The E.D. Pa. discusses the circuit split on the question of whether a person driving a rental car rented by another has standing to contest a search of the car. The court divines that the Third Circuit would follow the totality of circumstances test and find standing. The car was reasonably impounded on the request of the owner because the owner was unaware of the defendant’s permission to drive the car. United States v. Kennedy, 2007 U.S. Dist. LEXIS 43511 (E.D. Pa. June 15, 2007):

1. Defendant Has Standing to Contest the Searches of the Car

As mentioned above, to contest the legality of a search an individual must establish both a subjective expectation of privacy in the place searched and that such expectation is objectively reasonable. Carter, 525 U.S. at 88. The Third Circuit has not addressed standing in the context of rental cars driven by unauthorized drivers. In a case involving a borrowed car, however, the Third Circuit noted that “whether the driver of a car has the reasonable expectation of privacy necessary to show Fourth Amendment standing is a fact-bound question dependent on the strength of his interest in the car and the nature of his control over it; ownership is not necessary.” United States v. Baker, 221 F.3d 438, 442 (3d Cir. 2000).

The circuits that have addressed the issue are split. The Fourth, Fifth, and Tenth Circuits have adopted a bright-line rule, holding that if an individual is not listed on the rental agreement, then he does not have a reasonable expectation of privacy in the rented vehicle. See United States v. Thomas, 447 F.3d 1191, 1197 (9th Cir. 2006) (collecting cases). Even an unauthorized driver who had permission from an authorized user has no legitimate expectation of privacy in the car. Despite the laudable qualities of this standard–including ease of applicability–it is a blunt instrument, particularly in an area of law that usually calls for a fact-specific analysis.

Perhaps for this reason, other circuits have decided against applying this test. For example, the Eighth and Ninth Circuits have adopted a modified bright-line rule that allows standing to unauthorized drivers who can show permission to use the car from an authorized driver. Id. (citing United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995)). Yet another approach examines the totality of the circumstances and considers a range of factors including: “(1) whether the defendant had a driver’s license; (2) the relationship between the unauthorized driver and the lessee; (3) the driver’s ability to present rental documents; (4) whether the driver had the lessee’s permission to use the car; and (5) the driver’s relationship with the rental company ….” Id. (citing United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001)).

It is an open question in the Third Circuit whether unauthorized drivers can ever establish a legitimate expectation of privacy in a rental car. The framework set forth in Baker, however, may be read as an implicit endorsement of either the modified bright-line rule or the totality of the circumstances test. In Baker, the court noted that a “fact-bound” inquiry assessing “the strength of [the driver’s] interest in the car and the nature of his control over it” is necessary in determining whether someone who borrowed a car had a reasonable expectation of privacy in it. 221 F.3d at 442. Likewise, in denying standing to a passenger in a rented truck, a district court in the Western District of Pennsylvania concluded that the passenger was not an authorized driver, and, moreover, there was no evidence that he had ever driven the truck or had the authorized driver’s permission to do so. United States v. Yamba, 407 F. Supp. 2d 703, 716 (W.D. Pa. 2006). The fact that the court in Yamba discussed factual matters beyond the passenger’s status as an unauthorized driver suggests that it also predicted that a more nuanced test than the bright-line rule applies within the Third Circuit.

Assuming the Third Circuit would utilize either the modified bright-line rule, under which unauthorized drivers of rental cars have standing to contest a search if they have the permission of an authorized driver, or the totality of the circumstances test, the evidence here supports the conclusion that Defendant had a reasonable expectation of privacy in the Camry. Defendant had a license, an authorized driver’s permission to use the car, and, according to the police, was driving it earlier that day. (Tr. at 66-67.) Therefore, Defendant has standing to contest the seizure and searches of the car.

Spending the evening to do drugs in an apartment does not give the defendant standing to challenge the search of the house. This was more like Carter than Olson. United States v. Higareda, 2007 U.S. Dist. LEXIS 43609 (S.D. Cal. June 14, 2007):

The evidence in this case establishes that the Defendant Rameriz “de facto spent the night [at the apartment] doing drugs and hanging out with his friends with the permission of a lawful resident of the apartment Co-defendant Higareda.” (Doc # 37 at 3-4.) This evidence supports only the inference that Defendant Rameriz was legitimately on the premises, which is insufficient to demonstrate a legitimate expectation of privacy. See Amenta, 69 F.3d at 309. Defendant Rameriz did not live at the apartment. The evidence establishes that Defendant Rameriz was not an overnight guest at the apartment such that he had “an expectation of privacy in the home that society is prepared to recognize as reasonable.” Minnesota v. Olson, 495 U.S. 91, 96-97. The evidence establishes only that Defendant Rameriz came to the apartment and remained with permission of Defendant Higareda in order to do drugs and hang out with friends, that the night passed, and that Defendant Rameriz was still there in the morning. Under these facts, Defendant Rameriz did not have a legitimate expectation of privacy in the residence of Defendant Higareda that society is prepared to recognize as reasonable.

Search incident that occurs immediately before an arrest for which there was already probable cause is valid. United States v. Thompson, 244 Fed. Appx. 926 (11th Cir. 2007)* (unpublished).

Officer’s moving plaintiff out of his way by touching her arm did not constitute a seizure. “When vewing all the circumstances surrounding this incident, there is no evidence that an objective person in Plaintiff’s position would have believed she was restrained, i.e., she was not free to leave. Plaintiff did not even subjectively believe she was not free to leave based on her testimony. Defendant physically moved Plaintiff out of his way, but did not give any indication that she was not free to leave. Accordingly, Plaintiff was not seized for purposes of the Fourth Amendment.” McKeown v. Hairston, 2007 U.S. Dist. LEXIS 43490 (E.D. Mich. June 15, 2007).*

Defendant’s dropping bag of crack and walking away from it was probable cause. United States v. Keely, 2007 U.S. Dist. LEXIS 43650 (E.D. Mo. June 15, 2007). (Comment: This is the first federal dropsy case I’ve seen in a long time.)

