered him incapable of satisfying the neutral-and-detached requirement). The magistrate’s simultaneous and conflicting dual roles rendered him unable to meet the requirements of a neutral and detached magistrate under the Fourth Amendment. Id. As the court in Tumey emphasized, a situation where one person “occupies two practically and seriously inconsistent positions, one partisan and the other judicial, necessarily involves a lack of due process of law in the trial of defendants charged with crimes before him.” Tumey, 273 U.S. at 534, 47 S. Ct. at 445, 71 L. Ed. at 759.

We agree with the State that the defendant has made no showing of actual prejudice in this case. In Tumey, Connally, and Murchison, however, the Supreme Court did not require such a showing. These cases stand for the proposition that some conflicts are just so fraught with danger that a showing of actual prejudice is not required. We hold that the facts in this case present such an occasion.

Because of this Fourth Amendment violation, the evidence seized as a result of the execution of the warrant is subject to suppression. Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 453 (1963); State v. Leto, 305 N.W.2d 482, 484 (Iowa 1981).

“The issue presented by this appeal is whether a police officer who makes observations during a routine safety inspection of a commercial truck that reasonably lead him to believe it contains a hidden compartment containing contraband must obtain a search warrant before undertaking to confirm the existence of the hidden compartment and determine its contents. We conclude that a search of an area of a commercial truck that is within the scope of a proper safety inspection may be conducted without a warrant even though this area is concealed within a hidden compartment and the officer’s purpose in continuing the search is to obtain evidence of a crime rather than to complete the safety inspection.” State v. Hewitt, 400 N.J. Super. 376, 947 A.2d 674 (2008).

Court credits officer’s testimony that there was a gun handle protruding from defendant’s pocket and that is cause for a stop in NYC. United States v. Green, 2008 U.S. Dist. LEXIS 39778 (S.D. N.Y. May 16, 2008).*

The arrest warrant for defendant was valid, so defense counsel could not be ineffective for not having raised it at the motion to suppress hearing. Gillis v. United States, 2008 U.S. Dist. LEXIS 39807 (E.D. Tenn. May 15, 2008).*

In weighing the credibility of witnesses, the N.D. W.Va. notes that officers have an interest in having their searches validated such that it bears on their credibility. The officers responded to a domestic disturbance call and heard nothing from inside. They came to the door and pushed open a door to better see inside. United States v. Bridges, 2008 U.S. Dist. LEXIS 47850 (N.D. W.Va. June 12, 2008):

In weighing the credibility of the witnesses, the Court is well aware that all three of them have an interest in the outcome of this motion. Williams and Floyd obviously have an interest in having the constitutionality of their search validated. No officer wants to commit an error that results in a criminal going free due to the suppression of incriminating evidence. On the other hand, Bridges is strongly motivated to remember events in a way that invalidates the search. If this evidence is suppressed, he and Oliverio will go free. Otherwise, they risk conviction and incarceration for federal drug offenses. After weighing the witnesses’ credibility, this Court finds that the government has failed to carry its burden of establishing consent to the search by a preponderance of the evidence. A preponderance of the evidence means that it is more likely than not that something is true. Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 137, 117 S. Ct. 1953, 138 L. Ed. 2d 327 (1997). The government’s evidence fails to persuade that it is more likely that Bridges gave consent than it is that he refused to consent to the search of his home.

The credibility of the police officers was damaged by admissions they made during the hearing that they had misstated the events at Bridges’s home in the report they authored only minutes after the incident. Tr. 56-57. Written by Floyd, the report stated that Williams had heard yelling coming from inside the residence as he approached. Tr. 56. The criminal complaint, filed only hours after the incident, also stated that both officers had heard yelling. Id. On cross-examination, however, Floyd admitted that both of these statements misstated the facts. Tr. 57. Moreover, during the hearing, both officers admitted they had heard no noise, nor had perceived anything unusual, prior to entering Bridges’s home. Tr. 19, 57.

In the Court’s view, these misstatements are material; had they actually heard any yelling as they approached the house, the officers might have been able to establish that exigent circumstances justifying a warrantless search existed. Their false police report, filed only minutes after an incident, as well as the false criminal complaint filed only hours after the incident, damages their credibility and, specifically, their testimony about what occurred at the time they searched Bridges’s home. Furthermore, Bridges’s behavior, which apparently was so non-compliant that he had to be forcibly subdued with handcuffs and a taser, supports his testimony that the search of his house was non-consensual. Therefore, because the government has failed to carry its burden of establishing consent to search by a preponderance of the evidence, the Court OVERRULES the government’s objections ADOPTS that portion of the R&R.

