The ABA’s website posted this less than three hours ago: 9th Circuit Considers Border Computer Search, referring to a NY Times article, If Your Hard Drive Could Testify … The Fourth Circuit has already held that they can be searched, but there Customs had cause. From ABAjournal.com:

A federal appeals court appears poised to rule that a computer has no special protection from searches at the border.

The San Francisco-based 9th U.S. Circuit Court of Appeals is expected to rule in the case of Michael T. Arnold, who is seeking to throw out evidence of child pornography found by a customs officer who clicked on folders called “Kodak pictures” and “Kodak memories,” Adam Liptak writes in his column for the New York Times.

The panel judges who heard the case in October appeared to favor arguments that computers deserve no special protection from border searches, the article says. U.S. District Judge Dean Pregerson ruled earlier that the evidence should be suppressed, and he is the only judge to take that position in a border computer-search case.

In 2005, the Richmond, Va.-based U.S. Court of Appeals for the 4th Circuit in a similar case upheld the conviction of a man who crossed the Canadian border with child porn on his computer.

My prior post on the child porn case is here.

“Standing” stopped being a valid term, but the court uses it anyway for convenience sake, and the defendant had “standing.” United States v. Killeaney, 2007 U.S. Dist. LEXIS 95255, n.1 (D. S.D. October 31, 2007):

1. Almost a decade ago, the United States Supreme Court reaffirmed its earlier rejection of “standing” nomenclature. Minnesota v. Carter, 525 U.S. 83, 87-88, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998). Beginning in Rakas v. Illinois, 439 U.S. 128, 139-40, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), the Supreme Court replaced the standing inquiry with new vocabulary tailored to the principles that undergird the Fourth Amendment. United States v. Sturgis, 238 F.3d 956, 958 (8th Cir.) (citing Carter, 525 U.S. at 88), cert denied, 534 U.S. 880, 122 S. Ct. 182, 151 L. Ed. 2d 127 (2002). In Carter, the Court stated that “a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable …. ”

For convenience, and to track the verbiage found in Defendant’s Motion, the Court will use the “standing” term for purposes of describing Defendant’s right to assert the Exclusionary Rule as a bar to evidence obtained through an alleged violation of his own Fourth Amendment rights.

Comment: Get over it, Judge. “Standing” is how we were taught, and it is shorthand for “does the defendant have a reasonable expectation of privacy in the place or thing searched or seized?” Everybody knows what “standing” means. It is not unlike “good faith exception” means that the defendant loses. We know the language, so don’t waste our time.

Defendant was arrested in an apartment building because there were arrest warrants out on him. The defendant asked to be able to go back to his apartment to lock the door and refrigerate his beer, and the officer let him, following him in. The officer could look in the area where the defendant went in his apartment and even into the refrigerator for safety’s sake under Washington v. Chrisman. State v. White, 2007 Ohio 7143, 2007 Ohio App. LEXIS 6246 (10th Dist. December 31, 2007):

[*P12] Ordinarily, the arrest of a person outside of his residence does not justify a warrantless entry into and search of the residence itself. Chimel v. California (1969), 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L. Ed. 2d 685. However, a police officer may accompany an arrestee into his residence to monitor his movements. Washington v. Chrisman (1982), 455 U.S. 1, 6, 102 S.Ct. 812, 70 L.Ed.2d 778 (a police officer has “a right to remain literally at [an arrestee’s] elbow at all times; nothing in the Fourth Amendment is to the contrary”). Applying this rule of law, the United States Supreme Court held that a police officer could accompany an arrestee into his dormitory room so that the arrestee could obtain his identification. A number of courts have since applied the rule articulated in Chrisman to a variety of contexts. See United States v. Harness (C.A.6, 2006), 453 F.3d 752, 756 (officers lawfully entered the arrestee’s house with him so that he could retrieve certain personal items and turn off the stove); United States v. DeBuse (C.A.8, 2002), 289 F.3d 1072, 1074-1075 (officers were constitutionally permitted to escort the arrestee into his house after he asked to get his shoes, socks, keys, and wallet); United States v. Berkowitz (C.A.7, 1991), 927 F.2d 1376, 1389 (officers could follow the arrestee into his office so that he could obtain his keys).

[*P13] Here, Officer McGaw escorted defendant into his apartment so that he could lock his door and refrigerate his beer. At that time, Officer McGaw had arrested defendant, and thus, he had every right to follow defendant into the apartment. Furthermore, contrary to defendant’s argument, Officer McGaw did not need defendant’s consent to enter the apartment. “[An] officer’s authority to monitor a suspect does not depend upon the suspect’s consent; a suspect under arrest has no right to wander off on his own.” Berkowitz, 1389.

[*P14] Defendant next argues that even if Officer McGaw could enter his apartment, the officer could not lawfully search his refrigerator. Because Officer McGaw’s search of the refrigerator was conducted incident to defendant’s arrest, we disagree.

