Officers entered a motel room and arrested the defendant near the door, who immediately put his hands up and he was arrested and put down to the floor for handcuffing. The clothing on the bed farthest from the door was not shown to be in his immediate control at the time of the search, so the search incident doctrine cannot be used to support it. United States v. James, 2007 U.S. Dist. LEXIS 74466 (E.D. Mo. October 4, 2007):

The factual findings by the Magistrate Judge show that the officers were concerned that the Defendant might be arming himself, and therefore they broke the door to the hotel and entered with weapons drawn. However, when the officers entered the room, the Defendant was standing approximately six feet from them in the hallway entrance to the room, and immediately raised his hands in the air, at which time the officers took hold of the Defendant, forced him to the floor and handcuffed him, without any resistence from the Defendant. The Court finds significant the amount of time that had passed from Defendant being restrained, and the search. One officer had read the Defendant his Miranda rights and asked the Defendant if he understood those rights, before the search took place. The separation between the time of the arrest and the time of the search tends to negate the justification for a search incident to arrest, namely the protection of the officers, and the prevention of the destruction of evidence. Additionally, the Magistrate Judge found that the clothing in question was located on the bed farthest from the Defendant, approximately ten to twelve feet from where the Defendant was being held by the police officer. Notwithstanding the Eighth Circuit’s broad interpretation of the “immediate control” language, the Court does not believe that the jacket was within the Defendant’s immediate control, when his hands were restrained with handcuffs locked behind his back, when he was on the floor, under an officer, ten to twelve feet from where the jacket was located. Unlike the cases above, the Defendant was not in a close proximity to the area searched. The Court concludes, based on the facts of the case at bar, that the search of Defendant’s jacket was not a lawful search incident to arrest.

A qualified immunity analysis requires first that the court determine whether the challenged conduct violated a clearly established right and a case exactly in point is not required. Salazar v. City of Burbank, 249 Fed. Appx. 642 (9th Cir. 2007) (unpublished).*

Habeas petitioner actually got a certificate of appealability to challenge denial of relief against a probation arrest warrant under Stone v. Powell. The Tenth Circuit held that Stone covers all Fourth Amendment claims, including probation arrest warrants, and petitioner got to litigate that issue in the state courts. Cappelli v. Zavaras, 249 Fed. Appx. 52 (10th Cir. 2007).

Grabbing plaintiff and then letting her go was a seizure but it was not excessive force. Massey v. Hess, 2007 U.S. Dist. LEXIS 68786 (E.D. Tenn. September 17, 2007):

There is a “built-in measure of deference to the officer’s on-the-spot judgment about the level of force necessary in light of the circumstances of the particular case.” Graham, 490 U.S. at 396; accord Saucier v. Katz, 533 U.S. 194, 205, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001); Burchett, 310 F.3d at 944. “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” violates the Fourth Amendment. Graham, 490 U.S. at 396. The reasonableness inquiry allows for the fact that police officers must often make split-second judgments about the necessary amount of force. Id.

In the first seizure, Defendant Oelschlegel grabbed Plaintiff and then released her. It was an extremely minor use of force and there was no injury suffered. The Sixth Circuit does not require that excessive force claims allege excessive marks or extensive physical damage. Ingram v. City of Columbus, 185 F.3d 579, 597 (6th Cir. 1999) (upholding excess force claim where plaintiff was struck and thrown against a couch); …. But neither of those cases support a claim of excessive force in this case, where Defendant Oelschlegel merely grabbed Plaintiff’s sweater, which is almost no force at all. Although injury is not required to support an excessive force claim, there must be sufficient force. De minimus force is insufficient. Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000); …. The extremely minor force here does not qualify as excessive force.

Defendant officer’s writing a parking ticket was not a seizure. Tomaino v. Williams, 2007 U.S. Dist. LEXIS 68962 (E.D. N.Y. September 14, 2007).*

Defendant’s codefendant’s suppression motion was denied and affirmed on appeal. When defendant’s case came up, the state pled offensive collateral estoppel to defendant’s motion to suppress. Since the parties were different, collateral estoppel did not apply. Commonwealth v. Rabb, 70 Mass. App. Ct. 194, 873 N.E.2d 778 (2007):

These basic principles give context and perspective to the collateral estoppel claim before us, and inform our analysis. They contemplate protection of the defendant’s interests in the critical stages of the criminal process, effective assistance of counsel, and, implicitly, the meaningful [*9] opportunity of the defendant to participate in the litigation of his defense. In criminal proceedings we emphasize that each defendant is entitled to individual consideration and to effective representation by individual counsel, and is further entitled to press litigation strategies with that counsel. There is no reason that these basic principles should not pertain to the litigation of a motion to suppress evidence. Moreover, even if we accepted the collateral estoppel argument in theory, as a matter of practical reality we would not conclude that the defendant and Wynn had such a close identity or mutuality of interests that it could be said that Wynn’s litigation of the motion to suppress accorded the defendant a full and fair opportunity to litigate the matter. While each may have had the same goal — the suppression of the evidence found in the motel room — they differed in their alleged involvement in the cocaine distribution scheme, in the evidence attributed to each, and in their connection to the motel room. They may very well have differed in their knowledge of the facts, in their potential ability to assess the representations in the search warrant affidavit, and in their ability to suggest to counsel avenues of attack on that warrant. In sum, the defendant should not be foreclosed from litigating the validity of the search warrant.

Seatbelt violation permitted officer to stop the defendant, and the fact that defendant was a suspect in a violent crime justified a patdown for officer safety. United States v. Jackson, 249 Fed. Appx. 130 (11th Cir. 2007)* (unpublished).

