Video surveillance of school locker rooms was unreasonable, and Vernonia (the student athlete drug testing case) and T.L.O. (searches by school officials on reasonable suspicion) did not support the surveillance and keeping the tapes. Also, the surveillance did not have qualified immunity. Brannum v. Overton County Sch. Bd., 516 F.3d 489, 2008 FED App. 0083P (6th Cir. 2008):

The Fourth Amendment does not protect all expectations of privacy; only those that society recognizes as reasonable and legitimate. T.L.O., 469 U.S. at 338. The Supreme Court has acknowledged that generally, students have a less robust expectation of privacy than is afforded the general population. Id. at 348 (Powell, J., concurring). Indeed, this expectation may be even less for student athletes in locker rooms, which the Court has previously observed are places “not notable for the privacy they afford.” Vernonia, 515 U.S. at 657.

This does not mean, however, that a student’s expectation of privacy in his or her school locker room is nonexistent. In fact, we have stated before that even in locker rooms, students retain “a significant privacy interest in their unclothed bodies.” Beard, 402 F.3d at 604. Unlike the situation in Vernonia, where the students and their parents were well aware that participation in school sports was conditioned on the students submitting to the drug testing policies, neither the students nor their parents in this case were aware of the video surveillance in the locker rooms, to say nothing of the videotaping. Further, while the Court in Vernonia pointed out the lower level of privacy typically associated with school locker rooms, we are satisfied that students using the LMS locker rooms could reasonably expect that no one, especially the school administrators, would videotape them, without their knowledge, in various states of undress while they changed their clothes for an athletic activity.

C.

Video surveillance is inherently intrusive. As one authority has put it, a video camera “sees all, and forgets nothing.” Constitutionality of Secret Video Surveillance, 91 A.L.R.5th 585, § 2 (2001). In Vernonia, the Supreme Court addressed the intrusiveness of a procedure employed for obtaining urine samples from students in order to conduct drug screening. The male students produced urine samples at a urinal along a wall while a male monitor watched from a distance. The female students produced samples in individual enclosed stalls while a female monitor stood outside. Neither the males nor the females were forced to remove their clothing before the monitors or expose themselves to the monitors. Vernonia, 515 U.S. at 658. The Court determined that the procedural precautions directed at ensuring the privacy of the students were significant, which helped to ensure that the policy was minimally invasive in practice.

In Beard, we considered the constitutionality of a strip search conducted by the school officials when a student reported that she was missing some money. The male and female students were separated and taken to different places in the school. The female students, while in full view of the others and the school officials, were required to lift up their shirts and pull down their pants without removing their undergarments. The males, on the other hand, were forced to remove their outer clothing and pull down their undergarments for inspection by the school official. We found that the character and scope of this search was unreasonably intrusive upon the students’ privacy. Beard, 402 F.3d at 605-06.

In this case, the scope of the search consisted of the video recording and image storage of the children while changing their clothes. In Vernonia, procedural safeguards were put into place to protect the students’ privacy, but in this case, the school officials wholly failed to institute any policies designed to protect the privacy of the students and did not even advise the students or their parents that students were being videotaped. Likewise, as the female students in Beard were inspected while in their undergarments, the students here were also observed in their undergarments while they were in the school locker rooms. We believe that the scope of the secret surveillance in this case, like the strip search in Beard, significantly invaded the students’ reasonable expectations of privacy.

D.

In determining whether a search is excessive in its scope, “the nature and immediacy of the governmental concern” that prompted the search is considered. Vernonia, 515 U.S. at 660. Of course, a valid purpose does not necessarily validate the means employed to achieve it. In order to satisfy the constitutional requirements, the means employed must be congruent to the end sought. See T.L.O., 469 U.S. at 341-42.

. . .

In this case, the defendants were prompted to install video surveillance cameras by a concern that school safety measures should be enhanced. It is indisputable that the operation of the video cameras intruded upon the students’ privacy; the question is whether, given the purpose for which the cameras were operating, the intrusion was reasonable. One measure of reasonableness is the congruence or incongruence of the policy to be served (student safety), and the means adopted to serve it. Surveillance of school hallways and other areas in which students mingle in the normal course of student life is one thing; camera surveillance of students dressing and undressing in the locker room–a place specifically set aside to offer privacy–is quite another. The two do not stand on equal footing.

Stated differently, the surveillance methodology employed, in particular the installation and operation of the cameras in the locker rooms, in order to be reasonable in its scope, must be congruent to the need for such a search in order to serve the policy goal of school safety and security. There is nothing whatsoever in this record to indicate that the defendants entertained any concerns about student safety or security in the locker rooms that would reasonably justify the installation of the cameras to record all the activities there. The defendants do not claim that any misconduct occurred in these areas in the past or that the plan to install the surveillance equipment in the school locker rooms was adopted because of any reasonable suspicion of wrongful activity or injurious behavior in the future. Indeed, the record suggests that the school board members and Director Needham were not even aware that cameras were positioned to monitor activities in the locker rooms.

