Officer does not have to tell the defendant he was free to leave for the stop to be consensual. During this stop and request for identification, the defendant went to a pay phone and made a call for somebody to pick him up. He was not told he could leave, but he wasn’t told he couldn’t (like he would know the difference). State v. Lair, 2008 Ohio 2417, 2008 Ohio App. LEXIS 2068 (5th Dist. May 19, 2008). Significant is the fact the officer had defendant’s driver’s license 50 minutes, and the partially spoken fact that defendant could not leave without it, a fact of limited value here:

[*P14] In the case sub judice, Officer Staysniak approached appellant shortly before 9:00 AM and asked to see his identification, which appellant provided. Officer Staysniak returned appellant’s identification at approximately 9:49 AM. It is crucial to note that although appellant carried a valid state identification card, he did not have driving privileges, and thus was unable to legally drive away. The record further indicates that appellant nonetheless walked over to use a pay telephone and call for a ride home. While appellant presently contends he was not free to leave the scene, Staysniak testified that he did not tell appellant he could not leave. Tr. at 12. Thus, we conclude the period of time between the officer’s arrival at CVS and the officer’s discovery of a license plate discrepancy constituted a voluntary consensual encounter, which did not implicate appellant’s constitutional rights.

Officers knew that defendant had bought psuedophedrine and that her son had red phosphorus. They went to her house for a knock and talk and, when she opened the door, they could immediately smell methamphetamine production. Exigent circumstances were present for a protective sweep. State v. White, 2008 Ohio 2432, 2008 Ohio App. LEXIS 2072 (9th Dist. May 21, 2008):

[*P12] Initially, we note that White has not challenged this Court’s prior determination that the operation of a methamphetamine production laboratory constitutes an exigent circumstance. See Sandor at P10-12. See, also, R.C. 2933.33(A) (providing that exigent circumstances exist and officers may conduct a warrantless search of a premises if they have probable cause to believe that the premises is being used for illegal manufacturing of methamphetamines). Nor has she argued that officers exceeded the scope of the initial, protective search that they engaged in after entering her home. See State v. Walters, 9th Dist. No. 23795, 2008 Ohio 1466, at P10-11, citing Maryland v. Buie (1990), 494 U.S. 325, 327, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (holding that after an officer’s initial entry, he may engage in a limited search of the premises incident to an arrest, if he has “a reasonable belief based on specific and articulable facts” that a protective sweep is necessary to minimize potential danger to himself or others). She only argues that officers did not have probable cause to believe that a methamphetamine laboratory existed, such as to trigger the exigency and justify their initial entry. Consequently, we confine our analysis to White’s probable cause argument with regard to the officers’ initial entry. See App.R. 16(A)(7); Loc.R. (7)(B)(7).

Comment: Thus, once again, Buie is applied to a protective sweep for things and not people (slip op at ¶ 17).

Defendant had not yet been seized when he was fleeing from police during a drug surveillance. He was hemmed in by police cars, drove off the road, the left front tire was shot at by the police, and then defendant drove to a pond and started throwing baggies of drugs into a pond. That justified his seizure and arrest. United States v. Prosise, 2007 U.S. Dist. LEXIS 84473 (E.D. Va. November 15, 2007).*

Search of defendant’s car was not a search incident and limited; rather, it was a full search justified by the automobile exception. United States v. Rubio-Perez, 2007 U.S. Dist. LEXIS 84382 (W.D. Wash. November 5, 2007).*

Defendant’s car was parked, and a park ranger walked up to the defendant’s car and discovered that he was under the influence. The initial encounter was not seizure. United States v. Robson, 2007 U.S. Dist. LEXIS 84329 (D. Nev. October 30, 2007).*

Statutory violation for a BAC that did not prejudice the defendant did not warrant suppression. Bradt v. Colo. Dep’t of Revenue, 178 P.3d 1250 (Colo. App. 2007).*

The search in this case was not contested, but this is a little atypical: The defendant called the police to report a domestic disturbance, and the police arrived and she consented to a search that resulted in her arrest for possession of marijuana after the officers invited in smelled burning marijuana. State v. Fisher, 2007 Iowa App. LEXIS 1177 (November 15, 2007).*

In a principled analysis, the N.H. Supreme Court holds that the smell of burning marijuana, as opposed to the staler smell of burnt marijuana, was exigent circumstances for an entry where the officers were at a motel on a theft investigation and came upon the marijuana odor. State v. Rodriguez, 945 A.2d 676 (N.H. 2008):

We need not decide here if our exigent circumstances analysis requires a strict differentiation between jailable and nonjailable offenses. We agree with the State, however, that when examining the totality of circumstances behind a finding of exigent circumstances, reliance upon Welsh appears to be out of place in light of McArthur. Further, we tend to agree with those jurisdictions that see in McArthur at least the intimation “that if any bright line exists for warrantless entries into the home, it should be drawn between jailable and nonjailable offenses rather than between felonies and misdemeanors,” Cherry v. Com., 605 S.E.2d 297, 307 (Va. Ct. App. 2004); see also Rideout, 122 P.3d at 210 (citing cases). The possession of marijuana, no matter the quantity, is a jailable offense in this state. See RSA 318-B:26, II(d) (possession of marijuana is a class A misdemeanor); RSA 651:2, II(c) (2007) (class A misdemeanor punishable by imprisonment not to exceed one year).