Sexual abuse by a school custodian was not “state action” for purposes of § 1983 claim for a Fourth Amendment violation. K.K. v. Weeks, 2007 U.S. Dist. LEXIS 70004 (M.D. Pa. September 21, 2007).*

Georgia sustains its DNA challenge against a Fourth and Eighth Amendment challenge. Quarterman v. State, 282 Ga. 383, 651 S.E.2d 32 (2007)* (Comment: Remember, I have been ignoring DNA cases for quite a while unless something is unique. This is the first I recall with an Eighth Amendment challenge.)

In some circuits, there is a presumption from relationships that a cotenant has common authority to consent, and this presumption may be rebutted by defendant’s actions. Here, the presumption does not apply to defendant’s sister who lived in the same house with him. While her actual authority may be lacking, however, she had apparent authority. United States v. Gonzalez, 2007 U.S. Dist. LEXIS 70162 (E.D. Wis. September 20, 2007):

As to these factors, this court finds that Gonzalez is able to present evidence that controverts that his sister or mother had the actual authority to consent to a search. First, Ms. Gonzalez testified that the doors to Gonzalez’s room were consistently closed. (Tr. 126.) Additionally, Ms. Gonzalez stated that she didn’t have access to her brother’s room; she would only enter if her three-year-old daughter happened to run into his room. (Tr. 130.) She also testified that Gonzalez “doesn’t like anybody invading his privacy [or] anyone going in his room,” and that they were like “four strangers living in a house.” (Tr. 130.) These factors significantly militate against a finding that either Ms. Gonzalez or her mother had the actual authority to consent to a search of Gonzalez’s room. The court finds they evidence a desire on behalf of Gonzalez to restrict access to his room, and it also shows that his family members were aware of his desire to do so. Accordingly, the court finds that neither Gonzalez’s mother nor sister had the actual authority to consent to a search of his bedroom.

However, and significantly, despite the court finding that there was not actual authority to search, it does find that there was the apparent authority to search, and therefore the police acted upon what they thought was a valid third-party consent.

Defendant passenger in a vehicle stopped on an interstate, and he tried every argument that his detention was exploited to find the drugs in the car. That is, he would have to have shown that he would have been able to leave on his own in the driver’s car, and he could not. United States v. Salas, 248 Fed. Appx. 906 (10th Cir. 2007).*

Suit over search warrant fails because the plaintiff failed to show that the warrant was issued without probable cause. Simms v. City of Harrodsburg, 2007 U.S. Dist. LEXIS 70250 (E.D. Ky. September 21, 2007).*

The defendant had no expectation of privacy to challenge a police officer’s standing on property of another when the officer knocked on defendant’s door. A knock on the door and a request to open it is not a seizure. People v. Terrazas-Urquidi, 172 P.3d 453 (Colo. 2007):

Terrazas-Urquidi contends that the police knocked and spoke in such a manner that a reasonable person would not have believed he was free to leave the premises or to disregard their demands to open the door. However, the trial court found that the officers had acted reasonably, stating, “[I]n plain language, if the officers had been there legally, meaning at the front door of the shed, I find that their actions thereafter were reasonable and therefore legal given the circumstances they faced.” In so finding, the trial court implicitly determined that a reasonable person would not have believed that he must open the door because otherwise the court would have been compelled to hold that the police actions were unreasonable. See Mendenhall, 446 U.S. at 554 (setting forth the standard that a person is seized if a reasonable person in the same circumstances would believe that he was not free to leave).

Therefore, Terrazas-Urquidi’s argument that he was illegally seized cannot prevail unless the trial court’s findings are unsupported by the record. … The record in this case includes testimony by officers who were present at the scene, and that testimony indicates that the officers knocked on the shed door, identified themselves as police, and stated that the occupant should open the door. The record does not suggest that the officers made any threats or other statements that would cause a reasonable person to believe he must open the door. Therefore, the record supports the trial court’s finding that the officers acted reasonably by knocking on the door, announcing their presence, and telling the occupant to open the door.

Defendant was observed following and photographing small boys, and he was asked about it by an officer who was watching him. The defendant showed his camera and cycled through the pictures, and the officer let him keep the camera. Defendant voluntarily produced his driver’s license, and the officer determined that he was a level one sex offender. The officer asked for consent to search defendant’s computer at home, and the defendant was concerned that he would not get the computer back after the search. The officer explained that he would if there was nothing on the computer that was illegal. A consent form had to be signed, and it was decided that the defendant would come with the officer to the station house. He rode in the front seat, was allowed freedom of movement at the stationhouse, and then signed the consent. It was all voluntary. United States v. Randall, 2007 U.S. Dist. LEXIS 92361 (N.D. N.Y. December 14, 2007).*

Defendant’s consent was an act of free will and not the prior illegal search as an alleged plain view. State v. Ratliff, 2008 Tenn. Crim. App. LEXIS 91 (February 20, 2008):

In the present case, the record shows that the consent given by the defendant and Mrs. Ratliff, which led to discovery of the videotape, was not given as the result of an illegal detention or illegal entry into their residence. Rather, the evidence shows that the consent, notwithstanding Officer Cassidy’s prior unjustified intrusion into the defendant’s privacy, was an act of free will. The defendant was not under arrest either when he granted Parker and Cassidy consent to search the house after they discovered the bag of marijuana seeds, or when he gave consent to search the house while being interrogated. The trial court accredited testimony that the defendant was apprised of his Miranda rights and understood the consent to search form that he signed before his interrogation. The defendant was not being unlawfully detained and was free to refuse consent to search the house.