Defendant lacked standing to challenge the search of a car somebody else owned, so his counsel was not ineffective for not challenging that search. State v. Kitcey, 2007 Ohio 7124, 2007 Ohio App. LEXIS 6227 (11th Dist. December 31, 2007).*

The fact that defendant was in the hospital and in pain did not mean that he could not validly consent. State v. Hatfield, 2007 Ohio 7130, 2007 Ohio App. LEXIS 6243 (11th Dist. December 31, 2007).*

Defendant’s stop was not unreasonably lengthened by officer, and he could order the defendant out of the car when it was stopped. Drug paraphernalia fell from defendant’s lap. The motion to suppress should not have been granted. State v. Landers, 2007 Ohio 7146, 2007 Ohio App. LEXIS 6253 (10th Dist. December 31, 2007).*

Plaintiff’s wrongful arrest claim does not imply the invalidity of his conviction, so it is not barred by Heck‘s fn. 7. Marshall v. Krzoska, 2007 U.S. Dist. LEXIS 94834 (E.D. Wis. December 17, 2007):

At this point in the proceedings, the court does not believe that plaintiff’s Fourth Amendment unlawful search claim is barred by Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994) (bars civil actions seeking damages where a decision in favor of the plaintiff would necessarily imply the invalidity of the plaintiff’s conviction or sentence unless the conviction or sentence has been “reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus” under 28 U.S.C. § 2254). In general, unreasonable search claims and similar Fourth Amendment claims are not barred under Heck because such claims do not necessarily imply the invalidity of a criminal conviction. See Booker v. Ward, 94 F.3d 1052, 1056 (7th Cir. 1996) (“one can have a successful wrongful arrest claim and still have a perfectly valid conviction”); Copus v. City of Edgerton, 151 F.3d 646, 648 (7th Cir. 1998) (unreasonable search) (citing Heck, 512 U.S. at 487 n.7).

An ALJ’s determination on a DWI arrest can be preclusive under Heck. Nasca v. County of Suffolk, 2008 U.S. Dist. LEXIS 176 (E.D. N.Y. January 2, 2008):

An adjudication by an Administrative Law Judge has the same preclusive effect on a false arrest or malicious prosecution claim. See, e.g., Zanghi v. Inc. Vill. of Old Brookville, 752 F.2d 42, 46 (2d Cir. 1985) (granting summary judgment on false arrest claim where ALJ made probable cause finding as to charge of driving while intoxicated); Davenport v. County of Suffolk, No. 99-CV-3088, 2007 U.S. Dist. LEXIS 12696, 2007 WL 608125, at *5-8 (E.D. N.Y. Feb. 23, 2007) (holding that ALJ finding of probable cause on the charge of driving under the influence of drugs is an absolute bar to any false arrest or malicious prosecution based on that claim). In the instant case, since plaintiff’s guilt of the traffic offense has not been invalidated, any malicious prosecution, false arrest or other claim challenging the lawfulness of that summons and adjudication must fail as a matter of law.

The fact that the person arrested was mentally deficient, and was outside the knowledge of the arresting officer who was assaulted by the arrestee, did not nullify the officer’s probable cause for arrest for qualified immunity purposes. Delong v. Arms, 2007 U.S. Dist. LEXIS 95184 (E.D. Ky. December 21, 2007).*

Inventory here was not shown by the state to be permitted by standard police policy. Recital of reasons for an inventory shows nothing of policy. State v. Fann, 2007 Ohio 6985, 2007 Ohio App. LEXIS 6115 (8th Dist. December 27, 2007):

[*P18] As an administrative function unrelated to a criminal investigation, an inventory search does not implicate the policies underlying the warrant requirement of the Fourth Amendment. Id. at 109. “In order for an inventory search to be constitutionally valid, it must be ‘reasonable,’ that is, it must be conducted in good faith, not as a pretext for an investigative search, and in accordance with standardized police procedures or established routine.” State v. Wilcoxson (July 25, 1997), Montgomery App. No. 15928, 1997 Ohio App. LEXIS 3566. See, also, State v. Sarrocco (1997), 96 Ohio Misc.2d 1, 4, 707 N.E.2d 1219 (“Evidence of standardized criteria or established routine establishes that the claimed inventory search is not just a ruse for an otherwise illegal search.”); State v. Corrado (Feb. 20, 1998), Lake App. No. 96-L-104, 1998 Ohio App. LEXIS 642 (“Without evidence of the policy as it relates to [containers found in a vehicle], an inventory search of such containers *** is constitutionally impermissible.”).

[*P19] In analyzing the State’s argument, we note a distinction between “policy” and “reasons.” The portion of Mesa relied on by the State sets forth the “reasons” why police departments conduct inventory searches. Thus, the testimony of the detectives basically recited the Mesa reasons, but did not provide any insight into the Cleveland police department’s policy, practice or procedure when conducting an inventory search. For example, the testimony did not state that the Cleveland police department’s policy is to search areas where items are protruding from enclosed areas. To the contrary, Detective Spencer testified that he generally would not search an area covering a speaker, but his “curiosity” prompted him to do so in this case. Moreover, Detective O’Donnell testified that she did not know what the police department’s policy was in regard to such a search.

The affidavit for the anticipatory search warrant validly described the triggering event for execution of the warrant. (All that really doesn’t matter, however, because the court also finds probable cause to search the premise regardless of the triggering event.) State v. Blevins, 2007 Ohio 6972, 2007 Ohio App. LEXIS 6109 (3d Dist. December 26, 2007). Comment: The court discusses at length, for what it is worth, the “sure and irreversible course” for triggering events, which is at least worth the read.

Heck‘s fn. 7 does not create a Fourth Amendment exception in the Ninth Circuit. Here, the legality of plaintiff’s stop cannot be inquired into without violating Heck. Torres v. County of San Diego, 2008 U.S. Dist. LEXIS 75 n. 3 (S.D. Cal. January 2, 2008):

In Heck, the Supreme Court stated in a footnote: “[A] suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiff’s still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, and especially harmless error, such a § 1983 action, even if successful, would not necessarily imply that the plaintiff’s conviction was unlawful.” 512 U.S. at 487 n. 7. Some circuits have held that this footnote creates a general exception to Heck for § 1983 Fourth Amendment unreasonable search and seizure claims. See Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000). The Ninth Circuit does not construe footnote seven as creating a general exception, but, rather, examines the facts and circumstances of the particular case before it to determine whether the successful prosecution of the plaintiff’s § 1983 claim necessarily implies the invalidity of the plaintiff’s earlier conviction. See, e.g., Smith v. City of Hemet, 394 F.3d 689, 698-99 (9th Cir. 2005).

