Even a criminal diversion bars an action under Heck. S.E. v. Grant County Bd. of Educ., 523 F. Supp. 2d 486 (E.D. Ky. 2007).*

City employer did not violate plaintiff’s Fourth Amendment rights by ordering her to rehab as a condition of employment. That is not false imprisonment. Davis v. City of New York, 2007 U.S. Dist. LEXIS 78031 (E.D. N.Y. September 28, 2007).*

“Even if the officers had stated that they would get a warrant if he did not consent, this would not render his consent involuntary; that the police inform a party that they will obtain a warrant if the party does not consent to a search does not amount to coercion.” United States v. Racca, 255 Fed. Appx. 367 (11th Cir. 2007)* (unpublished).

2255 could not be based on same issue already decided on appeal. Payne v. United States, 2007 U.S. Dist. LEXIS 78245 (N.D. Miss. October 19, 2007).*

Officer had reasonable suspicion about the content of bag that defendant was carrying, just by the looks of it from the rectangular objects in it. Defendant’s actions drew the officers’ attention that he was carrying drug money. United States v. Naut, 2007 U.S. Dist. LEXIS 78062 (S.D. N.Y. October 19, 2007).*

Plaintiff’s stop and then arrest for DWI was based on reasonable suspicion and then she failed field sobriety tests. Ryder v. Pucillo, 2007 U.S. Dist. LEXIS 78202 (D. Conn. September 27, 2007).*

Officer had justification for stopping the defendant who was going 81 in a 35. The video of his stop showed that the stop was not extended, and the defendant consented. State v. Fernandez, 2007 Tenn. Crim. App. LEXIS 825 (October 23, 2007).*

Administrative search exception for commercial trucks permits opening the back of a tractor trailer to inspect load or to ascertain there is no load, as the driver represents. Otherwise, merely representing there is no load would defeat an entry. This truck was stopped near a point of entry and marijuana was found. United States v. Mitchell, 518 F.3d 740 (10th Cir. 2008):

Mitchell acknowledges this court has previously considered the constitutionality of the New Mexico regulatory scheme governing commercial carriers and held the statute was constitutional. Vasquez-Castillo, 258 F.3d at 1211-12; see also United States v. Gwathney, 465 F.3d 1133, 1139-40 (10th Cir. 2006).

. . .

Mitchell also argues the officer’s order to unlock the trailer exceeded the scope of the permissible § 65-5-1 inspections because Mitchell told the officer there was no cargo in the trailer and there was therefore no justification for inspecting the inside of the trailer. The New Mexico statute authorizes inspectors to “inspect the vehicle and its contents to determine whether all laws and all rules and regulations of the departments of this state with respect to public safety, health, welfare and comfort have been fully complied with.” N.M. Stat. Ann. § 65-5-1(F). In addition, the statute provides “[t]he person in charge of the port of entry may satisfy himself as to the contents of the cargo.” Id. § 65-5-1(D). An inspector may also inspect the vehicle’s contents to ensure all excise taxes on fuel, alcohol, or other property have been paid. Id. § 65-5-1(E). This court has held “New Mexico’s regulatory scheme clearly contemplates entrance into the trailer to inspect blocking and bracing, and also allows inspection of the contents of the vehicle.” Gwathney, 465 F.3d at 1139.

There is no meaningful distinction under this statutory scheme between inspection of the contents of a vehicle and inspection of a vehicle to confirm there are no contents. If an operator could escape inspection by giving a verbal statement that the trailer was empty, New Mexico’s ability to conduct meaningful inspections would be seriously compromised. This is particularly true where, as here, the officer has reason to believe the operator has not provided accurate information. New Mexico’s statutory scheme contemplates the inspection of trailers to confirm compliance with New Mexico’s laws and this authorization extends to inspections to confirm an operator’s assertion that he or she carries no cargo. N.M. Stat. Ann. § 65-5-1(F); Gwathney, 465 F.3d at 1140.

Attorney-client and work product privileged material was seized during execution of a search warrant. The defendant raised privilege but did not adequately preserve it. The Tenth Circuit held that privilege was waived from failure to promptly pursue privilege. United States v. Ary, 518 F.3d 775 (10th Cir. 2008):

When the party seeking protection fails to specifically identify the materials protected, courts have uniformly found a waiver. In the context of a discovery request in civil litigation, the Ninth Circuit held that general assertions of privilege or work-product protection are insufficient. See Burlington N. & Santa Fe Ry. Co. v. District Court, 408 F.3d 1142, 1149 (9th Cir. 2005); see also United States v. White, 970 F.2d 328, 334-35 (7th Cir. 1992) (holding failure to timely assert attorney-client privilege for each specific communication or document constitutes waiver); United States v. Neill, 952 F. Supp. 834, 842 (D.D.C. 1997) (concluding failure to specifically identify computer files seized by government as protected by the attorney-client privilege constitutes waiver). There is no waiver, however, when the court is provided enough specificity to evaluate whether each document is protected. See Burlington N. & Santa Fe. Ry. Co., 408 F.3d at 1149.

Identification of protected material must occur in a timely fashion. Where the party seeking protection “fails to pursue all reasonable means of preserving the confidentiality of the privileged matter” the protection is waived. See de la Jara, 973 F.2d at 750 (holding defendant waived attorney-client privilege when he made no attempt to assert privilege for six months); Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984) (holding failure to make a timely showing waived work-product protection under Fed. R. Civ. P. 34(b)).