Defendant failed to preserve her question of law for appeal of a conditional plea, and the appeal is dismissed. State v. Whitley, 2008 Tenn. Crim. App. LEXIS 89 (February 19, 2008).*

Stone also precludes attempting to supplement the record with the co-defendant’s suppression hearing. Veasman v. Mullin, 2008 U.S. Dist. LEXIS 11690 (N.D. Okla. February 15, 2008):

The Court also finds that Petitioner’s “motion to expand record with newly discovered evidence” (Dkt. # 16) shall be denied. In that motion, Petitioner requests that the record be expanded to include the transcript from the preliminary hearing held for his co-defendant, Pamela Dover. Petitioner asserts that the transcript contains information supporting his claim that he was subjected to an unconstitutional search and seizure. Because the Court has determined that consideration of Petitioner’s Fourth Amendment claim is precluded by Stone v. Powell, expansion of the record is not warranted and, for that reason, Petitioner’s motion shall be denied.

Broken tail light justified stop, and defendant’s flight from the stop was probable cause. United States v. Carter, 2008 U.S. Dist. LEXIS 11588 (W.D. Pa. February 18, 2008).*

Guilty plea bars malicious prosecution claim under Heck. Walker v. Wentz, 2008 U.S. Dist. LEXIS 11592 (M.D. Pa. February 15, 2008).*

SCOTUS has granted cert in Herring v. United States, No. 07-513, decision below 492 F.3d 1212 (11th Cir. 2007), posted here July 18.

The issue, as stated by Willamette Law School:

Whether the exclusionary rule requires the suppression of evidence obtained as a result of a search that was conducted on a good faith mistake that the defendant had an outstanding warrant for his arrest.

The summary from Willamette:

The issue is whether the exclusionary rule requires the suppression of evidence obtained as a result of a search that was conducted on a good faith mistake that the defendant had an outstanding warrant for his arrest. A county police officer who saw defendant Herring checking on his impounded vehicle at the sheriff’s lot, and who had good reason to believe that defendant had a warrant out for his arrest, called the warrant clerk in a neighboring county to verify. The warrant clerk confirmed that there was such a warrant and the officer arrested defendant pursuant to that warrant. A subsequent search of defendant’s vehicle produced methamphetamine and a firearm. Meanwhile, the warrant clerk was searching for a copy of the warrant and could not find it. She asked her supervisor who informed her that the warrant had been recalled. The clerk called back immediately to inform the inquiring office of its mistake. However, at that time, the defendant had already been arrested. Defendant was indicted on charges of possession of methamphetamine and a felon in possession of a firearm. The trial court denied defendant’s motion to suppress and a jury convicted defendant on both counts. The 11th Circuit Court of Appeals upheld the trial court’s decision finding that the good faith exception to the exclusionary rule does not shelter evidence that was obtained in an unconstitutional arrest or search that was based on objectively unreliable information when the costs of doing so do not outweigh the benefits of obtaining that evidence.

Update: Linda Greenhouse’s take in the NYTimes is here.

CA9 en banc: “I plead the Fifth” is an unequivocal invocation of the right to remain silent, and the habeas writ is granted. Anderson v. Terhune, — F.3d —-, 2008 WL 399199 (9th Cir. February 15, 2008):

It is likely that few Americans can profess fluency in the Bill of Rights, but the Fifth Amendment is surely an exception. From television shows like “Law & Order” to movies such as “Guys and Dolls,” we are steeped in the culture that knows a person in custody has “the right to remain silent.” Miranda is practically a household word. And surely, when a criminal defendant says, “I plead the Fifth,” it doesn’t take a trained linguist, a Ph.D, or a lawyer to know what he means. Indeed, as early as 1955, the Supreme Court recognized that “in popular parlance and even in legal literature, the term ‘Fifth Amendment’ in the context of our time is commonly regarded as being synonymous with the privilege against self-incrimination.” Quinn v. United States, 349 U.S. 155, 163 (1955); accord In re Johnny V., 149 Cal.Rptr. 180, 184, 188 (Cal.Ct.App.1978) (holding that the statement “I’ll take the fifth” was an assertion of the Fifth Amendment privilege). More recently, the Court highlighted that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Dickerson v. United States, 530 U.S. 428, 443 (2000).

. . .

Instead of scrupulously honoring the request, the interrogating officer decided to “play dumb,” hoping to keep Anderson talking by inquiring, “Plead the Fifth. What’s that?” This effort to keep the conversation going was almost comical. At best, the officer was mocking and provoking Anderson. The officer knew what “I plead the Fifth” meant. It is thus baffling that the state court determined that “[b]y asking defendant what he meant by pleading the Fifth, the officers asked a legitimate clarifying question.” The need for clarification presumes some ambiguity or uncertainty. Nothing needed clarification.

This situation brings to mind the phrase attributed to a Canadian judge–“won’t take no for an answer”–and later popularized in country music as “What part of ‘no’ don’t you understand?” What about the words “I plead the Fifth” is unclear, ambiguous, or confusing to a reasonable officer? Nothing. See Connecticut v. Barrett, 479 U.S. 523, 529 (1987) (holding in the context of the invocation of the right to counsel that “[i]nterpretation is only required where the defendant’s words, understood as ordinary people would understand them, are ambiguous”). Rather, the officer hoped Anderson would explain more about the murder, the exact topic Anderson did not want to talk about. The officer thought that continuing the interrogation was “reasonably likely to elicit an incriminating response” from Anderson. Rhode Island v. Innis, 446 U.S. 291, 303 (1980). And he was right.