(More later: Federal appellate brief up next.)

A search warrant for premises for drugs permitted search of a safe found in the premises. United States v. Lengen, 245 Fed. Appx. 426, 2007 FED App. 0402N (6th Cir. 2007)* (unpublished):

The principle of search and seizure jurisprudence is now settled, however, that “[a] lawful search of fixed premises generally extends to the entire area in which the object of the search may be found.” United States v. Ross, 456 U.S. 798, 820, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). Thus, although a warrant to search for a stolen vehicle would not justify opening a small wall safe in a bedroom closet, judicial authorization to search a home for contraband drugs, money associated with drug trafficking, and drug paraphernalia would clearly justify the opening of doors, closets, drawers, safes, and other places where the listed items could be hidden. Consequently, the police in this case were not required to obtain a separate warrant to look in the safe found in the closet of the defendant’s bedroom.

On remand from Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 601 (6th Cir. 2005), which held that teachers had qualified immunity for a strip search of students, the school district escaped liability, too, because it could not be shown that the school district was deliberately indifferent or failed to train the teachers in the school search policy [and it did not train them]. Beard v. Whitmore Lake Sch. Dist., 244 Fed. Appx. 607, 2007 FED App. 0410N (6th Cir. 2007)* (unpublished).

Qualified immunity denied an officer involved in a search because the factual basis is fact bound. Duncan v. Jackson, 243 Fed. Appx. 890, 2007 FED App. 0415N (6th Cir. 2007)* (unpublished).

Plaintiff had been arrested after giving a stranger a ride, but the stranger was fleeing the police and a crime. When the stranger was seen, the car was stopped and everybody detained. Plaintiff was put in a police car with the stranger just so the police could record their conversation, and it became immediately apparent that plaintiff was not involved in the stranger’s activities. They let the plaintiff go, but they did not return a gun of his at the scene for officer safety. There was no valid basis for claiming officer safety for keeping the gun, and plaintiff stated a claim for relief. The officer’s claim of qualified immunity also failed because, despite the fact that no case in point was found, the law was sufficiently clear on this point. Stewart v. Sotolongo, 2007 U.S. Dist. LEXIS 45006 (M.D. Fla. June 21, 2007):

Accordingly, the issue for the Court to determine is whether the state of the law on October 6, 2005 gave the Officer Defendants fair warning that the retention of Plaintiff’s property overnight was unconstitutional. Hope, 536 U.S. at 741. The Court holds that it did:

While Plaintiff has not submitted any case law with similar facts in order to show that the Officer Defendants had fair warning that their conduct was unconstitutional, that is not fatal to his claim. Instead, as explained below, broad statements of principle in case law existed that made it obvious to a reasonable police officer in the Officer Defendants’ position that the retention of Plaintiff’s property overnight was unlawful.

Defendant was stopped for reckless driving, and he could not produce a driver’s license. The officer had the discretion to determine that merely ticketing the defendant was insufficient, and he was arrested. That led to an inventory of two dufflebags in the backseat. The arrest arguably violated Virginia law [but the court found it didn’t], and the Virginia Supreme Court recently held that would equal a Fourth Amendment violation. The law in the Fourth Circuit, however, is not that generous, and, since the case was in federal court, the Fourth Circuit cases governed. United States v. Hudson, 497 F. Supp. 2d 771 (W.D. Va. 2007):

The defendant points to the recently decided case of Moore v. Commonwealth, 636 S.E.2d 395 (Va. 2006), petition for cert. filed, 2007 WL 321210 (U.S. Feb. 1, 2007) (No. 06-1082), in arguing that any arrest made in violation of Virginia law is also a violation of the Fourth Amendment. In Moore, two police officers responded to a radio message that a motorist in the area in which they were patrolling was driving on a suspended license. After stopping the motorist, the officers determined that he was in fact driving on a suspended license, a Class One misdemeanor. Instead of issuing the motorist a summons, as required by Virginia law, they immediately placed him under arrest. Upon searching him, some fifteen minutes after placing him under arrest, they discovered sixteen grams of crack cocaine in his pocket. The Moore court held that this evidence must be suppressed under the Fourth Amendment because a full custodial arrest of a motorist driving on a suspended license is unauthorized by Virginia law.

However, Moore is at odds with the law of this circuit. See United States v. Van Metre, 150 F.3d 339, 347 (4th Cir. 1998) (holding that district court did not err in denying motion to suppress evidence based on arrest arguably in violation of state law, because “the arrest may or may not have been conducted in accordance with [] state law is irrelevant.”). In fact, it stands in opposition to a majority of state supreme courts that have addressed the issue, see [citations omitted]. Irrespective of the Moore court’s reasoning, the arrest in this case did not require suppression under the Fourth Amendment.

Officers had weapons drawn when they first stopped the defendant, but they were holstered when it was apparent defendant was under control. The finding of voluntariness of consent after this point was not clearly erroneous. He was not physically restrained and he was informed of his right to refuse consent. United States v. Mendoza, 245 Fed. Appx. 351 (5th Cir. 2007)* (unpublished).

After receiving numerous complaints about drug dealing at defendant’s address, officers conducted a knock-and-talk, and the defendant validly consented to the entry into his bedroom which revealed firearms. United States v. Jones, 242 Fed. Appx. 175 (5th Cir. 2007)* (unpublished).