The record supports the finding of reasonable suspicion in this case, but the defendant’s nervousness is not much of a factor. Prior drug arrests can be. State v. Louthan, 275 Neb. 101, 744 N.W.2d 454 (2008):

An individual’s criminal history may be a relevant factor when determining whether an officer has reasonable suspicion to detain an individual. In Lee, this court held that the officers’ awareness that the motorist had unspecified “‘prior drug arrests'” could be considered as a part of the totality of the circumstances in determining whether there was a reasonable, articulable suspicion which would warrant continued detention pending the arrival of a drug detection dog.

Defendant was “in custody” when he was in the police car after an arrest at the scene of an accident. Rockwell v. State, 176 P.3d 14 (Alas. App. 2008) (applying Berkemer).

An issue not even necessary to discuss in this case still decided for no apparent reason: A citizen informant is presumptively reliable. State v. Timberlake, 744 N.W.2d 390 (Minn. 2008).*

Unreasonable deadly force can be unreasonably precipitated by officers such that summary judgment should be denied. Hastings v. Barnes, 252 Fed. Appx. 197 (10th Cir. 2007)* (unpublished):

Deadly force is reasonable under the Fourth Amendment if a reasonable officer in the defendant’s position would have had probable cause to believe there was a threat of serious physical harm to himself or others. Jiron, 392 F.3d at 415; see also Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). Therefore, an officer’s use of deadly force in self-defense is not unreasonable under the Fourth Amendment. Romero v. Bd. of County Comm’rs of the County of Lake, Colo., 60 F.3d 702, 704 (10th Cir. 1995).

At the moment of the shooting, Todd was advancing toward Barnes and Davis with the sword. Thus, when Barnes and Davis shot Todd, they were acting in self-defense and, viewed in isolation, the shooting was objectively reasonable under the Fourth Amendment. Hastings does not dispute this conclusion. Rather, he argues Barnes and Davis’ actions preceding the shooting precipitated their need to use deadly force, thereby rendering their use of such force unreasonable.

The reasonableness of the use of force depends not only on whether the officers were in danger at the precise moment they used force but also on whether the officers’ own conduct during the seizure unreasonably created the need to use such force. Jiron, 392 F.3d at 415; see Medina v. Cram, 252 F.3d 1124, 1132 (10th Cir. 2001); Allen v. Muskogee, Okla., 119 F.3d 837, 840 (10th Cir. 1997); Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699 (10th Cir. 1995). However, only reckless and deliberate conduct that is immediately connected to the seizure will be considered. Medina, 252 F.3d at 1132. In other words, mere negligent conduct or conduct attenuated by time or intervening events is not to be considered. Sevier, 60 F.3d at 699 n.8.

Our review of the record convinces us that whether Barnes and Davis’ actions unreasonably precipitated their need to use deadly force calls for a jury determination. But, viewing the facts in the light most favorable to Hastings, a constitutional violation occurred. Todd was not a criminal suspect. He was a potentially mentally ill/emotionally disturbed individual who was contemplating suicide and had called for help. Rather than attempt to help Todd, Barnes and Davis crowded themselves in Todd’s doorway (leaving no room for retreat), issued loud and forceful commands at him and pepper-sprayed him, causing him to become even more distressed. 8 At the time they pepper-sprayed him, Todd was not verbally or physically threatening them. At least one of the officers heard Todd say “‘help me'” or “‘they are coming to get me.'” (R. App. at 210.) Although Todd had a sword, his stance, at least up until the time he was pepper-sprayed, was defensive not aggressive, posing no threat to anyone but himself. A reasonable jury could find that under these facts Barnes and Davis’ actions unreasonably escalated the situation to the point deadly force was required.

Defendant’s alleged medical use did not negate probable cause to search, and necessity defense was for trial. State v. Fry, 142 Wn. App. 456 (2008):

¶11 This reasoning applies here. Information relating to the validity of a suspect’s medical use defense will almost always be within the defendant’s knowledge. The defendant’s assertion of the defense is not necessarily a fact; further development of the facts at trial may well show that the medical use defense is not viable. Therefore, the mere production of a document purporting to be a marijuana use authorization does not prohibit further investigation by the State. Here, probable cause to search Mr. Fry’s house existed as soon as officers smelled marijuana. His production of a medical use document did not provide automatic protection against a reasonable police investigation and search. Whether the affirmative defense of medical use of marijuana was viable was an issue for trial.

Odor of alcohol coming from car and open containers when stopped for a traffic offense is cause to get the driver out and check to see whether he is capable of driving further. Hinton v. State, 289 Ga. App. 309, 656 S.E.2d 918 (2008).*

Officer could ask questions and observe obvious changes on a vehicle during a traffic stop. Consent here was voluntary. United States v. Arraiza, 2007 U.S. Dist. LEXIS 95936 (D. Neb. December 18, 2007):

In this case, Trooper Frye articulated a reasonable suspicion of illegal activity due to the “mud” applied in the rear wheel well (a pattern observed in previous drug seizures), the air freshener, Arraiza’s bizarre responses to the Trooper Frye’s questions concerning Arraiza’s itinerary, and Arraiza’s nervousness. All would constitute a basis to detain Arraiza for further investigation under Terry v. Ohio, 392 U.S. 1 (1968). However, Arraiza consented to the search of the Ford Explorer following the actual traffic stop. Therefore, further discussion of an investigative detention is unnecessary.