In the right-to-counsel context, the Supreme Court has countenanced clarifying questions only to ascertain whether a suspect’s ambiguous or equivocal statement is actually an invocation of his Fifth Amendment right. See Davis, 512 U.S. at 461; Miranda, 384 U.S. at 445 (focusing only on the threshold question of whether the accused “indicate[d] in any manner that he d[id] not wish to be interrogated” when deciding whether police had honored the accused’s Fifth Amendment rights); cf. Smith v. Illinois, 469 U.S. 91, 95 (1984) (holding that “[t]his case concerns the threshold inquiry: whether Smith invoked his right to counsel in the first instance”). Ignoring this principle, the state court found that the comments were ambiguous “because they could have been interpreted as not wanting officers to pursue the particulars of his drug use as opposed to not wanting to continue the questioning at all.”

The state court’s rationale collapses beneath its own weight, because the officer’s comment showed that the interrogating officers did not believe that Anderson’s statement was ambiguous. The officer did not ask Anderson what subject he did not want to discuss; nor did any of his follow-up questioning address this topic. Similarly, the officer did not ask him if he wished to remain silent or whether he simply did not want to talk about the drug issue. The officer did not even ask Anderson what he meant. No reasonable officer could legitimately be in doubt about the meaning of “I plead the Fifth.” The state court’s characterization is a fanciful re-imagining of the colloquy between Anderson and the officer, and under AEDPA, an unreasonable determination of the facts.

Anonymous tipster to the police was completely uncorroborated and could not be relied on for a search warrant. Harper v. State, 2008 Ga. LEXIS 19 (January 8, 2008):

The defect in the affidavit is that it presents the third party informant as being a family member, a truthful person, and someone without a motive to lie when the person who spoke to the informant had absolutely no way of knowing to whom he was speaking. In this case, unlike other cases where an anonymous tipster’s information has been corroborated, the information contained in the affidavit failed to provide any reason under the totality of the circumstances known to officers to believe that the information was from a credible source.

Plaintiff’s conduct, caught by police video, shows that she was uncooperative, and it justified some use of force against her. Fraunfelder v. City of Mobile, 2008 U.S. Dist. LEXIS 881 (S.D. Ala. January 4, 2008):

The officers had received a call from the dispatcher relating to a domestic violence incident at plaintiff’s residence and upon arriving at the locality were informed by Jennifer Dycus that the plaintiff had pushed her during an argument. … Dycus even circled on two diagrams where the plaintiff had placed his hands when he pushed her. According to the officer, plaintiff was acting in an aggressive manner and was uncooperative when they attempted to arrest him. The video evidence submitted by plaintiff shows that the plaintiff had shouted and cursed at the officers and was uncooperative. Under the circumstances, the court finds that a reasonable officer could have believed that probable cause existed to arrest plaintiff.

City of Los Angeles ordinance providing for forfeiture of vehicles for soliciting prostitution is preempted under state law. City of Los Angeles v. 2000 Jeep Cherokee, 158 Cal. App. 4th 868, 70 Cal. Rptr. 3d 319 (2d Dist. 2008), on remand from California Supreme Court.

Affidavit for a search warrant is different that an affidavit to show probable cause for an arrest. The former is to specifically identify property, things, or persons for which there is probable cause to seize. The latter requires probable cause to believe that the person committed a crime, so it may require a greater explanation of probable cause. (See Treatise § 3.2.) United States v. Abdallah, 2007 U.S. Dist. LEXIS 94089 (S.D. Tex. December 26, 2007):

Abdallah’s argument that probable cause to support a warrantless arrest requires the same quantum of proof as probable cause to support a search warrant is not persuasive. “[W]hile it is true that there is … common ground for discussing the quantum of evidence required under the Fourth Amendment’s probable cause test, it does not follow that probable cause for arrest and probable cause to search are in all respects identical.” 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 3.1(b) (4th ed. 2004). Probable cause to arrest exists “when the totality of the facts and circumstances within a police officer’s knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense.” Glenn v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001) (citing Spiller v. Texas City, 130 F.3d 162, 165 (5th Cir. 1997)). A probable-cause determination for the issuance of a search warrant is a “practical, common-sense decision as to whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Cavazos, 288 F.3d 706, 710 (5th Cir. 2002) (quoting United States v. Byrd, 31 F.3d 1329, 1340 (5th Cir.1994)); see also Kohler v. Englade, 470 F.3d 1104, 1109 (5th Cir. 2006) (“Probable cause [to support a search warrant] exists when there are reasonably trustworthy facts which, given the totality of the circumstances, are sufficient to lead a prudent person to believe that the items sought constitute fruits, instrumentalities, or evidence of a crime.”) (citing Gates, 462 U. S. at 238-39). “In the case of arrest, the conclusion [that probable cause exists] concerns the guilt of the arrestee, whereas in the case of search warrants, the conclusions go to the connection of the items sought with the crime and to their present location.” 2 LAFAVE, SEARCH AND SEIZURE § 3.1(b).

The Fifth Circuit has stated that an affidavit supporting a search warrant is sufficient to establish probable cause if the affidavit “make[s] it apparent … that there is some nexus between the items to be seized and the criminal activity being investigated.” Kohler, 470 F.3d at 1109 (citing Warden v. Hayden, 387 U.S. 294, 302, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967)). In analyzing the sufficiency of an affidavit supporting a search warrant, a court “start[s] with the general proposition that a search warrant, unlike an arrest warrant, may issue, without the slightest clue to the identity of the criminal, if there is probable cause to believe that the fruits, instrumentalities, or evidence of criminal activity are located at the place to be searched.” United States v. Webster, 750 F.2d 307, 318 (5th Cir. 1984) (citing 1 LAFAVE, SEARCH AND SEIZURE § 2.1(b) (1978)). It is not necessary for an affidavit accompanying a search warrant to allege specific intent on the part of an alleged perpetrator to establish probable cause to search the location identified in the affidavit.

