Defendant’s consent to “look in the back” included tapping on the spare tire to listen to it. But, in this case, the spare tire was hanging under and outside the vehicle, so looking in the back had nothing to do with it. The officer’s interest was piqued because it was a rental vehicle with four “fix a flat” containers, which the officer had never seen before. By the time the officer cut open the spare, there was already probable cause. United States v. Lyons, 510 F.3d 1225 (10th Cir. 2007).*

Reasonable suspicion existed after two vehicles were seen together on a road for alien smuggling after triggering a seismic device that brought attention to them. United States v. Berber-Tinoco, 510 F.3d 1083 (9th Cir. 2007).*

Search issue failed on plain error review. It involved one gun of three, and the defendant admitted his ownership of the gun to the police three months later, and it was not clear that the gun was illegally seized anyway. Finally, it was harmless. United States v. Carmelo, 257 Fed. Appx. 699 (4th Cir. 2007)* (unpublished).

Trial counsel was not ineffective for not moving to suppress the gun in the case because the gun was lawfully found under third party consent. Hendricks v. United States, 2007 U.S. Dist. LEXIS 92748 (N.D. Ohio December 18, 2007).*

Defendant had standing as an invited guest, but the inviter consented to a search of the premises. United States v. Killeaney, 2007 U.S. Dist. LEXIS 92763 (D. S.D. December 17, 2007).*

Case remanded to determine whether Randolph violation was harmless beyond a reasonable doubt. State v. McDougald, 362 N.C. 224, 657 S.E.2d 351 (2008), revg State v. McDougald, 181 N.C. App. 41, 638 S.E.2d 546 (2007):

Defendant appeals to this Court from the decision of the Court of Appeals on the basis of a dissent. In light of the State’s concession of error, we reverse the decision of the Court of Appeals as to the appealable issue of right i.e. whether it was appropriate to dismiss defendant’s appeal on procedural grounds. The case is remanded to the Court of Appeals to determine if any error under Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 164 L. Ed. 2d 208 (2006) was harmless beyond a reasonable doubt. The remaining issues addressed by the Court of Appeals are not before this Court and its decision as to these issues remains undisturbed.

Fact questions remained on whether use of a police dog in arresting plaintiff precludes summary judgment. Ohlsen v. County of San Joaquin, 2008 U.S. Dist. LEXIS 20110 (E.D. Cal. March 13, 2008).*

Plaintiffs were arrested in Miami Beach for walking a dog without a plastic bag in hand when they refused to sign a ticket. They stated enough to stay in court. Reyes v. City of Miami Beach, 2008 U.S. Dist. LEXIS 20087 (S.D. Fla. March 13, 2008).*

Defendant could conditionally raise standing as to a residence but argue at trial that he was not a resident. There was sufficient proof of residence (mail with that address on it) to show standing. Warrant for drugs in defendant’s house was issued with probable cause and was not overbroad. “The items detailed in the warrant were sufficiently related to the matters set forth in the affidavit to defeat defendants’ claim that it was overly broad.” United States v. Jackson, 2008 U.S. Dist. LEXIS 38124 (S.D. Ill. May 9, 2008):

At the hearing, defendant Jackson stated that he would be asserting residence for purposes of this hearing, but reserved the right to take a position contrary to that at trial. Owens v. United States, 387 F.3d 607 (7th Cir. 2004). The Court FINDS that for purposes of this motion, there is at least an idicia of residence of both defendants, given that among the seized items were documents addressed to each defendant.

Failure to bring up a record of the suppression hearing makes it impossible to determine the appeal. State v. Price, 2008 Ohio 2252, 2008 Ohio App. LEXIS 1951 (9th Dist. May 12, 2008).*

On a motion for summary judgment, bringing along a private investigator on an execution of a search warrant could violate the Fourth Amendment where there was an appearance that the power to search was turned over to the private investigator. Shelby Indus. Park v. City of Shelbyville, 2008 U.S. Dist. LEXIS 38272 (S.D. Ind. May 9, 2008).*

The newest invention to facilitate cellphone searches: The CSI stick.

PR Newswire refers to it as The Portable Cell Phone Forensic Tool:

Paraben Corporation, a digital forensic technology provider, announced today that it has released the new Cell Seizure Investigator Stick (CSI Stick). The CSI Stick is a thumb drive size device that forensically acquires data from cell phones. This portable solution is easy to use with a simple one button command to gather data from the device. Whether it is logical or physical information, the CSI Stick can gather the data. “The Paraben CSI Stick has the potential to be a great tool for street level patrol officers. The functionality of the stick allows street level officers to view media quickly and at the same time the stick maintains a forensic image for full exam by forensic lab personnel,” said Jay Poupard, of the Michigan State Police.