We are also persuaded by the reasoning of those jurisdictions finding that the odor of burning marijuana “is itself proof that evidence of criminal conduct is being destroyed,” Hess, 680 N.W.2d at 325 (citing cases); see also State v. Hughes, 607 N.W.2d 621, 628 (Wis.) (“The strong odor of marijuana that hit the officers as the door to the defendant’s apartment was opened gave rise to a reasonable belief that the drug — the evidence — was likely being consumed by the occupants and consequently destroyed. … Marijuana and other drugs are highly destructible.”), cert. denied, 531 U.S. 856 (2000). We believe this reasoning is in closest consonance with our related case law.

. . .

Our holding, above, however, is not, by itself, dispositive in this case. No single factor controls our inquiry into whether exigent circumstances exist; instead, our review of the totality of the circumstances “includes an examination of the overall reasonableness of the police officers’ behavior prior to the entry,” id. (quotations omitted). Further, the primary focus of our inquiry is “how the exigency came about.” Id. at 805. Clearly, the police may not create the exigency in order to justify their warrantless entry, “yet the boundary between an exigency which naturally arises and an exigency which is created is unclear.” Id. We have previously pointed to two factors as guideposts in that review. …

Delaying transmitting information for a license check for ten minutes and then engaging in relentless repetitive questions made the stop unreasonable. United States v. Christy, 2008 U.S. Dist. LEXIS 21885 (D. Neb. March 19, 2008):

The evidence shows that Deputy Wintle first inordinately delayed commencing the “routine” tasks related to the stop. He waited more than ten minutes before transmitting license and registration information to the dispatcher, questioning the occupants in the meantime. Twelve minutes into the stop, Deputy Wintle had ascertained that the travelers’ documents were in order and they had no arrests or outstanding warrants. By that time, he had decided to issue the driver a warning ticket. In the context of the extensive questioning of the occupants that had already occurred, it is doubtful that a reasonable person in Davis’s position would have felt free to leave or to decline the officer’s request to answer a few more questions. Davis’s consent to further questioning cannot be considered voluntary. Davis was not told he was free to leave or free to decline to answer Deputy Wintle’s questions. Most importantly, he was left in the cruiser while Deputy Wintle went to talk to the passenger. He was then questioned by another officer who told him it would not take much longer, implying that Davis was not free to end the encounter at that point.

Deputy Wintle testified that Christy and Davis gave consistent answers to his queries. The relentless and repetitive nature of the questioning shows that it is more in the nature of a custodial interrogation than a consensual conversation between a citizen and a law enforcement officer. Despite being given consistent answers and reasonable explanations, Deputy Wintle continued to question Davis and Christy in an apparent attempt to trip them up or poke holes in their stories. The court does not agree with the magistrate judge’s conclusion that Davis was no longer “seized” after he was issued the warning ticket. At some point after the warning ticket was issued, the encounter regained its investigatory nature, at the latest when Deputy Wintle asked Davis to return the vehicle’s registration.

Based on information from a guy rolling over on the defendants, the DEA had probable cause to stop their car. United States v. Fiasche, 520 F.3d 694 (7th Cir. 2008).*

The use of two civilians in a child support warrant roundup did not violate the Fourth Amendment rights of anybody arrested. Mason v. Barbieri, 2008 U.S. Dist. LEXIS 21630 (D. Conn. March 20, 2008).

Officers had reasonable suspicion as to the defendant, and, when he fled, officers tackled him, finding a gun. The gun was lawfully found. United States v. Vazquez, 2008 U.S. Dist. LEXIS 21906 (E.D. Pa. March 20, 2008).*

The D.C. Cir. held today that the FBI search of Rep. Jefferson’s office, the first such search ever, was unconstitutional as a violation of the Speech and Debate Clause of the Constitution. This is a really interesting case because it overlays the Speech and Debate Clause on Rule 41. United States v. Rayburn House Office Bldg Room 2113, 378 U.S. App. D.C. 139, 497 F.3d 654 (2007):

We hold that the compelled disclosure of privileged material to the Executive during execution of the search warrant for Rayburn House Office Building Room 2113 violated the Speech or Debate Clause and that the Congressman is entitled to the return of documents that the court determines to be privileged under the Clause. We do not, however, hold, in the absence of a claim by the Congressman that the operations of his office have been disrupted as a result of not having the original versions of the non-privileged documents, that remedying the violation also requires the return of the non-privileged documents. The Congressman has suggested no other reason why return of such documents is required pursuant to Rule 41(g) and, in any event, it is doubtful that the court has jurisdiction to entertain such arguments following the return of the indictment against him while this appeal was pending.

This was an appealable collateral order because of trial set for January 2008:

Letting the district court’s decision stand until after the Congressman’s trial would, if the Congressman is correct, allow the Executive to review privileged material in violation of the Speech or Debate Clause.

. . .

The Supreme Court has not spoken to the precise issue at hand. May 20-21, 2006 was the first time a sitting Member’s Congressional office has been searched by the Executive. The Court has made clear, however, in the context of a grand jury investigation, that “[t]he Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch.” Gravel v. United States, 408 U.S. 606, 616 (1972). Although in Gravel the Court held that the Clause embraces a testimonial privilege, id. at 616, to date the Court has not spoken on whether the privilege conferred by the Clause includes a non-disclosure privilege. However, this court has.

. . .