Some courts have held that asserting protection solely to the government is insufficient and that invocation of judicial intervention is required. See In re Grand Jury (Impounded), 138 F.3d at 982. For example, in In re Grand Jury (Impounded) the defendant’s office was searched and a file containing attorney work-product was seized. Id. at 979-80. Shortly after learning of the seizure, the defendant’s attorney notified the United States Attorney and asserted protection under the work-product doctrine. Id. The defense was informed that the government had determined the documents were not protected. Id. at 980. Although the defendant made several additional requests to the government, he waited for another four months before filing a motion to compel the return of the file. Id. at 981. Although the defendant initially made a timely assertion of work-product protection, the court held his subsequent assertions were insufficient once the government informed the defense it would not relinquish the file voluntarily. Id. at 981-82. “Judicial enforcement of the privilege was the only remedy that [the defendant] could have obtained which would have foreclosed the United States from further use of the seized file.” Id. at 982. The court reasoned that a reasonable person seeking to assert the work-product doctrine would not only inform his adversary, but also seek a judicial determination. Id.

Requiring assertions of privilege and work product to be made expeditiously serves the goals underlying the attorney-client privilege and work-product doctrine. The doctrine and privilege both work to shield confidences from adversaries. Both promote broader public interests by advancing the proper administration of legal claims. See Upjohn Co., 449 U.S. at 389 (attorney-client privilege supports proper administration of justice); Hickman, 329 U.S. at 510 (work-product doctrine supports orderly prosecution and defense of legal claims). The key is that the party seeking protection must treat the document or communication as confidential. When a party delays in asserting protection, however, the adverse party is free to continue to use the material, thereby negating its confidential character. See In re Grand Jury (Impounded), 138 F.3d at 982. The government’s investigation may irreparably rely on the protected information, thereby tainting the investigation. Id. By failing to minimize the damage caused by the breach of confidentiality, the defendant is prohibited from using the privilege or doctrine to prohibit the government’s use of the information. See de la Jara, 973 F.2d at 750.

Thus, in the case of an involuntary disclosure, the party asserting the work-product doctrine or attorney-client privilege must pursue all reasonable means to preserve the confidentiality of the material. Taking into account the circumstances surrounding the disclosure, we will examine the specificity with which Ary identified the material, whether protection was asserted in a timely fashion, and whether additional steps, such as judicial action, were necessary for protection.

FedEx packages bound for the Phillipines were checked by Customs at the FedEx Oakland facility before shipment overseas looking for shipments of cash. After discovering a package with a letter referring to sex with minor by a U.S. citizen in the Phillipines, Customs started looking at all packages from this individual. It was determined that he traveled to the Phillipines 43 times in the previous eleven years. Other package inspections revealed more incriminating evidence of sex with minors. Customs found he had booked a flight to Manila from LAX, so they encountered him at the airport and searched his luggage finding child porn, including pictures of him with children. Following United States v. Abbouchi, 05-50962 (9th Cir. July 13, 2007) (UPS’s Louisville hub was functional equivalent of the border), FedEx’s Oakland hub is the functional equivalant of the border. United States v. Seljan, 497 F.3d 1035 (9th Cir. 2007).

Terminating high speed chase by causing a crash warrants summary judgment. No constitutional violation occurred, following Scott v. Harris, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (April 30, 2007). Beshers v. Harrison, 495 F.3d 1260 (11th Cir. 2007):

The Supreme Court recognized in Scott v. Harris, …, that this typically means adopting the plaintiff’s version of facts in a qualified immunity case. Nonetheless, in this case, as in Harris, we have the benefit of viewing two videotapes from the patrol cars involved in the pursuit. Thus, to the extent Appellant’s version of the facts is clearly contradicted by the videotapes, such that no reasonable jury could believe it, we do not adopt his factual allegations. Id.

This appeal did not decide a search issue, because the defendant accepted for appeal the trial court’s conclusion that he lacked an expectation of privacy in the contraband. Defendant was involved in receiving a shipment of twenty acetylene tanks which were shipped from El Paso to New Jersey. Undercover DEA officers received the tanks, inspected them, and then flew them to New Jersey rather than drive them, then set up sophisticated surveillance on the receiving end when the drugs were delivered. The issue on appeal was a trial error, which was rejected. The case is at least interesting for the lengths the DEA went to accomplish this bust. United States v. Cugno, 255 Fed. Appx. 5 (5th Cir. 2007)* (unpublished). The introductory paragraph:

On January 28, 2004, Drug Enforcement Agency (“DEA”) Special Agent Daktor Holguin (“Holguin”), posing undercover as a tractor trailer driver, had several telephone conversations with Alejandro Garcia-Lozada (“GarciaLozado”), in which Holguin agreed to pick up twenty acetylene tanks filled with marijuana and transport them to New York. The next day, at Garcia-Lozada’s direction, Holguin met Cesar Trevizo (“Trevizo”) at a convenience store and accompanied him to a warehouse. At the warehouse, Holguin met Omar and Cesar Calvillo (the “Calvillo brothers”), who helped Holguin load the twenty tanks into his tractor trailer. The tanks were between four and five feet tall and black, and they resembled large oxygen tanks. Holguin transported the tanks to the DEA’s El Paso field division office.