The CSI Stick and its one button interface is the perfect tool for first responders as it gives them the ability to capture all the data off the phone or just grab the imperative data such as SMS messages, phonebooks and call logs, or multimedia messages.

The CSI Stick supports 330 models of Motorola and Samsung phones and is supplied with three adapters for the different connections. Other adapters for popular cell phones will be released later this year increasing the number of models that the CSI Stick will support with LG and Nokia support already in development.

From the manufacturer’s website:

Cell Seizure Investigator Stick:

CSI Stick Product Details

Paraben’s CSI Stick is THE portable cell phone forensic and data gathering tool. Paraben’s CSI Stick opens the world of digital forensics to anyone needing to gather forensic grade data from cell phones. The process is simple:

Select the colored cell phone tip for the cell phone model to be acquired

Plug the portable power adapter into the USB end of the CSI Stick

Plug the CSI Stick into the cell phone

Select the data you wish to extract using the slider switch

– A logical copy gets all available active data (including text and multi-media files)
– The text filter copies all SMS and text messages, phonebooks, and call logs
– The multi-media filter copies all available pictures and movies
– A physical copy gets all memory on the device (Please Note: This process can take many hours to complete)

Push the acquire button and wait for the completion indicator
Plug the USB end of the CSI Stick into a PC to be read by Paraben’s Device Seizure or Device Seizure Lite. Paraben’s CSI Stick acquires data that can only be read and analyzed in Paraben’s Device Seizure or Device Seizure Lite. These advanced forensic analysis tools enable you to view, search, and report on data extracted from handheld devices. The CSI Stick currently supports certain Motorola and Samsung phone models with more manufacturer support coming soon. For a list of supported models, CLICK HERE.

Paraben’s CSI Stick includes everything you need to seize valuable cell phone data in the field.

Blogger News refers to it as “another boon to identity thieves.”

I still don’t get it that cellphones are subject to a search incident. This just flies in the face of all the logic and law of the search incident doctrine.

Informant inside defendant’s premises was feared to be in danger, and that was an exigent circumstance for a warrantless entry. United States v. Escobedo, 2008 U.S. Dist. LEXIS 38636 (N.D. Ind. May 12, 2008):

If police officers fear for the safety of an informant or other individual, such a concern may justify an entry into an otherwise private area for exigent circumstances. United States v. Williams, 633 F.2d 742, 744 (8th Cir. 1980). The government states that in the present case, law enforcement officers were concerned about the safety of Somers, the possibility that Escobedo and others inside the Downingtown Drive house could escape undetected, and the potential for danger to the suspects, the police, and the public in general if the suspects attempted to flee the home in a vehicle. Government’s Response, p. 1. In determining the reasonableness of a warrantless entry into a private residence, “the appropriate inquiry is whether the facts, as they appeared at the moment of entry, would lead a reasonable, experienced officer to believe that evidence might be destroyed or that there was a need to protect life or prevent serious injury.” Id. (citing United States v. Bell, 500 F.3d 609, 612 (7th Cir. 2007)). Escobedo claims in his briefs that the police could have handled the entire affair differently and that they could have obtained a warrant. Escobedo argues that the police had no reason to fear for the safety of Somers since they had no direct evidence that she was in danger from Escobedo or any of his possible cohorts. Defendant’s Brief, p. 7. He also argues that police could have kept Somers in protective custody while they obtained a warrant to search the Downingtown Drive home. Id. Escobedo argues that police could have posted “more police in surveillance positions so that all sides of Escobedo’s house were visible.” Id., p. 7. Finally, he states that if they feared the possibility of a vehicle chase, police could have simply blocked the end of Escobedo’s driveway to prevent him or others from fleeing the home. Id., p. 8. Escobedo argues that if police had taken some or all of these actions, they would have had sufficient time to obtain a warrant before entering the premises. Id. But the government points out that “[t]he question with exigent circumstances is not whether, given the benefit of hindsight, the police could have done something different; the question is whether they had, at the time, a reasonable belief that there was a compelling need to act and time to get a warrant.” Government’s Brief, p. 3. The government summarizes the factual scenario leading up to the entry into Escobedo’s residence by stating that “Detective Ray was confronted with a flurry of circumstances that posed a host of potential dangers to the informant, the Downingtown neighborhood, the public at large, the police officers, and even to the Defendant and his accomplices, and he made the decision to enter for the purpose of preventing anyone from getting hurt. Even if the police could have done something different in hindsight, Detective Ray nevertheless acted reasonably in protecting public safety and addressing the exigent circumstances.” Id., pp. 3-4.