Thus, our opinion in Brown & Williamson makes clear that a key purpose of the privilege is to prevent intrusions in the legislative process and that the legislative process is disrupted by the disclosure of legislative material, regardless of the use to which the disclosed materials are put. See 62 F.3d at 419. The bar on compelled disclosure is absolute, see Eastland, 421 U.S. at 503, and there is no reason to believe that the bar does not apply in the criminal as well as the civil context. The Executive does not argue otherwise; the search warrant sought only materials not protected by the Speech or Debate Clause. Although Brown & Williamson involved civil litigation and the documents being sought were legislative in nature, the court’s discussion of the Speech or Debate Clause was more profound and repeatedly referred to the functioning of the Clause in criminal proceedings. See, e.g., Brown & Williamson, 62 F.3d at 416.

The search of Congressman Jefferson’s office must have resulted in the disclosure of legislative materials to agents of the Executive. Indeed, the application accompanying the warrant contemplated it. In order to determine whether the documents were responsive to the search warrant, FBI agents had to review all of the papers in the Congressman’s office, of which some surely related to legislative acts. This compelled disclosure clearly tends to disrupt the legislative process: exchanges between a Member of Congress and the Member’s staff or among Members of Congress on legislative matters may legitimately involve frank or embarrassing statements; the possibility of compelled disclosure may therefore chill the exchange of views with respect to legislative activity. This chill runs counter to the Clause’s purpose of protecting against disruption of the legislative process.

. . .

The Executive and the district court appear to have proceeded on the premise that the scope of the privilege narrows when a search warrant is at issue. In the district court’s view, the Speech or Debate Clause was not implicated by execution of the search warrant because a seizure of documents did not. … While the Executive characterizes what occurred as the “incidental review of arguably protected legislative materials,” Appellee’s Br. at 15, it does not deny that compelled review by the Executive occurred, nor that it occurred in a location where legislative materials were inevitably to be found, nor that some impairment of legislative deliberations occurred.

. . .

The special procedures outlined in the warrant affidavit would not have avoided the violation of the Speech or Debate Clause because they denied the Congressman any opportunity to identify and assert the privilege with respect to legislative materials before their compelled disclosure to Executive agents. Indeed, the Congressman, his attorney, and counsel for the House of Representatives were denied entry into Room 2113 once the FBI arrived. The special procedures described in the warrant affidavit called for review by FBI agents and the several members of the Justice Department filter team before the Congressman would be afforded an opportunity to identify potentially privileged materials. This procedure is significantly different even from those the Executive has on occasion afforded to other privileges not protected in the Constitution; …. The compelled disclosure of legislative materials to FBI agents executing the search warrant was not unintentional but deliberate — a means to uncover responsive non-privileged materials.

There would appear to be no reason why the Congressman’s privilege under the Speech or Debate Clause cannot be asserted at the outset of a search in a manner that also protects the interests of the Executive in law enforcement. … Accordingly, we hold that a search that allows agents of the Executive to review privileged materials without the Member’s consent violates the Clause. The Executive’s search of the Congressman’s paper files therefore violated the Clause, but its copying of computer hard drives and other electronic media is constitutionally permissible because the Remand Order affords the Congressman an opportunity to assert the privilege prior to disclosure of privileged materials to the Executive; the executive advises, see Appellee’s Br. at 14, 62-63, that no FBI agent or other Executive agent has seen any electronic document that, upon adjudication of the Congressman’s claim of privilege, may be determined by the district court to be privileged legislative material.

As to remedy:

Although the search of Congressman Jefferson’s paper files violated the Speech or Debate Clause, his argument does not support granting the relief that he seeks, namely the return of ll seized documents, including copies, whether privileged or not. Taking his assertions in reverse order, such relief is unnecessary to deter future unconstitutional acts by the Executive. There is no indication that the Executive did not act based on a good faith interpretation of the law, as reflected in the district court’s prior approval and later defense of the special procedures set forth in the warrant affidavit. While the Fourth Amendment issue is not before us, the Supreme Court’s instruction in United States v. Leon, 468 U.S. 897 (1984), is relevant to the extent the Congressman invokes deterrence as a rationale for the remedy he seeks under Rule 41(g). In addressing application of the exclusionary rule in the context of the Fourth Amendment, the Supreme Court pointed out in Leon that “[p]articularly when law enforcement officers have acted in objective good faith [on a warrant issued by a neutral magistrate] or their transgressions have been minor,” the possible benefit from exclusion, in terms of future deterrence, is limited, 468 U.S. at 907-08. Additionally, with respect to concern about future actions by the Executive, this is the only time in this Nation’s history that the Executive has searched the office of a sitting Member of Congress. Our holding regarding the compelled disclosure of privileged documents to agents of the Executive during the search makes clear that the special procedures described in the warrant affidavit are insufficient to protect the privilege under the Speech or Debate Clause. This too should ameliorate concerns about deterrence.

. . .

Applying these principles, we conclude that the Congressman is entitled, as the district court may in the first instance determine pursuant to the Remand Order, to the return of all materials (including copies) that are privileged legislative materials under the Speech or Debate Clause. Where the Clause applies its protection is absolute. For the reasons stated, absent any claim of disruption of the congressional office by reason of lack of original versions, it is unnecessary to order the return of non-privileged materials as a further remedy for the violation of the Clause.

. . .

Accordingly, we hold that the Congressman is entitled to the return of all legislative materials (originals and copies) that are protected by the Speech or Debate Clause seized from Rayburn House Office Building Room 2113 on May 20-21, 2006. Further, as contemplated by the warrant affidavit, see Thibault Aff. ¶¶ 137-38, the FBI agents who executed the search warrant shall continue to be barred from disclosing the contents of any privileged or “politically sensitive and non-responsive items,” id. ¶ 138, and they shall not be involved in the pending prosecution or other charges arising from the investigation described in the warrant affidavit other than as regards responsiveness, id.