Telephone calls from client to lawyer resulted in the lawyer being charged with obstruction and money laundering in an allegedly corrupt effort to file false affidavits to lessen the client’s criminal history. Calls from the jail were subject to monitoring, and the client knew it. Therefore, the client impliedly consented to the recording of the calls. Since the motion to suppress was filed on Fourth Amendment grounds only, the court does not reach the Sixth Amendment issue. United States v. Novak, 2008 U.S. App. LEXIS 13764 (1st Cir. June 30, 2008) (opinion by Sandra Day O’Connor), rev’g United States v. Novak, 453 F. Supp. 2d 249 (D. Mass. 2006):

No doubt, the monitoring of Holyoke’s calls to his attorney presents a significant Sixth Amendment issue. Cf. Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998) (discussing importance of attorney-client privilege); United States v. Mastroianni, 749 F.2d 900, 907 (1st Cir. 1984). Novak, however, does not raise a Sixth Amendment challenge to the introduction of these recordings; he claims, instead, that monitoring of the calls violated his Fourth Amendment rights.

The district court believed that the prison’s failure to tell Holyoke of his right to exempt calls to his attorney from monitoring nullified Holyoke’s consent. It stated that Holyoke did not consent freely to the monitoring because he believed he had no other option but to submit to recording if he wished to talk to Novak by telephone. Under such circumstances, the district court reasoned, “ ‘implied consent’ in this sense is not a free and voluntary consent; it is instead no more than a choice between unattractive options. …” Novak, 453 F. Supp. 2d at 259 (quoting Langton v. Hogan, 71 F.3d 930, 936 (1st Cir. 1995)),

This argument, however, proves too much. While the district court found Novak and Holyoke had a protected interest in the privacy of their conversation precisely because they were attorney and client, under Title III, consent is also required for monitoring of all prison calls. The district court’s argument that Holyoke’s implied consent under these circumstances was invalid is inconsistent with First Circuit precedent holding such consent to be adequate, notwithstanding the smaller number of choices that an inmate in that circumstance has. Footman, 215 F.3d at 155.

This Circuit has held that recordings obtained under similar circumstances between an inmate and a non-attorney did not violate the Fourth Amendment. Id. The inmate in Footman was given no choice but to accept monitoring of the calls. Notwithstanding his inability to opt out of monitoring, this Circuit held that his consent was effective.

It is no doubt significant that one of the parties to the conversation in this case is an attorney. That significance, however, does not arise out of the Fourth Amendment’s prohibition against unreasonable searches and seizures. Instead, it is attached to the protections that the Sixth Amendment affords to the attorney-client relationship. Holyoke’s consent, for Fourth Amendment purposes, was adequate to support the monitoring of his calls to Novak.

Involuntarily civilly committed mental patients are subject to searches the same as those in jail for institutional security. Lombardo v. Holanchock, 2008 U.S. Dist. LEXIS 48753 (S.D. N.Y. June 25, 2008).

State court’s suppression order did not collaterally estop officers from arguing the search was valid in a § 1983 action against them. Neither the parties nor the cause of action were the same. Pitner v. Murrin, 2008 U.S. Dist. LEXIS 48754 (E.D. Pa. June 25, 2008).*

Defendant’s stop by the Border Patrol on I-95 in Florida was not justified by reasonable suspicion on the totality of circumstances. The Border Patrol found anything defendant did to be reasonable suspicion, even if any other driver would do it. United States v. Bautista-Silva, 2008 U.S. Dist. LEXIS 48619 (M.D. Fla. June 19, 2008):

The legality of the stop, then, primarily rests on two factors; the behavior of the vehicle, and the behavior of its occupants. Cole testified that the Suburban (1) appeared to try to hide behind an adjacent pickup truck as it passed his location; (2) accelerated to approximately 90 miles per hour shortly thereafter; and (3) slowed to 60 miles per hour after he caught up to it. Regarding the occupants of the Suburban, Cole testified that they stared straight ahead rather than looking over and noticing or acknowledging him or his marked vehicle, as most travelers do. Cole testified that, based on his many years of experience as a Border Patrol agent, smugglers often engage in these exact behaviors. The Court has no doubt that this is true. The problem is, everyone else engages in these behaviors, too.