Police had reasonable suspicion for a stop of defendant for prior knowledge of his driving on a suspended license. It was reconfirmed, and he was stopped. Then the defendant gave a false name, and that led to his arrest and a search. United States v. Cottman, 497 F. Supp. 2d 598 (D. Del. 2007).*

Six month delay in obtaining child porn warrant was not stale because of the nature of child porn possession. Under the First Circuit’s standards, all standards favor a lack of staleness. United States v. Hanson, 2007 U.S. Dist. LEXIS 90052 (D. Maine December 5, 2007):

There is no one-size-fits-all rule for determining staleness: “Factors to be considered in determining whether an affidavit is stale include the nature of the criminal activity under investigation and the nature of what is being sought.” United States v. Reiner, 500 F.3d 10, 15 (1st Cir. 2007) (citation and internal quotation marks omitted); see also Dauphinee, 538 F.2d at 5 (“[N]o hard and fast rule can be formulated as to what constitutes excessive remoteness, because each case must be judged in its circumstantial context.”). The First Circuit has further elaborated:

Staleness is not measured merely on the basis of the maturity of the information but in relation to (1) the nature of the suspected criminal activity (discrete crime or regenerating conspiracy), (2) the habits of the suspected criminal (nomadic or entrenched), (3) the character of the items to be seized (perishable or of enduring utility), and (4) the nature and function of the premises to be searched (mere criminal forum or secure operational base).

United States v. Bucuvalas, 970 F.2d 937, 940 (1st Cir. 1992) (citations and internal quotation marks omitted), abrogated on other grounds by Cleveland v. United States, 531 U.S. 12 (2000).

Comment: This is the typical result. Child porn can easily be found up to one year or far more after alleged receipt, so this case is not at all unusual.

Totality of circumstances supported the conclusion that there was reasonable suspicion for continuing defendant’s stop. Garvin v. State, 2007 WY 190, 172 P.3d 725 (2007).*

Plaintiff’s motion to reconsider that his claim was not Heck barred was based on the illegality of his arrest, not his conviction, but that did not work either. Just to insure “there is no stone left unturned, however, the court shall further consider the merits of Plaintiff’s claim as though it could survive Heck,” and it does not. Whitlock v. Smith, 2007 U.S. Dist. LEXIS 90032 (N.D. Miss. December 6, 2007).*

Affidavit for search warrant gave probable cause to believe that the defendant might have been in two drive-by shootings but not that he would have drugs or weapons in his house. Accordingly, the affidavit was “bare bones” and the good faith exception did not apply. United States v. Bethal, 245 Fed. Appx. 460, 2007 FED App. 0569N (6th Cir. 2007) (unpublished) [2-1; dissenting judge agreeing no probable cause but disagreeing on good faith exception]:

We have observed that suspects identified as drug dealers routinely keep drugs at home. See, e.g., McClellan, 165 F.3d at 546; United States v. Jones, 159 F.3d 969, 974 (6th Cir. 1998). However, persons accused of murders often dispose of the guns utilized in the crime soon afterward. See, e.g., Williams v. Withrow, 944 F.2d 284, 286 (6th Cir. 1991), rev’d on other grounds, 507 U.S. 680 (1993) (gun thrown in river); Smith v. Commonwealth, 599 S.W.2d 900, 902 (Ky. 1980) (gun thrown in levy). Additionally, as the Newton court observed, “with continuing criminal operations … the lack of a direct known link between the criminal activity and [the] residence[] [to be searched] becomes minimal.” 389 F.3d at 635-36. The affidavit here, however, provided no indication that at the time of the search, Bethal was still participating in gang-related shootings, or was seen carrying a gun. It only asserted that Bethal was identified as one of the drive-by shooters, that he was a gang member, and that he lived at 1624 West Breckenridge Street. The “continuing operation” theory noted in Davidson, Miggins, and Newton does not exist here based upon the factual declaration contained in the affidavit. Because the affidavit fails to establish any relationship between Bethal’s residence and the fair probability that weapons and drugs would be found there, no probable cause existed to support the issuance of the search warrant as to these items.

. . .

We conclude the affidavit at issue was “so lacking in indicia of probable cause” that weapons or drugs could be seized from Bethal’s residence “that a belief in its existence [was] objectively unreasonable.” In McPhearson, we found that the good faith exception was inapplicable because the affidavit did not contain “a minimally sufficient nexus between the illegal activity and the place to be searched to support an officer’s good faith belief in the warrant’s validity, even if the information provided was not enough to establish probable cause.” Id. (quoting United States v. Carpenter, 360 F.3d 591, 596 (6th Cir. 2004)). Similarly, the affidavit here failed to contain a minimally sufficient nexus between the illegal activity (drive-by shootings) and Bethal’s home. In fact, it established no connection whatsoever. Therefore, the district court was correct in determining that the affidavit did not provide the executing officers a good faith basis to believe in its validity.

Defendant’s own statements to the police gave his sister the authority to consent, so his claim that she lacked common authority was denied. United States v. Hill, 237 Fed. Appx. 878 (4th Cir. 2007)* (unpublished).

Encounter was consensual because the defendant locked her keys in her car and asked for help, which was given by a police officer, but he wanted to see her license before he helped open the car and found out she was driving without a license. “Additional [unstated] facts in the record make clear that the subsequent search of DeLaurier’s vehicle was justified by the automobile exception, which allows police to search a vehicle if they have probable cause to believe that the vehicle contains contraband, provided that the car is ‘readily mobile’ and ‘found stationary in a place not regularly used for residential purposes.'” United States v. DeLaurier, 237 Fed. Appx. 996 (5th Cir. 2007)* (unpublished).