The D.C. Circuit has joined all others: a reasonable mistake of fact will support a stop while a mistake of law will not. Here, the stop was objectively reasonable for improper display of a temporary license tag. United States v. Booker, 378 U.S. App. D.C. 126, 496 F.3d 717 (2007):

A finding of reasonable suspicion does not demand “a meticulously accurate appraisal” of the facts. United States v. Coplin, 463 F.3d 96, 101 (1st Cir. 2006). Indeed, “[s]tops premised on mistakes of fact … generally have been held constitutional so long as the mistake is objectively reasonable.” Id. (although defendant’s driver’s license valid, traffic stop objectively reasonable because police cruiser computer indicated license suspended); see also United States v. Miguel, 368 F.3d 1150, 1153-54 (9th Cir. 2004) (although vehicle properly registered, traffic stop objectively reasonable because police cruiser computer indicated registration expired). …

. . .

Unlike stops premised on mistakes of fact, “[s]tops premised on a mistake of law, even a reasonable, good-faith mistake, are generally held to be unconstitutional.” Coplin, 463 F.3d at 101; see also United States v. McDonald, 453 F.3d 958, 961-62 (7th Cir. 2006); United States v. Cole, 444 F.3d 688, 689 (5th Cir. 2006). …

Seventeen month old information about purchases off a child porn website was stale, but the officer was justified in relying on the search warrant. United States v. Doan, 245 Fed. Appx. 550 (7th Cir. 2007)* (unpublished). Comment: This opinion at first confused me. The court holds that there is no probable cause because the information was stale based on the way it was presented, yet it holds that the officer was justified in relying on it because it was reasonable to believe that those who possess child pornography keep it. But, the court is seeking to compel officers to provide more information to the issuing judge to make a more informed determination. Doing it in an unpublished opinion does not inform the police.

We are not holding that a warrant with seventeen-month-old information would per se lack probable cause. See United States v. Koelling, 992 F.2d 817, 822 (8th Cir. 1993) (“There is no bright-line test for determining when information is stale. … Time factors must be examined in the context of a specific case and the nature of the crime under investigation.”). “Probable cause is a fluid concept–turning on the assessment of probabilities in particular factual contexts–not readily, or even usefully reduced to a neat set of legal rules,” Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Therefore, the older the information is regarding child pornography, the more necessary it is to include more detail concerning that information and concerning the person who is the subject of the investigation. Further, this is particularly important in the age where technology is advancing at an ever-increasing rate. In the context such as child pornography, it is incumbent upon law enforcement to provide as much information and facts as possible about the nature and characteristics of the individual. For the older information it is helpful to know the type of computer equipment and the internet access that an individual might possess. Also, the length of time that has passed since his last hit on a website, the duration and features of a subscription, and any other “specific facts and circumstances” may, in the aggregate, justify a search. Newsom, 402 F.3d at 782.

Without a motion to dismiss or summary judgment, a denied plea of qualified immunity in a search case is not appealable. Elliot v. Lator, 497 F.3d 644, 2007 FED App. 0309P (6th Cir. 2007).*

2255 IAC claim for failure to present a search claim would lose on the merits of the search claim for lack of standing or inevitable discovery. United States v. Thomas, 2007 U.S. Dist. LEXIS 58077 (E.D. Wash. August 9, 2007).*

Defendant was standing near a person the police believed was a prostitute, and, when they saw the police, they went in different directions. When officers followed defendant, he ran. When he was stopped, officers patted him down, found car keys, and questioned him about the car since he was on Maryland parole but in D.C. They obtained a consent to search the car after defendant admitted it was nearby and they walked around until the remote car lock showed the car. The D.C. Cir. suppressed the search of the car because taking the keys was beyond the scope of a Terry stop and frisk. The government’s alternative arguments of inevitable discovery and attenuation of the taint were also rejected. United States v. Holmes, 378 U.S. App. D.C. 277, 505 F.3d 1288 (2007). As to the frisk:

Next, the defendant must make a prima facie showing of a causal nexus between the Fourth Amendment violation and the evidence he seeks to suppress. See United States v. Crews, 445 U.S. 463, 471 (1980). In this case, Holmes has met his burden of showing that, but for the illegal seizure of the keys, the officers likely would not have discovered the gun and ammunition in his car. If they had not removed Holmes’s keys during the patdown, the officers would not have been able to visibly inspect them to determine whether Holmes possessed a car key. Visual confirmation that Holmes was carrying car keys gave the officers reason to continue their line of questioning about how Holmes came to the area that night. Additionally, Officer Greene testified that he used the remote opener on the keychain to both locate and unlock Holmes’s vehicle on the adjacent street. Each of these factors contributed to the pistol’s discovery, and we are satisfied Holmes met his burden of showing a prima facie causal nexus between the illegal seizure and the challenged evidence.

After the defendant has met his burden, the evidence must be suppressed unless the government proves, by a preponderance of evidence, that the evidence would have been discovered inevitably, was discovered through independent means, or that its discovery was so attenuated from the illegal search or seizure that the taint of the unlawful government conduct was dissipated. See Alderman, 394 U.S. at 183; United States v. Kornegay, 410 F.3d 89, 93-94 (1st Cir. 2005).

