The entry by deputy sheriffs into defendant’s occupied home on December 11 at approximately 6 a.m., when it was still dark, to execute a search warrant with an invalid nighttime authorization, and with no knowledge that defendant or his house guests were not still in a period of nighttime repose that Minn. Stat. § 626.14 protects, subverts the purpose of the statute and requires suppression of the evidence seized during the search even though the defendant was not personally present. It also violates the Fourth Amendment. State v. Jordan, 742 N.W.2d 149 (Minn. 2007):

To the degree that a nighttime search under a warrant with an invalid nighttime clause can be compared to a warrantless search or the seizure of an item not adequately described in a warrant, these cases support the conclusion that the search of Jordan’s home violated his reasonable expectation of privacy. At the very least, these cases presume that the scope of the defendant’s expectation of privacy is broader than merely the risk of the intrusion on his person.

Comment: This case is important because it applies the Fourth Amendment to an invalid nighttime search, finding that a person has a reasonable expectation of privacy against unwarranted nighttime searches.

The 41 page affidavit for the search warrant in this case was sufficient to show probable cause for issuance of the warrant, and it was summarized ad nauseum in the opinion. Under Gates, de novo review of the affidavit is not permitted. United States v. Redzic, 2007 U.S. Dist. LEXIS 89961 (E.D. Mo. December 6, 2007):

The court could continue reviewing the affidavit, which is replete with information supporting probable cause, but this section of this Report and Recommendation is already too long, the parties have the affidavit and information already provided in this section of this report show probable cause for the issuance of the search warrants.

This court finds that the information supplied in the affidavit to Judge David D. Noce provided “a fair probability that contraband or evidence of crime [would] be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. at 2332. Consequently, this court finds that the search warrants in question were issued based on probable cause.

Defendant’s 4 a.m. party in the backyard did not show he had an expectation of privacy from police responding to a noise call and entering the backyard. State v. Dunn, 2007 MT 296, 340 Mont. 31, 172 P.3d 110 (2007):

[*P14] Here, Dunn did not have a reasonable expectation of privacy that society is objectively willing to accept. First, we consider Dunn’s use of the property at the time of the intrusion. When police arrived at 4:00 a.m., Dunn, with a group of approximately seven people, was blaring music in the backyard from a car stereo. The party was boisterous enough to cause a neighbor to call in a complaint. Pursuant to § 45-8-101(1)(b), MCA, Dunn was effectively engaged in disorderly conduct by “making loud or unusual noises” that were disturbing the peace of the neighborhood. Because the music was still playing when the officers arrived, an ongoing crime was occurring in the officers’ presence. Second, an expectation of privacy must be objectively reasonable to society. We find it improbable that society is willing to accept a privacy expectation as “reasonable” where the individual uses his property to disturb the peace of others at 4:00 a.m. in the morning. Dunn was not conducting himself in a “private” manner, but rather, to the contrary, his imposition upon other residents was a very public act. Given these circumstances, we find that Dunn did not have an expectation of privacy in his backyard at the time police arrived to investigate.

A police officer’s telephone call to headquarters concerning his employment status and whether he would stay off on a work related injury was tape recorded, and he had a reasonable expectation that his calls would not be recorded because there was no beep on the line. Precedent established a reasonable expectation of privacy for calls to and from a public agency where there was explicit direction as to which lines were recorded and which were not. (This was combined with a First Amendment retaliation claim.) Diana v. Oliphant, 2007 U.S. Dist. LEXIS 83834 (M.D. Pa. November 13, 2007).

Plaintiff improperly gave notice to local government under the Maryland Tort Claims Act, but his allegations of gross negligence or recklessness against the officer for shooting him without cause survives. Barbre v. Pope, 402 Md. 157, 935 A.2d 699 (2007).*

In a legal malpractice case for plaintiff’s counsel not properly handling an excessive force claim, plaintiff would have been able to show that the officers were not entitled to qualified immunity and that he had a submissible case for excessive force. The case was reversed for a redetermination of damages, however. Austin v. Sneed, 2007 Tenn. App. LEXIS 688 (November 13, 2007).*

Minnesota also upholds DNA testing of convicts. State v. Jackson, 741 N.W.2d 146 (Minn. App. 2007).*

The California Third District Court of Appeals held that the police cannot keep marijuana seized off a bona fide medical marijuana patient who was charged and the charges later dismissed because he was, in fact, a patient. The state’s argument for federal preemption over marijuana prosecution was rejected [not to mention that it was highly disingenuous] as was the argument that returning the medical marijuana would violate public policy [which borders on the fantastic, considering California’s Compassionate Use Act]. This is a really interesting case. The opinion is 41 pages long, and here are only three of them. City of Garden Grove v. Superior Court of Orange County, 157 Cal. App. 4th 355, 68 Cal. Rptr. 3d 656 (3d Dist. 2007):

Like the City itself, amici also fear the Garden Grove police would be violating federal law by returning Kha’s marijuana to him. However, instead of relying on aiding and abetting principles, amici go a step further than the City and argue the police would be in direct violation of federal law were they to comply with the trial court’s order. They point out that distribution of a controlled substance is generally prohibited under 21 U.S.C. § 841(a)(1), but that section does not apply to persons who regularly handle controlled substances in the course of their professional duties. For example, in United States v. Feingold (9th Cir. 2006) 454 F.3d 1001, 1008, the court held that 21 U.S.C. § 841(a)(1) could only be applied to a doctor if, in distributing a controlled substance, he intended “to act as a pusher rather than a medical pofessional.” (Relying on United States v. Moore (1975) 423 U.S. 122.)