On this record, the driving behavior of the Suburban was not remarkable. Cole himself was not certain that the Suburban was attempting to avoid his notice as it first approached him; at most he thought it might have been, in his words, “drifting” behind the pickup truck. Similarly, while Cole could not estimate the Suburban’s initial speed, he said it was traveling around the same speed as the other vehicles on the interstate. It is remarkable, however, to speed up to 90 miles per hour immediately after passing a law enforcement officer, at least if one is trying to avoid being noticed – that is, unless one is attempting to escape, Cole’s proffered explanation for the Suburban’s acceleration.

On this score, the Court takes notice of the fact that, according to FDOT’s web site–http://www.dot.state.fl.us/TrafficOperations/Operations/exitnumb/i_95.htm

Defense counsel is obligated to provide a legal and factual basis for a suppression motion. While this one is considered on the merits, the court will not do it in the future. Defendant’s statements when he saw the police (“Oh, shit. It’s 5-0. Fuck! It’s 5-0,” [after altercation with officer: “[g]o get the gun. We’ll handle this”) provided exigent circumstances for an entry for officer safety. United States v. Edwards, 2008 U.S. Dist. LEXIS 49192 (D. Minn. June 13, 2008):

Thus, as to those motions to suppress that defendant failed to produce evidence and argument to support the motion, this Court recommends denying those motions on that basis alone. However, in an abundance of caution, but with no understanding of the basis for each such motion, this Court has gone ahead and addressed the merits of that motion. Defendant’s counsel is on notice that in the future, this Court will not countenance the filing and pursuit of motions without factual and legal support, and it will not hesitate to recommend denial of such motions on that basis alone. That said, this Court now proceeds to address the merits of each one of defendant’s motions.

Defendant was alleged to have used disposable cellphones. A search warrant for the contents of a cellphone that was five days old in its statement of information was not stale because it was designed to get potential information about a specific telephone call made to it. United States v. Guerrero, 2008 U.S. Dist. LEXIS 49518 (D. Kan. June 24, 2008).*

Length of time defendant was held before consent was granted was not determinative. United States v. McIntyre, 2008 U.S. Dist. LEXIS 49442 (N.D. Ohio June 27, 2008).*

Land use administrative entry onto property violated Fourth Amendment. (The inspector was even sent by a prosecutor, and the inspections were unannounced.) Jacob v. Twp. of W. Bloomfield, 2008 U.S. App. LEXIS 14185, 2008 FED App. 0243P (6th Cir. July 3, 2008):

Widgren [Widgren v. Maple Grove Township, 429 F.3d 575 (6th Cir. 2005)] considered this distinction between criminal and merely administrative investigations. In Widgren, officials of Maple Grove Township discovered that Kenneth Widgren began construction of a house on his property, despite failing to obtain a building permit for the construction of the home. Id. at 578. Accordingly, a local tax assessor entered the curtilage of Widgren’s home without a warrant, and for the sole purpose of observing the exterior of the house to assess Widgren’s property tax liability. Id. At no point did Widgren face the threat of criminal sanctions as a direct result of this assessment. The issue in Widgren was whether such a purely administrative, warrantless search ran afoul of the Fourth Amendment. Although the Court felt that Widgren presented a “difficult question,” id. at 581, we ultimately held that “under the facts of this case,” a tax assessor does not violate the Fourth Amendment by observing the exterior of a house for a purely “tax purpose.” Id. at 585.

The instant case is distinguishable from Widgren, however, in that Defendant did not enter Plaintiff’s property for a purely administrative purpose. See id. (“We also find it highly significant that the purpose of government intrusion here was an administrative, not criminal, inspection.”). Rather, Defendant’s warrantless search of Plaintiff’s property carried with it the very real threat of criminal sanctions–a threat made real by the fact that Plaintiff had already been incarcerated for thirty days as a result of Defendant’s intrusions upon his privacy. Jacob, 192 F. App’x at 332. Moreover, as Defendant admits in deposition testimony, he conducted several warrantless searches of Plaintiff’s property after he was “asked to do so” by the very same prosecutor who undertook the proceedings that resulted in Plaintiff’s incarceration in the first place. (J.A. 211) Defendant was a government official, acting at the directive of a criminal prosecutor, and investigating a matter which had already led to Plaintiff’s incarceration; he was not conducting a merely administrative search.