Defendant not constitutionally required to have a Miranda warning before he is asked for consent under the totality of circumstances standard. United States v. Arciniega, 2007 U.S. Dist. LEXIS 95057 (D. Neb. December 28, 2007).*

Plainitff stated sufficient facts to get past a motion to dismiss for excessive force, and the defendant’s qualified immunity defense fails. “If Defendants drew their weapons against unarmed, unresisting Plaintiffs and handcuffed them for an investigatory detention after an investigatory stop without probable cause, a reasonable officer in the same circumstances would not believe such actions to be lawful.” Haddox v. City of Fresno, 2007 U.S. Dist. LEXIS 95180 (E.D. Cal. December 27, 2007).*

Shoplifting arrest led to impoundment of defendant’s vehicle, but there was no legal justification for doing so, so the inventory search under the impoundment was unconstitutional. State v. Huddleston, 2007 Ohio 4455, 173 Ohio App. 3d 17, 877 N.E.2d 354 (10th Dist. 2007):

[*P18] Regarding the unwritten procedure of the Gahanna Police Department as testified to by Officer Engram, we find that simply because the police department may have a procedure that calls for the impoundment of a vehicle under the circumstances found in this case, that does not render the impoundment constitutionally reasonable.

[*P19] According to the state, the impoundment was reasonable under the cirumstances. In support of this contention, the state points to the fact that the police unsuccessfully attempted to contact the rental company regarding the vehicle, as well as the fact that there was no evidence that any authorized person was with defendant at the time of the arrest who could have driven the vehicle from the parking lot. …

[*P21] In the case at bar, the state fails to direct this court to, and our independent research fails to reveal, any statute or ordinance authorizing the impoundment under the facts found in this case. Moreover, while the issue of whether another person was available and authorized to drive the vehicle off the parking lot is relevant to determining whether the impoundment was reasonable, it does not change the fact that defendant was in the store, and away from the vehicle, when she was arrested for misdemeanor shoplifting. After obtaining the keys to the vehicle as a result of the search incident to defendant’s arrest for misdemeanor shoplifting, an officer took the keys from the police station to the store parking lot to locate the vehicle and impound it. Furthermore, there is no indication that the vehicle was potential evidence in a criminal case, that the vehicle was used to commit a crime, that the vehicle was obtained with funds derived from criminal activity, or that the vehicle was unlawfully parked or impeding traffic. In view of these facts, we resolve that the seizure of the vehicle in this case was unreasonable under the Fourth Amendment to the United States Constitution.

The officers did not have justification for dispensing with knocking and announcing under all the circumstances, and the search was suppressed. [The court did not cite Hudson, effectively rejecting it.] Commonwealth v. Santiago, 70 Mass. App. Ct. 519, 874 N.E.2d 693 (2007).

Deputy sheriff stopped defendant’s boat because the deputy did not see a flotation device. That was a valid stop and led to the officer concluding that defendant was BWI, so the stop was valid. State v. Hussong, 739 N.W.2d 922 (Minn. App. 2007).*

Defendant had no guest standing in a hotel room where he could not show that he was planning on being an overnight guest. United States v. Harris, 2007 U.S. Dist. LEXIS 77133 (S.D. Ohio October 17, 2007).*

Plaintiff’s DV arrest was with probable cause and qualified immunity. Willette v. City of Waterville, 516 F. Supp. 2d 139 (D. Me. 2007):

Officer Sellar was dispatched to the house because of a report of a mother and daughter fighting and Detective Bonney also responded because of his familiarity with the family, including their history of violent behavior and Ms. Willette’s own emotional challenges. When they arrived at the residence, the officers found Ms. Willette hysterical, her daughter backed up against a wall crying, and the apartment littered with broken glass, a broken phone, and other items. Ms. Willette was agitated and shouting at her daughter, and later, at the officers. Ms. Willette requested that her daughter be arrested.

Washington holds that its state constitutional search incident power is narrower than the Fourth Amendment. State v. Moore, 161 Wn.2d 880, 169 P.3d 469 (Wash. 2007):

¶7 Search Incident to Arrest. The Washington Constitution mandates that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Wash. Const. art. I, § 7. In contrast to the Fourth Amendment to the United States Constitution, the article I, section 7 provision “recognizes a person’s right to privacy with no express limitations.” O’Neill, 148 Wn.2d at 584. A warrantless search is per se unreasonable unless it falls within one of the few narrowly drawn exceptions. State v. Parker, 139 Wn.2d 486, 496, 987 P.2d 73 (1999).

¶8 “[T]he search incident to arrest exception to the warrant requirement is narrower” under article I, section 7 than under the Fourth Amendment. O’Neill, 148 Wn.2d at 584. Under the Washington Constitution, a lawful custodial arrest is a constitutional prerequisite to any search incident to arrest. Id. at 587. The lawfulness of an arrest stands on the determination of whether probable cause supports the arrest. State v. Potter, 156 Wn.2d 835, 840, 132 P.3d 1089 (2006). Probable cause exists when the arresting officer has “knowledge of facts sufficient to cause a reasonable [officer] to believe that an offense has been committed” at the time of the arrest. Id.

¶9 In the instant case, officers searched Moore without a warrant, incident to his arrest for having a dangerous dog outside of an enclosure and for refusal to give information/cooperate with an officer. The State does not challenge the trial court’s finding that probable cause does not support either of these bases for Moore’s arrest. The State nonetheless argues that Officer French had additional probable cause to support an arrest of Moore for violating former RCW 46.61.021(3), which provides in pertinent part that “[a]ny person requested to identify himself or herself to a law enforcement officer pursuant to an investigation of a traffic infraction has a duty to identify himself or herself.” (Emphasis added.)