By analogy, it would stand to reason that the only way a police officer could be found in violation of 21 U.S.C. § 841(a)(1) for distributing a controlled substance is if he or she intended to act as a drug peddler rather than a law enforcement official. In this case, it is quite obvious the police do not want to give Kha his marijuana back at all, let alone have him use it for illicit purposes. They are acting under the compulsion of a lawful court order. Therefore, we cannot see how anyone could regard compliance with this order a violation of 21 U.S.C. § 841(a)(1).

Assuming someone could, it seems to us clear the police would be entitled to immunity under 21 U.S.C. § 885(d). As discussed above, that statute provides immunity to law enforcement personnel who are responsible for handling controlled substances as part of their official duties. (See ante, pp. 10-12.) From a legal standpoint, that should alleviate any fears the Garden Grove police have about returning Kha’s marijuana to him. As a practical matter, moreover, it seems exceedingly unlikely that federal prosecutors would ever attempt to haul a local constable into federal court for complying with a state judicial order calling for the return of a qualified patient’s medical marijuana. We are not aware of a single instance in which this has ever occurred. We are confident, had there been such a phenomenon, it would have been brought to our attention.

Amici for the City also claim that ordering the return of Kha’s marijuana is ill advised as a matter of public policy because local police are held to a high moral standard, they often cooperate with federal drug enforcement efforts, and they are generally charged with enforcing and administering “the law of the land,” which includes federal law. We appreciate these considerations and understand police officers at all levels of government have an interest in the interdiction of illegal drugs. But it must be remembered it is not the job of the local police to enforce the federal drug laws as such. For reasons we have explained, state courts can only reach conduct subject to federal law if such conduct also transcends state law, which in this case it does not. To the contrary, Kha’s conduct is actually sanctioned and made “noncriminal” under the CUA. (People v. Mower, supra, 28 Cal.4th at p. 471.)

That may cause a dilemma for local narcotics officers in some instances, but it strikes us as being an entirely manageable consequence of our federalist form of government. By complying with the trial court’s order, the Garden Grove police will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens. Indeed, “[o]ur federalist system, properly understood, allows California and a growing number of States [that have authorized the use of medical marijuana] to decide for themselves how to safeguard the health and welfare of their citizens.” (Gonzales v. Raich, supra, 545 U.S. at p. 74 (dis. opn. of Thomas, J.).) The CUA and MMP are a clear manifestation of that decision-making process.

By returning Kha’s marijuana to him, the Garden Grove police would not just be upholding the principles of federalism embodied in the United States Constitution, however. They would also be fulfilling their more traditional duty to administer the laws of this state. In that sense, the trial court’s order comports with an officer’s dual obligation to support and defend both the California Constitution and the Constitution of the United States. (See Cal. Const. art. XX, § 3.)

The officers came to execute a search warrant and they entered and grabbed the defendant who showed up at the door with a hammer in his hand. Because he had no prior history of violence and they really did not know what the hammer meant, the entry without announcement was a violation of defendant’s statutory and constitutional rights. However, the court applies Hudson to sustain the search. State v. Gilbert, 2007 Ohio 2717, 2007 Ohio App. LEXIS 2520 (4th Dist. May 30, 2007).*

Comment: This court never addresses the “useless gesture” exception to knock and announce: The defendant saw the officers when he came to the door. Therefore, if the defendant knew who they were, then the useless gesture exception clearly applies, so why did they have to announce? This is just a shameless excuse to apply Hudson where the facts do not justify it. Ohio defense lawyers should be concerned with this court’s rush to jump on the Hudson bandwagon where the facts clearly do not justify it.

Pennsylvania adopts the federal plain view standard for its state constitutional standard, and then holds that the facts here justified a plain view of a pill bottle in a car stopped for a traffic offense. Commonwealth v. McCree, 592 Pa. 238, 924 A.2d 621 (2007).

A valid traffic stop justifies checking the passengers for the officer’s own safety, and that produced a shotgun. The finding of the gun was reasonable. State v. Canezaro, 957 So. 2d 136 (La. 2007).*

Encountering the defendant at home, the officer could smell burning marijuana “emanating from the partially open door.” A warrantless entry was justified. Hardy v. Broward County Sheriff’s Office, 238 Fed. Appx. 435 (11th Cir. 2007)* (unpublished):

The Deputies therefore had probable cause to believe that someone inside the apartment had been smoking cannabis and that this cannabis could be found somewhere inside the apartment. Moreover, had the Deputies delayed entering the apartment, they risked the “loss, destruction, removal, or concealment of evidence” of this suspected crime, thereby creating exigent circumstances. See id. Thus, even had the cocaine-filled, plastic bags not been “in plain view” from outside the partially open door of the apartment (that is, even had the ceramic bowl been covered with a lid as Hannah alleged), the Deputies had probable cause to believe that cannabis could be found somewhere inside the apartment (including inside the ceramic bowl), and there was a risk that Hannah would remove or destroy this cannabis (or the possible vestiges thereof). This combination of probable cause and exigent circumstances justified the Deputies’ warrantless search of Hannah’s apartment, and therefore, the cocaine found inside the ceramic bowl was properly seized. That the Deputies did not find any cannabis is of no moment, especially where following Hannah’s arrest, he admitted that he had smoked cannabis inside the apartment just before the Deputies arrived.