Court finds consent was voluntary based on a credibility determination that the officers were more believable on the validity of consent than the defendant and his wife who consented to the search. United States v. Foster, 2007 U.S. Dist. LEXIS 58963 (E.D. Ark. August 10, 2007).*

While defendant’s stop was based on [tenuous] reasonable suspicion, the officer’s detention thereafter was unreasonable because there was no showing of justification. Grandberry v. State, 289 Ga. App. 534, 658 S.E.2d 161 (2008):

Meanwhile, the police were detaining Grandberry based solely on the word of the complainant, whose identity could not be confirmed and whose reliability had become an issue. Under these circumstances, law enforcement’s detention of Grandberry for 40 minutes exceeded the scope of the brief investigatory stop authorized by Terry. See Schmidt, supra, 188 Ga. App. at 87; United States v. Dortch, 199 F.3d 193, 200 (II) (A) (5th Cir. 1999) (justification for suspect’s detention ceased when computer check came back negative, and the subsequent discovery of drugs following a canine search was the product of a Fourth Amendment violation).

School security officer had reasonable suspicion for a search at school based on defendant’s being under the influence the day before, and defendant was seen the next day on a security camera showing something to another student with a cupped hand. R.B. v. State, 975 So. 2d 546 (Fla. App. 3DCA 2008).*

Lack of CI’s track record did not void the search. There was independent verification, including from a controlled buy [which usually seals the deal]. State v. Jenkins, 178 Md. App. 156, 941 A.2d 517 (2008). (Comment: Moylan opinions are usually interesting to read, but this one gets a little ponderous. There seems to be a little venting going on here, too.)

Consent to search after refusal and officer’s threat to get a warrant would be involuntary if the officer’s threat was baseless, but here the court need not reach that question because there was probable cause for the search of defendant’s vehicle. United States v. Freeman, 2008 U.S. Dist. LEXIS 28755 (W.D. Ky. April 7, 2008).*

Officer claimed to have consent from defendant’s landlord and then claimed he got consent from defendant after coming in uninvited. Any such consent was tainted by the unlawful entry, and the suppression order was affirmed. State v. Felix, 2008 Ga. App. LEXIS 414 (April 7, 2008).*

Tasering plaintiff was objectively reasonable because he was noncompliant and the situation was about to get out of hand. Cook v. City of Bella Villa, 2008 U.S. Dist. LEXIS 28560 (E.D. Mo. April 8, 2008)*:

As it regards Michael Cook, the Court finds Locke’s conduct, in tasering and causing Michael’s head to strike the subject vehicles, objectively reasonable as a matter of law. See Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). In addition to being alone and outnumbered by presumably intoxicated suspects, Diane’s sarcastic comments and noncompliance, coupled with Michael’s wayward behavior in exiting the vehicle and opposing Locke’s arrest and/or search could lead a reasonable officer to respond in the manner described of Locke.

A city ordinance that permitted inspection of sexually oriented businesses was construed as applied to save it because it had a provision that even non-public areas were subject to inspection at any time. The ordinance had not been applied yet in a manner that would make it unconstitutional as applied, but it was subject to abuse, and the court recognized that the owner could lawfully refuse inspection of non-public areas of the premises, should that occur. Wal Juice Bar v. City of Oak Grove, 2008 U.S. Dist. LEXIS 29698 (W.D. Ky. April 10, 2008).*

Officers had information from a CI that defendant had an absconding “high risk” parolee staying with him. They went there to arrest him. Regardless of whether they had probable cause to believe that the parolee would actually be there, they saw him lying on the couch when defendant opened his door, and they entered when defendant tried to shut the door. After the entry, they “cleared the apartment” in a protective sweep and found a gun under the bed. The entry and sweep were valid. United States v. Reinhart, 2008 U.S. Dist. LEXIS 29087 (N.D. Iowa April 8, 2008).*

An 18 year old woman in a high school locker room saw a partially open locker and opened it and found a videocamera. She took out the camera, rewound it, and found images of the defendant placing it there. Defendant was questioned about it by the police, and he admitted placing it. The video and his admission were used to get a search warrant for his house and computers because he had no office at school to store anything. The warrant for his house was issued with probable cause and the good faith exception would apply anyway. Child porn was found on his computer at home. United States v. Mann, 2008 U.S. Dist. LEXIS 29279 (N.D. Ind. April 8, 2008).*

Officers had a 911 call about suspicious characters at an ATM machine, and one rolled up, they saw the officers and “fled” from the scene. While flight alone would not be enough, the actions here, analyzed in [painful] detail, added up to reasonable suspicion. United States v. Pasca, 2008 U.S. Dist. LEXIS 30832 (W.D. Pa. April 14, 2008).*

Controlled buy from a corroborated CI is probable cause for issuance of a search warrant. United States v. Sampson, 2008 U.S. Dist. LEXIS 30742 (M.D. Pa. March 31, 2008).*

Plaintiff’s conviction for assaulting a police officer barred this civil claim for excessive force under Heck because, as pled, the complaint attacked the basis of conviction. The question is what was pled, not could have been pled. Beverly v. Talsma, 2008 U.S. Dist. LEXIS 30290 (S.D. Ind. March 28, 2008):