No specific time delay between an arrest and search incident of a car makes it unreasonable. The question is whether the search incident was part of a continuous series of events. Here, the search was twenty minutes later and the car had been moved to another location for highway safety. [At this point, the search incident doctrine and automobile exception will blend together, and here the search was alternatively valid under the automobile exception.] United States v. Kila, 2008 U.S. Dist. LEXIS 38002 (D.Haw. May 8, 2008):

13. The court concludes that the search of the Toyota Celica was contemporaneous with Kila’s arrest and thus incident to the arrest. This case presents circumstances similar to those in McLaughlin and Weaver. There was no intervening event or pause in the decisionmaking process leading to the search of the Toyota Celica. The delay resulted from reasonable safety concerns. Unlike the officers in Ramos-Osequera, the officers here did not decide to search Kila’s Toyota Celica only after driving the vehicle to the Federal Building. Rather, TFO Peralta decided at the scene of the arrest that the Toyota Celica would be searched. He instructed TFO Worthington to drive the vehicle to the Federal Building to ensure a safe search, away from freeway traffic. Kila’s arrest, the removal of the Toyota Celica from a location that posed safety concerns, and the search of the vehicle were all part of a continuous series of events similar to the events in McLaughlin.

14. The court is not persuaded by Kila’s arguments that a vehicle search could have been conducted safely at the location of the stop, or that the vehicle search should have been conducted near a closer highway exit rather than at the Federal Building. Kila was arrested at night on a highway with “medium” traffic conditions, in an area where cars tended to pick up speed. It was entirely reasonable to conduct the vehicle search at another location, especially because a vehicle search could reasonably require officers to open all doors and look under seats, leaving the officers physically vulnerable to highway traffic. In addition, it was not unreasonable to conduct the search at the Federal Building rather than to pull off at a nearby exit to conduct the search in an unknown area. As the court in Scott noted, a search is not considered remote from the arrest when the delay is caused by safety concerns. The search of the Toyota Celica was incident to Kila’s arrest.

Defendant was seized, but his person was not searched until a search warrant for his premises was issued. The fact it was about an hour and twenty minutes did not make the detention unreasonable. United States v. Evans, 2008 U.S. Dist. LEXIS 37453 (E.D. Ky. May 7, 2008).*

The search warrant in this case did not violate Franks. Defendant made the “substantial preliminary showing” and got his hearing, but he did not show that the officer’s affidavit was in reckless disregard for the truth. United States v. Dempsey, 2008 U.S. Dist. LEXIS 37555 (D. Del. May 8, 2008).*

District court denied a two level enhancement under U.S.S.G. § 3C1.1 for defendant’s testimony at suppression hearing that contradicted three officers’ testimony. United States v. Fleming, 2007 U.S. Dist. LEXIS 93680 (N.D. Ind. December 19, 2007) (free on Pacer):

In this case, the court found that the testimony of the Government witnesses at the suppression hearing was more worthy of credence than Fleming’s testimony. Despite the court’s ruling, it does not automatically follow that Fleming intentionally and knowingly gave false testimony. The court’s ruling at the suppression hearing was that the resolution of a credibility issue between the Defendant and the Government supported the Government’s position. The court did not find that Fleming obstructed justice by knowingly presenting false testimony. While the issue concerning the existence or nonexistence of a search warrant was clearly material, it is possible that Fleming was confused and/or mistaken at the time of the search of his residence. Whether his testimony was knowingly false, or whether he was simply confused, frightened, and/or mistaken at the time the officers appeared at his residence, is not an issue on which the court made a finding during the suppression hearing. Based on the court’s recollection of the testimony and Fleming’s demeanor, as well as the court’s review of the transcript from that hearing, the court finds that the elements of perjury were not established by a preponderance of the evidence. Put another way, the evidence and testimony presented at the suppression hearing was insufficient to establish that Fleming’s recitation of the events on the day of the search was knowingly false or intentionally calculated to mislead the court. Therefore, the court concludes that a two-level enhancement pursuant to U.S.S.G. § 3C1.1 is not warranted in this case.

Trial court’s credibility determination on consent was based on the fact that defendant testified to the grand jury the search was consensual, contrary to at the hearing. United States v. Billman, 257 Fed. Appx. 904, 2007 FED App. 0851N (6th Cir. 2007)* (unpublished).