¶10 The record does not support the State’s argument that Officer French conducted an “investigation” of the seatbelt violation. The crime of failing to correctly identify one’s self under RCW 46.61.021(3) requires more than the mere observation of a traffic infraction and an unrelated request for identification. Rather, the officer must ask the individual for identification pursuant to an investigation of a traffic infraction. Officer French did not cite any passengers for the seatbelt violation and only mentioned her observation that the passengers were not wearing seatbelts in a supplemental report. Officer French also clarified at a subsequent hearing that she did not ask Moore for his name pursuant to an investigation of the seatbelt infraction. RP (Apr. 9, 2004) at 41, 45-46. Based on the objective fact that Officer French was not investigating the seatbelt infraction, a reasonable officer would not have concluded that Moore violated former RCW 46.61.021(3) by failing to correctly identify himself pursuant to an investigation of a traffic infraction. Accordingly, we conclude that probable cause does not support Moore’s arrest.

A Terry stop for a parking infraction is not justified under the Washington Constitution. State v. Day, 161 Wn.2d 889, 168 P.3d 1265 (2007):

¶10 A Terry investigative stop only authorizes police officers to briefly detain a person for questioning without grounds for arrest if they reasonably suspect, based on “specific, objective facts” that the person detained is engaged in criminal activity or a traffic violation. Duncan, 146 Wn.2d at 172-74 (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The Terry investigative stop exception was first adopted under the Fourth Amendment to the United States Constitution, which forbids “unreasonable” searches and seizures, implicitly recognizing the State’s police power to conduct “reasonable” ones. Terry, 392 U.S. at 20; Johnson, supra, at 598. It was later (largely) accepted as an exception under article I, section 7 of the Washington Constitution. State v. Hobart, 94 Wn.2d 437, 441, 617 P.2d 429 (1980); State v. Lesnick, 84 Wn.2d 940, 942-43, 530 P.2d 243 (1975).

¶11 Article I, section 7, does not use the words “reasonable” or “unreasonable.” Instead, it requires “authority of law” before the State may pry into the private affairs of individuals. Const. art. I, § 7. Washington’s adoption of the Terry investigative stop exception is grounded upon the expectation of privacy. Our constitution protects legitimate expectations of privacy, “those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.” Myrick, 102 Wn.2d at 511. Whether the Fourth Amendment or article I, section 7 of the Washington Constitution is in issue, a detaining officer must have “a reasonable, articulable suspicion, based on specific objective facts, that the person seized has committed or is about to commit a crime.” Duncan, 146 Wn.2d at 172 (citing Terry, 392 U.S. at 21). Under the Fourth Amendment, whether the officer had grounds for a Terry stop and search is tested against an objective standard. Johnson, supra, at 598. See also Whren v. United States, 517 U.S. 806, 813-16, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) (pretextual traffic stops do not violate the Fourth Amendment). By contrast, under article I, section 7, we consider the totality of the circumstances, including the officer’s subjective belief. See State v. Ladson, 138 Wn.2d 343, 358-59, 979 P.2d 833 (1999); Kennedy, 107 Wn.2d at 6. Our constitution does not tolerate pretextual stops. Ladson, 138 Wn.2d at 352.

¶12 Terry has also been extended to traffic infractions, “due to the law enforcement exigency created by the ready mobility of vehicles and governmental interests in ensuring safe travel, as evidenced in the broad regulation of most forms of transportation.” State v. Johnson, 128 Wn.2d 431, 454, 909 P.2d 293 (1996) (footnote omitted)(citing United States v. Ross, 456 U.S. 798, 806-07, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)). However, we see no reason to extend it even further to parking infractions. The reasons underlying extending Terry to traffic violations simply lose force in the parking context.

The smell of raw marijuana by two police officers during a traffic stop was probable cause to believe the vehicle contained marijuana. Probable cause + vehicle = power to search. No separate inquiry of exigency is required. McKenney v. State, 2007 WY 129, 2007 Wyo. LEXIS 139 (August 9, 2007).*

Odor of burnt marijuana reasonably believed to have been coming from defendant’s apartment justified a warrantless exigent entry on probable cause. Washington v. Commonwealth, 231 S.W.3d 762 (Ky. App. 2007)* (unpublished). Comment: The best way to hide bad law is in unpublished opinions. The fact somebody is smoking marijuana inside a home should hardly give sufficient authority to the police to cross the threshold and even break the door to gather up what is likely a small quantity of the offending weed. This is just overkill.

Defense counsel was not ineffective for not challenging defendant’s stop and frisk because, by all accounts, it would have been found consensual. People v. Starnes, 374 Ill. App. 3d 132, 871 N.E.2d 815 (2d Dist. 2007).*

Reasonable suspicion existed for defendant’s stop based on surveillance of a pay telephone commonly used to arrange drug deals, and defendant used the telephone and was seen apparently dropping off drugs to cars as they came by. State v. Etherington, 2007 Ohio 4097, 172 Ohio App. 3d 756, 876 N.E.2d 1285 (2d Dist. 2007).*

Defendant’s stop was valid, and during the stop, he was told to keep his hands on the wheel, but he kept reaching down. When he was gotten out of the vehicle, he was nervous, his voice was shaky, and his hands were shaking. A patdown revealed a “lump in Leaks’ pocket and suspected it was narcotics. These cumulative facts gave the officer reasonable, articulable suspicion of criminal activity to further investigate.” State v. Leaks, 2007 Ohio 4060, 2007 Ohio App. LEXIS 3705 (8th Dist. August 9, 2007).*

Defendant agreed to consent to a search after being told that officers would get a warrant and break in. His desire to avoid damage to property from execution of a search warrant is not coercion. United States v. Gayheart, 2007 U.S. Dist. LEXIS 10740 (E.D. Ky. February 14, 2007).