. . .

Defendant’s argument fails for two reasons. The first is that several of the distinguishing factors described in Widgren point in favor of a holding that Defendant violated the Fourth Amendment. Defendant specifically targeted his investigation at Plaintiff after receiving a complaint about the conditions of Plaintiff’s property, and he continued to single-out Plaintiff for continuing intrusions as Plaintiff failed to comply with the land use ordinance. Defendant did not search Plaintiff as part of a “routine inspection that is part of a periodic or area inspection plan.” Id. Similarly, Plaintiff testified that he would frequently discover Defendant searching his property without any advance warning whatsoever; in other words, Defendant’s investigations were “conducted by surprise.” Id. Additionally, Plaintiff testified that he has suffered a loss of reputation as a result of the criminal investigation of his land use, causing him to become “somewhat of a joke in the neighborhood,” and leading Plaintiff to step down as a member of his neighborhood association’s board. (J.A. 176)

Moreover, even though some of the factors Widgren described as common to administrative searches are also present in the instant case, the Fourth Amendment does not excuse an invasion of privacy merely because the official conducting the search could have intruded even further upon an individual’s privacy.

Officers investigating a beating of the defendant looked in his ransacked house and bumped a computer, and the screen lit up showing an image of child pornography. Defendant’s wife consented only to a search for drug activity, and the search exceeded the authority. Still, the searches were valid because the officer did not wilfully exceed the scope of consent. United States v. Wells, 2008 U.S. Dist. LEXIS 54097 (S.D. Iowa July 15, 2008)*:

Accordingly, the court finds that Officer Denger did not exceed the scope of Ms. Wells’s consent when he opened three images of child pornography on the defendant’s computer. While purposeful searching for images of child pornography would have been outside the scope of Ms. Wells’s consent [see United States v. Carey, 172 F.3d 1268, 1273 (10th Cir. 1999)], Officer Denger’s discovery of the photographs was inadvertent and did not constitute an abandonment of the authorized search. He appropriately halted the search and obtained a new search warrant for evidence of child pornography.

Having been given permission to drive a car, defendant had standing to contest its search. A traffic stop led to a plain view of a gun clip and a further search of the car finding the gun. United States v. Bell, 2008 U.S. Dist. LEXIS 53791 (D. V.I. July 15, 2008).*

In contrast, where the defendant did not know the last name of the owner of the car he was driving yet had a [suspicious] insurance card with his name as an authorized driver, and he disclaimed everything in the car at the time of the stop, and he did not testify to his interest in the car, he lacked standing. United States v. Gonzalez-Sanchez, 2008 U.S. Dist. LEXIS 53804 (D. Utah July 15, 2008)*

Informant lies to NYPD, innocents get searched, and the informant gets charged with perjury. See WABC TV news, which takes credit for this investigation, posted July 17: Informant arrested after misguided raids:

“Sometimes, however, you will get a situation where the police may act too quickly, where there’s no immediate urgency to go into an apartment, and, in fact, the police may have the time to verify the information that’s given to them by the informant,” explained Robert Silbering, a former special narcotics prosecutor in New York City.

Top brass at the NYPD have confirmed a full investigation. Regarding Cynthia and Jerry, they say, “Obviously they should not have had to undergo being detained….”

Specifically regarding Jerry, a prostate cancer survivor, being cuffed and thrown on his floor, they say, “We regret that it happened to him.”

Police are now going back evaluating this particular informant’s cases, 26 of them total. Fifteen ended positively, but 7 others now face review.

“Every piece of paper, everything that was done in those cases should be re-examined. It’s clear that this informant was making it up as he went along,” Spiegel said.

The informant is now facing 2 counts of perjury for the two cases featured in our story on Thursday. Police say their confidential informant lied. There is proof, and two residents in Pelham Bay suffered because of it.

Updated here tonight with the NYPD stating that the informant was seen hiding drugs on his own person and he had bargained down several cases of his own and was on the NYPD informant payroll.