Petitioner’s IAC claim fails. Defense counsel did not challenge the alleged warrantless search because there was a warrant. Winston v. United States, 2007 U.S. Dist. LEXIS 93503 (W.D. Mo. December 20, 2007)* (apparently the product of a jail house lawyer; I had a CJA appeal once where the jailhouse lawyer slipped an issue by the district court that was not even litigated).

A Columbia University master’s graduate and free lance reporter for the NY Post, through the NYCLU, has sued the NYPD claiming its stop-and-frisk practice promotes stops and frisks for “walking while black”. Group’s lawsuit challenges NYPD’s stop-and-frisk policy, from AP:

A civil liberties group sued Wednesday in a challenge to the NYPD’s practice of stopping hundreds of thousands of people each year for questioning, saying it is racially biased.

The New York Civil Liberties Union lawsuit lists New York Post reporter Leonardo Blair as the sole plaintiff, saying he was stopped and frisked by police officers as he walked from his car to his Bronx home last November.

He was taken to a police station, where officers expressed surprise that though he was black, he was not from “the projects,” the lawsuit said. Blair, 28, has a master’s degree from Columbia University.

The lawsuit, filed in U.S. District Court in Manhattan, said the NYPD has stopped people in New York nearly a million times over the past two years under the practice. It said more than half of the people targeted were black, even though blacks make up only about a quarter of the city’s population.

NY Times article here.

Defendant’s host had the apparent authority to consent to a search of the place where defendant slept because there were no locks on the door and the host’s kids’ stuff was in there, too. Gado v. State, 882 N.E.2d 827 (Ind. App. 2008).*

Motion to suppress was properly granted because there appeared to be no legal basis for defendant’s stop by the officer, as confirmed to the trial court by the videotape of the stop. State v. Rager, 883 N.E.2d 136 (Ind. App. 2008).*

Indiana’s requirement that an affidavit be filed with the court is satisfied by delivery to the judge. Scott v. State, 883 N.E.2d 147 (Ind. App. 2008)*:

It is clear to us, however, that Deputy Saltzman delivered the affidavit “to the proper officer for the purpose of being kept on file by him in the proper place[,]” even if it was delayed in reaching that proper place. Thompson, 190 Ind. at 367, 130 N.E. at 413 (emphasis added). There is nothing in the record to suggest that Deputy Saltzman had any reason to believe that the affidavit would not be promptly filed with the clerk, and, in the end, we are at a loss to see how he could have more fully complied with Indiana Code section 35-33-5-2. We conclude that the affidavit supporting the October 10, 2006, search warrant was properly filed.

Knock and talk consent was valid; police engaged in no overbearing conduct and defendant knew what he was doing. Luna-Martinez v. State, 2008 Fla. App. LEXIS 4298 (2d DCA March 26, 2008).*

A search warrant for a photo of a child logically permits search of a videotape, given the state of technology. United States v. Rogers, 521 F.3d 5 (1st Cir. 2008):

Furthermore, “[a]s a general proposition, any container situated within residential premises which are the subject of a validly-issued warrant may be searched if it is reasonable to believe that the container could conceal items of the kind portrayed in the warrant.” … In determining whether it is reasonable to search a particular container for an object, “search warrants and affidavits should be considered in a common sense manner, and hypertechnical readings should be avoided.” …

In the instant case, the critical question is whether it is reasonable to believe that a videotape could contain “photos of DW.” Rogers argues that the term “photos” — at least in this case — clearly means “developed print photographs” and, therefore, that it was not reasonable for the officers to search the videotape for “photos of DW.” The government responds, echoing the magistrate judge’s analysis, that given the current state of technology, the term “photos” reasonably includes images captured on videotapes or by a digital camera.

We are persuaded that the government’s argument must prevail. As the magistrate judge pointed out, given the state of technology, a videotape is a plausible repository for a photo. To adopt the narrowest definition of “photos,” as Rogers proposes, would, we believe, ignore our obligation to read the warrant and affidavit in a common sense manner and avoid hypertechnical definitions. The affidavit submitted in support of the warrant application stated that DW’s mother “said that [Rogers] has several photos of [DW] at his apartment” and that “he had asked her for copies of the ones she had.” Gov’t Addendum at 1. Based on that information, the warrant authorized the seizure of all “photos of DW.” Given these facts, we conclude that it is reasonable to believe that in the circumstances here the two seized videotapes could contain “photos of DW.” Accordingly, the seizure and subsequent search of the videotape did not exceed the scope of the first search warrant. It follows (and Rogers does not argue to the contrary) that there is no basis for suppressing any of the evidence discovered thereafter. Accordingly, we conclude that the district court did not err in denying Rogers’ motion to suppress the videotape.