Probable cause was established by highly detailed information from a confidential informant who arranged with an “unwitting informant” to make a controlled buy off defendant. United States v. Liapis, 216 Fed. Appx. 776 (10th Cir. 2007)* (unpublished).

Defendant cannot give one version of facts in his motion to suppress, remain silent on those facts during the suppression hearing before the U.S. Magistrate Judge, and then present an alternate version in the request for review before the U.S. District Judge. Also, the defendant claimed a “material witness” who was deemed irrelevant for the purposes stated, but now that witness was stated to have additional facts not presented. United States v. Rios, 2007 U.S. Dist. LEXIS 10764 (D. P.R. February 13, 2007).*

Officer had reasonable suspicion for engaging defendant in conversation that was arguably a stop at an address known to be a drug house, and the officer knew the following:

(1) the area of 44th and Paseo had been the subject of numerous police calls;

(2) the address at 4344 Paseo was in one of the “hot spots” Officer Melkowski was assigned to “proactive duty”;

(3) at several community meetings, there were numerous citizen complaints of drug activity on the steps of 4344 Paseo;

(4) confidential informants had provided information that drugs were being sold on the steps of 4344 Paseo. The confidential informants told police that they had observed 12 to 15 different cars stop at different times during the day at 4344 Paseo and that individuals on the stairs would go down to the cars, conduct hand-to-hand drug transactions, return to the stairs, and the cars would drive away;

(5) other police teams who worked in the area had informed Officer Melkowski of suspected drug activity at 4344 Paseo; and

(6) none of the individuals standing on the steps of 4344 Paseo in the early morning hours of July 28, 2006 resided at that address.

United States v. Johnson, 2007 U.S. Dist. LEXIS 10732 (W.D. Mo. January 30, 2007).*

Live-in girlfriend for 13 years had apparent authority to consent to a search of a shop building on the curtilage. State v. Watkins, 640 S.E.2d 409 (N.C. App. 2007).*

Stop based on partially peeling but otherwise valid inspection sticker was invalid. Moore v. Commonwealth, 49 Va. App. 294, 640 S.E.2d 531 (2007).*

Police did a knock and talk after locating a stolen tractor trailer of anhydrous ammonia. They passed by a window and saw a gun case through the window. After they talked to the people inside, they noticed that the gun case was gone. That justified a protective sweep. Also, the presence of 2,000 gallons of anhydrous in a tanker trailer nearby residences was inherently dangerous and was exigent circumstances. State v. Smith, 153 P.3d 199 (2007).*

Plaintiff exhibited a reasonable expectation of privacy by shutting his bedroom door when the police were in the house, and they intruded on that expectation of privacy by shooting through the door. While the police had permission to enter from a co-tenant, the act of shutting the door still manifested an expectation of privacy in that portion of the premises that would indicate that the co-tenant did not have apparent authority as to it. Lobato v. Ford, 2007 U.S. Dist. LEXIS 82373 (D. Colo. October 31, 2007):

By closing the door to his bedroom, Lobato manifested a subjective expectation of privacy in his bedroom. Further, “[i]t is well-settled that an individual has a reasonable expectation of privacy in the interior of one’s home.” Reeves, 484 F.3d at 1254. Under these circumstances, it is readily apparent that Lobato had a reasonable expectation of privacy in the room where he was staying. The next question then is whether the officers, specifically Herrick and Ford, infringed on that expectation by opening the door to Lobato’s bedroom and firing a shot into it. This question must be answered in the affirmative based both on the physical intrusion into this room by the bullet fired from Ford’s weapon as well as the officers’ viewing of this room in a manner not available to members of the public. Compare United States v. Taylor, 90 F.3d 903, 908 (4th Cir. 1996) (law enforcement officers did not engage in search under the Fourth Amendment by looking through picture window adjacent to front door as anyone at the front entranceway of their home could have done). I therefore conclude that the officers conducted a search of Lobato’s bedroom and must next analyze whether this search was in violation of his Fourth Amendment rights.

Officer observed what was apparently a hand to hand drug sale in a car that led him to stop the car. The officer had previously arrested the defendant for the same thing from the same car. It was thus more than a hunch. Commonwealth v. Coronel, 70 Mass. App. Ct. 906, 875 N.E.2d 877 (2007):

Considering all of the circumstances presented, it was a reasonable inference, and not a mere hunch as the motion judge suggested, that an exchange of contraband took place during the ten to fifteen second interval that Eaton was in Coronel’s car. We thus conclude that the criteria of Commonwealth v. Kennedy, supra at 708-709, supporting probable cause were met in the present case, and we reverse the motion judge’s order insofar as it allowed the suppression of Eaton’s statements, drugs, and other evidence seized from the defendants at the scene.