Defendant’s handcuffing was not a minimal intrusion, and it was not based on reasonable suspicion. Taking the LaFave factors from LaFave’s Criminal Procedure

(1) the particularity of the description of the offender or the vehicle in which he fled;
(2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the time occurred;
(3) the number of persons about in that area;
(4) the known or probable direction of the offender’s flight;
(5) observed activity by the particular person stopped; and
(6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.

the court, considering them seriatim, finds no reasonable suspicion. The strongest factor the court found was corn rowed hair, which the appellate court finds not subject to judicial notice that it was unusual enough to be a factor. Nervousness is also not a factor because even the innocent are nervous when they are stopped by the police. Madison-Sheppard v. State, 177 Md. App. 165, 934 A.2d 1046 (2007). Comment: This is kind of reminiscent of the “divide and conquer” analysis rejected in Arvizu. Because this was an arrest without a warrant, de novo review is required under Ornelas. Under de novo review, the appellate court is free to consider the factors itself under the totality standard. Here, the factors were found factually weak and against a finding of reasonable suspicion: race of the suspect was not particularly selective, the time since the offense under investigation was long, etc.

Officers entering a house to arrest the plaintiff in a domestic violence situation were entitled to qualified immunity. It was not hot pursuit, but it was a situation for the safety of all concerned. Cannon v. Hamilton County, 2007 U.S. Dist. LEXIS 81407 (E.D. Tenn. November 1, 2007), relying on Hancock v. Dodson, 958 F.2d 1367 (6th Cir. 1991).*

Stop of vehicle with a temporary tag that was in the back window and not on the bumper was valid because the officer was entitled to make reasonable mistakes of fact. During the stop, the officer saw brass knuckles in plain view. The plain view was valid. United States v. Dates, 2007 U.S. Dist. LEXIS 81494 (W.D. Pa. October 30, 2007).*

Officer’s search of curtilage for hidden drugs after defendant’s arrest for battery violated the Fourth Amendment. They were not on him, and they were not in plain view. Probable cause alone was not enough. Rivers v. State, 287 Ga. App. 632, 653 S.E.2d 78 (2007).*

Defendant’s IAC claim fails because defendant would have lost on the merits of the search claim, which the court examines in great detail. The officers had reasonable suspicion that the toolboxes in defendant’s hands when he was first encountered which he put on the ground were stolen. People v. Richardson, 376 Ill. App. 3d 612, 876 N.E.2d 303, 315 Ill. Dec. 303 (1st Dist. 2007).*

Defendant’s stop was based on a lane change without signalling, and that violated state law, so the stop was valid. People v. James, 2007 NY Slip Op 27384, 17 Misc. 3d 623, 842 N.Y.S.2d 859 (Queens Co. 2007).*

Defendant was subjected to what was apparently an unlawful entry on a misdemeanor warrant that should not have been served at home. This assault on the officers was not privileged and would not be suppressed even if the entry was unlawful. Therefore, defense counsel’s failure to file a suppression motion could not be ineffective assistance. State v. Flesher, 2007 Ohio 4982, 2007 Ohio App. LEXIS 4406 (7th Dist. September 21, 2007).*

Defendant was stopped after furtive movements on the street as officer was responding to a domestic violence call and defendant generally matched the description of the assailant. A patdown for weapons after that was justified. In re Jackson, 2007 Ohio 4955, 2007 Ohio App. LEXIS 4418 (11th Dist. September 21, 2007).*

Defendant’s presence in a building that was known for drug arrests was insufficient an objective basis for a patdown. In re Mario T., 376 Ill. App. 3d 468, 875 N.E.2d 1241, 314 Ill. Dec. 954 (1st Dist. 2007):

Even from the position that the officers may have been justified in conducting a Terry stop of the respondent based on (1) the radio call of an attempted break-in, (2) his presence on the second floor when his sister lived on the sixth, (3) not being a resident of the building, and (4) the characterization of the building as an area of high narcotics and gang activity, these factors fail to inform us as to any reasonable inference of criminal conduct on the part of the respondent and his companions, that put the officers in reasonable apprehension of an attack. A showing beyond that which is required for an investigatory stop must be made to justify a weapons frisk. See People v. Galvin, 127 Ill. 2d at 165; compare In re S.V., 326 Ill. App. 3d 678 (2001).

. . .

The State places the greatest weight for justification of the frisk on Officer Hickey’s testimony that she felt in fear for her safety. “In the case of a self-protective search for weapons, [an officer] must be able to point to particular facts from which [s]he reasonably inferred that the individual was armed and dangerous.” Sibron v. New York, 392 U.S. 40, 64, 20 L. Ed. 2d 917, 935, 88 S. Ct. 1889, 1903 (1968). We are mindful that in determining whether the officer acted reasonably under the circumstances, “due weight must be given to the specific reasonable inferences which [an officer] is entitled to draw from the facts in light of [her] experience.” S.V., 326 Ill. App. 3d at 684. In accordance with the deference owed to the officers, the question becomes: “What inferences did Officer Hickey draw from the facts as she understood them to exist, in light of her experience, to support her claim that she acted reasonably in such circumstances?”

We have scoured the record to discover what in particular about the respondent and his friends made Officer Hickey reasonably suspect they posed a danger to her. We are left without an objective answer. The record also provides no testimony from Officer Hickey as to the inferences she drew about the respondent and his companions. We can draw no reasonable inferences on her behalf.