Comment: A computer, yes, but I find it a stretch to find it logical that a picture would be on a videotape.

Use of an Attorney General’s subpoena duces tecum to get defendant’s DNA constituted a search for which probable cause was required, and here it was lacking even to support the issuance of the subpoena. The state, however, proved [overwhelmingly] that it was closing in on defendant as a serial killer, and inevitable discovery supported the search. State v. Derrick, 976 So. 2d 109 (La. 2008):

Considering the historical facts that are verifiable, we find the State satisfied its burden of showing by a preponderance of the evidence there was a parallel and independent investigation unrelated to the illegal search that would have inevitably and legally yielded defendant’s DNA. When viewed in light of the Task Force’s receipt of four rapid-fire tips identifying defendant by name and make of car after the release of the sketch of the serial killer, it is apparent defendant’s apprehension was no longer an object of pure Speculation, but rather a matter of imminent reality. The tips various citizens called in provided probable cause to arrest defendant as Alexander’s assailant. Through the pursuit of this entirely independent investigation based on information entirely untainted by the prior collection of defendant’s DNA sample, it is evident the police would have arrested the defendant and would have secured a DNA sample. Thus, the State has shown: (1) there is a reasonable probability the contested evidence would have been discovered by lawful means in the absence of police misconduct; and (2) law enforcement was actively pursuing a substantial alternate line of investigation at the time of the constitutional violation. …

DNA testing of a juvenile delinquent is constitutional. In re Lakisha M., 227 Ill. 2d 259, 882 N.E.2d 570, 317 Ill. Dec. 690 (2008).*

State failed to show that officer safety did not justify defendant’s patdown. The state’s saying it does not make it so. Malone v. State, 882 N.E.2d 784 (Ind. App. 2008):

In this case, since a warrant was not obtained to seize the weapon from Malone, it is necessary to determine if seizure of the gun was justified by some exception. The State contends that Officer Rand removed the weapon to protect the safety of the officers. Officer safety is of paramount importance. Police officers are daily placed in difficult and dangerous situations, some of which are life threatening. The law has to provide protections for such officers. At the same time, in a free society there must be a reasonable basis for a warrantless search of our persons and homes; hence, our constitutional protections against unreasonable searches and seizures. Between these extremes, courts engage in a very difficult undertaking balancing these competing values and determining where the line separating the reasonable and unreasonable should be drawn. Here, it is significant that although the State claims on appeal that the seizure of the weapon was done in the interest of officer safety, none of the officers testified to any such concerns.

In this case, prior to the seizure of the gun, police did not express any concerns about officer safety. They did not inquire about the presence of weapons or pat down anyone present. Neither Malone, nor anyone else present had threatened the police officers either verbally or physically. In fact, Officer Figura testified that Malone was respectful and polite. Tr. at 27. It was only when Malone asked the police officers to leave and began to walk back into his house that Officer Rand saw what he believed indicated the presence of a gun and seized it from Malone.

Furthermore, at the time they seized the gun, the officers did not have information leading them to believe that Malone had been convicted of any crime, which could render him a serious violent felon or his possession of a weapon illegal. They had no information leading them to believe that a crime had been or was about to be committed. The only reason for their presence at Malone’s home was a report of someone possessing a shotgun on the premises, which is not a crime.

Finally, at the hearing on the motion to suppress, none of the officers testified that he felt any concern for officer safety. In the absence of an articulable basis that either there is a legitimate concern of officer safety or a belief that a crime has been or is being committed, a pat-down search pursuant to a Terry stop is not justified, nor is seizure of a weapon from one standing on the front porch of his home. Here, neither condition was satisfied, and we conclude that the seizure of the weapon on Malone’s person was illegal. As such the trial court should have suppressed the evidence.