Defendant was stopped for a traffic offense, and he was told he could go when the paperwork was completed. According to the videotape of the stop, however, he voluntarily consented to a search. United States v. Esquivel, 507 F.3d 1154 (8th Cir. 2007).*

Defendant was stopped for a traffic offense, and he was visibly and excessively nervous. He gave what became inconsistent answers about what was on his person, and that led to reasonable suspicion for calling a dog. United States v. United States Currency Totaling $101,270.00, 2007 U.S. Dist. LEXIS 84882 (S.D. Ga. November 16, 2007).*

Defendant was arrested for his fourth driving on a suspended DL, which was a custodial arrest situation. After he was safely installed in the back of the police car, his car was subjected to a search incident which produced drugs, and the search incident was valid. United States v. Majette, 2007 U.S. Dist. LEXIS 84923 (W.D. Va. November 16, 2007).*

Defendant argued that HIPAA was violated in taking his blood at the hospital after a motor vehicle accident, but the argument was slightly changed between circuit court and the appellate court, so the argument was not addressed. There was otherwise probable cause to get his blood. Hoyle v. State, 2007 Ark. LEXIS 624 (November 15, 2007).*

The officer had reason to believe defendant was under the influence of drugs while driving. “Several facts provided Deputy Spotten with probable cause to believe that Defendant had committed this crime: Defendant had been driving in an erratic and dangerous manner; Defendant had slurred speech; and Defendant ended his dangerous driving in an unusual accident–a single-car collision with a trailer parked on the side of the road. Therefore, Deputy Spotten was justified in making a warrantless arrest of Defendant.” State v. Despain, 2007 UT App 367, 173 P.3d 213, 591 Utah Adv. Rep. 3 (2007).*

The motion to suppress did not adequately put the state on notice that the defendant was arguing that no search warrant actually issued. The officer presented an affidavit for a search warrant to the magistrate, but no search warrant. Based on the affidavit alone, the officers conducted the search. The issue first arose during the suppression hearing, and the state made an impromptu argument that the affidavit should suffice, but that did not cure the defense failure to put the state on notice. Young v. State, 282 Ga. 735, 653 S.E.2d 725 (2007):

Again, the question is whether Young’s motion to suppress sufficiently put the State on notice that the very existence of a search warrant was being challenged, i.e., that the document that Young himself referred to as the warrant was not in fact a warrant, and that this legal issue would be resolved at the motion to suppress hearing. And it is plain that the State was not on such notice. Examination of the transcript of the suppression hearing compels the conclusion that the State’s argument to the trial court was nothing more than an impromptu attempt to respond to Young’s unexpected challenge to the lack of an actual search warrant.

. . .

The Court of Appeals did not err in finding waiver under the circumstances of this case.

2255 petitioner could not show that his counsel was ineffective for not arguing inapplicability of the good faith exception under Leon because it would have failed. Seckman v. United States, 2007 U.S. Dist. LEXIS 85798 (E.D. Okla. November 19, 2007).*

Defendant’s refusal to answer a request for consent was not an express denial of consent under Randolph, so defendant’s wife could be asked and she could consent. State v. Clavette, 969 So. 2d 463 (Fla. App. 5 DCA 2007):

In the case before us, Mr. Clavette was a joint occupant of the home whose constitutional rights were clearly implicated by law enforcement’s entry into the home that he shared with Ms. Greene. While not disputing Ms. Greene’s right to consent to the entry, Mr. Clavette argues that his refusal to respond to law enforcement’s entreaties constituted an express refusal on his part to allow the entry, thereby negating Ms. Green’s consent. We disagree.

In Randolph, the Supreme Court held that “a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” 547 U.S. at 120 (emphasis added). By holding that only the express refusal of consent is sufficient to overcome the consent given to the police by another resident, we conclude that the Supreme Court intended that such refusal be direct, firm and explicit, and not one gleaned by implication or inference. Indeed, the Randolph opinion went on to posit an example that has significant implications here. The Court said that “if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.” Id. at 105. The latter is precisely what occurred here.

Defendant had an expectation of privacy in hiding a gun under the hood of a borrowed car, but it was not an expectation of privacy that society is prepared to recognize as reasonable. United States v. Casseus, 2007 U.S. Dist. LEXIS 84676 (E.D. N.Y. November 15, 2007):

The defendant contends that the gun found in the car must be suppressed because the search of the automobile violated his Fourth Amendment rights. As an initial matter, a borrower of a car may have standing to challenge the search. United States v. Pena, 961 F.2d 333, 337 (2d Cir. 1992) (“It is not the law, however, that only the owner of a vehicle may have a Fourth Amendment privacy interest therein that is protected against governmental invasion. Rather, the borrower of an automobile can possess such an interest.”). The defendant bears the burden of demonstrating that he had “a subjective desire to keep his [] effects private” and that his “subjective expectation must be one that society accepts as reasonable.” Smith v. Maryland, 442 U.S. 735, 740 (1979). In hiding his gun under the hood of the car, defendant no doubt showed a subjective desire to keep the gun private. But he has not shown that his expectation of privacy is one that was reasonable under the circumstances or that society is prepared to accept.

A warrant need only exist, not be in hand, to satisfy Payton. The existence of a warrant need only be shown by a preponderance of the evidence. United States v. Tapia, 2007 U.S. Dist. LEXIS 84574 (D. Kan. November 13, 2007).*

Pulling plaintiff up by his handcuffs states a claim for relief and for which there is no qualified immunity. “Even Officer Larsen testified that lifting someone up by the handcuffs who is in a prone position on the ground would constitute “torture.'” Hoskin v. Larsen, 2007 U.S. Dist. LEXIS 84704 (W.D. Wash. October 31, 2007).*

An anonymous 911 call of a domestic disturbance does not per se permit an entry, but here it did. It depends on the content of the call. United States v. Wadley, 2007 U.S. Dist. LEXIS 94999 (W.D. Pa. December 28, 2007):