This is not a case like McCann, in which the complaint was ambiguous as to whether the plaintiff was necessarily challenging the validity of his conviction. See McCann, 466 F.3d at 622-23 (reversing judgment on the pleadings based on Heck and remanding to give plaintiff an opportunity to clarify ambiguity and steer his complaint to middle ground not barred by Heck). Throughout this civil case–from the pleadings through the presentation of evidence motions for summary judgment–plaintiff Beverly has adhered steadfastly to his version of the facts in which he committed no crime at all, neither battery nor resisting law enforcement nor anything else. Based on the reasoning of Okoro, therefore, the court must conclude that Beverly’s claim for excessive force is barred by Heck unless and until his convictions are set aside. Accord, McCann, 466 F.3d at 622 (“The question for us, then, is not whether [plaintiff] could have drafted a complaint that steers clear of Heck (he could have), but whether he did.”).

“In the Ninth Circuit, ‘an action alleging illegal search and seizure of evidence upon which criminal charges are based does not accrue until the criminal charges have been dismissed or the conviction has been overturned.’ Harvey v. Waldron, 210 F.3d 1008, 1014 (9th Cir. 2000).” Fjerstad v. Bach, 2008 U.S. Dist. LEXIS 30654 (W.D. Wash. March 17, 2008).*

The Fourth Amendment has no application in an international extradition proceeding. [Although here, the court grants a conditional extradition based on the assurances of the requesting country that a new trial will be given on extradition because the fugitive was tried in absentia even in apparent violation of the requesting country’s constitution.] In re Extradition of Harusha, 2008 WL 1701428 (E.D. Mich. April 9, 2008):

The Fourth, Fifth and Sixth Amendments have no application to extradition hearings. See Neely v. Henkel, 180 U.S. 109, 122 (1901) (rights available to one charged with criminal offense in the United States not applicable to offenses committed outside the United States against the laws of another country); Glucksman v. Henkel, 221 U.S. 508, 512 (1911) (“It is common in extradition cases to attempt to bring to bear all of the factitious niceties of a criminal trial at common law. But it is a waste of time.”); In the Matter of the Extradition of Octavio Rodriguez Ortiz, 444 F.Supp.2d 876, 885 (N.D. Ill. 2006) (“[C]onstitutional protections applicable in criminal proceedings have been held inapplicable in the context of extradition.”). The process due for a determination of guilt under the foreign law is correctly afforded by the foreign court making that determination. See Neely, 180 U.S. at 123. In addition, the Federal Rules of Criminal Procedure and Evidence do not apply. See Fed.R.Crim.P. 54(b)(5) (“These rules are not applicable to extradition and rendition of fugitives”); Fed. R. Evid. 1101(d)(3) (“The rules (other than with respect to privileges) do not apply … [to p]roceedings for extradition or rendition”).

USMJ finds that the defendant consented to a search of his cellphone for data. One has an expectation of privacy in the data in his or her cellphone. United States v. James, 2008 U.S. Dist. LEXIS 29840 (E.D. Mo. March 4, 2008).*

“An officer stopped Cullars’s vehicle for violating a noise ordinance, and during the stop, officers observed Cullars reach into the backseat of the car to obtain a shiny plastic object, which Cullers refused to relinquish. We find no clear error in the district court’s determination that the officer had reasonable suspicion to seize the object from Cullars’s hand based on Cullars’s suspicious movements, Cullars’s response to the officer’s questions regarding the object in his hand, and the officer’s belief that the object in Cullars’s hand could be a weapon.” United States v. Cullars, 2008 U.S. App. LEXIS 7934 (11th Cir. April 7, 2008) (unpublished).*

(And, this is it for today.)

In a conceded violation of the particularity clause under Groh v. Ramirez, the government argues that the exclusionary rule should not apply under Hudson. The court disagrees because a failure of particularity is the same as no search warrant at all, and this is a classic situation for application of the exclusionary rule. Finally, the good faith exception does not apply. United States v. Ryan, 2008 U.S. Dist. LEXIS 29690 (D. Vt. March 31, 2008) [this is a PACER link; document is free]:

A. Interests Protected by the Constitutional Guarantee

First, the Government relies on Hudson v. Michigan for the proposition that exclusion is inappropriate if “the interest protected by the constitutional guarantee … would not be served by suppression of the evidence obtained.” Hudson v. Michigan, 547 U.S. 586, 593, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006). In addition, the Government cites to a Seventh Circuit decision, United States v. Stefonek, 179 F.3d 1030 (7th Cir. 1999), in which the circuit panel confronted facts very similar to those that are before this Court. 2 In Stefonek, the panel held that suppression was not required because “the violation did no harm to any of the interests in privacy or property that the Fourth Amendment protects.” 179 F.3d at 1034. The Court, however, finds that the Government has overstated the holding in Hudson and that the cited legal proposition does not apply to the facts presented here. Nor is the Court persuaded by the reasoning in Stefonek in light of the Supreme Court’s subsequent decisions in Hudson and Groh.