Even if police violated knock-and-announce [and it was not even decided, but it seems they did not], the Illinois Supreme Court likely would follow Hudson and not suppress. People v. Chapman, 883 N.E.2d 510, 318 Ill. Dec. 279 (4th Dist. 2007):

Moreover, as a matter of law, violations of the knock-and-announce rule, even if proved, will not automatically result in the exclusion of evidence obtained as a result of the search. Hudson v. Michigan, 547 U.S. ___, 165 L. Ed. 2d 56, 126 S. Ct. 2159 (2006). In Hudson, the Court held that the exclusionary rule is unwarranted under the fourth amendment (U.S. Const., amend. IV) for violations for the knock-and-announce rule. Hudson, 547 U.S. at ___, 165 L. Ed. 2d at 71, 126 S. Ct. at 2170. Given the recent decision of the Supreme Court of Illinois in People v. Caballes, 221 Ill. 2d 282, 313, 851 N.E.2d 26, 44-45, 303 Ill. Dec. 128 (2006), reaffirming that court’s commitment to the limited-lockstep analysis regarding decisions of the United States Supreme Court applying the search-and-seizure provisions of the fourth amendment, we believe the Supreme Court of Illinois would likely adhere to Hudson. Therefore, even if the trial court had found that the police failed to comply with the knock-and-announce rule, excluding the evidence obtained in the search would not necessarily have been required. In light of our conclusion that the trial court’s decision to deny the motion to suppress was not against the manifest weight of the evidence, we decline defendant’s invitation to address the appropriate remedy for a violation of the knock-and-announce rule under Illinois law.

Comment: It seems to me that there was no real knock-and-announce violation, although it was unusual. Here, the police used a modified flash-bang device in the backyard as a distraction. A true flash-bang device is literally a “destructive device” under federal law [trust me; I’ve briefed it], and they can set buildings on fire. Here, the purpose was to cause the bang and flash of light without destroying property or even breaching the house, all as a part of announcing the presence of the police. Then they knocked and entered, albeit a short time after knocking. There is no fixed time as to how long the police had to wait, and it is possible that that trial court could have found on this record that the time was too short. Factoring in the flash-bang in the backyard, maybe not. But, the question is moot in this case.

The Navy-Marines Court of Appeals en banc reverses United States v. Weston, 65 M.J. 774 (N.-M. Ct. App. 2007), [somehow] distinguishing Randolph on its facts, recognizing that its narrow interpretation is part of a split in the Circuits. Husband’s objection to consent at CID office did not prevent CID from asking his wife without telling her that he refused. They had voluntarily come to the CID office for an interview, and they were separated. He refused to consent, so the investigator went to the other room and asked his wife without telling her he had refused. The court found critical that the objection in Randolph occurred at home and Randolph’s wife heard it. The court separately finds inevitable discovery because the investigation had progressed to the point that the evidence would have been found anyway. United States v. Weston, 66 M.J. 544 (N.-M. Ct. App. 2008) (en banc):

In the instant case, we note that the appellant and his wife were not arrested but rather voluntarily drove themselves to CID in order to provide what they perceived as proof of his innocence. There is no evidence that CID agents purposefully drew the appellant away from his home in order to deny him the opportunity to object to a search at the threshold. CID had a legitimate investigatory interest in speaking with the appellant and his wife about the victim’s allegations. We further note that the CID agents twice contacted the duty trial counsel to verify that they were proceeding in a lawful manner. Finally, we note that separating potential witnesses for questioning is a routine police practice. Having carefully reviewed the record, we find no evidence that the CID agents removed the appellant from his home or that they separated him from his wife at the CID office for an improper ulterior motive.

The appellant also asserts in his brief that Mrs. Weston was “unaware that her husband had refused consent” when she granted her consent to the search of her home. Appellant’s Brief at 7. The implication of the appellant’s argument is that CID’s failure to inform his wife somehow rendered her consent involuntary. We disagree.

. . .

It is important to note that the majority opinion in Randolph declared the continued viability of Matlock and Rodriguez. It is also important to observe that, unlike Randolph, the CID agents in the instant case were not faced with a “social custom dilemma, where two physically present co-tenants have contemporaneous competing interests and one consents to a search, while the other objects.” The social custom dilemma in Randolph arose from an open and very public verbal dispute between a husband and wife at the threshold of their home and in the presence of the police. This is a far different situation from the case at bar where the appellant and his wife were interviewed separately and did not engage in a public dispute on their doorstep.

The lack of an open and public dispute between the appellant and his wife significantly diminishes the social custom rationale articulated in Randolph. There is no widely-shared social expectation that a reasonable third party, invited into a home by one of the residents, would decline that invitation merely because he or she was aware that an absent co-tenant objected to their presence. While some reasonable people might think better of visiting a residence if they knew an absent co-tenant did not want them, other reasonable people would have no such qualms. Consequently, it cannot be said there exists a widely-shared social expectation that the reasonable invitee would not accept the invitation. In this regard, we note that Justice Breyer in his concurrence expressly observed that the Court’s opinion “does not apply where the objector is not present and objecting” and that “were the circumstances to change significantly, so should the result.” We conclude that the Court in Randolph was carefully carving out a narrow exception to the general rule of “assumed risk” in third-party consent cases stated in Matlock.