While this Court declines to hold that a 911 emergency call reporting domestic violence per se provides for a finding of exigent circumstances, the Court finds that the police officers’ entry into the home was plainly reasonable based on the totality of the circumstances presented here. In addition to the 911 emergency telephone call relaying a domestic violence incident, the Court finds significant that the police officers also received a 911 emergency telephone call via the dispatch officer reporting a possible hostage situation at the same address. Therefore, assuming arguendo that Ms. Blue’s answering the door alleviated any exigency related to the domestic violence call, see Black, 482 F.3d at 1039-41 (finding exigency where police officers could not find the 911 caller and purported victim of domestic violence dispute), a point the Court does not concede, based on the knowledge of the police officers at the time and transmitted to them through the 911 dispatch officer, the police officers were still responding to a possible hostage situation or the possibility of other victims of domestic violence in the residence. See U.S. v. Holloway, 290 F.3d 1331, 1339 (11th Cir. 2002) (providing that “the fact that a 911 caller chooses-or is forced-to remain anonymous may very well have little bearing on the veracity of the caller. If law enforcement could not rely on information conveyed by anonymous 911 callers, their ability to respond effectively to emergency situations would be significantly curtailed”). Furthermore, the Court highlights Officer Jenkins’ credible testimony regarding the inherent danger and unpredictability of domestic violence disputes. See Tr. at 7:9-16 (“Q[uestion]: Can you describe the situation as an officer in response to a domestic situation? A[nswer]: It’s tense. You don’t know what you are dealing with when you get there. When you get there, sometimes the people that called you can turn on you if you are going to arrest someone they don’t want you to arrest. You don’t know what’s going to happen, and you don’t know who is at fault and who is armed, if anyone is high on drugs. Yon don’t know any of those things. They just dispatch you and say help, they are fighting”). In the case at bar, in which citizens call upon police officers to enter a possibly volatile situation, the Court finds that the same police officers’ on-the-spot decision to enter the home without a warrant, a decision which transpired over the matter of approximately one minute, was reasonable.

Officer was permitted entry by consent by defendant’s sister to look for him for a warrantless arrest for domestic battery on his girlfriend. They found him in a bedroom, and there was a scuffle for a gun. The entry was valid under Randolph because defendant did not object when he could have to the threshold entry because he was feigning being asleep. The trial court erred in suppressing. State v. Clavette, 969 So. 2d 463 (Fla. App. 5DCA 2007):

In Randolph, the Supreme Court held that HN3″a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident.” 547 U.S. at 120 (emphasis added). By holding that only the express refusal of consent is sufficient to overcome the consent given to the police by another resident, we conclude that the Supreme Court intended that such refusal be direct, firm and explicit, and not one gleaned by implication or inference. Indeed, the Randolph opinion went on to posit an example that has significant implications here. The Court said that “if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.” Id. at 105. The latter is precisely what occurred here.

. . .

In the case before us, Mr. Clavette never expressly refused consent. To the contrary, just as Randolph suggested, he was either hiding, resting or sleeping in his bedroom and did not hear or chose not to respond to the police prior to their entry into his home. In any event, under the rule adopted in Randolph, Mr. Clavette’s lack of express refusal to the police entry was insufficient to overcome the consent given by Ms. Greene.

The police had a search warrant with a clause providing for the search of “and and all persons present.” When they arrived, the defendant, the attorney of a person inside, was outside on a cellphone, and he was searched under the warrant. The warrant did not authorize his search. A Terry frisk, however, was valid under all the circumstances, but the “plain feel” was not because it was apparent that there was no weapon. State v. Boyer, 967 So. 2d 458 (La. 2007):

The warrant does not particularly describe the persons to be searched as required by the Fourth Amendment and La. Code Crim. Pro. art. 162. It only authorizes the search of “the person(s). Curtlidges [sic], vehicles, and residence of 470 Greenville Street.” It does not authorize the search of all persons or all persons found therein or thereon or any persons. Neither the warrant nor the underlying affidavit provide probable cause to believe that anyone standing twenty feet from the mobile home had a physical nexus to the ongoing criminal events. The affidavit supporting the warrant avers that the Lafourche Parish Drug Task Force made a controlled purchase of crack cocaine from Antonio Tillman on October 20, 2005. There is no indication where this [Pg 16] controlled purchase was made, thus it is unknown if the sale occurred in the mobile home, on the premises or at another location. The affidavit further declares that Sgt. LaGraize obtained information from several confidential informants that the buyers of the crack cocaine would exit their vehicles and go to the gray van parked in the backyard of 470 Greenville Street and either Antonio Tillman or Benny Sanders aka “Monkey Man” would sell the crack cocaine to them. The affidavit further provides that when agents were patrolling the area on July 11, 2006, and stopped at 470 Greenville Street because of several people congregating around an illegally parked vehicle, including Antonio Tillman, they observed known drug users near the gray van, along with Benny Sanders. The agents further observed, in plain view, drug paraphernalia inside the van. Considering the totality of the information supplied in the affidavit, there is insufficient particularity in the probable cause sense to support the conclusion that anyone standing twenty feet from the mobile home when the warrant was executed is involved in the criminal activity in such a way to have evidence on his person. From the affidavit, it appears that the drug sales occurred in or near the abandoned van. The State produced no evidence that the defendant was anywhere near the abandoned van, which was in the backyard of the property. Officer Guillot testified that the defendant was standing about twenty feet from the front right corner of the mobile home. Moreover, there is nothing in the underlying affidavit or warrant itself to indicate the judge issued a warrant to search unnamed persons because their mere presence at this particular location would implicate them as a participant in a crime. In deciding the motion to suppress, the trial court specifically observed “[t]o characterize the language of the search warrant as unartful would be a compliment.” Although the trial court found the warrant was sufficient to place law enforcement at the location, the court found the warrant did not authorize the search of everybody within the vicinity of the residence.

. . .

For the foregoing reasons, we find the court of appeal erred in reversing the trial court. We cannot find this search warrant authorized the search of everyone within the vicinity of the residence as that would violate the Fourth Amendment’s proscription against general warrants. Although the initial detention and Terry frisk of the defendant, under the totality of the circumstances, was reasonable, the subsequent search and seizure of the contraband did not meet the plain feel exception to the warrant requirement. Nor was this search justified as one incident to arrest, as the defendant’s actions did not constitute the offense of resisting an officer.