Prisoner stated a § 1983 claim sufficient to survive Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915A(b), screening. The allegation here was a baseless prison body cavity search conducted in the presence of other guards, including a female guard, without emergency. At the minimum, he can attempt to prove nominal and punitive damages. The district court erred in summary dismissal. Hutchins v. McDaniels, 512 F.3d 193 (5th Cir. 2007). (Comment: PRLA cases are not cited here because there are many that end up on Lexis, but seldom does one survive. This one did.)

In Brooks v. Neb. DMV, 2007 U.S. Dist. LEXIS 94168 (D. Neb. December 26, 2007), “Plaintiff here alleges that Defendant Bell pulled his gun out and yelled profanities at Plaintiff during his arrest. Liberally construed, Plaintiff alleges that Defendant Bell knocked him to the ground after he was already handcuffed and cooperating. (Filing No. 1 at CM/ECF p. 3.) Plaintiff has set forth enough facts to nudge his claims against Defendant Bell across the line from conceivable to plausible. As a result, Plaintiff’s claims against Defendant Bell may proceed.” The claim against the DMV is dismissed under the Eleventh Amendment.

“[T]here is no constitutional right to a pre-execution contempt hearing and that administrative warrants, like criminal warrants, can be executed by means of reasonable force.” In an OSHA search case, the target of the administrative warrant argued that there should be an ability to litigate the warrant before the search and seizure, but the Fifth Circuit disagreed, in a case of first impression. Trinity Marine Prods. v. Chao, 512 F.3d 198 (5th Cir. 2007):

Trinity’s so-called right finds no support in the Constitution’s text or history and has never been blessed by the Supreme Court. In fact, the best reading of the leading Supreme Court case on point, Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978), is decidedly against Trinity’s claim. This is not surprising, because Trinity’s argument makes no sense: Just as in the criminal context where a search by federal officers violates a suspect’s constitutional rights but no charges are filed, a victim of an unconstitutional administrative search can affirmatively bring the grievance before a federal tribunal by means of a Bivens suit. There is no danger of an unremedied constitutional wrong.

. . .

At least in general practice, administrative warrants are different from criminal warrants also in how they are executed: If an employer refuses to allow OSHA inspectors to enter even with a warrant, the usual remedy is for OSHA to bring an action for contempt against the employer. This differs from a criminal warrant; with “an honest-to-goodness criminal search warrant,” the government will get “hold of a sledgehammer … and [break] down [the] door.” In re Establishment Inspection of Skil Corp., 846 F.2d 1127, 1132 (7th Cir. 1988). “Although moviegoers who remember the environmental police in the movie Ghostbusters will be surprised, the practice of allowing the target of an administrative warrant to forbid entry and thereby convert the warrant proceeding into a contempt proceeding is the standard method of enforcing such warrants.” Id. Indeed, “[e]ven the compliance officers of the Drug Enforcement Agency [sic] are unarmed when executing administrative search warrants ….” Id.

. . .

Citing that footnote, the ALJ ruled that we have already countenanced the use of physical force in executing administrative warrants. Trinity, on the other hand, argues that the footnote is merely dictum, because the issue of “physical force” was not before this court, and that Judge Goldberg, the author of Shellcast, did not accord the footnote precedential value in subsequent cases.

Trinity, for instance, points to language in a number of cases, some written by Judge Goldberg, that it argues demonstrates that administrative warrants cannot be executed by force. First cited is Brock v. Gretna Machine & Ironworks, 769 F.2d 1110 (5th Cir. 1985). There, OSHA obtained an administrative warrant, but the employer “refused access.” Id. at 1111. Civil contempt was sought, and “Gretna answered the complaint and counterclaimed, seeking a declaratory judgment that the inspection warrant was violative of its fourth amendment guarantees.” Id. We vacated the district court’s decision, holding that OSHA’s warrant application was “fatally defective.” Id. at 1113. Before addressing the flaws in the warrant application, however, we commented on the employer’s refusal to allow OSHA access to inspect, stating that “Gretna had the option of seeking to quash the warrant before execution or, as it did, refuse entry and challenge the warrant in resulting civil contempt proceedings.” Id. at 1111 n.3.

The ALJ rightly noted that “[t]he threat of physical force was never at issue” in Gretna, so the statement was dictum. Moreover, the footnote does not even necessarily support Trinity’s position. Although it can be read to mean that it is impermissible to execute an administrative warrant by force, it can also be interpreted more narrowly to mean that an employer has “the option” to challenge a warrant in contempt proceedings only where OSHA has elected not to execute the warrant forcefully.

. . .

Undergirding Trinity’s claims are a pair of flawed constitutional policy arguments. First, Trinity argues that, because after an administrative inspection takes place any challenge to the warrant is subject to the exhaustion of administrative remedies doctrine, it follows that if pre-enforcement civil contempt proceedings are not available to an employer, OSHA can unconstitutionally inspect a facility and, if it declines to issue citations, the unconstitutional inspection will go unremedied, because there will be no administrative forum to hear the matter. But, according to Trinity, if pre-enforcement contempt proceedings are an option, the employer can protect itself against the constitutional violation by risking contempt to challenge the warrant’s validity before it is executed, thus avoiding the constitutional violation before it occurs. Second, Trinity contends that because the probable cause standard in administrative warrants is lower than for criminal warrants, employers should be able to challenge an administrative warrant before it is executed.