A reasonable belief of the consenter’s authority to permit entry to look for a fugitive is all that is required. The police are not expected or required to ask for proof of authority. Authority to enter looking for a fugitive is different that authority to conduct a general search. State v. Strader, 593 Pa. 421, 931 A.2d 630 (2007):

As Judge Klein notes, people in another’s home may or may not have much authority, for homeowners may or may not spell out for guests or people happening to be in their home exactly what authority they have. However, the question is what is apparent, not actual, and the reasonableness of the police belief in that apparent authority. From the perspective of police at the time of the encounter here, it was reasonable to conclude Thornton had the authority to control who entered the apartment. Thornton said he was in charge and he let police in. The totality of circumstances in each case controls whether police have a reasonable belief the person consenting to the search has authority to do so. We decline to adopt Judge Klein’s reasoning, which would require proof of actual authority, which is not the rule the United States Supreme Court has established.

We also note it is more reasonable for police to believe the person has the authority to grant consent to search for a fugitive; they did not seek to search through the homeowner’s private papers and other materials. As with any suppression claim, it is the information known at the time, not that learned after the fact, that controls the legal analysis. A search for a fugitive is generally short in duration, as it is hard to hide a person from view, particularly inside a smaller residence like an apartment. Entry here did not involve a search for drugs, even though probable cause for drugs became apparent after entry.

Police securing the premises pending getting a search warrant by having the locks changed and keeping the keys was reasonable under the circumstances. United States v. Tyson, 2007 U.S. Dist. LEXIS 71637 (W.D. N.Y. September 26, 2007).*

Search of wrong house led to a jury verdict of $1. Motion for new trial is denied because the jury’s verdict is supported by the evidence. Smith v. City of Jacksonville, 2007 U.S. Dist. LEXIS 71730 (E.D. Ark. September 25, 2007).*

Informant’s tip was corroborated by a controlled buy. United States v. Hart, 2007 U.S. Dist. LEXIS 71599 (E.D. Mo. September 25, 2007).*

Directing a person to sit in a police car is not a de facto arrest, but it is governed by the reasonableness standard. Here, there was reasonable suspicion to have plaintiff sit in the car because of allegations he was involved in a domestic disturbance. Rakun v. Kendall County, 2007 U.S. Dist. LEXIS 72061 (W.D. Tex. September 24, 2007).*

Defendant’s lane changes in traffic and his broken windshield justified his stop. State v. Collins, 2007 Tenn. Crim. App. LEXIS 758 (September 27, 2007).*

A random license check on a vehicle that showed that defendant’s vehicle was uninsured justified his stop. Snedeker v. Rolfe, 2007 UT App 395, 176 P.3d 444, 593 Utah Adv. Rep. 31 (2007).

Delay of nearly 30 minutes while officer awaited arrival of a back up officer for investigation of defendant’s DWI stop was not unreasonable. Belcher v. State, 244 S.W.3d 531 (Tex. App. — Ft. Worth 2007):

Balancing the public interest served with Belcher’s Fourth Amendment right to be free from arbitrary detentions and intrusions, as we must, and giving almost total deference to the trial court’s historical fact findings, as we must, and viewing all of the evidence in the light most favorable to the trial court’s ruling, as we must, we cannot conclude as a matter of Fourth Amendment law that, given the totality of the circumstances–including Officer Willenbrock’s close monitoring of Officer Martin’s whereabouts and estimated time of arrival at the scene and the legitimate law enforcement purposes served by waiting for Officer Martin–the continued detention of Belcher, while awaiting Officer Martin’s arrival, was unreasonable. See Sharpe, 470 U.S. at 679, 105 S. Ct. at 1575; … see also Hartman, 144 S.W.3d at 570 (five-to fifteen-minute delay to await arrival of video camera); Smith, 2007 WL 700834, at *4 (twenty-six minute delay to await arrival of rookie officer); Dickson, 2006 WL 3523789, at *4 (twenty-minute delay to await arrival of DWI enforcement officer).

Habeas petitioner used § 2241 v. § 2254, but he did not exhaust before the state courts, and the rules are no different under the former. No COA would issue. Corbin v. Attorney General of N.J., 2007 U.S. Dist. LEXIS 93574 (D. N.J. December 19, 2007).*

Defendant was arrested 30-60′ away from the car he had been driving for no DL, and he did not qualify as a sufficiently recent occupant under Thornton to justify a search incident of the car. A.T.P. v. State, 973 So. 2d 650 (Fla. 2DCA 2008):

We conclude that the facts of the present case as outlined above make it distinguishable from Thornton. Here, A.T.P. was not in close proximity to his vehicle, had not recently exited the vehicle, and did not have the keys to the locked vehicle in his possession. There was no evidence that the deputy was concerned for his safety or that there was a risk that A.T.P. might destroy any evidence that might be contained in the vehicle. From our de novo review we conclude that the trial court erred when it denied the motion to suppress based on the legal conclusion that the case was controlled by Thornton. Accordingly, we reverse the withhold of adjudication for possession of cocaine and remand for discharge for this offense.