Our narrow interpretation of Randolph appears to be shared by our superior court as well as a majority of federal courts that have considered Randolph in a variety of factual scenarios. We acknowledge, however, that only two of the federal circuit cases involved defendants who, like the appellant, actively objected to the search of their home. These circuit courts split on the issue.

Comment: I don’t buy this for a minute, and I certainly hope that the Court of Appeals for the Armed Forces fixes this on Randolph. (The court is wrong on Randolph and right on inevitable discovery.)

Video surveillance of female police employees’ locker room [for what almost seems laughable reasons] to detect same sex sexual harassment was a violation of the Fourth Amendment and could not be justified under O’Connor. Somebody had been placing notes in one employee’s locker. The employee manual said that lockers were subject to search and that hardly justified video surveillance of the exterior of the locker. Rosario v. United States, 538 F. Supp. 2d 480 (D. P.R. 2008):

In judging the reasonableness of the employer’s conduct the court must examine whether or not it was warranted due to the extant circumstances and if so, whether its reach was sufficiently limited to deal with the particular situation it sought to address. “Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether the action was justified at its inception; second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.” O’Connor, 480 U.S. at 726 (internal citations and quotation marks omitted).

Defendants base their need for conducting covert surveillance in this case on their interest in eradicating sexual harassment and discrimination in the employment setting. Further, they argue that previous steps to correct the problem had proven ineffective in correcting the situation.

It is axiomatic that sexual harassment and discrimination negatively affect the working environment. However, apart from the fact that the documents submitted in this case pertain just to one particular alleged victim–as opposed to the “rash of complaints by female police officers” referred to by defendants–there is no evidence in the record indicative that any of the alleged sexual discriminatory conduct took place in the locker-break room. In other words, there does not seem to be a logical connection between the conduct sought to be curtailed and the preventive measures taken. All we have before us is reference to the two anonymous notes whose content in no way manifest an impending danger situation.

Accordingly, faced with the limited information currently available to the court it cannot be reasonably concluded that defendants had a valid reason to have covert cameras installed in the locker-break room. In other words, even though defendants have a legitimate interest in eradicating sexual discrimination in the workplace there is not sufficient evidence in the record at this time to warrant encroachment into plaintiffs’ privacy interests via surveillance video.

Related case with different parties: Avila v. Valentin-Maldonado, 2008 U.S. Dist. LEXIS 21823 (D. P.R. March 19, 2008):

“[T]he conduct in a locker room is inherently more private than that which takes place in a shared or private office.” Trujillo, 428 F.Supp.2d at 1105. “Plaintiffs need not have an expectation of total privacy in order to have a reasonable expectation they will not be recorded surreptitiously while changing clothes in a locker room. Privacy does not require solitude. Access of others does not defeat people’s expectation of privacy … [T]his diminished privacy interest does not eliminate society’s expectation to be protected from the severe intrusion of having the government monitor private activities through hidden video cameras.” Id. at 1104-1105 (internal citations, brackets and quotation marks omitted). See also, Taketa, 923 F.2d at 673 (“Privacy does not require solitude.”).

Equitable tolling applies to save a § 1983 case that was filed within one year of reversal of a conviction, and after Wallace v. Kato held that the cause of action accrues after reversal. The case was dead under Heck until reversal. Kucharski v. Leveille, 526 F. Supp. 2d 768 (E.D. Mich. 2007):

In Wallace v. Kato, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007), the Supreme Court overruled all the precedents in the circuits applying Heck to bar section 1983 claims filed by persons with criminal charges pending in state court or deferring the accrual date of such claims. Heck only applies if the plaintiff has actually been convicted. The Court held that a section 1983 claim based on an illegal arrest accrues at the time of the arrest, not when the convictions were reversed by a state court, and Heck v. Humphrey does not require otherwise. Shamaeizadeh, plainly, was overruled.

There can be no question that the plaintiffs relied on Sixth Circuit precedent to their prejudice in this case. The untimeliness of the plaintiffs’ complaint results from an understandable confusion about the state of the law as to when their claim accrued. That confusion was created by the courts themselves. The delay did not result from the plaintiffs’ failure to diligently pursue the claim. In fact, the plaintiffs filed their complaint less than one year after their convictions were reversed.