Defendant cannot lose a suppression motion with a magistrate and then plead for judgment in Superior Court, the “certified plea process.” The Superior Court must decide both issues. People v. Richardson, 156 Cal. App. 4th 574, 67 Cal. Rptr. 3d 552 (3d Dist. 2007):

Penal Code section 859a authorizes a magistrate to accept a guilty or no contest plea from a defendant charged with a felony, then certify the case to the superior court for pronouncement of judgment. The question here is whether a defendant who takes advantage of this certified plea process after the magistrate has denied his or her motion to suppress at the preliminary examination can thereafter seek appellate review of the magistrate’s ruling on the search and seizure issue. We agree with People v. Garrido (2005) 127 Cal. App. 4th 359 that the answer to that question is “no.” Under the rule from People v. Lilienthal (1978) 22 Cal. 3d 891, if a defendant wants to seek appellate review of a search and seizure issue, he or she must raise that issue before a superior court judge acting in that capacity. As we will explain, if a defendant pleads guilty in front of a superior court judge–or anyone else–acting as a magistrate, there is no way the defendant can renew his or her suppression motion or otherwise raise the search and seizure issue in the superior court. Accordingly, appellate review of a search and seizure issue pursuant to section 1538.5, subdivision (m) (section 1538.5(m)) is barred when the certified plea process is used. This result is consistent with the purpose of that process, which is to provide for the expeditious resolution of felony cases.

Filing a suppression motion two years before trial and never asking for a hearing on it and then not objecting to the admission of the subject evidence at trial is a waiver. Judkins v. State, 282 Ga. 580, 652 S.E.2d 537 (2007).*

Trial judge’s 13 pages of “textbook” analysis of the facts and law were followed by an apparent tirade against defendant’s perjury at the suppression hearing which led to a motion to disqualify for bias, which was granted, and delay in the proceedings. The trial judge should have just stated that he did not believe the defendant and leave it at that. The disqualification did not retroactively require a new suppression hearing. On the merits of the detention, the defendant lost on that, and it was affirmed. People v. Williams, 156 Cal. App. 4th 949, 67 Cal. Rptr. 3d 711 (2d Dist. 2007).

Warrant was sought for marijuana in defendant’s house, but the particularity clause said “‘cocaine, crack cocaine’ and collateral items believed to be related to the sale of narcotics.” The motion to suppress was denied by the trial court but reversed on appeal. The particularity clause was binding. Even plain view of the marijuana on the premises was rejected. State v. Browne, 104 Conn. App. 314, 933 A.2d 735 (2007):

The state argues that the allegations asserted by the affiants in the affidavit and warrant application reflected a consistent and continuous reference to marijuana such that the absence of marijuana from the particularity clause of both the warrant and application was merely a scrivener’s error. This argument was addressed in the recent United States Supreme Court case of Groh v. Ramirez, 540 U.S. 551, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004). In Groh, the court held: “The fact that the application adequately described the ‘things to be seized’ does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents. See Massachusetts v. Sheppard, 468 U.S. 981, 988, n.5 [104 S. Ct. 3424, 82 L. Ed. 2d 737] (1984) (‘[A] warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional’); see also United States v. Stefonek, 179 F.3d 1030, 1033 ([7th Cir.] 1999) (‘The Fourth Amendment requires that the warrant particularly describe the things to be seized, not the papers presented to the judicial officer … asked to issue the warrant’ (emphasis in original)) [cert. denied, 528 U.S. 1162, 120 S. Ct. 1177, 145 L. Ed. 2d 1085 (2000)]. And for good reason: ‘The presence of a search warrant serves a high function,’ McDonald v. United States, 335 U.S. 451, 455 [69 S. Ct. 191, 93 L. Ed. 153] (1948), and that high function is not necessarily vindicated when some other document, somewhere, says something about the objects of the search, but the contents of that document are neither known to the person whose home is being searched nor available for her inspection. We do not say that the Fourth Amendment forbids a warrant from cross-referencing other documents. Indeed, most Courts of Appeals have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant. … But in this case the warrant did not incorporate other documents by reference, nor did either the affidavit or the application (which had been placed under seal) accompany the warrant. Hence, we need not further explore the matter of incorporation.” (Citations omitted; emphasis added.) Groh v. Ramirez, supra, 557-58. Even if the state is correct that the affidavit and allegations sufficiently describe the items to be seized so as to inform the reader that marijuana, not cocaine, is the object of the search, here, as in Groh, the affidavit did not accompany the warrant.

The state also argues that the warrant was valid because the executing officer had personal knowledge of the crime being investigated and knew that marijuana, not cocaine, was the focus of this search. “It is true that the executing officer’s personal knowledge of the place to be searched may ‘cure’ minor, technical defects in the warrant’s place description. 2 W. LaFave, Search and Seizure [(2d Ed. 1987) § 4.5 (a), pp. 209-10]. However, where the inadequacy arises not in the warrant’s description of the place to be searched but rather in the things to be seized, the officer’s personal knowledge of the crime may not cure the defect. See generally 2 W. LaFave §§ 4.5-4.6 (discussing the particularity requirement in relation to a warrant’s description of the places to be searched and the things to be seized). This is so because the purpose of a warrant is not only to limit the executing officer’s discretion, but to inform the person subject to the search what items the officer may seize. United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir. 1986) [cert. denied, 479 U.S. 1086, 107 S. Ct. 1289, 94 L. Ed. 2d 146 (1987)].” (Citation omitted; emphasis added.) Washington v. Riley, 121 Wash. 2d 22, 28-29, 846 P.2d 1365 (1993). The United States Supreme Court has “long held, moreover, that the purpose of the particularity requirement is not limited to the prevention of general searches. See [Maryland v. Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987)]. A particular warrant also assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” (Internal quotation marks omitted.) Groh v. Ramirez, supra, 540 U.S. 561.