Trinity’s first purported policy justification, raised at times in a number of cases, is not convincing. There is another route to remedy whatever constitutional violations may occur in an OSHA search: a Bivens action. Though from an employer’s perspective, Bivens may not be a perfect remedy, it is at least as attractive as requiring an employer to risk contempt to get pre-enforcement review of an administrative warrant. But at the same time, Bivens has an advantage that Trinity’s proposal does not: We need not recognize a constitutional right to defy a duly-issued warrant.

. . .

Trinity also briefly offers a second policy justification for its argument: “One reason a criminal warrant may be enforced by force is because of the more stringent showing of probable cause required ….” But though it is hornbook law that in the wake of Barlow’s there is a lower standard of probable cause for administrative warrants, it does not follow that the due process requirements for executing administrative warrants are ratcheted up as an offset.

Because the natures of the possible punishment in administrative and criminal contexts differ, with criminal punishment greatly exceeding administrative citation, and because traditionally regulatory inspections required no warrant at all, it is unremarkable that the standard for obtaining an administrative warrant is considerably less stringent than that for criminal warrants. In fact, given the heightened constitutional concern for individuals enmeshed in criminal investigations, one would expect that it would be a criminal warrant–or none at all–that the government constitutionally cannot execute by force.

Barlow‘s also supports the view that there is no constitutional right to pre-enforcement review of administrative warrants. There the Court for the first time required OSHA inspectors to have a warrant. This was a dramatic change in the law. The Court recognized as much and so explicitly cut back the reach of its opinion by holding that the probable cause standard ordinarily associated with warrants does not apply to administrative warrants. Barlow’s, 436 U.S. at 320-21.

Comment: This, of course, only makes sense because delay in executing the warrant allows for the condition of the scene to be changed, which defeats the entire warrant process. Even a search implicating the First Amendment at best provides only a limited pre-seizure hearing because of the implication of free speech rights.

Evidence supported the EPA ALJ’s determination that the plaintiff’s underground storage tanks (USTs) were subject to search under RCRA inspection statute, 42 U.S.C. § 6991d(a), and that she granted consent to other searches on the property. Mayes v. Environmental Protection Agency, 2008 U.S. Dist. LEXIS 700 (E.D. Tenn. January 4, 2008):

Defendants contend that it is the EPA who must determine whether the tanks at issue were farm tanks, not Plaintiff, and thus, they were not bound by Plaintiff’s assertions that Tanks AV # 1 and AV # 2 were farm tanks. The Seventh Circuit has addressed similar arguments and held that RCRA “vests broad authority in EPA to inspect and sample any facility at which the agency has probable cause to believe that violations of the statute are occurring.” National-Standard Co. v. Adamkus, 881 F.2d 352, 361 (7th Cir. 1989). The National-Standard court rejected a narrow interpretation of the EPA’s ability to inspect for hazardous waste under RCRA, holding that such an “interpretation would ’emasculate EPA’s ability to pursue the broad remedial goals of RCRA.'” Id. at 360 (citation omitted). Thus, the Court finds that it is the EPA, not Plaintiff, who must make the determination of whether a UST qualifies as a farm tank.

. . .

. . . Thus, under RCRA, the EPA is authorized to conduct warrantless searches of a UST without the consent of the UST’s owner. Accordingly, the Court finds that any search and seizure of Tank AV # 3 was authorized under 42 U.S.C. § 6991d(a). Additionally, given the EPA’s need to be able to investigate Tanks AV # 1 and AV # 2 to determine whether the tanks in question were farm tanks, the Court finds that the EPA was also authorized to inspect tanks AV # 1 and AV # 2. Thus, all searches of Tanks AV # 1, AV # 2, and AV # 3 were authorized administrative searches under RCRA and were not unconstitutional.

Drug checkpoint ruse led the defendant to pull off the highway, and he was stopped for not stopping at the stopsign at bottom of the off-ramp. While he was being written a warning ticket, he was obviously nervous. The officer called for a drug dog and asked for consent. Defendant granted and then withdrew consent. While waiting for the drug dog, the defendant and officer made small talk, and defendant finally consented again to a search for paraphernalia which was found. The drug dog alerted and 24.7 kilos of cocaine were found. The stop and detention were lawful. United States v. Wright, 512 F.3d 466 (8th Cir. 2008).*

Officer had no reason to ask defendant for consent of the premises searched because he was detained only because there was a drug investigation underway and he was not even a resident of the premises to logically be asked for consent. United States v. Johnson, 2008 U.S. Dist. LEXIS 549 (E.D. Pa. January 4, 2008).*

Officers had no reasonable suspicion for defendant’s stop other than that he had an open beer bottle in his hand. They used that as an excuse to claim that maybe he was intoxicated in public. They could not, however, articulate a fact that indicates he was intoxicated. Therefore, there was no basis for the stop. Taking defendant’s ID to run it was a seizure. United States v. Tyler, 512 F.3d 405 (7th Cir. 2008):

In this case, the officers told Tyler–mistakenly, as it turns out–that he was violating the law by carrying an open container of alcohol in public. A reasonable person would not feel free to walk away after being confronted by two police officers and told he was committing a crime in the officers’ presence. Moreover, the officers retained Tyler’s identification while they ran a warrant check and told him he could not leave until the check was completed. Under these circumstances, a reasonable person would have believed he was obliged to stay put.