Oklahoma indicates that it would not follow Hudson under state statute, adopted at the time of statehood–a failure to properly knock and announce should lead to suppression of the evidence. In this case, however, the issue was deemed waived by trial counsel not renewing the issue at trial. Brumfield v. State, 2007 OK CR 10, 155 P.3d 826 (2007):

Hence the State argues, quite reasonably, that even if the execution of the warrant at Brumfield’s home violated the Fourth Amendment’s knock-and-announce requirement, the evidence obtained thereafter need not be suppressed, under the authority of Hudson.

Brumfield responds, however, also quite reasonably, that the decision in Hudson does not control this Court’s interpretation of our own state statute, namely, 22 O.S.2001, § 1228. This provision authorizes the use of force in the execution of a search warrant on an occupied home only under two particular circumstances. First, it establishes criteria under which a “no-knock” warrant can be issued by a magistrate, thereby allowing a forceful entry without any warning, where there is reasonable cause to believe that one or more specific “exigent circumstances” exist. Otherwise, § 1228 does not allow the forceful entry into a home for the execution of a search warrant, unless “[t]he officer has been refused admittance after having first given notice of his authority and purpose.” Although no-knock warrants were not legislatively authorized until 1990, Oklahoma’s statutory requirement that before an officer can use force in the execution of a search warrant, he must (1) give notice of his authority and purpose, and (2) be refused admittance, dates back to statehood.

Furthermore, this Court has been excluding evidence obtained from searches following a violation of our § 1228 “notice of authority” and “refusal of admittance” requirements since at least as early as 1974-long before the Supreme Court’s 1995 decision in Wilson held that “knock and announce” is constitutionally required. In Sears v. State, this Court held that the failure of officers who were executing a search warrant to comply with § 1228 necessitated reversal of the defendant’s conviction for possession of marijuana with intent to distribute. The Sears Court noted the then-recent repeal of a federal statute authorizing no-knock warrants and commented as follows:

“We believe the Legislature of the State of Oklahoma displayed foresight and wisdom by refusing to cast out our announcement of authority and purpose requirement and implementing in its stead a once-popular, and now discredited, ‘no knock’ entrance procedure. In so doing, the Legislature stood fast by our traditional values and guarded the fundamental rights of all our citizens.”

This Court’s 1979 decision in Erickson v. State followed the approach of Sears. And neither party has offered evidence to suggest that this Court has wavered from this approach, i.e., of holding that evidence obtained in a search following a violation of § 1228, where there are no exigent circumstances, is not admissible against the homeowner. Hence this Court has a long history of enforcing § 1228 through the suppression of evidence quite apart from decisions of the United States Supreme Court regarding the requirements of the Fourth Amendment. In addition, Oklahoma remains free to interpret our own state constitution, with its own protection against “unreasonable searches or seizures,” more broadly than the United States Supreme Court interprets the federal constitution.

Comment: While courts are often loathe to discuss academic questions, this issue apparently got serious attention from the Oklahoma court, despite the fact it was deemed waived. One judge dissented because the state constitutional provision was identical to the Fourth Amendment, but the majority was talking about statutory interpretation.

The Wisconsin Supreme Court upheld a decision of its Court of Appeals that the trial court’s finding of reasonable suspicion was clearly erroneous. One factor alone could be enough in the right case, but this wasn’t it; on the totality of circumstances, there was no reasonable suspicion, and the officer’s claim of reasonable suspicion was a mere hunch. State v. Johnson, 2007 WI 32, 299 Wis. 2d 675, 729 N.W.2d 182 (2007), aff’g 2006 WI App 15, 288 Wis. 2d 718, 709 N.W.2d 491 (App. 2006).

Defendant had no standing to contest the seizure of evidence from a rape victim of his semen left on sheets he left in her house and then using that to get an order for his DNA. State v. Homz, 2007 Wisc. App. LEXIS 1147 (December 12, 2007)*:

P12 Homz also did not have a reasonable expectation of privacy in the sheet or the semen deposited on the sheet. A reasonable expectation of privacy in property depends, in part, on whether the person exercised dominion over the property. See State v. Whitrock, 161 Wis. 2d 960, 989, 468 N.W.2d 696 (1991). Here, Homz abandoned the sheet and the semen deposited on the sheet. The rest of Homz’s argument about the legality of the evidence derived from the sheet is not supported by citation to legal authority. We will not consider it further. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

P13 Homz challenges the evidence obtained pursuant to a search warrant authorizing a swab of his mouth for DNA testing purposes. Homz premises this challenge on an assertion that the semen and DNA on the sheet was discovered in a warrantless search. We have upheld the legality of the means by which Homz’s semen and DNA were found on the sheet produced by the victim’s mother. The match between the DNA found on the sheet and the DNA found on the victim was the basis for a search warrant to obtain DNA from Homz directly. Homz’s DNA was lawfully gathered.

Plaintiff showed a sufficient factual dispute that defendant officer failed to corroborate an informant as a basis for arrest to survive summary judgment. Higgins v. Gee, 2008 U.S. Dist. LEXIS 4313 (M.D. Fla. January 18, 2008).*

In the same case, plaintiff made a showing of a refusal to consent that led to a search anyway, and that survived summary judgment. Higgins v. Gee, 2008 U.S. Dist. LEXIS 4328 (M.D. Fla. January 18, 2008)*:

What pushes this case over the line is the fact that Plaintiff repeatedly refused to consent to a search, 2 coupled with Davis’s threats to “smash everything you own,” or “tear his place apart,” or “f – your sh-t up” if Plaintiff did not consent to a search. On these facts, Plaintiff’s consent was not the product of “an essentially free and unconstrained choice.” See United States v. One Piece of Real Property Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1102-03 (11th Cir. 2004) (police refused defendant’s request to speak with attorney, to make telephone call, and to get more clothes because defendant was in only a towel, and told defendant that if they had to wait for a warrant they would “tear his house apart and arrest his girlfriend”). The Court also finds that Plaintiff’s eventual retraction of his previous refusals to consent weighs in favor of finding that Plaintiff’s ultimate acquiescence was the product of Davis’s coercive tactics, not a voluntary choice. Accordingly, the Court finds that Plaintiff has sustained his burden to show that a constitutional violation occurred, on the facts alleged in the Amended Complaint.