The state argues that because it had probable cause to believe that some of the collateral items were located in the house, the police officer could seize the marijuana under the plain view doctrine. “[O]bjects not named in the warrant, but found within an officer’s plain view, may be seized if the … officers had a reasonable basis for believing that the seized evidence was reasonably related to the offense which formed the basis for the search warrant. … This doctrine is based upon the premise that the police need not ignore incriminating evidence in plain view while they are operating within the parameters of a valid search warrant or are otherwise entitled to be in a position to view the items seized.” (Citations omitted; internal quotation marks omitted.) State v. Cobb, 251 Conn. 285, 347, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). The problem with this theory in this case is that the police were not lawfully on the premises of the defendant where the marijuana was found. See United States v. George, 975 F.2d 72, 80 (2d Cir. 1992) (noting that plain view doctrine inapplicable when “the sufficiently particularized portions make up only an insignificant or tangential part of the warrant”). Moreover, the collateral items, standing alone without the illegal drug, would not support probable cause to believe a crime was committed. Accordingly, the marijuana could not be seized under the plain view doctrine.

Police responding to a burglary-in-progress call could rely on representation of a woman who claimed to be a burglary victim at a vacant house she claimed to own by her standing out front and asking officers to enter to look for the burglar. There was an open rear door. Inside, they found the defendant sitting at a computer, and a marijuana grow operation. He claimed to be the resident. Reliance on the purported victim was reasonable, and the entry was not suppressed. State v. McKinley, 2007 Ohio 3705, 2007 Ohio App. LEXIS 3378 (2d Dist. July 20, 2007). (Comment: This is a tough case, and it almost seems to take Illinois v. Rodriguez to its limit. Is this what happens when a snoopy neighbor decides to rat out her pot smoking neighbor? By claiming burglary?)

A valid traffic stop of a van led the officer to notice movement in the back of the van, so he told those who were there to show themselves, and a shotgun case was visible. The officer asked if there were any guns in the car, and the defendant said there was, and he validly consented to a search. State v. Alcorn, 2007 Ohio 3693, 2007 Ohio App. LEXIS 3362 (2d Dist. July 20, 2007).*

Defendant lacked standing to challenge the search of his co-defendant’s pockets that produced 440 grams of meth. He sought to make standing by complaining about the police prolonging the stop, but the court held that the stop was not prolonged [as if that would make a difference]. Martinez v. State, 236 S.W.3d 361 (Tex. App. — Ft. Worth 2007).*

Utah follows United States v. Edwards (1974) for the first time and allows inventory on book-in and impoundment of a car. The court found this case paralleled Edwards. Defendant sought to have his personal belongings picked up by an acquaintance and the police refused. Even the second look by the police was valid. State v. Messer, 2007 UT App 166, 164 P.3d 421, 578 Utah Adv. Rep. 49 (2007).*

Defendant’s vehicle was spotted by the police and they already had probable cause to search it once it was determined to be his. Entry into the vehicle was justified by the automobile exception even though the defendant was nowhere near. State v. Sanders, 15 Neb. App. 554, 733 N.W.2d 197 (2007).*

N.H. sustained sobriety checkpoints in the past, and the Attorney General adopted regulations for conducting them. Case law require “aggressive advance notice.” Here, a press release was issued and a legal notice was put in the paper the day before. “In light of that background media attention and the prevailing state of the law in other jurisdictions that have considered this issue, we hold that the timing and amount of advance notice in this case did not render the PPD checkpoints violative of Part I, Article 19 of the New Hampshire Constitution.” State v. Hunt, 155 N.H. 465, 924 A.2d 424 (2007).*

Defendant claimed that officers intended to stop every person leaving a particular bar, but the question was whether there was reasonable suspicion as to this defendant. Crediting the officer’s testimony, there was because he was staggering to the car. State v. Jones, 2007 Tenn. Crim. App. LEXIS 406 (May 24, 2007).*

After a traffic stop, reasonable suspicion just kept evolving. Negrette v. State, 2007 WY 88, 158 P.3d 679 (2007):

[*P15] The totality of the circumstances showed: the license plate on the pickup was not on file; the registration had been altered; the license plate number did not match the registration; the occupants of the pickup had traveled from Illinois to Oregon for a two day visit; Mr. Negrete did not know the names of the people he had just visited in Oregon; Mr. Negrete said he had borrowed the pickup from a friend named Gilbert Mendoza but the proof of insurance card showed the owner as Gilberto Maldonado; the VIN was a duplicate; Mr. Negrete seemed to change the subject whenever Deputy Hodge brought up a subject that made him uncomfortable; Mr. Negrete appeared nervous when he could not remember the names of the people he had just visited; and Deputy Hodge was unable to verify that the license plates belonged on the pickup.

Considering the deferential standard that search warrant affidavits are entitled to, the court of appeals erred in focusing on what was not in the affidavit rather than what was. It was reasonable to conclude that the cocaine in a garage had been transferred to a car where it was found. The affidavit was not perfect, considering it was drafted in the heat of the moment of the investigation, and it would have been better if it included more information that the police had, but it certainly was not fatal to have not included it. So, the warrant for the house was valid. Rodriguez v. State, 232 S.W.3d 55 (Tex. Crim. App. 2007).*

Defendant’s consent to a blood draw signed in a Louisiana prison was found to be valid. His argument was that he thought it was to be used in a Louisiana investigation, not a Texas investigation. The consent form itself belied that contention. Jones v. State, 225 S.W.3d 772 (Tex. App. — Houston (14th Dist.) 2007).*

Exigent circumstances justified a warrantless entry by Virgin Islands police because they had a report of someone with a felony conviction having just come out of the house, firing a gun, and going back inside. When they arrived, children visible from the door looked scared. After they got inside, a protective sweep found the man hiding under a bed, and the gun would have been found anyway for inevitable discovery purposes. United States v. Parris, 229 Fed. Appx. 130 (3d Cir. 2007)* (unpublished).

§ 1983 claim barred: “a verdict in Gingras’s favor would necessarily imply the invalidity of his South Dakota conviction. Thus, under Heck, Gingras’s claims are not cognizable under § 1983.” Gingras v. Wood, 2007 U.S. Dist. LEXIS 34553 (D. S.D. May 10, 2007).