Off-duty police officer complained that “‘was compelled by the threat of job loss to submit to being taken to Central Station, and given a breathalyzer test.’ The Supreme Court, however, has held that a ‘person is “seized” only when, by means of physical force or a show of authority, his freedom of movement is restrained.’ United States v. Mendenhall, 446 U.S. 544, 553 (1980). A person is not seized simply because he believes that he will lose his job. Dreibel, 298 F.3d at 642.” Pennington v. Metro. Gov’t of Nashville & Davidson County, 511 F.3d 647, 2008 FED App. 0014P (6th Cir. 2008).*

The person on the lease who had moved out of the premises was no longer capable of consenting to a search of the room occupied by the defendant. Defendant denied that he lived there, but the court did not find that to be a waiver of his expectation of privacy in the premises searched. State v. Sodoyer, 156 N.H. 84, 931 A.2d 548 (2007):

However, we need not reach the question of what effect the denial of a possessory interest in the residence has on a defendant’s rights against an illegal search. The defendant’s denial that he did not live in the apartment is not the same as disavowing any privacy interest in his belongings. He simply denied living in the apartment; he was not asked, nor did he answer any other question or volunteer any statement about what kind of connection he had to the second bedroom. If the defendant was a temporary house guest, he might have an expectation of privacy. See Minnesota v. Olson, 495 U.S. 91, 96-97 (1990).

The defendant’s initial denial of residence and then silence during the search cannot be equated to a waiver of his rights. As far as the record reflects, he truthfully answered the only question he was asked. “[I]t can hardly be said that Fourth Amendment rights evaporate merely because of a failure to make incriminating admissions in response to police inquiries.” 6 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.3(a), at 140 (4th ed. 2004). Our constitutional system does not demand that a defendant surrender information that could incriminate him in order to avail himself of another constitutional right. “To require a person to surrender one constitutional right in order to gain the benefit of another is simply intolerable …. There are some choices which the State cannot require a defendant to make, and a choice between constitutional rights is one of them.” State v. Hearns, 151 N.H. 226, 238 (2004) (quotations omitted).

Warrant application was stale as to whether property would be found in defendant’s house, but the application was not so bare bones that the good faith exception was not satisfied. Patterson v. State, 930 A.2d 348 (Md. 2007). Comment: This court at least dealt with the merits of the staleness claim before turning to the good faith exception, taking both questions seriously and analyzing them in detail. As to staleness:

In reviewing cases where courts found probable cause to search a residence for a firearm, this Court in State v. Ward, 350 Md. 372, 379-80, 712 A.2d 534, 537 (1998) observed that “in each of the cases reviewed or cited below, there was probable cause to believe that a crime of violence, involving the use of a weapon, had been committed, that the defendant was the criminal agent, and that the defendant resided at the place to be searched.” In the present case, Officer Haak suspected that Patterson possessed a gun at the time of the traffic stop, and based on that suspicion, he inferred that Patterson had a weapon stored at his home. We have said in the context of a search for contraband that “the mere observation, documentation, or suspicion of a defendant’s participation in criminal activity will not necessarily suffice, by itself, to establish probable cause that inculpatory evidence will be found in the home …. There must be something more that, directly or by reasonable inference, will allow a neutral magistrate to determine that the contraband may be found in the home.” Holmes, 368 Md. at 523, 796 A.2d at 100-101.

Defendant was on the premises when a search warrant was executed, and she was asked if she would consent to a search of her car. She agreed. That did not carry with it implicit consent to search her purse for the keys, so the drugs found there had to be suppressed. State v. Fulghum, 288 Ga. App. 746, 655 S.E.2d 321 (2007):

Here, Fulghum was not suspected of any crime at the time she consented to a search of her vehicle; she was merely a visitor to the house. She did not tell Officer Scott to search for her keys, but only stated where she thought they might be. And she never specifically consented to a search of her purse.FN8 Under these circumstances, the trial court was authorized to find that a typical reasonable person would not have understood the exchange between Fulghum and Officer Scott to grant him permission to search her purse. Accordingly, we affirm the grant of Fulghum’s motion to suppress.

8. See generally State v. Hanson, 243 Ga. App. 532, 542 (532 SE2d 715) (2000) (physical precedent only) (Barnes, J., concurring specially) (“A purse is no mere container … it is a uniquely private item containing a person’s most confidential possessions. Further, it is an item that is universally recognized as one in which a person has a reasonable expectation of privacy.”).

Defendant was stopped for a traffic offense in the vicinity of a shooting report. When he was asked about whether he had a gun, defendant answered funny and he reached for his waistband. This justified a directive for him to get out of the car. United States v. Copeland, 2007 U.S. Dist. LEXIS 88492 (M.D. Tenn. November 30, 2007).*

Officers responded to a domestic abuse call, and they were invited to enter by defendant’s wife, the caller, and had probable cause based on injuries to her face. Summary judgment granted. Kirk v. Gregory, 2007 U.S. Dist. LEXIS 88476 (S.D. Ind. September 28, 2007).*

An officer went to a site where defendant was building a home. It was fenced, and the gravel driveway was blocked by a locked gate. “No Trespassing” and “Beware of Dog” signs were posted at the entrance. The officer climbed over the gate and was later joined by another officer. The unfinished house on the property was framed but had no sheet rock or doors, and no one appeared to be living there. The property fell within the “open fields” doctrine and thus was not protected by the Fourth Amendment. The unfinished structure was not a “dwelling” under the Fourth Amendment and did not yet have the protection of curtilage. Defendant’s effort to maintain his privacy through fences and signs did not afford the property Fourth Amendment protection. While on the property, the officers could look at the serial number of a stolen trailer. Morse v. State, 288 Ga. App. 725, 655 S.E.2d 217 (2007).