The recording of defendant’s interview with local police showed that defendant was not in custody and his statement was voluntary. United States v. Fontecchio, 2007 U.S. Dist. LEXIS 88796 (S.D. Fla. November 9, 2007) (Comment: Yet, the federal government insists on a policy whereby they record no interviews with suspects. And why do you think that is ….?)

The affidavit for the search warrant for defendant’s computer showed probable cause [without details], and the good faith exception would save it anyway. United States v. Stults, 2007 U.S. Dist. LEXIS 88845 (D. Neb. December 3, 2007).*

Plaintiff survives summary judgment on a warrantless arrest claim where defendant entered her house to arrest her for failing to report an accident and resisting arrest. Hardwick v. City of Cleveland, 2007 U.S. Dist. LEXIS 88871 (E.D. Tenn. December 3, 2007).*

Defendant had no credibility on the question of consent because of his interest in the case. United States v. Ham, 2007 U.S. Dist. LEXIS 88743 (S.D. Fla. November 15, 2007).*

Officers did not lose qualified immunity protection because they did not conduct what would be an otherwise proper investigation by not asking further questions. Fleming v. City of Bridgeport, 284 Conn. 502, 935 A.2d 126 (2007):

In the absence of exigent circumstances, adherence to the fourth amendment and to § 47a-43, and the policies underlying both, would dictate that police officers make a reasonable investigation to determine whether such persons are entitled to the protections of the statute. For example, some relevant questions to such an inquiry might be: how long the plaintiff had been staying there; whether she received mail there; whether she paid rent; whether she kept her belongings there; and whether she had a key to the premises. 29 We recognize that the officers in the present case could have asked such questions, and we urge that they do so in the future in similar circumstances; we cannot say, however, that their approach under the circumstances of this case was so unreasonable as to justify abrogation of their qualified immunity.

The police were executing a search warrant for stolen property, and it turned out to be a massive enterprise, and the press got word of it and showed up and camped out in the front yard, on the curtilage but in a public area. Some were permitted more access. While this is contrary to Wilson v. Layne, it does not rise to the level of a serious enough violation to warrant exclusion of any of the evidence. United States v. Duenas, 2007 U.S. Dist. LEXIS 95721 (D. Guam December 21, 2007):

However, there was testimony that Guam Police Officer Scott Wade escorted certain media members beyond the front yard. In those instances, where members of the media were escorted beyond the front yard, the question facing the court is whether the evidence should be suppressed on this basis. Moreover, the court is concerned that evidence seized from the residence was later placed on the front yard in a “staging area.” In United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), the Court wrote, “[w]hether the exclusionary sanction is appropriately imposed in a particular case, our decisions make clear, is an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.” Id. at 906.

The Court in Wilson said “[w]e have no occasion here to decide whether the exclusionary rule would apply to any evidence discovered or developed by the media representatives.” Wilson, 526 U.S. at 614 n.2. The Court was careful to point out that the violation of the Fourth Amendment was the presence of the media in the home, not the presence of the police. Id. This footnote suggests that evidence obtained by the police when the media is just present is not subject to the exclusionary rule, while it may remain an open question about whether evidence obtained by the media is subject to the exclusionary rule.

As mentioned, members of the media were present as the search of Defendants’ residence was in progress. There is no indication that the presence of the media somehow expanded the scope of the search (the search was actually carried out by the police themselves) beyond that allowed by the terms of the warrant. Nor is there any allegation that the members of the media aided the search, touched, moved, or handled anything in the residence. The court has found no caselaw where the remedy to such a Fourth Amendment violation is exclusion of the evidence. “Each time the exclusionary rule is applied it exacts a substantial social cost for the vindication of Fourth Amendment rights. Relevant and reliable evidence is kept from the trier of fact and the search for truth at trial is deflected.” Rakas v. Illinois, 439 U.S. 128, 140, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978).

In United States v. Hendrixson, 234 F.3d 494 (11th Cir. 2000), the defendant sought to suppress evidence obtained during the search of her residence because the police had allowed the news media to be involved. In light of Wilson, the court held that the presence of the reporter violated the defendant’s Fourth Amendment rights. Id. at 496. However, the court went on to find that the reporter had not aided in the execution of the warrant, or expanded the scope of the search beyond that allowed by the terms of the warrant. The reporter arrived after the search was in progress and did not move, touch or handle anything in the residence. Accordingly, the court found that the police had conducted the search within the parameters of the warrant, and that the evidence obtained during the search was not subject to the exclusionary rule because the officers discovered the evidence, not the reporter.

Absent finding any caselaw suggesting otherwise, the court finds that rather than excluding evidence for a violation of the Defendants’ Fourth Amendment rights, the better remedy may be found in civil litigation, such as suits under 42 U.S.C. § 1983 and Bivens actions against federal law enforcement. There was no evidence that a media member discovered or developed any evidence. It appears that the police conducted the search within the parameters of the warrant, and the evidence obtained during the search should not be subject to the exclusionary rule. Accordingly, the motion is DENIED on this basis.

The SCOTUS oral argument in Virginia v. Moore is posted here.

The Law.com article is: Supreme Court Hears Arguments on Whether Search Was Proper After Arrest That Violates State Law

Virginia v. Moore, 06-1082, is being argued Monday in the Supreme Court. See Sunday’s NYTimes.com, posted three hours ago.

Question presented: Does the Fourth Amendment require the suppression of evidence obtained incident to an arrest that is based upon probable cause, where the arrest violates a provision of state law?