Defendant approached a police car surveying damage after a storm, and the defendant’s right wheels went into high water on the side of the road. The police car did not have its emergency lights on, and the officer stopped the defendant because he remembered that the defendant had a previously suspended license but knew nothing of the current status. The stop was unreasonable. The defendant argued that the community caretaking function should not apply to a moving vehicle, which the court did not embrace, but it held that the stop was invalid under any standard. State v. Craveiro, 155 N.H. 422, 924 A.2d 361 (2007).

A drug search warrant had a “catchall” provision that made it constitutionally overbroad. Only marijuana was mentioned, and meth was found.

“instruments used to manufacture, introduce into the body or deal marijuana,” (App. at 28), money records, notes, documents, or videotapes “relating to the use, dealing, or manufacture of marijuana,” (id.), instruments used in growing or processing marijuana, paraphernalia “and any other item of contraband which are [sic] evidence of a crime.” (Id.) (emphasis supplied).

The evidence sought to be suppressed was all within the coverage of the “catchall” provision, and the state failed to show that it was otherwise in “plain view.” Levenduski v. State, 876 N.E.2d 798 (Ind. App. 2007):

In the case before us, by contrast, all the methamphetamine-related evidence Levenduski sought to suppress was obtained pursuant to the illegal “catchall” provision in the warrant and should accordingly have been suppressed. The warrant authorized police to enter Levenduski’s house and search for marijuana, hashish, “instruments used to manufacture, introduce into the body or deal marijuana,” (App. at 28) (emphasis supplied), money records, notes, documents, or videotapes “relating to the use, dealing, or manufacture of marijuana,” (id.) (emphasis supplied), instruments used in growing or processing marijuana, paraphernalia “and any other item of contraband which are [sic] evidence of a crime.” (Id.) (emphasis supplied). As to the evidence unrelated to marijuana or hashish, the warrant was invalid to the extent it “[left] the executing officer with discretion,” Warren, 760 N.E.2d at 610, and the trial court should have granted Levenduski’s motion to suppress that evidence.

The State acknowledges the language in the warrant purporting to authorize a search for and seizure of “any other item of contraband which are [sic] evidence of a crime” is “perhaps a bit too general in its description of the items permitted to be searched for by the warrant.” (Br. of the Appellee at 19.) But it asserts the discovery and seizure of the methamphetamine was reasonable because the “methamphetamine evidence” was discovered “primarily in plain view.” (Id. at 19-20.) It was not.

. . .

The State has not demonstrated the evidence obtained pursuant to the illegal “catch-all” provision of the search warrant was found in plain view. It therefore should have been suppressed. See Chandler v. State, 816 N.E.2d 464, 468 (Ind. Ct. App. 2004):

Nor is there evidence the marijuana was in plain view. Officer James Walsh testified some marijuana ‘was found in the middle bedroom’ and ‘in the living room.’ There was no direct testimony this marijuana was in plain view; as the State bears that burden of proof, we will not presume it was.

(Internal citations and footnote omitted).

Plaintiff, a convicted sex offender from the early ’90s, sought a preliminary injunction claiming that the defendant police officers were stigmatizing him by their proactive efforts to get him to register by showing up at his house with marked police cars and efforts to enter his home to talk to him against his will. Doe v. Ladue, 514 F. Supp. 2d 1131 (D. Minn. 2007). He met the standards for a preliminary injunction:

Based on the facts before it, the court finds that OPD officers subjected Doe to searches and seizures absent requisite probable cause. As the Fourth Amendment right to be free from unreasonable search and seizure is a well-established right, even for predatory offender registrants, qualified immunity does not protect the defendant officers. Cf. Vincent, 167 F.3d at 530 (finding probationer’s home protected by Fourth Amendment requirement that searches be reasonable). Although the officers acted pursuant to the BCA manual, the proactive procedures do not meet the Fourth Amendment reasonableness standard. Moreover, because Owatonna adopted and enforced a policy that was constitutionally infirm, the city is not protected by qualified immunity. See Szabla v. City of Brooklyn Park, Minn., 486 F.3d 385, 389-91 (8th Cir. 2007). Accordingly, plaintiffs have demonstrated a reasonable likelihood of success on the merits of their Fourth Amendment claim. For these reasons, this Dataphase factor supports the issuance of injunctive relief.

IV. Public Interest

As the fourth factor, the court considers the public interest. Defendants argue that because of the high risks of recidivism posed by predatory offenders, there is strong public interest in continuing their proactive compliance practices. The court acknowledges that there is great public interest in monitoring predatory offenders. However, there is an equally strong public interest in preserving constitutional rights. See Reinert v. Haas, 585 F. Supp. 477, 481 (S.D. Iowa 1984). Because the OPD has a means of monitoring predatory offenders without jeopardizing constitutional rights–by employing the reactive approach also advocated in the BCA training manual–the greater public interest is in issuing an injunction to protect plaintiffs’ constitutional rights.

After a careful review of the file, record and issues raised at oral argument, the court determines that the Dataphase factors weigh in favor of plaintiffs.

CONCLUSION

Therefore, IT IS HEREBY ORDERED that:

1. Plaintiffs’ motion for a preliminary injunction [Doc. No. 12] is granted.

2. Defendants and all those acting in active concert or participation with them, in verifying John Doe’s compliance with Minnesota Statutes § 243.166, shall not engage in proactive monitoring practices–including in-person contact with Doe, random photographing of Doe’s person and vehicles, and direct quarterly visits to Doe’s residence–until plaintiffs’ cause of action has been resolved by the court.