Defendant’s ineffective assistance claim justified a hearing. He alleged that defense counsel failed to pursue a suppression motion but pled guilty instead. His claim was not waived by a guilty plea, and it could not be said he would conclusively have lost the motion. Robinson v. State, 972 So. 2d 1115, 33 Fla. L. Weekly D 398 (Fla. 5DCA 2008).*

The habeas petitioner was originally charged in federal court with possession of drugs, and the federal court granted his suppression motion, which was not appealed. The state then charged the petitioner in state court, the motion to suppress was denied, and his conviction was affirmed on appeal. On limited habeas review, for which he was granted a COA, under Stone v. Powell, the successive prosecution did not amount to “an unconscionable breakdown” in the suppression motion process. Chavez v. Weber, 497 F.3d 2668 (8th Cir. 2007):

Chavez contends that the successive federal and state litigations of the suppression issue amount to an unconscionable breakdown in the underlying process. We reject his argument. As a threshold matter, we observe that, “although a defendant may not be prosecuted twice by the same sovereign for the same acts, a subsequent prosecution by a separate sovereign does not violate the Constitution.” United States v. Johnson, 169 F.3d 1092, 1095-96 (8th Cir. 1999). An exception exists where a state prosecution is a “sham” for a federal prosecution, id. at 1096, but the record supports the state courts’ conclusion that the federal and state prosecutors acted independently in this case. By calling three witnesses who had not testified at the federal suppression hearing, the State mounted a stronger case against Chavez than the federal government had brought, but this does not amount to an unconscionable breakdown in the system where there is no evidence of control or collusion between the separate prosecuting authorities. See United States v. Davis, 906 F.2d 829, 832-33 (2d Cir. 1990) (suppression issues usually can be separately litigated by separate sovereigns). Chavez contends that the state court’s admission of the same evidence that earlier had been suppressed by the federal court contravenes the policy of Stone by allowing one court to second-guess another, but this argument overlooks the fact that the state court analyzed a different record than was before the federal court. Finally, as the district court observed, Chavez was able to appeal these issues to the South Dakota Supreme Court, and he has not argued, nor do we see any evidence of, any breakdown in fairness at the state appellate level. See Willett, 37 F.3d at 1272.

Officers had probable cause for plaintiff’s arrest, and he failed to show any clearly established right that was violated to defeat qualified immunity. Scallion v. Norman, 251 Fed. Appx. 853 (5th Cir. 2007)* (unpublished).

Alleged Franks violation failed because the statements in the affidavit were not misleading. The officer was also not obliged to put defendant’s denial that the officer reasonably believed to be false in the affidavit. Even so, the information attacked under Franks, if stripped from the affidavit, would not eliminate the probable cause, of which there was plenty based on a controlled buy just before the warrant was sought. United States v. Holt, 246 Fed. Appx. 602 (11th Cir. 2007)* (unpublished).

Telephonic warrant was “issued” at 11:37 pm by a USMJ authorizing a cocaine search because officers were concerned that they could not obtain a paper warrant without the cocaine being lost to conspirators. There was no dispute there was probable cause and an oral authorization over the phone to enter. The USMJ went back to bed. The officers, however, failed to prepare a duplicate warrant of their own. The district court erred in holding that the search was “warrantless” because the defendants were not prejudiced by the lack of a paper warrant. United States v. Cazares-Olivas, 515 F.3d 726 (7th Cir. 2008):

After they arrested Francisco Cazares-Olivas and Israel Aguilera for drug offenses, federal agents sought a warrant to search the house where, the agents believed, Cazares-Olivas and Aguilera kept their inventory. It was after 11 pm, and the agents feared that if they waited until morning someone else might beat them to the stash. One agent and an Assistant United States Attorney called a federal magistrate judge at 11:37 pm. During a recorded conversation the agent took an oath to tell the truth and laid out facts that, the judge found, established probable cause for a search. The judge questioned the agent, obtained additional information, and eventually wrapped up the conversation this way: “the bottom line is you’ve got judicial authorization. It is so ordered. You can send your team in right now.” The search, begun at 1:47 am and finished at 4:25 am, turned up more than 40 kilograms of cocaine. Cazares-Olivas and Aguilera pleaded guilty to possessing more than five kilograms of cocaine with intent to distribute; each was sentenced to 125 months’ imprisonment. Conditional pleas reserved the right to contest the denial of the motion to suppress the evidence found during the search. See Fed. R. Crim. P. 11(a)(2).