For the briefs, see the following links: Virginia’s petitioner’s brief, Moore’s brief, and Virginia’s Reply brief. For amicus briefs, click here and scroll down.

At the time of defendant’s arrest, a valid protective sweep was conducted. After the arrest, officers searched defendant’s laundry room, outside of the area of immediate control, and it was an invalid search incident. State v. Janiak, 2008 Wisc. App. LEXIS 13 (January 8, 2008):

P11 We therefore conclude Morrisey’s search of Janiak’s laundry room was unreasonable. He did not search the room in which Janiak was arrested. At the time Morrisey conducted his search, it was not protective in nature, as Thomson had already confirmed the house was clear and no weapon was within Janiak’s reach. Further, the laundry room was not within Janiak’s “immediate control.” Rather, it was ten to fifteen feet from where he was arrested–close, but not within arm’s reach.

One partner has no standing to challenge an alleged Fourth Amendment violation of the other. Trolley Boats v. City of Holly Hill, 2007 U.S. Dist. LEXIS 95546 (M.D. Fla. January 7, 2007):

An individual has no standing to assert a Fourth Amendment violation unless he “has a cognizable property interest in the place or thing searched, … [or] was present at the time of the search.” United States v. Hunt, 505 F.2d 931, 938 (5th Cir. 1974). Accordingly, the fact that one business partner’s Fourth Amendment rights are violated does not give a different partner standing to challenge the violation “solely on the basis of the partnership relation.” Id. at 939. Moreover, a mere financial interest in property searched or seized does not create standing to assert a Fourth Amendment violation. United States v. McConnell, 500 F.2d 347, 348 (5th Cir. 1974).

Defendant had standing in the camper of another in which he was staying as a guest that was searched without a warrant. United States v. Eaves, 2008 U.S. Dist. LEXIS 1815 (E.D. Tenn. January 8, 2008):

Based on his status as an overnight guest staying and sleeping in the camper, the Court concludes that defendant Eaves has met his burden of showing that he had a legitimate expectation of privacy for purposes of the Fourth Amendment. As an overnight guest, defendant has standing to assert a claim that a warrantless search of the camper by the police violates his rights protected under the Fourth Amendment. Minnesota v. Olson, 495 U.S. at 95-100.

Judge issuing search warrant could not be sued for that act because of judicial immunity. Ray v. Twp. of Warren, 2008 U.S. Dist. LEXIS 1902 (D. N.J. January 10, 2008).*

Pointing a gun at plaintiff’s head during an arrest as an excessive force claim was barred by qualified immunity. Burke v. County of Alameda, 2008 U.S. Dist. LEXIS 1860 (N.D. Cal. January 10, 2008).*

Texas prison inmate has no separate expectation of privacy in a closed container in his cell since he already has no expectation of privacy in the cell in general. Dunn v. TDCJ-ID, 2008 Tex. App. LEXIS 170 (Tex. App. – Texarkana January 11, 2008).*

Forfeiture claimant’s complaint about retention of the property being too long as a Fourth Amendment violation stated no claim. It was not disputed that the initial seizure was reasonable, and a reasonable retention of the property pending forfeiture does not violate the Fourth Amendment. Cook v. United States DEA, 2008 U.S. Dist. LEXIS 761 (W.D. Pa. January 4, 2008):

To the extent that he can meet that requirement, however, the touchstone of the Fourth Amendment is whether the “seizure”–here, Brautigam’s treatment of the property between November 22 and December 9–was reasonable. E.g., Bruton v. Paesani, 162 Fed. Appx. 151, 153 (3d Cir. 2006). This inquiry entails “an objective assessment of an officer’s actions in light of the facts and circumstances then known to him.” Scott v. United States, 436 U.S. 128, 137, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978). “[T]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application.” Bell v. Wolfish, 441 U.S. 520, 559, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). For the reasons discussed above, under the undisputed facts, no reasonable jury could find unreasonable the time period or circumstances of retention for which Brautigam is responsible. Accordingly, Plaintiff cannot demonstrate that a constitutional violation occurred. This is decisive, as fatal to either his prima facie case or his anti-immunity analysis.

Moreover, I would find Defendant entitled to immunity even if I were to proceed with the remainder of the inquiry. As noted above, authority is scarce regarding the Fourth Amendment parameters for retaining legally seized property. Plaintiff points to case law suggesting that at some indefinite point in time, continued retention converts a legal seizure into an illegal one. He points to no authority, however, that would clearly or reasonably permit one to pinpoint illegality in this case.

Officer had reasonable suspicion for stop and detention. Defendant’s version is rejected because it was contrary to ordinary police practice which the court has heard so many times before. United States v. Sweeney, 2007 U.S. Dist. LEXIS 95363 (N.D. Ohio December 18, 2007).*

Officer’s belief in woman’s apparent authority to consent was obviously reasonable where she had lived there for months, the phone was in her name, and her stuff was inside. United States v. Short, 2008 U.S. Dist. LEXIS 1028 (N.D. W.Va. January 7, 2008).*

Listening to a CI’s transaction with the defendant coupled with a plain view through defendant’s vehicle’s window gave probable cause for defendant’s arrest and vehicle search. United States v. Alarcon-Carballar, 2008 U.S. Dist. LEXIS 804 (S.D. W. Va. January 4, 2008).*

Court found consent voluntary, and permission to “look around” is consent. Since the request followed an inquiry about guns, the officer reasonably interpreted the response as consent to look for guns. United States v. Fuentes, 2007 U.S. Dist. LEXIS 59164 (S.D. N.Y. August 10, 2007):

This Court is not the first to consider whether an affirmative response to a request to “look around” constitutes sufficient consent to satisfy the Fourth Amendment. At least four other [district] courts in this district have found that such an exchange provides an adequate basis for a consensual search. …

. . .