The first deficiency in the Government’s argument results from its failure to place the cited proposition from Hudson in context. Hudson did not involve a warrantless search; to the contrary, the law enforcement officers obtained and acted pursuant to a valid warrant. The sole constitutional violation in Hudson arose when the officers executing the warrant failed to comply with the knock-and-announce requirements. As such, the Court’s decision did not provide a methodology for determining whether to exclude evidence seized pursuant to a warrantless search of a defendant’s home. Rather, the Court addressed the issue of whether it was appropriate to expand the exclusionary rule to apply to knock-and-announce violations. Moreover, the Court specifically recognized the import of this distinction, noting that “cases excluding the fruits of unlawful warrantless searches say nothing about the appropriateness of exclusion to vindicate the interests protected by the knock-and-announce requirement.” Id. at 593 (citations omitted).

. . .

In Hudson, the Court offered a concrete example of a situation in which the interests protected by the constitutional guarantee are too attenuated from the evidence which the defendant seeks to suppress. The Court cited to New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990), in which the police effected an illegal, warrantless arrest within Harris’ home. The Court declined to extend the exclusionary remedy to statements made by Harris outside his home, holding that suppression of these statements “would not serve the purpose of the rule that made Harris’ in-house arrest illegal.” Hudson, 547 U.S. at 593 (quoting Harris, 495 U.S. at 20). The instant case is readily distinguishable. The evidence challenged by Ryan was seized pursuant to the illegal, warrantless search itself; there was neither spatial nor temporal attenuation. Furthermore, the seizure violated precisely those privacy and property interests which the Fourth Amendment protects.

The second major deficiency in the Government’s reasoning results from its exceptionally narrow definition of which interests are protected by the Fourth Amendment. The Government focuses solely on the particularity requirement in the Fourth Amendment and argues that its purpose is “to prevent general warrants.” (Opp’n by Gov’t to Motion to Suppress 4-5.) Although this argument has been articulated by the circuit panel in United States v. Stefonek, 179 F.3d 1030, 1033 (7th Cir. 1999), the Government’s reasoning runs contrary to the Supreme Court’s decisions in Hudson and Groh.

In its discussion of which interests are constitutionally protected in the context of a warrantless search, the Court in Hudson espoused a much broader definition. Justice Scalia wrote for the majority:

Until a valid warrant has issued, citizens are entitled to shield “their persons, houses, papers, and effects” from the government’s scrutiny. Exclusion of the evidence obtained by a warrantless search vindicates that entitlement. The interests protected by the knock-and-announce requirement are quite different–and do not include the shielding of potential evidence from the government’s eyes.

Hudson, 547 U.S. at 593 (citation omitted). The Government in this case invaded Ryan’s home, his papers and his effects when it executed the illegal, warrantless search. The Supreme Court, in the very case on which the Government most heavily relies, has stated that exclusion would vindicate Ryan’s constitutionally protected interests.

Even assuming that the Government’s focus on the particularity requirement is appropriate, the Government’s definition of the interest protected by this requirement is far too constrained. The Supreme Court has “long held … that the purpose of the particularity requirement is not limited to the prevention of general searches.” Groh, 540 U.S. at 561. In fact, the Court in Groh tallied a number of other goals served by the particularity requirement: The requirement prevents “the seizure of one thing under a warrant describing another,” id.; prevents the issuance of a warrant “on vague or dubious information,” id.; and provides a guarantee to “the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” Id. (quoting United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977)).

. . .

B. Deterrence Versus the Social Costs of Exclusion

The Government’s second argument against suppression is that the deterrence benefits of exclusion in this case do not outweigh its substantial social costs. (Opp’n by Gov’t to Mot. to Suppress 6-7.) To support this position, the Government has selected bite-size morsels from a number of decisions in which the Supreme Court and Second Circuit have used this balancing analysis. Id. In addition, the Government has argued that deterrence will not be effective in this case because the error resulted from negligence rather than willful misconduct. Id. at 7-8.

Once again, the Government has not adequately placed the cited legal proposition in context. It is beyond dispute that the Court has on numerous occasions relied on a balancing test, sometimes over the clamor of dissenters who have decried it as nothing more than “judicial stagecraft,” Leon, 468 U.S. at 949 (Brennan, J., dissenting); however, as the Second Circuit has observed, in each case the Court was considering “extension of the rule beyond its core application.” Tirado, 689 F.2d at 310; see, e.g., United States v. Calandra, 414 U.S. 338, 349, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1974) (considering costs and benefits of extending exclusionary rule to grand jury proceedings); United States v. Janis, 428 U.S. 433, 453-54, 96 S. Ct. 3021, 49 L. Ed. 2d 1046 (1976) (same with regard to civil proceedings); Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357, 363, 118 S. Ct. 2014, 141 L. Ed. 2d 344 (1998) (same with regard to parole revocation proceedings); Hudson, 547 U.S. at 591-93 (same with regard to knock-and-announce violation).

The instant case, in contrast, falls clearly within what has been termed the “core application” of the exclusionary rule: Ryan seeks exclusion “of illegally seized items as affirmative evidence in the trial of the matter for which the search was conducted.” Tirado, 689 F.2d at 310. In fact, the balancing analysis in these cases consistently relies on an implicit core application of the exclusionary rule; otherwise all discussion of “additional marginal deterrence” would be rendered meaningless. See id.; Janis, 428 U.S. at 453-54; Calandra, 414 U.S. at 351-52.