Because the district court did not hold that the key seizure violated Holmes’s Fourth Amendment rights, it failed to shift the burden at this point. The district court should have placed on the government the burden of proving that the gun would have been discovered inevitably even without the illegal seizure or, alternatively, that Holmes’s consent to search his vehicle attenuated the taint, the two arguments it now advances. Though the government argues that the district court made findings favorable to the government on both issues which should now be accepted by this Court, to the extent that this is true, the district court arrived at those conclusions after incorrectly assigning the burden of proof.

Defendant was seen driving without a license so that justified her stop. Upon that, a drug dog was called which alerted to the car, and that was probable cause for its search. United States v. Engler, 521 F.3d 965 (8th Cir. 2008).*

Vehicle was properly impounded to protect it from vandalism or theft after his arrest. In fact, defendant even said before the suppression hearing that the police had a duty to protect it. Facing two theories, the court follows the one that permitted the impoundment, despite no formal policy put into evidence except by the officer’s testimony. United States v. Smith, 522 F.3d 305 (3d Cir. 2008):

In the face of the precedent that we have cited we must decide which of the two lines of cases to follow, the Coccia line focusing on the reasonableness of the vehicle impoundment for a community caretaking purpose, or the Proctor line favoring the more structured approach to the validity of such impoundments under the Fourth Amendment requiring that there be standardized police procedures governing impoundments that the police follow. As we already have intimated we think that the Coccia outcome is correct and the facts in this case demonstrate why. Here the police stopped a vehicle with two occupants both of whom they then arrested and thus who could not drive the vehicle. The area in which they stopped the vehicle was one in which parked vehicles were subject to being damaged, vandalized, or stolen. Neither occupant owned the vehicle and the police did not know who did own it and, unless the police moved the vehicle, they would have had to leave it where they stopped it in a dangerous area and, accordingly, the vehicle would have been subject to being damaged, vandalized, or stolen. Indeed, Laser was so concerned about the situation that he explained that he believed the police had a “duty” to take care of the vehicle.

The search of a probationer’s home affected the rights of those who lived with him, too, and their rights were violated by the entry. The officer, however, wins on qualified immunity. Thornton v. Lund, 538 F. Supp. 2d 1053 (E.D. Wis. 2008):

Of course, officials may not search a home without a warrant based on the parolee/probationer exception if the home is not the residence of the parolee or probationer. See, e.g., Motley v. Parks, 432 F.3d 1072, 1078 (9th Cir. 2005) (en banc); Moore v. Vega, 371 F.3d 110, 116 (2d Cir. 2004); see also Steagald, 451 U.S. at 220 (holding that officials may not enter a third-party’s home to locate the subject of an arrest warrant unless they also hold a search warrant for the home). However, if officials reasonably believe that a parolee or probationer lives at a particular house, courts analyze the search as if the parolee or probationer in fact lived there. Motley, 432 F.3d at 1078; Moore, 371 F.3d at 117.

In the present case, defendants argue that they had a right to enter and search plaintiffs’ home without a warrant because they reasonably believed that William lived there and they suspected him of having engaged in criminal activity. Although William appears not to have been living in plaintiffs’ home, plaintiffs do not appear to dispute that defendants reasonably believed that he lived there. As discussed, William had a low expectation of privacy and had consented to a search of his living area. See Samson, 126 S. Ct. at 2199; Knights, 534 U.S. at 119-20; Barnett, 415 F.3d at 692. However, William is not a plaintiff, and Fourth Amendment rights “are personal in nature.” Steagald, 451 U.S. at 219. A search that is reasonable as to one individual may be unreasonable as to another. Randolph, 547 U.S. at 119; Steagald, 451 U.S. at 219. Thus, the question presented is whether plaintiffs’ own Fourth Amendment rights were diminished because defendants reasonably believed that William, a parolee, lived in their home.

Some courts have treated individuals living with parolees and probationers as having diminished Fourth Amendment rights. See, e.g., United States v. Cantley, 130 F.3d 1371, 1377 (10th Cir. 1997); Perez v. Simmons, 884 F.2d 1136, 1140 (9th Cir. 1988); People v. Robles, 23 Cal. 4th 789, 97 Cal. Rptr. 2d 914, 3 P.3d 311, 317 (Cal. 2000). However, the basis for these decisions is unclear. Perhaps such courts assumed that individuals living with parolees and probationers have a diminished expectation of privacy. However, the reasoning underlying the Supreme Court’s view that parolees and probationers have a diminished privacy interest appears not to apply to individuals with whom they live. Parolees and probationers have a low expectation of privacy because their liberty is conditional and because the government “clearly expressed” to them that they were subject to warrantless searches, and they acknowledged this “unambiguously.” Samson, 126 S. Ct. at 2199; Knights, 534 U.S. at 119-20. Where, as here, the government gave the parolee’s co-resident no notice of its intent to search and the co-resident did not consent to a search, the rationale for concluding that the co-resident has a diminished privacy interest evaporates.