It is significant that Ricigliano’s request to search came immediately after his inquiries about the presence of guns and drugs in the apartment. A reasonable officer would expect that a request to “look around” immediately following his inquires about specific items would alert a suspect that the officer intended to “look around” for those very items, particularly in places where those items might be hidden. Here, it was reasonable to assume that Fuentes understood Ricigliano’s request to look around, which immediately followed his questions about guns and drugs, as a request to look around for guns and drugs. It was also reasonable for Ricigliano to construe Fuentes’s response as consent to engage in such a search.

Information that was two days old about a drug sale was not stale in a search warrant application when the police had information about drug transactions involving this premises going back four years. United States v. Phengsengkham, 2007 U.S. Dist. LEXIS 59460 (N.D. Tex. August 8, 2007).* (Comment: This issue was not anywhere near a close call.)

Plaintiff stated a claim for relief in a civil case for taking his blood without probable cause and there were facts in dispute. Pankey v. City of Concord, 2007 U.S. Dist. LEXIS 59123 (N.D. Cal. August 2, 2007).*

The juvenile court found defendant’s consent was voluntary. The fact he felt like he had no choice does not bear into the question because, if it did, no consent would be voluntary. I.R.C. v. State, 968 So. 2d 583 (Fla. App. 2d Dist. 2007):

Other than the absence of notice of the right to refuse consent, all we have is I.R.C.’s testimony–which the trial court was entitled to discredit–concerning what he “felt.” If such testimony could–as I.R.C. contends–compel a determination that a consent to search was involuntary, it would be very rare indeed for a consent to be upheld. Such self-serving testimony by a defendant concerning his state of mind does not compel a determination of involuntariness. See State v. Kuntzwiler, 585 So. 2d 1096, 1096 (Fla. 4th DCA 1991) (upholding trial court’s determination that consent was voluntary notwithstanding defendant’s testimony that “she believed she had no choice but to allow the search”). In short, I.R.C. points to nothing that the trial court was required to credit as establishing that I.R.C. submitted to an implicit or explicit claim of authority.

In the same vein as ACLU v. NSA: Plaintiffs lacked standing to challenge administrative subpoenas for bank transfer records.

The government sought by administrative subpoenas information from the SWIFT banking network.

Defendant S.W.I.F.T. SCRL (the Society for Worldwide Interbank Financial Telecommunication, or SWIFT) is an international cooperative consortium of banks, brokers, and investment managers. Based in Brussels and with its principal American place of business in northern Virginia, SWIFT supplies secure standardized messaging services to financial institutions. Quoting from SWIFT’s website, the complaint describes the SWIFT consortium as follows:

“Defendant SWIFT is ‘the financial industry-owned co-operative supplying secure, standardized messaging services and interface software to 7,800 financial institutions in more than 200 countries. SWIFT’s worldwide community includes banks, broker/dealers and investment managers, as well as their market infrastructures in payments, securities, treasury and trade.'”

Additionally, the complaint notes that most of the eleven million transactions per day handled by SWIFT are international in nature in that they involve communication across national borders.

Plaintiffs lacked standing to sue over disclosure of information to the government under administrative subpoenas from the Treasury Department. Walker v. S.W.I.F.T., 517 F. Supp. 2d 801 (E.D. Va. 2007)*:

Plaintiff Walker filed the present suit against SWIFT on June 23, 2006–the same day the Times article was published–in the United States District Court for the Northern District of Illinois. Plaintiff Kruse was added as a plaintiff on February 27, 2007. The complaint alleged four counts of wrongdoing. Count I alleged that SWIFT “denied Plaintiffs … their rights to speak and receive speech privately under the First Amendment.” Count II alleged that SWIFT “violated [their] reasonable expectations of privacy and denied … their right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constitution of the United States.” Count III alleged that SWIFT violated the RFPA when it “disclosed information contained in customer financial records without reasonable description or any of the other five criteria enumerated” in the statute. Count IV alleged that SWIFT engaged in unfair, unlawful and/or fraudulent business practices in contravention of the ICFDBPA.

. . .

It is axiomatic that a party seeking to establish standing in the federal courts must demonstrate an injury in fact, i.e., she must demonstrate “an invasion of a legally protected interest which is (a) concrete and particularized and (b) ‘actual or imminent, not “conjectural” or “hypothetical.”‘” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). A party must therefore allege facts creating a plausible inference that an injury in fact has occurred. See Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (“[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions . . . . Factual allegations must be enough to raise a right to relief above the speculative level.”). This plaintiffs have failed to do.