The matter underscores three significant points about confidential informant hearsay:

First, the reason why the Supreme Court requires that the CI’s basis of knowledge be shown (Gates) to show that the CI’s information is reliable, to show that the informant just didn’t make it up. As this case shows, however, what good does Gates do to protect innocent people from a malicious informant or, worse yet, a malicious police officer who just makes up the informant? Not much.

Second, how does one who contends he or she is innocent get to the informant’s identity in a criminal case? Seldom does the citizen accused ever get through the Roviaro veil to get disclosure of the CI. If, however, the citizen has a claim the informant lied, not the usual criminal case, the informant’s identity presumably would be readily disclosable in a civil rights action against the police. The nature of that case would depend a lot on local law and whether the citizen could make a claim for failure to control the informant or having knowledge of the CI’s prior misdeeds which may have put the police on notice. See United States v. Toole, 2008 U.S. Dist. LEXIS 54085 (W.D. N.Y. January 11, 2008):

The disclosure of a confidential informant’s identity is within the sound discretion of the district court. DiBlasio v. Keane, 932 F.2d 1038, 1042 (2d Cir. 1991). The government generally is not required to disclose the identity of confidential informants. Roviaro v. United States, 353 U.S. 53, 59 (1957). In order to obtain such disclosure, the defendant must show that without it, he “will be deprived of a fair trial.” United States v. Fields, 113 F.3d 313, 324 (2d Cir.), cert. denied, 522 U.S. 976 (1997); United States v. Saa, 859 F.2d 1067, 1073 (2d Cir. 1988) (defendant entitled to identity of confidential informant only upon showing that it is essential or material to the defense), cert. denied, 489 U.S. 1089 (1989). A defendant’s mere suggestion that disclosure will be of assistance to the defense of the case is insufficient. United States v. Fields, 113 F.3d at 324. “[T]he district court must be satisfied, after balancing the competing interests of the government and the defense, that the defendant’s need for disclosure outweighs the government’s interest in shielding the informant’s identity.” Id. (citing Roviaro v. United States, 353 U.S. at 62). Such a need is established, according to the Second Circuit, “where the informant is a key witness or participant in the crime charged, someone whose testimony would be significant in determining guilt or innocence.” United States v. Saa, 859 F.2d at 1073.

In the instant matter, defendants have failed to show how disclosure of the informants’ identities will be essential to their defense. See United States v. Flaharty, 295 F.3d 182, 202 (2d Cir. 2002) (“speculation that disclosure of the informant’s identity will be of assistance is not sufficient to meet the defendant’s burden”). Nor have any of the arguments advanced by defendants demonstrated the materiality of the informants’ identities to their defense.

Third, one thing that allegedly enhances the credibility of an informant in an appellate court’s eyes is the informant’s personal risk if the information proves false. Remember the case law references to the informant’s “admissions against penal interest” tending to show that the informant should be believed? Illinois v. Gates, 462 U.S. 213, 268 n.20 (1983):

The “veracity” prong is satisfied by a recitation in the affidavit that the informant previously supplied accurate information to the police, see McCray v. Illinois, 386 U.S. 300, 303-304 (1967), or by proof that the informant gave his information against his penal interest, see United States v. Harris, 403 U.S. 573, 583-584 (1971) (plurality opinion). The “basis of knowledge” prong is satisfied by a statement from the informant that he personally observed the criminal activity, or, if he came by the information indirectly, by a satisfactory explanation of why his sources were reliable, or, in the absence of a statement detailing the manner in which the information was gathered, by a description of the accused’s criminal activity in sufficient detail that the magistrate may infer that the informant is relying on something more substantial than casual rumor or an individual’s general reputation. Spinelli v. United States, 393 U.S., at 416.

This informant’s purported basis of knowledge was apparently seeing a drug deal that never happened. Seeing a drug deal is not against penal interest, unless the informant is the buyer of the drugs working outside the auspices of his police handlers. At any rate, can the NYPD not self-servingly use this prosecution to show that they are tough on lying informants? If so, how do they prove that informant’s generally know it? Have a “CI’s warning” akin to a Miranda warning that lying informants are prosecuted? That proves too much. Its mere existence would mean that the lack of further prosecution was caused by deterring informants. And how do they prove that informants were actually told other than the officers’ word?