Other courts have held that a parolee’s co-resident has a diminished privacy interest based on the parolee’s consent to warrantless searches. Donald v. Delaware, 903 A.2d 315, 319-21 (Del. 2006); North Dakota v. Hurt, 2007 ND 192 P18, 743 N.W.2d 102 (2007); Wisconsin v. West, 185 Wis. 2d 68, 95-96, 517 N.W.2d 482 (1994). However, although one co-tenant may authorize a search of a home, such authorization is insufficient if another co-tenant is present and objects to the search. Randolph, 547 U.S. at 119. In the present case, both plaintiffs were present when defendants sought to search their home, and both refused to consent to a search. The parties dispute whether Sherrie subsequently changed her position, but it is undisputed that Latanga did not. Thus, notwithstanding William’s consent, defendants’ entry into and search of plaintiffs’ home was unreasonable as to Latanga and, under Sherrie’s version of the facts, was also unreasonable as to Sherrie. See Randolph, 547 U.S. at 119. Thus, defendants violated Latanga’s Fourth Amendment right to be free from unreasonable searches and may also have violated Sherrie’s right.

A couple kissing in a car is not particularized suspicion that a crime is occurring or about to occur. Instead of “moving them along,” the officer detained them, and the detention was unlawful. The state’s community caretaking justification for rousting them also failed. State v. Graham, 2007 MT 358, 340 Mont. 366, 175 P.3d 885 (2007):

[*P20] Any particularized suspicion which arose in this case did so only after Graham was seized. Because the sweaty beer can and the state of undress of Graham and Strauser were observed by Juhl after she had seized them, they could not form a basis for particularized suspicion justifying the seizure in the first place. While Juhl claims that her intention in stopping Graham and Strauser was to simply “move them along,” and encourage them to engage in their “inappropriate behavior” elsewhere, that is not what she did. Instead, Juhl seized them within the meaning of the Fourth Amendment and Article II, Section 11, despite the fact that she lacked the particularized suspicion necessary to do so.

. . .

[*P29] The State argues that the District Court’s conclusions on this point were correct. The State contends that the objective and articulable facts justifying Juhl’s stop come from two sources: first, the unusual location of the car; and second, the observation that Graham and Strauser were kissing, and that Strauser had mounted Graham which, in spite of the District Court’s findings, the State maintains was evidence of Strauser and Graham engaged in a sexual act. Additionally, the State argues that Juhl’s intent to “move them along” falls within the scope of law enforcement actions justified by the community caretaker doctrine.

[*P30] We disagree and conclude that the District Court erred in its application of the community caretaker doctrine. As noted above, the first step in examining whether the community caretaker doctrine applies is to determine if “there are objective, specific and articulable facts from which an experienced officer would suspect that a citizen is in need of help or is in peril ….” Lovegren, P 25. Here, no such facts existed. Although initially Juhl might have been concerned that the unusual location of the pickup indicated Graham and Strauser were having vehicle problems, the evidence of their conduct which she witnessed as she passed their vehicle completely obviated those concerns. It is clear they were not parked there because they were in peril, and nothing observed by Juhl suggested otherwise. Moreover, by Juhl’s own admission, she did not stop and question Graham in order to assist them, but instead to “move them along.”

Defendant was lawfully stopped for a window tint violation, and the officer asked about drugs in the car, and defendant offered to consent to a search, which was, thus, valid. State v. Cox, 248 S.W.3d 1 (Mo. App. 2008).*

Consent obtained during an SEC investigation by the SEC was not involuntary because the targets were well aware of the potential for a criminal investigation arising out of it. United States v. Stringer, 521 F.3d 1189 (9th Cir. 2008):

In this case, the SEC made no affirmative misrepresentations. The SEC did advise defendants of the possibility of criminal prosecution. The SEC engaged in no tricks to deceive defendants into believing that the investigation was exclusively civil in nature. The SEC’s Form 1662 explicitly warned defendants that the civil investigation could lead to criminal charges against them: “Information you give may be used against you in any federal … civil or criminal proceeding brought by the Commission or any other agency.” Defendants were represented by counsel, and the government provided counsel, so far as this record reflects, with accurate information. The standard we laid down in Robson was not violated.

The defendant-appellees point to a number of collateral facts they argue demonstrate trickery or deliberate misleading. They argue the SEC Staff Attorney affirmatively misled Stringer’s attorney when, in response to the attorney’s question about other agency involvement, she directed him to the provision in Form 1662 that warned that the SEC would likely turn over to the USAO evidence it collected at the depositions. The Staff Attorney, during the deposition taken in Portland, declined to direct defense counsel to a specific U.S. Attorney’s Office, which would have been the Portland Office, but there was nothing false or misleading in her response that it was up to the defendant to decide where to direct his inquiries.

The defendant-appellees also point to the Staff Attorney’s request to the court reporters not to mention the AUSA in the presence of defendants’ attorneys. While this indicates an intent to prevent disclosure to defendants of the actual criminal investigation, the possibility of criminal investigation should have been well known to both the defendants and their counsel. The request to the court reporters to, in effect, mind their own business did not mislead or misinform defendants about the existence of an investigation. Thus, to the extent that the Fourth Amendment may have been implicated by the dual investigation, the district court erred in concluding that the government’s actions in this case constituted an unreasonable search or seizure.

See Ellen Podgor’s White Collar Blog for her commentary on other aspects of this case involving the attorney-client privilege.

Comment: In my one SEC case, the mere possibility of a criminal prosecution was always hanging over our shoulders. It was so obvious you could cut it with a knife, and one would have to be completely obtuse to not recognize the risk. Maybe it is my training as a criminal defense lawyer that makes me more cynical about government motives in the first place ….