Telephonic warrants are authorized by Fed. R. Crim. P. 41. An agent is supposed to fill out a form (called a “proposed duplicate original warrant”) and must “read or otherwise transmit the contents of that document verbatim to the magistrate judge.” Rule 41(e)(3)(A). The judge transcribes the information into the “original warrant,” which he signs. The agents who proposed this search, however, must not have had a supply of blank warrants handy, and they (along with the Assistant United States Attorney and the magistrate judge) were unacquainted with the steps laid out in the rule. (At oral argument we were told that this was the only time within the last 15 years, if not longer, that a telephonic warrant had been requested in the Western District of Wisconsin.) The agents did not read a “proposed duplicate original warrant” to the judge, who in turn did not prepare an original warrant. He simply put the recording on file and went to bed. As he and the district judge later concluded, when addressing the motion to suppress, this means that no warrant ever issued authorizing the search. 2007 U.S. Dist. LEXIS 12823 (M.J. W.D. Wis. Feb. 22, 2007). The agents had judicial approval, based on probable cause, but they did not have a warrant.

. . .

Cazares-Olivas and Aguilera received the benefit of a magistrate judge’s impartial evaluation before the search occurred. The search was supported by probable cause–on a record fixed, and supported by an oath, in advance, to prevent hindsight from being invoked to justify the search. An agent particularly described the place to be searched and the things to be seized. The lack of a written document created a risk that agents would exceed their authority, but that is so whenever the warrant does not accompany the officers–and we know from Grubbs and earlier decisions such as United States v. Hepperle, 810 F.2d 836, 839 (8th Cir. 1987), that, whatever the most prudent course may be, the fourth amendment does not require officers to have a warrant in hand when searching. See also United States v. Shorter, 600 F.2d 585, 587 (6th Cir. 1979) (an agent’s failure to prepare a “proposed duplicate original warrant” until after the search had been conducted does not require suppression of the evidence).

What remains is the violation of Rule 41. The agents did not prepare and read to the judge a “proposed duplicate original warrant”. The judge did not prepare and sign an original warrant. But violations of federal rules do not justify the exclusion of evidence that has been seized on the basis of probable cause, and with advance judicial approval. So we held for Rule 41 in particular in United States v. Trost, 152 F.3d 715, 722 (7th Cir. 1998). Accord, United States v. Rome, 809 F.2d 665 (10th Cir. 1987). See also, e.g., United States v. Caceres, 440 U.S. 741, 99 S. Ct. 1465, 59 L. Ed. 2d 733 (1979) (violation of statutory requirements that go beyond the Constitution’s demands does not justify the suppression of evidence unless the statute itself specifies this remedy). The violation of Rule 41 is regrettable but unlikely to recur. Allowing these defendants to go free would be a remedy wildly out of proportion to the wrong, which caused them no injury.

Comment: This is classic Easterbrook: His opinions are always a pleasure to read, just because of his ability to turn a phrase.

Collateral estoppel did not bar plaintiff’s § 1983 case. Probable cause was found in the state case, but it was later dismissed. There was no privity with the officer in the underlying case, and plaintiff had no incentive to appeal since he won his criminal case. Rickert v. City of Poulsbo, 2008 U.S. Dist. LEXIS 10403 (W.D. Wash. January 29, 2008).*

Consent to search in this case may have been coerced, but the law is not crystal clear because no case is like it because of the unique facts. There was, however, a consent to search form involved that plaintiffs signed, and all this adds up to qualified immunity. Eidson v. Owens, 515 F.3d 1139 (10th Cir. 2008).*

Consent was found valid because the defendant’s version was “wholly lacking in credibility.” The defense argument that somebody would not consent knowing that drugs would be found does not follow [and case law and experence show otherwise]. United States v. Babundo, 2008 U.S. Dist. LEXIS 10505 (D. Me. February 11, 2008).*

Stone v. Powell does not apply to § 2255 proceedings. Baranski v. United States, 515 F.3d 857 (8th Cir. 2008) (unpublished) (Comment: PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.
But ends up in F.3d anyway):

Stone left open the question of whether Fourth Amendment claims may be raised by federal prisoners under § 2255, see Matta-Ballesteros v. Henman, 896 F.2d 255, 262 n.8 (7th Cir. 1990), and it did not overrule Kaufman v. United States, 394 U.S. 217 (1969). See Stone, 428 U.S. at 479-81 & n.16. In Kaufman, the Court had unequivocally held that a claim of unconstitutional search and seizure is cognizable in a § 2255 proceeding, 394 U.S. at 231, and a Stone footnote suggested a different policy reason might underlie Kaufman because of the Court’s supervisory role over federal proceedings. See 428 U.S. at 481 n.16. It is well recognized that the supervisory power of federal appellate courts over district courts is broader than its authority to review state court decisions under § 2254. See Cupp v. Naughten, 414 U.S. 141, 146 (1973). We conclude that Stone does not bar our consideration of the issue certified by the district court, that is whether Groh v. Ramirez would entitle Baranski to prevail on his § 2255 motion.