The Government also challenges whether exclusion in this case will achieve any deterrence. Leon created a good-faith exception to the strictures of the exclusionary rule, holding that deterrence is most effective in cases of willful or negligent misconduct by law enforcement. Leon, 468 U.S. at 918. The Government in this case advocates a further whittling, proposing a new exception to the exclusionary rule in cases where the constitutional violation resulted from negligence rather than intentional misconduct.

Comments: First, one remarkable thing here is that the Magistrate Judge obviously did not care enough to read the warrant that he or she was authorizing. The second remarkable thing here is that the government persisted in pursuing avoiding the exclusionary rule to the point that it essentially had to argue that there was no exclusionary rule under Hudson.

Qualifying juvenile adjudications are constitutionally subject to the taking of DNA samples for CODIS. Petitioner F v. Brown, 2008 Ky. App. LEXIS 42 (February 22, 2008).

Officer’s experience in child porn investigations was sufficient for probable cause that the persons in the pictures were minors. United States v. Davila-Sanchez, 2008 U.S. Dist. LEXIS 13115 (D. P.R. February 21, 2008).*

Kentucky city police officer could arrest outside the city. Commonwealth v. Sester, 245 S.W.3d 733 (Ky. 2008).*

While the use of the drug dog in this case was delayed somewhat, defendant’s log book violation would have kept him from driving anyway, and that mitigated the delay. Also, there is no prohibition from vehicle enforcement officers using drug dogs in truck stops. Meghoo v. Commonwealth, 245 S.W.3d 752 (Ky. 2008).*

Knock-and-talk by three officers who started off interrogating defendant about drugs was coercive, so the consent was invalid. State v. Frye, 2007 Ohio 6941, 2007 Ohio App. LEXIS 6088 (11th Dist. December 24, 2007):

[*P27] Obviously, there were no exigent circumstances pertaining to the search of Mr. Frye’s RV: this was a pre-planned, warrantless search, relying for its validity solely on his consent. Under the totality of the circumstances, that consent cannot be deemed voluntary. Three police officers, without a warrant and without probable cause, showed up at Mr. Frye’s door, seeking to search his home. This implies coercion. That invalidates his consent. Cf. Robinette at 242-243. While the United States Supreme Court has refused to adopt a “waiver statement” as a requirement for showing a search is voluntary, see, e.g., Robinette at 242, in this case, the police had already obtained a written consent from Mr. Perkins to search his grounds. They could have provided a similar document to Mr. Frye when seeking to search his RV.

Doctor-patient privilege did not protect blood sample drawn by search warrant with probable cause. People v. Elysee, 2007 NY Slip Op 10172, 49 A.D.3d 33, 847 N.Y.S.2d 654 (2d Dept. 2007).

Police officer not in uniform or on duty entered his own mother’s home because he knew that his daughter was upset. He tried to call on the phone there to get a patrol car to come, but that wasn’t working, so he went to his own house and got his own patrol car and came back. He acted as a private citizen in the entry, and he had apparent authority to enter whenever he wanted into his mother’s home. State v. Scott, 975 So. 2d 782 (La. App. 2d Cir. 2008):

The record shows that Deputy Scott went to his mother’s house to find out why his 4-year-old daughter was upset. He did not wear his uniform, drive his patrol car, notify his office, or take a radio. His actions in entering the home are consistent with a concerned father attempting to address a private inter-family issue. Deputy Scott did not collect any physical evidence while inside the home. Moreover, after learning of the circumstances involving a serious danger to others, Deputy Scott acted responsibly by calling the sheriff’s office. He tried unsuccessfully to have the sheriff’s office send another deputy to the house to handle the matter. Deputy Scott had to use the house phone to make the call as he did not bring a police radio or cell phone. When he was advised that there were no other deputies in the area, Deputy Scott went back to his home to switch to his patrol car. It is clear that Scott’s primary objective in entering the house pertained to his children’s well-being rather than law enforcement.

Deputy Scott’s personal motivation supports the trial court’s and this court’s conclusion that he acted as a private citizen and not as a government agent when he entered his mother’s home.

Moreover, Deputy Scott’s entry into his own mother’s home was not unreasonable. The evidence adduced does not establish that defendant had a subjective expectation of privacy to preclude his own brother from entering their mother’s house (a house in which Scott used to reside) or that such expectation is one that society is prepared to recognize as reasonable and legitimate in this unique situation. See, State v. Horton, 42,199 (La. App. 2d Cir. 06/20/07), 962 So. 2d 459. Deputy Scott testified that he frequently entered the house without knocking and called out for his brother or mother, and he was never precluded from doing the same. Even on this particular occasion, defendant did not ask Deputy Scott to leave but voluntarily engaged in conversation with his brother in the house. The evidence also shows that defendant had equal authority to enter Deputy Scott’s trailer just down the road. The totality of the circumstances compels a finding that the entry was not illegal under the particular circumstances of this case.

Traffic stop revealed evidence of a clan lab in the back seat, and this was justified by plain view because its nature was immediately apparent to the officer. State v. Linn, 975 So. 2d 771 (La. App. 2d Cir. 2008)* (Comment: This was an argument that defense counsel would not make and appellant made it pro se.)