Moreover, strict application of Wallace to this case effectively deprives the plaintiffs of their cause of action. If the plaintiffs had filed their case immediately after the search on May 4, 2001, Sixth Circuit precedent would have required dismissal of the case as barred by Heck. Once the law changed, the plaintiffs’ convictions having been reversed on September 30, 2004, the plaintiffs would be barred by the statute of limitations under Wallace. This is “a result surely not intended.” Wallace, 127 S. Ct. at 1099 n.4. Rather, this is the unusual case that fits neatly within the doctrine of equitable tolling.

The Court concludes that Michigan law tolled the three-year statute of limitations while the plaintiffs’ convictions were still viable, and filing this case within three years of the reversal of those convictions does not result in a statute of limitations bar.

Accordingly, it is ORDERED that the plaintiffs’ motion for reconsideration [dkt # 51] is GRANTED.

“Knepper claims that the warrantless search of the bedroom where his backpack was recovered was illegal. The district court found that Knepper had abandoned the cottage and thus lacked an expectation of privacy in his former bedroom.” That finding is supported by the evidence. United States v. Knepper, 256 Fed. Appx. 982 (9th Cir. 2007).

Search incident includes a locked glove compartment, even though everybody is out of the vehicle at the time, following the weight of authority. Hamel v. State, 179 Md. App. 1, 943 A.2d 686 (2008).

The fact that the police had probable cause 24 hours before the actual search of defendant’s car did not mean there were no exigent circumstances. There was no way of predicting that there actually would be drugs in defendant’s car at the time it was seen. Commonwealth v. Eggleston, 71 Mass. App. Ct. 363, 881 N.E.2d 1174 (2008):

As a practical matter, the inherent mobility of an automobile creates a level of fluidity or unpredictability that militates against assessing through too fine a lens the opportunity of police to obtain a warrant for the vehicle prior to a search. In the present case, for example, though police had ample cause to believe that the defendant routinely stored contraband in his vehicle and on his person, they had no way to know how events would unfold based on the information they held. Though the police were informed that the defendant had received a significant shipment of drugs the preceding day, and that he planned to complete a sale to a particular individual on the day of the search, the precise time and location of the sale were uncertain. Imposing a requirement on police that they obtain a warrant to search a vehicle based on a particular set of facts is impractical when the inherent mobility of the vehicle creates the very real possibility that the officers will be presented with different facts when they proceed to execute the search. See Commonwealth v. Cast, supra at 906, quoting from Cardwell v. Lewis, 417 U.S. 583, 595-596 (1974) (“exigency may arise at any time and in a number of situations and the fact that police had probable cause and might have obtained a warrant earlier ‘does not negate the possibility of a current situation’s necessitating prompt police action,’ since no principle would foreclose the right of officers to search a motor vehicle on probable cause and exigent circumstances ‘if a warrant was not obtained at the first practicable moment'”).

Defendant consented to a search of his residence after police searched his business under a warrant. They patted him down and took his car keys and searched his car, and that exceeded his consent. State v. Torres, 2008 Ohio 2090, 2008 Ohio App. LEXIS 1796 (6th Dist. May 2, 2008).

Officer found defendant walking soaking wet in the rain in a high crime area known for thefts from cars carrying a duffle bag. The officer was justifed in approaching him. United States v. Labelle, 2008 U.S. Dist. LEXIS 35999 (E.D. Tex. May 2, 2008).*

Defendant was arrested outside his house and he wanted to put on a shirt. The officer could follow him in to put on a shirt, and the officer saw the unregistered firearm in plain view under Chrisman. United States v. Hall, 2008 U.S. Dist. LEXIS 36089 (D. Haw. April 30, 2008).*

There is no higher standard for search of computer than anything else, and the DoJ computer search protocol carries no constitutional imprimatur. United States v. Burns, 2008 U.S. Dist. LEXIS 35312 (N.D. Ill. April 29, 2008).

Administrative search that involved a breaking of a door was unreasonable under Colonade. Club Retro v. Hilton, 2008 U.S. Dist. LEXIS 35231 (W.D. La. April 4, 2008):

Since defendants purportedly were only conducting an administrative search and had no probable cause to believe a crime was being committed by any persons in Club Retro, defendants’ warrantless and dramatic entry into Club Retro was not the type of entry contemplated under the statutes for an administrative search, and their forcible entry into the private office area of Club Retro was not justified. Therefore, to the extent defendants are attempting to re-characterize their warrantless searches for narcotics as an administrative search for illegal alcohol sales, that argument is unavailing to exempt defendants from the requirements of the Fourth Amendment.

Defendant would not have prevailed on any search claim that defense counsel supposedly should have pursued, so he was not prejudiced. State v. Hoskins, 2008 Iowa App. LEXIS 259 (April 30, 2008).*