Defendant doctor consented to a search of patient files in her office as a part of a health care fraud investigation. United States v. Moon, 513 F.3d 527, 2008 FED App. 0031P (6th Cir. 2008):

Agent Corbitt testified that three members of the TBI investigative team entered Defendant’s office dressed in “business professional” attire, with weapons concealed. Agents identified themselves to Defendant, explained that there was an ongoing investigation and requested access to particular patient files. Defendant inquired about the nature of the investigation but was not informed of the specific nature of the allegations. Following this conversation, Defendant stated it would be “fine” for agents to access requested files and that they “could scan whatever [they] needed to.” Further, Defendant provided agents with a space where they could scan the requested files.

Plaintiffs failed to state a due process or Fourth Amendment claim for housing code entry on to their property to remove weeds and debris. They were given notice of the proposed action and did nothing to head it off. The defendants also had qualified immunity. Nixon v. Montgomery County, 251 Fed. Appx. 141 (4th Cir. 2007)* (unpublished).

Officer’s affidavit for search warrant also referred to a 2000 search that was suppressed for lack of probable cause, and that was excised from the affidavit by the district court. The officer’s current personal observations were credited by the trial court, and the appellate court could not go behind those findings on the record. United States v. Popham, 250 Fed. Appx. 170, 2007 FED App. 0725N (6th Cir. 2007)* (unpublished).

Prison officials accidentally opening legal mail outside of the inmate’s presence was only an isolated instance, and it was not a pattern of conduct. Therefore, the prison officials are not liable under § 1983. Stockdale v. Dwyer, 2007 U.S. Dist. LEXIS 75819 (E.D. Mo. October 11, 2007).*

Officer observing improper lane change had probable cause for stop that led to observation that defendant was under the influence. People v. James, 2007 NY Slip Op 27384, 2007 N.Y. Misc. LEXIS 6781 (Queens Co. July 30, 2007).*

Defendant’s consent to taking of blood and urine was not voluntary. His mental condition was obviously vulnerable. He could not read, had to be forcibly restrained while the consent form was initially being read to him, was weeping on his wife’s shoulder while the remainder of the form was read to him, and never signed the form. Although his wife signed the form, the trooper admitted that she never indicated that defendant understood it. State v. Stephens, 289 Ga. App. 167, 657 S.E.2d 18 (2008).*

Facts supported the conclusion that the third party consenter in this case had sufficient common authority to consent. He, too, was a guest of 3-4 weeks, and defendant slept in a common area of the apartment on a mattress on the floor. State v. Smith, 105 Conn. App. 278, 937 A.2d 1194 (2008).*

Stop was based on reasonable suspicion, and the officers could order the defendants from the car, which led to a valid plain view. State v. Anthony, 971 So. 2d 1219 (La. App. 5th Cir. 2007).*

Unprovoked flight and discarding of gun was abandonment. State v. Lemar, 2007 La. App. LEXIS 2395 (La. App. 5th Cir. November 27, 2007),* released for publication January 14, 2008.

Officers reasonably believed that the defendant finally figured out that he was under surveillance and his arrest was imminent, so the officers could enter without a warrant to prevent flushing of a half pound of meth. State v. Ruggirello, 341 Mont. 88, 2008 MT 8, 176 P.3d 252 (2008):

[*P22] “Exigent circumstances exist if the situation at hand would cause a reasonable person to believe that prompt action is necessary to prevent … the destruction of relevant evidence … or some other consequence improperly frustrating law enforcement efforts.” Stone, P18. Here, Detective Basnaw had specific and articulable facts which would lead a reasonable person to believe that prompt action was necessary to prevent the destruction of the half-pound of methamphetamine Ruggirello allegedly possessed. Based on information from confidential informants, Detective Basnaw knew that Ruggirello was coming to Montana with methamphetamine, that Ruggirello was aware that police officers were watching him, and that he had asked a third party to help him get rid of the drugs. Detective Basnaw was also given information that the amount of the methamphetamine was one half-pound, and knew that such an amount could be flushed down the toilet in a short period of time. Moreover, Basnaw had witnessed O’Connell and another occupant of the apartment already leave the scene, and their behavior indicated they were aware that police were watching them.

[*P23] These facts, taken together, would lead a reasonable person in Detective Basnaw’s position “to believe that prompt action [was] necessary” to prevent Ruggirello from destroying the methamphetamine he allegedly possessed. Stone, P18. The fact that officers never recovered a full half-pound of methamphetamine, or never witnessed Ruggirello actually destroying drugs, does not alter our conclusion that Basnaw reasonably believed exigent circumstances existed. The question is not whether Basnaw was certain that Ruggirello had a half-pound of methamphetamine and that he was destroying it, but rather whether it was reasonable under the circumstances for Detective Basnaw to believe that Ruggirello had illegal drugs and that prompt action was necessary to prevent him from destroying them. Ruggirello does not challenge on appeal the reliability of the information provided by the confidential informants; therefore, it was indisputably proper for Detective Basnaw to take account of this information in formulating his belief that prompt action was necessary and that exigent circumstances existed.