Typographical error in the number of the apartment to be searched was found by the officers before execution, and they confirmed with the apartment complex manager which apartment was defendant’s. During execution of a drug warrant, a police dog alerted to a safe which was removed and a separate warrant obtained for it. There was probable cause, and the good faith exception saves it anyway. United States v. Kingcade, 2008 U.S. Dist. LEXIS 22943 (D. Wis. March 21, 2008).*

A claim was stated against a private actor, the Recording Industry Association of America, for acting in concert with police allegedly without probable cause for plaintiff’s arrest. Cerros v. N. Las Vegas Police Dep’t, 2008 U.S. Dist. LEXIS 22636 (D. Nev. February 28, 2008).*

Warrant executed for weapons in a murder case revealed drugs in the places were a weapon or ammunition could be found, and that qualifies as plain view. People v. Koehn, 178 P.3d 536 (Colo. 2008).*

Seatbelt stop led to officer seeing an empty holster in the back seat, and that justified a patdown. As defendant stepped out, the officer smelled marijuana on his person, and the feel of a baggie made it immediately apparent he was in possession of marijuana. State v. Odom, 656 S.E.2d 748, 376 S.E.2d 330 (2007).*

Officer lacked a reasonable suspicion that defendant’s temporary vehicle registration was expired when he made and continued the stop, but the court stresses that its holding is limited. People v. Dean, 158 Cal. App. 4th 377 (1st Dist. 2007)* (considering California’s penchant for unpublished opinions, this one seems like it should have been too).

Highway patrol officer had authority to arrest petitioner for DWI on private property in construing state statute. Brewer v. Ziegler, 2007 ND 207, 743 N.W.2d 391 (2007).*

Defendant was arrested at his door on a warrant, handcuffed, and put in a police car. The police conducted a protective sweep of the premises and then went back in and looked for evidence, finding a gun under a sweatshirt. The defendant was too far from the house to be able to obtain evidence or contraband. The search was governed by Chimel and not Thornton because the rationales are different. People v. Leal, 160 Cal. App. 4th 701, 73 Cal. Rptr. 3d 34 (6th Dist. 2008):

For Fourth Amendment purposes, the difference between an automobile and one’s private residence is significant. “[S]eizures of automobiles ‘deal neither with searches nor with the sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection.'” (City of Indianapolis v. Edmond (2000) 531 U.S. 32, 54 (dis. opn. of Rehnquist, C. J.).) Automobiles are mobile and exposed, whereas homes are immobile and relatively unexposed. Even if a suspect has been arrested and taken outside the vehicle (see Thornton v. United States, supra, 541 U.S. at p. 618), the suspect could still fight for control of the vehicle, putting at risk officers’ safety and the preservation of evidence. Or the vehicle could be driven off by someone else, towed by a towing company to a remote location and left unguarded, or struck by a passing vehicle, leading to the loss of evidence. For reasons like this, “the officer faces a highly volatile situation.” (Id. at p. 621.) The circumstances accompanying defendant’s arrest were diametrically different.

The People rely on U.S. v. Hudson (9th Cir. 1996) 100 F.3d 1409, 1412-1413, 1418-1419, U.S. v. Nohara (9th Cir. 1993) 3 F.3d 1239, 1243, U.S. v. Turner (9th Cir. 1991) 926 F.2d 883, 888, and People v. Rege (2005) 130 Cal.App.4th 1584. All of these cases honor Chimel in the breach, paying homage to Chimel while going beyond what the Fourth Amendment permits under Chimel. (E.g., Hudson, at p. 1419 [stating that a “search may be conducted shortly after the arrestee has been removed from the area” and announcing another constitutionally questionable rule, namely that a warrantless search of the entire room in which the person was arrested is valid]; Nohara, at p. 1243 [tautologically stating that “events between the time of the arrest and search must not render the search unreasonable” and questionably holding that a search is permissible two to three minutes after the arrest with the suspect removed from the room]; Turner, at pp. 886-888 [approving warrantless search of part of room after suspect had been handcuffed and removed, partly on the ground that the Constitution should not be “‘entirely at odds with safe and sensible police procedures,'” but showing unease, stating “This holding is limited to the narrow facts of a short time span and the arrestee’s close proximity.” (Id. at fn. 2.)].)

The reasoning of U.S. v. Turner, supra, 926 F.2d 883, is flawed for reasons pithily and accurately set forth in Justice Scalia’s concurring opinion in Thornton v. United States, supra, 541 U.S. at page 627: “If ‘sensible police procedures’ require that suspects be handcuffed and put in squad cars, then police should handcuff suspects, put them in squad cars, and not conduct the search.” Justice Scalia’s opinion also disposes of the view in People v. Rege, supra, 130 Cal.App.4th 1584, that police must be “remove[d] … from the horns of a dilemma which would require them either to forego search incident to arrest, or to keep the suspect at least figuratively within arm’s reach while conducting such a search, thereby assuring the very danger it was meant to prevent.” (Id. at p. 1590.) And we are not the first court to decline to rely on U.S. v. Hudson, supra, 100 F.3d 1409. (State v. LaMay, supra, 140 Idaho at p. 840 [103 P.3d at p. 453].)