The complaint is deficient in its factual allegations relating to standing. Apart from the conclusory allegation in paragraph 41, to the effect that “[b]y the acts alleged herein, SWIFT’s conduct proximately caused harm to Plaintiffs and class members,” the complaint fails to allege facts from which injury in fact may be inferred. For example, although the complaint adequately alleges that SWIFT disclosed information regarding certain financial transactions, there is no allegation that plaintiffs’ bank or banks are members of SWIFT, nor is there any information indicating that plaintiffs’ financial information was disclosed by SWIFT. Plaintiffs rely on their own belief that their financial information has been disclosed, but such a belief, without more, cannot support standing. This point is well illustrated by the recent Sixth Circuit decision in ACLU v. Nat’l Security Agency, 493 F.3d 644 (6th Cir. 2007), which held that a plaintiff’s own assessment of injury in fact is insufficient to establish standing. 493 F.3d at 673-74 (“[I]t would be unprecedented for this court to find standing for plaintiffs to litigate a Fourth Amendment cause of action without any evidence that the plaintiffs themselves have been subjected to an illegal search or seizure.”). The complaint fails to identify plaintiffs’ bank or banks, fails to establish whether such bank or banks are members of SWIFT, and fails to allege any facts giving rise to a plausible inference that plaintiffs’ financial information was disclosed by SWIFT.

It may be that these omissions can easily be remedied. Plaintiffs certainly know the identity of their banks and presumably can readily determine whether those banks’ transactions are handled by SWIFT. 127 S.Ct. at 1974. Plaintiffs would “nudge their claims across the line from the conceivable to the plausible” were they (i) to allege the identity of the banks or financial institutions they used, (ii) to conduct a reasonable inquiry to determine whether these banks were members of SWIFT, and (iii) to conduct a reasonable inquiry to determine whether SWIFT disclosed the named banks’ transactions. Bell Atlantic, 127 S.Ct. at 1974. In this respect it seems at least plausible that plaintiffs’ banks know or can ascertain from SWIFT whether data they provided to SWIFT was later disclosed by SWIFT.

Search warrant for forensic evidence that might be found in a murder suspect’s car was reasonable. The trial court erred in ascribing a hypertechnical reading to the warrant’s particularity requirement and the application for the warrant. People v. Superior Court of Santa Clara County (Nasmeh), 151 Cal. App. 4th 85, 59 Cal. Rptr. 3d 633 (6th Dist. 2007):

Moreover, even if a search for constituent parts of an item did present Fourth Amendment problems because the warrant did not mention such parts, here the warrant authorized the search and seizure of “any part” of the listed items. The question before us is the adequacy of this particular warrant’s language, which referred to “part[s],” but did not recite a list of such possible further descriptive terms as fractions, pieces, components, particles, elements, flecks, filaments, films, specks, strands, shards, residues, remnants, samples, subsets, trace amounts, or the like.

“[T]he requirement that a search warrant describe its objects with particularity is a standard of ‘practical accuracy’ rather than a hypertechnical one.” (U.S. v. Peters (8th Cir. 1996) 92 F.3d 768, 769-770; accord, People v. Amador, supra, 24 Cal.4th at p. 393.) The rule against excessive parsing of the language used in a warrant (while retaining the rule that items to be seized be identified in a warrant with constitutionally required specificity, so that the police do not engage in unfettered rummaging through a person’s effects) militates in favor of truthfinding in criminal investigations, a value of significant importance to the public safety and societal order. Nasmeh argues that the warrant’s “‘any part thereof'” specification refers only to “any subset of the named items on the list,” e.g., a single credit card or one sofa cushion, rather than a constituent part of a single identified item. This kind of linguistic scrutiny might be warranted in a case construing a contract negotiated and signed by sophisticated parties whose counsel examined the placement of each comma and semicolon and who included language to cover any conceivable eventuality. A warrant’s language involves different considerations and requires less absolute certainty of linguistic meaning. “‘[T]he purpose of the exclusionary rule is “… to deter illegal police conduct, not deficient police draftsmanship.”‘” (People v. Amador, supra, 24 Cal.4th at p. 392.) Moreover, the draftsmanship here was not deficient, just not as exhaustive as Nasmeh would prefer.

Statement of probable cause plus incorporation of a list of things to be seized permitted seizure of a computer not on the incorporated list when reading the papers as a whole. United States v. Payton, 2007 U.S. Dist. LEXIS 37277 (E.D. Cal. May 4, 2007).*

Removing a Fed Ex package from a conveyor belt because it was suspicious and then subjecting it and others to a dog sniff 30 minutes later was not an unreasonable seizure. United States v. Terrell, 2007 U.S. Dist. LEXIS 37264 (W.D. La. May 2, 2007).*

Officers surrounding house attempted to take a mentally ill man in on a commitment order. He came out of the house with a shotgun in hand and shot himself in front of the officers. The officers were also accused of causing unnecessary damage to the house immediately prior. On the pleadings, the court declines to dismiss an inartfully pled Fourth Amendment claim because it was at least implied in the seizure and excessive force claims. Heckensweiler v. McLaughlin, 517 F. Supp. 2d 707 (E.D. Pa. 2007).*

In a false arrest case under § 1983, federal courts look to state law to determine the legality of the arrest and then to the Fourth Amendment to see if it was violated by a violation of state law. Plaintiff stated enough to survive summary judgment on the Fourth Amendment claim because the arrest was apparently in violation of state law. Brunner v. McKillip, 488 F. Supp. 2d 775 (W.D. Wis. 2007).*

Identified citizen informer calling 311, the police non-emergency line, was entitled to more credibility than a confidential informant, and the information did not have to be corroborated to act upon it. United States v. Roberts, 2007 U.S. Dist. LEXIS 36991 (D. Nev. May 9, 2007).*

Defendant was removed from the premises on his arrest, and consent was sought from his cotenant. There was no showing that the defendant’s removal was for the purpose of avoiding asking him for consent under Randolph. State v. Ball, 2007 Ohio 5564, 2007 Ohio App. LEXIS 4887 (2d Dist. October 12, 2007).*