In a rapidly developing fight where the plaintiff hit two cops within seconds and one officer saw the other officer’s eyes roll back, he shot the plaintiff, and it was reasonable under the circumstances. Davenport v. Causey, 521 F.3d 544, 2008 FED App. 0139P (6th Cir. 2008):

Our analysis is not changed by the assumed fact that, when viewing the facts most favorably to the plaintiffs, the off-camera blow did not occur and Officer Causey did not see the whites of Officer Pugh’s eyes. While both would bolster Officer Causey’s decision to use deadly force, the circumstances provided sufficient cause for deadly force absent these two facts. Even though Officer Causey did cite the fact that Officer Pugh’s eyes rolled to their whites as a reason he decided to use deadly force, it was still reasonable for him to shoot Mr. Davenport under the circumstances. Again, as detailed above, Mr. Davenport was a large, violent, and angry man who was unwilling to comply with direction from the police and who had attacked two police officers in quick succession, with only four seconds having elapsed while he delivered at least five blows to the two officers. In those four seconds Mr. Davenport had struck Officer Causey at least twice and knocked him to the ground, and had struck Officer Pugh in the head three times, strikes which Officer Causey had observed. At the time he was shot, Mr. Davenport was preparing to strike Officer Pugh on the top of his head with his fist for a fourth time. As conceded by the plaintiffs, Mr. Davenport had given no indication that he planned on retreating, and, if the fight were scored on points, Mr. Davenport was winning. While Officer Causey may have been mistaken in deciding that deadly force was required and that there was no time to warn Mr. Davenport, we cannot say that, given the rapidly evolving circumstances, his decision was unreasonable.

Officers had reasonable suspicion for stop based on CI based information that was corroborated. United States v. Tijerina, 2008 U.S. App. LEXIS 7141 (5th Cir. April 3, 2008) (unpublished).*

Mere visitor to a hotel room, as opposed to a guest of a guest, has no standing to challenge a search. Here, whether defendant was going to be a guest where another rented two rooms was disputed, so the court assumes that he has standing and rules against him on consent. United States v. Williams, 521 F.3d 902 (8th Cir. 2008):

The fact that Williams did not register or pay for the hotel room does not necessarily preclude him from having a reasonable expectation of privacy in the room. See United States v. Jeffers, 342 U.S. 48, 50-52 (1951) (individual who was allowed to use hotel room, had a key, and often entered room for various purposes could object to search of room on Fourth Amendment grounds even though someone else paid and registered for the room). Unlike Sturgis, where the defendant admitted he was merely a visitor, and Carter, where the defendant had never even been to the hotel room, here the few facts in the record indicate Williams was a legitimate guest at the motel. The manager testified that Davis rented two rooms, and that he understood that “there was going to be other guests there” because Davis told him “my friend is going to come in.” Also, Williams was the only person in Room 222, which makes it less likely he was a “mere visitor” to the room. However, the record does not indicate the length of time Williams was in the room, whether he had a key or personal belongings in the room, or whether there were others who were intended to occupy the room. As the expectation of privacy issue is unnecessary to the ultimate holding, this court will assume that Williams had an expectation of privacy in Room 222.

Parole officer was not a “stalking horse” for the police because he was pursuing his own legitimate investigation. United States v. Speed, 2008 U.S. App. LEXIS 7381 (2d Cir. April 7, 2008) (unpublished).*

Officers had probable cause to stop defendant and conduct a search incident based on wiretap conversations and their reasonable conclusions from coded language that the defendant would be carrying drugs at the time in question. This was opinion testimony that was unobjected to. United States v. Hayes, 2008 U.S. Dist. LEXIS 20920 (D. Kan. March 11, 2008).*

Seizure of plaintiff’s legal papers in prison states no claim because the Fourth Amendment does not apply in a prison. Thompson v. Aviles, 2008 U.S. Dist. LEXIS 21031 (D. N.J. March 18, 2008).*

In a civil case against an allegedly unreasonable parole search, the ability of the defendants to articulate a basis is not enough for summary judgment for the defendants. Plaintiff has to be able to cross examine that basis or the protection against harassing or vexatious parole searches becomes meaningless. Smith v. City of Oakland, 538 F. Supp. 2d 1217 (N.D. Cal. 2008).*

Argument that defense counsel ineffectively argued his motion to suppress that his trailer was a home not just a trailer was thoroughly [and creatively] argued, and defendant lost on appeal. Therefore, he cannot bring a § 2255 claim against the lawyer. United States v. Barajas-Avalos, 2008 U.S. Dist. LEXIS 20704 (D. Ore. March 12, 2008).*

Defendant’s discarding of a cigarette box as officers walked up to him occurred prior to any illegal conduct of the police, so it was an abandonment. State v. Parks, 977 So. 2d 1015 (La. App. 5th Cir. 2008), released for publication April 4, 2008.*

In a similar case, officers observed defendant and another in a high crime area drop a paper cup on the ground, so they approached him for possible littering, and he ran and abandoned property. The seizure was valid. State v. Cummings, 977 So. 2d 135 (La. App. 5th Cir. 2008).*

Flashing blue lights at a walking person and stopping the police car is a stop of the person requiring reasonable suspicion. Hudson v. State, 247 S.W.3d 780 (Tex. App. — Amaillo 2008):

Although time of day and the level of criminal activity in an area may be factors to consider in determining reasonable suspicion, they are not suspicious in and of themselves. See Klare v. State, 76 S.W.3d 68, 73-76 (Tex.App.-Houston [14th Dist.] 2002, pet. ref’d). See also Scott v. State, 549 S.W.2d 170, 172-73 (Tex. Crim. App. 1976). Time of day and criminal activity in the area are facts which focus on the suspect’s surroundings, and not on the suspect himself. Klare, 76 S.W.3d at 75. Thus, an assessment of the surroundings must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Id. at 75, citing U.S. v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Officer Carrillo did not offer any testimony to raise suspicion that Appellant was engaged in criminal activity prior to initiating contact with him. Additionally, there are no independent indicia of reasonable suspicion in the record before us. Under the totality of the circumstances, we find that the factors cited by Carrillo, i.e., time of day and “recent” crime in the area, were a mere pretext for stopping Appellant.