The fundamental flaw in the analysis contained in the cases we have criticized “is that it assumes that, one way or another, the search must take place. But conducting a Chimel search is not the Government’s right; it is an exception–justified by necessity–to a rule that would otherwise render the search unlawful.” (Thornton v. United States, supra, 541 U.S. at p. 627 (conc. opn. of Scalia, J.).) Agreeing with Justice Scalia, U.S. v. Yanez (S.D. Tex. 2007) 490 F. Supp. 2d 765, stated: “The twin rationales of Chimel make clear that this doctrine is an exception to the warrant requirement borne of necessity–for the preservation of probative evidence and officer safety.” (Id. at p. 776.)

When defendant was told that his car was going to be towed because he had no proof of insurance, he locked his car, sat on the curb, and refused to give up the keys without a search warrant. Because he was outside of the locked car, under the state’s bright-line search incident rule, the search of the car was improper. [The three divisions of the Washington Court of Appeals are essentially on agreement on this issue.] State v. Quinlivan, 142 Wn. App. 960, 176 P.3d 605 (2008):

[7] ¶25 Here, the uncontested findings are that Mr. Quinlivan got out of his truck, locked that truck, and walked some distance away from it to sit on a curb. Only then was he arrested by police. At that time, he did not have access to the passenger compartment of his car. As in Johnston, “[t]he State does not rely on any other exception to the warrant requirement.” 107 Wn. App. at 289. And, accordingly, police needed a warrant in order to search that vehicle incident to his arrest.

Defendant had standing to contest the stop under Brendlin, but not the search of the car under Rakas. There was an objective basis for the stop, and the driver gave consent. United States v. Lewis, 2008 U.S. Dist. LEXIS 15238 (M.D. Fla. February 12, 2008).*

Despite the legitimate business of the police to drive down defendant’s primative road to investigate a burglary nearby, the presence of “No Trespassing” signs down this road and the long distance from the road afforded defendant an expectation of privacy from police intrusion under the state constitution. State v. Jesson, 142 Wn. App. 852, 177 P.3d 139 (2008). The Lexis Overview:

A deputy had been informed that defendant might have information regarding the possible suspects in the theft of a neighbor’s property and he entered the property for the sole purpose of asking defendant about the suspects. Thus, the deputy was engaged in legitimate police business. Defendant’s property was located in a remote, sparsely populated and heavily forested area. While the deputy entered the property during daylight hours, he had to drive down a long and rough, primitive driveway to access defendant’s home. He also had to enter through a closed, but unlocked gate posted with a no trespassing sign. Furthermore, defendant’s home was not visible from the gate; nor was it visible from his neighbors’ property or any other public area. The driveway and property surrounding it were posted with no trespassing and keep out signs. The appellate court found that a reasonable, respectful citizen would not believe that he could enter the property. Thus, the deputy’s entry onto the curtilage of defendant’s property without his consent violated his rights under the Fourth Amendment and Wash. Const. art. I, § 7. Therefore, his motion to suppress was improperly denied.

ND declines to follow Indiana’s Litchfield and find a reasonable expectation of privacy in a curbside trash seizure. State v. Schmalz, 2008 ND 27, 744 N.W.2d 734 (2008).*

Defendant was on a bus that had crossed the border and was subjected to a stop in Harlingen, Texas, where an immigration officer boarded the bus and asked to see the paperwork on anybody who was not a U.S. citizen. The court found it was a close case, but determined that the encounter was consensual and defendant would have felt free to not answer questions of the officer standing over him in the bus with a gun in a holster demanding to see his paperwork. After defendant admitted he was a Mexican citizen, the officer conducted a patdown while the defendant was still seated, and that produced drugs on his person. United States v. Mendieta-Garza, 254 Fed. Appx. 307 (5th Cir. 2007)* (unpublished):

The first encounter between Agent Sanchez and Mendieta-Garza had ended, and a reasonable person would have felt free to decline Agent Moya’s subsequent requests or to terminate the encounter. See United States v. Ricardo, 472 F.3d 277, 283-84 (5th Cir. 2006) (holding that a second encounter with an officer did not result in a seizure where the first encounter, a traffic stop, had ended and the officer had returned all of the appellant’s documents); see also United States v. Esparza-Mendoza, 386 F.3d 953, 958-59 (10th Cir. 2004) (making a second request, or even a second demand, for identification does not, by itself, implicate the Fourth Amendment). Prior to noticing a bulge under Mendieta-Garza’s shirt, Agent Moya did not apply any force, make an intimidating movement or an overwhelming show of force, or issue a threat or command. See Drayton, 536 U.S. at 204 (finding no seizure where there “was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice”). Though Mendieta-Garza was asked twice about his immigration status, because neither interrogation was coercive or confrontational, we hold that Mendieta-Garza was not seized in violation of the Fourth Amendment. See id. at 204 (holding there was no seizure where there “was nothing coercive or confrontational” about the encounter with law enforcement).

Comment: A reasonable person would have felt free to not answer questions? Pure fiction. It is quite obvious that appellate judges have never had a cop in their face to understand what a “reasonable person” would feel.

Defendant’s stop was based on reasonable suspicion from a reliable snitch, and the defendant consented during the stop of the vehicle. United States v. Walker, 254 Fed. Appx. 300 (5th Cir. 2007)* (unpublished)