According to today’s LA Times, 100 federal agents participated in an art fraud raid that included four Southern California museums, including the Los Angeles County Museum of Art, and a local art gallery: 4 Southland museums raided in looting probe:

The warrants gave agents broad authority to search the museums’ galleries, offices, storage areas and computer archives for objects and records related to the primary targets of the investigation: an alleged art smuggler, Robert Olson, and the owner of a Los Angeles Asian art gallery, Jonathan Markell. Markell’s Silk Roads Gallery on La Brea Avenue was also raided.

The warrants are based on an undercover investigation by an unnamed agent with the National Park Service, who presented himself as an eager new collector to Olson and Markell. Both men allegedly admitted their illegal activities to the agent and sold him recently looted objects.

The warrants claim the men also introduced the agent to museum officials who, in dozens of secretly tape-recorded meetings, accepted donations of looted art with values inflated to help the sellers obtain tax write-offs.

Excessive force claims are evaluated without regard to the lawfulness of the underlying arrest. Handcuffing too tight does not give rise to liability without proof of injury. Gray v. Horton, 2008 U.S. Dist. LEXIS 4194 (S.D. La. January 18, 2008):

Gray also alleges that he suffered a constitutional violation because Horton and Cox used excessive force in his arrest. His claim of excessive force is separate and distinct from his unlawful arrest claim and, therefore, the court must analyze the excessive force claim without regard to whether his arrest was justified. Freeman v. Gore, 483 F.3d 404, 417 (5th Cir. 2007) (The fact that an arrest was unlawful “does not, however, mean that any force used by [officers] to effectuate the arrest was necessarily excessive.”).

. . .

Physical confrontations when a person is arrested or detained by an officer may result in injuries that do not rise to the level of a constitutional violation. The Fifth Circuit has failed to find excessive force when a plaintiff alleged that an officer placed handcuffs on her too tightly, thereby causing her wrists to swell. See Glenn v. City of Tyler, 242 F.3d 307 (5th Cir. 2001). In Glenn, the Fifth Circuit stated that “handcuffing too tightly, without more, does not amount to excessive force,” Id. at 314. Similarly, Gray’s allegations that Horton verbally accosted and pointed his weapon at him are insufficient to rise to the level of a constitutional injury. See Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993) (citing McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir, 1983)) (As a general rule, threatening language and accompanying gestures, even if true, do not amount to a constitutional violation).

Even if Gray’s arrest or detention was itself unlawful, his claim for excessive force fails as a matter of law.

Sheriff’s civil process server was serving process and put a foot in the door of defendant’s hotel room to hand him the papers. Defendant then slammed the door on him, assaulting him. The officer entered to arrest and subdue him, and a search incident to that arrest found crack. The entry by the officer’s foot was not unconstitutional. United States v. Cosey, 2008 U.S. Dist. LEXIS 4138 (S.D. Iowa January 18, 2008).*

Motion in limine granted in § 1983 case for exclusion of a warrantless search claim since plaintiff pled an invasion of privacy never putting the defense on notice that a warrantless search was at issue. Mangum v. City of Pocatello, 2008 U.S. Dist. LEXIS 4147 (D. Idaho January 18, 2008).*

Defendant had standing to challenge the search of a car he borrowed but lost the key to and had to leave it in the cemetery where he parked it before he lost the key. It got towed as potentially abandoned because a homicide was nearby. It was not, however, abandoned. United States v. Gonsalves, 2008 U.S. Dist. LEXIS 3454 (D. Haw. January 15, 2008):

An ownership interest is not necessary to establish a legitimate expectation of privacy. United States v. Thomas, 447 F.3d 1191, 1198 (9th Cir. 2006). The Ninth Circuit says that a defendant has standing to challenge the search of another’s car when that defendant has permission from the owner to use the car, is in possession of the car, and holds a key to the car. United States v. Portillo, 633 F.2d 1313, 1317 (9th Cir. 1980); see also Thomas, 447 F.3d at 1199 (holding that a driver of a rental car driving with permission from the authorized driver, but without authorization from the rental company, has standing to challenge the search of the rental car).

. . .

Gonsalves, although not the registered owner of the Ford Escort, had permission from Gutierrez to use the Ford Escort. Gonsalves had a key for the car, and even though he had subsequently lost the key, was in possession of the car when he arrived at HMP, and locked the door when he got out. These actions demonstrated Gonsalves’s ability to “exclude all others, save his [sister], the owner.” Portillo, 633 F.2d at 1317. Gonsalves, therefore, had a legitimate expectation of privacy in the Ford Escort.

An arrest warrant for a defendant only permits an entry into his house when officers have reason to believe that he is home. Here, it was reasonable to conclude that the defendant was home, even though, as it turned out, he wasn’t. United States v. Brown, 2008 U.S. Dist. LEXIS 3228 (E.D. Pa. January 16, 2008):

An arrest warrant allows a police officer to enter a domicile in which a suspect lives, but only when there is reason to believe that the suspect is inside. Payton v. New York, 445 U.S. 573, 603 (1980). The Third Circuit Court of Appeals has held that the police are only allowed to enter a suspect’s home to make an arrest when they have probable cause to believe that the suspect is inside. United States v. Veal, 453 F.3d 164, 167-68 (3d Cir. 2006); United States v. Agnew, 407 F.3d 193, 196 (3d Cir. 2005).