Comment: This case comes dangerously close to being an officer created exigency. How about they just make their presence known and then use that for an excuse? This leads to swearing matches that the officers will usually win, even when they manipulate the whole thing.

A Sheriff’s deputy’s observations of animals in defendant’s backyard confirmed allegations of mistreatment reported by defendant’s neighbor that brought the officer to defendant’s property. The prevailing harsh weather conditions provided the deputy with a reasonable belief that dogs heard barking in the backyard were in need of immediate aid to prevent their serious injury or death. Likewise, once the officer entered defendant’s backyard and observed the seriously deprived condition of the dogs, he was entitled to respond to the situation by having the dogs immediately seized. Morgan v. State, 289 Ga. App. 209, 656 S.E.2d 857 (2008), prior opinion Morgan v. State, 285 Ga. App. 254, 645 S.E.2d 745 (2007), remanding for further findings.

Detention during execution of a valid warrant is permissible under Summers and Muehler, but detention during execution of an invalid warrant may not be, so summary judgment is denied. Olson v. Oreck, 2008 U.S. Dist. LEXIS 2786 (E.D. Cal. January 11, 2008).*

There was reasonable suspicion for the stop based on a woman climbing over the seat in a car in an area known for prostitution and drug activities, and the record is clear defendant consented. United States v. Bowman, 2008 U.S. Dist. LEXIS 2806 (S.D. W.Va. January 14, 2008).*

Reasonable suspicion supported stop of car because of apparent drug activities of the passenger. United States v. Penaloza, 2008 U.S. Dist. LEXIS 2885 (D. Kan. January 14, 2008).*

Defendant’s vehicles were seized on probable cause as to them and for forfeiture, so the fact they were not named in the warrant did not matter. An ion scan of the vehicles was thus validly done. United States v. Nelson, 530 F. Supp. 2d 719 (D. Md. 2008).*

“Four corners” rule limits probable cause determination of a search warrant to the four corners of the application. In applying good faith exception, however, the court may look beyond the four corners for good faith. State v. Perandi, 2008 Ohio 168, 2008 Ohio App. LEXIS 143 (5th Dist. January 16, 2008) (previous post had wrong case name; sorry).

[*P45] In determining whether probable cause exists to support the issuance of a search warrant, a trial court is confined to the four corners of the affidavit and any recorded testimony made part of the affidavit pursuant to Crim.R. 41(C). See, State v. Wesseler (Feb. 17, 1998), Butler App. No. CA96-07-131, and Crim.R. 41(C). However, in determining whether the good faith exception to the exclusionary rule applies, numerous courts have held a trial court may look beyond the four corners of the affidavit and consider unrecorded oral testimony to determine whether the officer executing the search warrant did so in good faith reliance on the judge or magistrate’s issuance of the search warrant. See, Wesseler, supra; Moya v. State (1998), 335 Ark. 193, 202, 981 S.W.2d 521, 525-526, cited in Katz, Ohio Arrest, Search and Seizure, (2002 Ed.) 151, Section 8.2, fn. 2, and United States v. Curry (C.A.8, 1990), 911 F.2d 72, 78 (cited in Moya). The principle in cases like Wesseler, Moya, and Curry is consistent with the statement in Leon that “all of the circumstances” may be considered in determining whether a reasonably well-trained police officer would have known that the search was illegal despite the magistrate’s authorization. Leon, 468 U.S. at 922-923, fn. 23.

Plaintiff showed a sufficient question of an unreasonably applied policy on use of deadly force to survive summary judgment. The city’s policy was constitutional, but its application might be found by a jury not to be. Price v. Sery, 513 F.3d 962 (9th Cir. 2008).*

Dog sniff that was completed four minutes after completion of paperwork was completed was not unreasonable. [Here, the court found it all important that the stop was based on probable cause to believe that a traffic offense had occurred, and that made it possible to detain the defendant longer for the dog sniff which was otherwise without cause than the officer could on mere reasonable suspicion.] United States v. Johnson, 2008 U.S. Dist. LEXIS 3920 (C.D. Ill. January 18, 2008).*

Traffic stop was supported by illegal lane change, and a gun was observed in plain view between the passenger’s legs. United States v. Holmes, 530 F. Supp. 2d 687 (D. Del. 2008).*

Today’s NTTimes has this: The Already Big Thing on the Internet: Spying on Users, by Adam Cohen. The article is about how cookies on our hard drive report us to the Internet sites we visit and how the Internet companies use that information, maybe to our great embarrassment and definitely at a cost of our privacy. The big thing now: “The driving force behind this prying is commerce. The big growth area in online advertising right now is ‘behavioral targeting.’”

The Federal Trade Commission has proposed self-regulatory guidelines for companies that do behavioral targeting. Anything that highlights the problem is good, but self-regulation is not enough. One idea starting to gain traction in Congress is a do-not-track list, similar to the federal do-not-call list, which would allow Internet users to opt out of being spied on. That would be a clear improvement over the status quo, but the operating principle should be “opt in” — companies should not be allowed to track Internet activities unless they get the user’s expressed consent.