Extraterritorial stop of the defendants’ vehicle violated the Fourth Amendment’s reasonableness requirement, so the officer’s statutory violation in stopping a vehicle outside of his jurisdiction required suppression of evidence flowing from the stop. State v. Jones, 2007 Ohio 5818, 2007 Ohio App. LEXIS 5113 (5th Dist. October 29, 2007). Also, the passenger’s conduct was never indicative of a crime to subject him to a search. State v. Skropits, 2007 Ohio 5817, 2007 Ohio App. LEXIS 5119 (5th Dist. October 29, 2007).

Search of a cigarette package during an otherwise lawful consent search of the person was not unreasonable. Also, the fact the defendant did not object [right, like any reasonable person knew he could] to the search of the cigarette package showed it was voluntary. State v. Damron, 2007 Ohio 5808, 2007 Ohio App. LEXIS 5109 (5th Dist. October 26, 2007). Comment: I confess that I still do not understand how a person who has consented to a search of the person, and the officer takes something off of him, can be expected to know that he can still object to the search of the package. The failure to limit consent after the search starts is commonly invoked by courts as a factor in consent, but I just do not buy it; people just do not know that they can but the courts do, so the courts apply it against the defendant.

In surveying the history of the Texas exclusionary rule, the court concludes that the exclusionary rule does apply to a citizen’s arrest. Miles v. State, 241 S.W.3d 28 (Tex. Crim. App. 2007):

Thus, the plain language and history of Article 38.23 lead to an inescapable conclusion: if an officer violates a person’s privacy rights by his illegal conduct making the fruits of his search or seizure inadmissible in a criminal proceeding under Article 38.23, that same illegal conduct undertaken by an “other person” is also subject to the Texas exclusionary rule. If the police cannot search or seize, then neither can the private citizen. Conversely, if an officer may search or seize someone under the particular circumstances, then the private citizen’s equivalent conduct does not independently invoke the Texas exclusionary rule, and the evidence obtained by either the officer or the private person may be admissible.

B. Searches and Seizures Conducted by “Other Persons.”

Few Texas cases have discussed the types of searches and seizures conducted by private citizens that are illegal for purposes of the Texas exclusionary rule. In Gillett v. State, this Court declined to address whether the search of a dressing room by a Foley’s Department Store security officer constituted an illegal search by a private person. Instead a majority of the Court held that the defendant did not have an objectively reasonable expectation of privacy in the dressing room because signs were posted saying that the dressing rooms were monitored. 36 Thus, evidence obtained from such a search, whether undertaken by an officer or a private security guard, was not barred by the Texas exclusionary rule.

. . .

None of these cases was explained on this basis, but this rule–that a private person can do what a police officer standing in his shoes can legitimately do, but cannot do what a police officer cannot do–would explain the outcome in each case and is consistent with the purpose of Article 38.23. We conclude that the historical rationale for including unlawful conduct by an “other person” under the Texas exclusionary statute is best explained and implemented by this rule.

. . .

Based on the history and purpose of Article 14.01(a), as well as precedent, we reaffirm the reasoning in Woods and conclude that a citizen may make a warrantless arrest of a person who commits a misdemeanor within the citizen’s presence or view if the evidence shows that the person’s conduct poses a threat of continuing violence or harm to himself or the public. It is the exigency of the situation, not the title of the offense, that gives both officer and citizen statutory authorization to protect the public from an ongoing threat of violence, harm, or danger by making a warrantless arrest.

Officers at defendant’s home with arrest warrant were able to go to the back door, too. McCloud v. Commonwealth, 2007 Ky. App. LEXIS 402 (October 5, 2007).*

Officer stopping defendant on a citizen informant’s complaint was corroborated by observation. Sayler v. North Dakota Dept. of Transportation, 2007 ND 165, 740 N.W.2d 94 (2007).*

Defendant’s car was seen in a rest area several times over two days. The officer pulled up behind the car, and the dome light was turned off. The defendant explained she was not home because of marital difficulties, and she wanted to leave, but the officer wanted to look around the inside of the car with a flashlight. Balloons were found, and the officer suspected drug use. He also suspected, without any factual support, that she might have been abused. Franks v. State, 241 S.W.3d 135 (Tex. App.—Austin 2007):

However, the initial encounter between LaHood and appellant progressed to an investigative detention when LaHood refused appellant’s request to leave. Before LaHood told appellant, “[N]o, you can’t go,” he knew only that she was crying and that she was seated in a car that he thought he had seen several times at the rest area. He did not testify about specific facts leading him to suspect that appellant was, had been, or soon would be engaged in criminal activity. Although LaHood wondered whether the car might have been stolen, he never questioned appellant about the car’s ownership, and he did not state that appellant was detained because he suspected that she was a car thief. Instead, he told her that she could not leave and that he wanted to find out why she was upset.

Plaintiff alleged seizure of property in 2004 (outside limitations) was still retained in 2006 in violation of the Fourth Amendment. The plaintiff is directed to better explain the issue to see whether limitations has expired or not. Herndon v. City of Park City, 2007 U.S. Dist. LEXIS 69927 (D. Kan. September 20, 2007).*

Police were given information from an informant that defendant was in possession, and the officers sought him out and arrested him for disorderly conduct because he was under the influence of alcohol. The appellate court found the arrest without probable cause, to the search of his person was invalid. State v. Graves, 2007 Ohio 4904, 173 Ohio App. 3d 526 (8th Dist. 2007).*