Here, the law enforcement officers who entered 5045 Irving Street had an arrest warrant for Mr. Brown, but did not have a search warrant for the 5045 Irving Street residence. It is undisputed that the residence was empty when the police entered, and Mr. Brown asserts that there is no evidence that there were any “signs of life” indicating that anyone was home.

. . .

On October 23, 2006, Deputy Carroll and his team arrived at 5045 Irving Street around 5:45 a.m. (Id. at 99-100.) Prior to entering, Deputy Carroll observed through the front window that there were lights and a television on inside the house, and that on a table in the front room there appeared to be some sort of food in a dish. (Id. at 100.) In addition, a neighbor, after having been shown a photograph of Mr. Brown, identified Mr. Brown as the person he had seen in the house the night before. (Id.) Based on these observations, asserts the Government, the officers had probable cause to believe Mr. Brown was inside the house at the time, and, therefore, their entry into the house to execute the arrest warrant was reasonable.

The Court agrees. The documents cited by Deputy Carroll demonstrate ample independent connections between Mr. Brown and 5045 Irving Street–not the least of which being his undisputed ownership of the property–for a reasonable person to conclude that Mr. Brown resided at 5045 Irving Street. Because the Court finds Deputy Marshall’s observations credible and uncontradicted by any evidence currently in the record, including the contemporaneous “signs of life” such as the lights and television being on and remnants of a meal, the Court also concludes that when law enforcement personnel arrived to execute the arrest warrant on the morning of October 23, 2006 around 5:45 a.m., a time when many people are still at home, there were sufficient indicia to conclude that Mr. Brown was actually and currently present at 5045 Irving Street.

Two cases on prosecutorial immunity governing an arrest; one without immunity and one with, all turning on probable cause:

A prosecutor had no immunity for authorizing an arrest after reviewing the videotape of what was an apparent coerced confession and the arrest otherwise lacked probable cause. Harris v. Bornhorst, 2008 U.S. App. LEXIS 724, 2008 FED App. 0022P (6th Cir. January 14, 2008).*

A prosecutor had immunity where all the paperwork was in hand and clearly provided probable cause for plaintiff’s arrest. Youngblood v. McCastlain, 2008 U.S. Dist. LEXIS 2742 (E.D. Ark. January 14, 2008).*

Defendant was told that he had a right to refuse consent, and he consented. The “threat” that officers could get a search warrant [others had, in fact, already gotten one] was not delivered in a threatening manner, and did not militate against consent. United States v. Beltran, 2008 U.S. Dist. LEXIS 2113 (D. Or. January 7, 2008).*

An arrest warrant was obtained for the defendant for providing alcohol to a minor, and officers went to arrest him. Inside his house, he asked for permission to dress, and officers followed him to his room. On the floor in the main room was ammunition. Officers subsequently saw several firearms in the premises, so they sought a search warrant, and the warrant, based on probable cause, revealed illegal firearms. The search was valid. United States v. Cooke, 2008 U.S. Dist. LEXIS 2139 (D. N.D. January 9, 2008).*

Allegation of excessive force was enough to defeat governmental entities’ motion to dismiss, something that cannot be resolved at the pleading stage. Garcia v. City of Merced, 2008 U.S. Dist. LEXIS 2135 (E.D. Cal. January 10, 2008).*

Issuance of a citation to appear is not a seizure. Schuenke v. City of Milwaukee, 2008 U.S. Dist. LEXIS 2043 (E.D. Wis. January 10, 2008).*

After an elaborate discussion of probable cause and pretextual stops, the court concludes that a stop based on illegal window tinting can [and must] be permitted on the officer’s own observations of whether the tinting is too dark. State v. Arvel, 401 Md. 676, 934 A.2d 38 (2007) (This case has an excellent discussion of pretextual stop law, but the case is not on the Maryland court’s website as of the time of this post; if you have a pretextual stop case, at least read this case for a good overview; click on the link, and it should be posted shortly.).

Plaintiff’s arrest by an Iowa National Guardsman during the post-Katrina evacuation was not an action by the NOLA PD, so he could not maintain an action against the police. Terry v. City of New Orleans, 2007 U.S. Dist. LEXIS 77645 (E.D. La. October 17, 2007).*

The affidavit for the search for child porn was based on probable cause [the question was not even close]. Commonwealth v. Kenney, 449 Mass. 840, 874 N.E.2d 1089 (2007).*

DNA can be taken from a person convicted of a non-violent drug conspiracy. United States v. Kriesel, 508 F.3d 941 (9th Cir. 2007) (2-1):

Kriesel counters that nonviolent offenders have lower recidivism rates than violent offenders. This argument is not persuasive in Kriesel’s case. Indeed, he is already a recidivist, as he violated the terms of his release when he tested positive for controlled substances. While it is true that “recidivism rates vary with factors like the offender’s age and type of conviction,” nonetheless, “the high likelihood that non-violent offenders will re-offend–and therefore, as the Supreme Court recognized in Knights, be put in the position to conceal their crimes and identities from the authorities–underscores the Government’s interest in obtaining the most accurate identification information it can from these individuals.” See Banks, 490 F.3d at 1191.

Comment: I lost this issue in Arkansas two years ago, Polston v. State, 360 Ark. 317, 201 S.W.3d 406 (2005), holding there is enough risk of recidivism even with drug offenders to justify it. See also Annots., Validity, Construction, and Application of DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C.A. §§ 14135 et seq. and 10 U.S.C.A. § 1565, 187 A.L.R. Fed. 373, § 12 (larceny); Validity, construction, and operation of state DNA database statutes, 76 A.L.R.5th 239.

Coincidentally, the LAPD alone needs $9.5M to clear out its DNA backlog. See yesterday’s LATimes.com: LAPD far short of funds for DNA tests.