The founders wrote the Fourth Amendment — guaranteeing protection against illegal search and seizure — at a time when people were most concerned about protecting the privacy of their homes and bodies. The amendment, and more recent federal laws, have been extended to cover telephone communications. Now work has to be done to give Internet activities the same level of privacy protection.

Wistfully, the Fourth Amendment doesn’t apply to these spies, but the government does have the power to regulate Internet privacy. Since the Bush administration does not respect our privacy anyway, wait for the next administration.

Stating the obvious, which it apparently was not for one party, consent to search a house for a person includes any place where that person could be hiding. So, a closet could be searched. A previous protective sweep of the room does not mean that the officers cannot return to the room to look again. United States v. Vasquez-Lozano, 2008 U.S. Dist. LEXIS 27099 (W.D. N.C. March 19, 2008).

There is no expectation of privacy in the information collected by an Internet service provider about one’s account, and a subpoena for its records on the defendant did not violate any reasonable expectation of privacy. [This was not an issue raised by the defense; it was raised by the court sua sponte to cut off a potential 2255 claim.] United States v. Polizzi, 2008 U.S. Dist. LEXIS 26900 (E.D. N.Y. April 1, 2008)*. Comment: This is an important decision for other reasons: The Sixth Amendment guarantees the right to have juries told about mandatory minimums. See post on lawofcriminaldefense.com.

Omission of certain details in search warrant application did not hardly rise to the level of a sufficient discrepancy to show that the search warrant would not have issued. Soto v. Paredes, 2008 U.S. Dist. LEXIS 26982 (D. Ariz. March 27, 2008).*

NY Times, April 3d, on “surreptitious sampling” of police sneaking around to seize abandoned DNA, like on cigarette butts: Lawyers Fight DNA Samples Gained on Sly.

Teachers showed that they had a reasonable expectation of privacy protecting them from video surveillance in their athletic office and locker room area. One was suspected of theft, but videotaping all of them was potentially unreasonable, at least at the motion to dismiss stage. Doe v. Dearborn Pub. Schools, 2008 U.S. Dist. LEXIS 25514 (E.D. Mich. March 31, 2008):

Addressing the first prong of the Katz test, Plaintiffs have established subjective expectations of privacy in the object of the challenged search. Plaintiffs claim they are entitled to privacy in their office and/or locker room.

As to the second prong of the Katz test, Plaintiffs have sufficiently provided evidence that they have an expectation of privacy in their locker room/office and from the students and other staff members to change or to do some office work. The locker room/office contains lockers provided by the school so that Plaintiffs could change their clothes. The locker room/office can only be accessed from the boys’ locker room and is contained within the boys’ locker room. Plaintiffs use the office at least three times a week to change their clothes from street clothes to athletic clothes and to disrobe in order to shower after conducting physical education classes or working out in the school’s fitness room. (Ex. B, Grodzicki Dep.; Ex. C, Hummel Dep.; Ex. D, Helisek Dep.) The office was for the exclusive use of the male physical education teachers. (Ex. E, Rafferty Dep.) Even if the Plaintiffs did not use the office to change their clothes, Plaintiffs still had a reasonable expectation of privacy in the office, as noted by the Supreme Court in O’Connor, in light of the fact that the office was a room contained in the boys’ locker room and was for the exclusive use of the male physical education teachers.

Regarding the issue of the reasonableness of the search, “[d]etermining the reasonableness of any search involves a twofold inquiry: first, one must consider ‘whether the … action was justified at its inception,’ Terry v. Ohio, 392 U.S. [1], at 20, 88 S. Ct. 1868, 20 L. Ed. 2d 889; 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,’ ibid.” T.L.O., 469 U.S. at 341. Ordinarily, a search of an employee’s office by a supervisor will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file. The search will be permissible in its scope when “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of … the nature of the [misconduct].” Id. at 342.

Although at its inception, the videotape search may have been justified to determine whether Plaintiff Helisek was stealing, as argued by Defendants, there are genuine issues of fact as to whether the measures adopted were reasonably related to the objectives of the search. There were other teachers who share the office with Plaintiff Helisek who were not suspected in the alleged thefts. Also, the search may have been excessively intrusive since there is testimony submitted that the office was also used by Plaintiffs and referees to change their clothing. Although Defendants claim that no one saw a video live, Mr. Shelton, the Assistant Principal, testified he inadvertently saw an image from Plaintiffs’ office. This statement does not make the search less intrusive since the images were recorded, for at least 30 days. The images could also be copied or burned onto a CD. The reason given for the installation of the camera was to “catch” Plaintiff Helisek in the act of stealing. What then is the purpose of video taping the office if no one is watching the monitor or reviewing the recorded images? Plaintiffs have sufficiently shown that they have a constitutional right to be free from unreasonable video searches of their shared office.