Federal DWI stop was based on articulable reasonable suspicion. United States v. Caine, 517 F. Supp. 2d 586 (D. Mass. 2007).*

Defendant’s handcuffing and frisk was based on reasonable suspicion and the fact he was on probation. United States v. Jones, 2007 U.S. Dist. LEXIS 77270 (E.D. Tenn. October 16, 2007).*

Citizen informant told officers at an inland border checkpoint on I-87 in Upstate New York that a vehicle made a U-turn to avoid the checkpoint. Officers found the vehicle on a state highway near the Interstate. It swerved and was stopped for that, and the officer then smelled marijuana. A consent search was mentioned, and the defendant admitted to having marijuana. The search was valid. People v. Boyea, 2007 NY Slip Op 7775, 2007 N.Y. App. Div. LEXIS 10707 (3d Dept. October 18, 2007).*

During the suppression hearing, the officer contradicted the critical details of the probable cause finding concerning when events happened, and a controlled buy was omitted. The affidavit as a whole lacked probable cause under Franks. Roach v. State, 2007 Miss. App. LEXIS 538 (August 21, 2007):

P20. We note that there might be a substantial basis for probable cause had Officer Spooner related everything to Judge Parker, namely: (1) that another officer had worked with the informant once prior to the date in question, and (2) that the informant’s information had been corroborated by a controlled buy carried out by that same CI. However, none of this information was related. Under these circumstances, we find that probable cause did not exist for the issuance of the search warrant, and the fruits of the search warrant should be suppressed. Therefore, we reverse and remand for further proceedings consistent with this opinion.

P21. We clarify that our holding is not, as the dissent suggests, that a confidential informant “can never give reliable information, so as to constitute probable cause, while serving for the first time as a confidential informant.” Rather, we hold that, under the circumstances of this case, particularly where the only corroboration of the CI’s statement was not presented to the magistrate issuing the search warrant, probable cause did not exist for the issuance of the search warrant. As we have already stated, the informant’s evidence would have been sufficient to sustain probable cause had the controlled buy been discussed with the magistrate issuing the search warrant. We also note that the buy could have been disclosed to the magistrate without putting the information in the affidavit; however, Officer Spooner’s testimony did not indicate that the buy was ever mentioned to the magistrate in any way. Therefore, contrary to the argument made by the dissent, the omission was not made to protect the identity of the confidential informant. (emphasis in original)

The trial court erred in granting defendant’s motion to suppress when he attempted three times to discard a fanny pack while running from the police, succeeding on the fourth try. When the police retrieved it, he disavowed that it was his, and this is a waiver of any reasonable expectation of privacy under the Fourth Amendment and the Hawai’i Constitution. State v. Kolia, 116 Haw. 29, 169 P.3d 981 (2007).*

Trial court improperly suppressed the stop of the defendant who was suspected of DUI drugs after running off an interstate highway in the early afternoon. He was found at a rest stop where he had locked the keys in his car, and he seemed to be under the influence. On the seat were rolling papers and the defendant had a prior for marijuana possession. On video, the defendant consented to a search of his car. People v. Damian, 374 Ill. App. 3d 941, 873 N.E.2d 1, 313 Ill. Dec. 706 (5th Dist. 2007).*

Trial court credited officer’s testimony that defendant failed to stop and rolled through a stop sign was a basis for his stop. Lewis v. Comm’r of Pub. Safety, 737 N.W.2d 591 (Minn. App. 2007).*

Single expert’s hypothesis that plaintiff’s decedent was unreasonably the target of deadly force compared to all the other testimony in the record is not enough to overcome summary judgment for the officers. The issue was whether there was a fact question decedent pointed a gun at the officers before he shot them. Summary judgment affirmed. Lewis v. Adams County, 244 Fed. Appx. 1 (6th Cir. 2007)* (unpublished):

With respect to the use of deadly force, certain specific rules apply. For example, “the Fourth Amendment prohibits a police officer’s use of deadly force to seize an unarmed, non-dangerous suspect.” Sample v. Bailey, 409 F.3d 689, 696 (6th Cir. 2005) (citing Garner, 471 U.S. at 11). Rather, the use of deadly force is only constitutionally permissible if “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others ….” Garner, 471 U.S. at 11; see also Sample, 409 F.3d at 697 (noting that “only in rare instances may an officer seize a suspect by use of deadly force” (internal quotations omitted)).

Plaintiff defeats summary judgment for defendant officers on excessive force claim that they slammed his face into the trunk of the police car while arresting him and broke his jaw. Affer v. Taylor, 2007 U.S. Dist. LEXIS 31045 (E.D. Mich. April 27, 2007).*

Defendant’s English pro se filing in opposition to his counsel’s Anders brief that claimed he did not understand English to consent did not show that defendant’s search incident or consent was invalid. The arguments to the contrary were frivolous. United States v. Ochoa, 2007 U.S. App. LEXIS 9877 (7th Cir. April 18, 2007)* (unpublished).

Smell of burnt marijuana after a traffic stop justified a search of the car. United States v. Reeves, 2007 U.S. Dist. LEXIS 31120 (W.D. Mich. April 27, 2007).*

Murder defendant’s failure to object to testimony about knives found in his vehicle at the time of his arrest that were allegedly stolen in another burglary made his search claim harmless. People v. Prince, 40 Cal. 4th 1179, 57 Cal. Rptr. 3d 543, 156 P.3d 1015 (2007). [He would lose on the merits, anyway.]