Directing occupants to get out of a parked vehicle, although there was a basis for the stop at 2:30 a.m. of the vehicle stopped in the roadway, violated Terry. The initial call was an unverified tip that the occupants of the vehicle were flashing a gun, and it remained unverified. The defendant did not abandon the gun by stashing it under the seat as he got out of the car. State v. Matthews, 398 N.J. Super. 551, 942 A.2d 797 (2008).*

Anticipatory warrant that authorized a search of only the place where the package was “accepted” for delivery, even though it was otherwise inspecific, was still valid. There was a specified triggering event, and the officers could not be sure where the package would end up. Anticipatory search warrants strike a proper balance between the need to search but not relying on exigent circumstances for a warrantless search. People v. Duoc Bui, 2008 Ill. App. LEXIS 216 (1st Dist. March 21, 2008), released for publication May 7, 2008 (not posted on court’s website as of this posting):

We believe that our holding strikes the appropriate balance between the purpose of the warrant requirement and the need for the judiciary to encourage the use of warrants and to recognize that anticipatory warrants meet important law enforcement needs. The purpose of the warrant requirement is to act as a check on police officers “engaged in the often competitive enterprise of ferreting out crime” by interposing a “neutral and detached magistrate” into the process. Johnson v. United States, 333 U.S. 10, 14, 92 L. Ed. 436, 440, 68 S. Ct. 367, 369 (1948). Our holding in this case is consistent with this purpose because it encourages police to obtain an anticipatory warrant when they intercept a package containing narcotics and have reason to believe that the package will be brought and opened at a location other than listed on the delivery address. Our holding thereby ensures that a magistrate, and not a police officer, will ultimately determine if there is in fact probable cause to believe that the package will be brought to another location. To require the police to obtain a new warrant after defendant brought the package to his home and then opened it would create the possibility that police would lose track of the criminal and the contraband and would fail to take into account the speed and flexibility with which law enforcement is required to act when dealing with those who traffic in narcotics through the mail system. We recognize the concerns raised by defendant regarding the need to limit police discretion and the potential for police abuse created by general warrants. However, given the particular facts of this case, including the use of the electronic monitoring device inside the package and the information sworn to by Officer Bator regarding narcotics traffickers moving the package to another location, we simply do not believe that those concerns are implicated in this case such that we would be required to find the warrant unconstitutional.

. . .

The triggering condition of the warrant was acceptance of the package at the nail salon or “any other location” in the State of Illinois. Therefore, pursuant to Grubbs, there must have been probable cause to believe that the package would be accepted at a location other than the nail salon. We do not read Grubbs to require police to know every possible location where the package could be brought and accepted, including, as defendant suggests, the house on Campbell Street. To adopt such an interpretation would significantly hinder the effectiveness of an anticipatory warrant where narcotics traffickers could simply ship a package containing narcotics to one location and then bring it to another place where it could be safely opened. We decline to do so and instead conclude that, to satisfy the fourth amendment, there must have been probable cause to believe that the package would be accepted at a location other than the delivery address.

An Atlanta police officer Arthur Tesler who lied to investigators in the shooting death of Kathryn Johnson was sentenced to 4-1/2 years today. Two others pled guilty. See Findlaw from AP. The guilty plea his posted here.

Unintended consequences of police officer firing a gun explained. Irick v. City of Philadephia, 2008 U.S. Dist. LEXIS 40496 (E.D. Pa. May 19, 2008):

The Fourth Amendment does not protect against unintended consequences of government action. Brower v. County of Inyo, 489 U.S. 593, 596 (1989). In order for a seizure to occur, the detention or taking must be willful; an unknowing act cannot be a “seizure” within the meaning of the Fourth Amendment. Id. Specifically, in a police shooting, there is no violation of an individual’s Fourth Amendment rights if the police officer did not intend the bullet to bring the individual within the officer’s control. Troublefield v. City of Harrisburg, 789 F. Supp. 160, 166 (M.D. Pa. 1992).

However, a seizure nonetheless occurs “when an unintended person is the object of detention, so long as the means of detention are intentionally applied to that person. Berg v. County of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000) (citing Brower, 489 U.S. at 596; Medeiros v. O’Connell, 150 F.3d 164, 169 (2d Cir. 1998); Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir. 1991); Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 796 (1st Cir. 1990)). The Third Circuit Court of Appeals explained this principle by way of the following example: “if a police officer fires his gun at a fleeing robbery suspect and the bullet inadvertently strikes an innocent bystander, there has been no Fourth Amendment seizure. If, on the other hand, the officer fires his gun directly at the innocent bystander in the mistaken belief that the bystander is the robber, then a Fourth Amendment seizure has occurred.” Id. (citations omitted). Thus, our Court of Appeals has drawn a fine line between intentional shooting where the target’s identity is mistaken, and intentional shooting where the target is missed and a non-target is hit. The former is a seizure, the latter is not. Id.