Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503 (2007) (click on the title for free link). From the summary:

The Fourth Amendment protects reasonable expectations of privacy, but the Supreme Court has refused to provide a consistent explanation for what makes an expectation of privacy “reasonable.” The Court’s refusal has disappointed scholars and frustrated students for four decades. This Article explains why the Supreme Court cannot provide an answer: no one test can accurately and consistently distinguish less troublesome police practices that do not require Fourth Amendment oversight from more troublesome police practices that are reasonable only if the police have a warrant or compelling circumstances. Instead of endorsing one approach, the Supreme Court has recognized four coexisting approaches. There are four models of Fourth Amendment protection: a probabilistic model, a private facts model, a positive law model, and a policy model. Using multiple models has a major advantage over using one model. It allows the courts to use different approaches in different contexts depending on which approach most accurately and consistently identifies practices that need Fourth Amendment regulation. Explicit recognition of the four models would advance this function, resulting in more accurate and consistent Fourth Amendment rules.

Kerr is a former clerk for Justice Kennedy, and he has joined the LaFave and Kamisar casebook and hornbook series.

The table of contents:

INTRODUCTION, 504
I. THE FOUR MODELS, 507
A. The Probabilistic Model, 508
B. The Private Facts Model, 512
C. The Positive Law Model, 516
D. The Policy Model, 519
E. The Relationship Among the Models, 522
II. THE CASE FOR MULTIPLE MODELS OF FOURTH AMENDMENT PROTECTION, 525
A. The Goals of the Reasonable Expectations of Privacy Test, 526
B. Why the Proxy Models Cannot Provide Exclusive Guides to Fourth
Amendment Protection, 531
1. The Probabilistic Model, 531
2. The Positive Law model, 532
3. The Private Facts Model, 534
C. Why the Policy Model Cannot Provide an Exclusive Guide to Fourth
Amendment Protection, 536
1. Lower Courts and the Reasonable Expectation of Privacy Test, 537
2. The Instability of the Policy Model in the Lower Courts, 539
D. The Case for Multiple Models, 542
1. Supreme Court Selection Among the Four Models, 543
2. Lower Court Use of the Four Models, 545
3. The Need for Recognition of the Four Models, 548
CONCLUSION, 549

Search incident of a vehicle eight minutes after defendant was handcuffed and in custody in a police car was still valid under the bright line rule of Belton and Thornton. United States v. Grooms, 506 F.3d 1088 (8th Cir. 2007). Worth noting is this passage about defendant’s policy argument which the court found unavailing. The fact it was mentioned at all suggests that the court might have been sympathetic to it, but bound by SCOTUS precedent.

Grooms relies on this statement in Thornton and argues he is not a recent occupant because eight minutes is too long after an arrest to conduct a valid search incident to arrest. In United States v. Hrasky, however, we found an automobile search which began one hour after the defendant was arrested was a valid search incident to arrest because we found the defendant was a “recent occupant.” 453 F.3d 1099, 1102 (8th Cir. 2006). We noted “the determination of whether a search is a contemporaneous incident of arrest involves more than simply a temporal analysis” and concluded “a search need not be conducted immediately upon the heels of an arrest, but sometimes may be conducted well after the arrest, so long as it occurs during a continuous sequence of events.” Id. We reasoned the search in that case “took place at the scene of the arrest, immediately after the police determined to proceed with a full custodial arrest” and was therefore valid. Id. at 1103. In this case, we find the search of Grooms’s vehicle occurred during a continuous sequence of events after his stop. Eight minutes is not a long period of time and some of the delay can be attributed to Grooms’s attempts to offer explanations for his prior criminal conviction, for his return to the pub, and for his possession of the two cases. Under Hrasky, we find Grooms was a recent occupant of his automobile.

In addition, as a policy matter, Grooms argues the search should be found invalid because there were no safety issues and no probable cause to believe evidence relevant to the crime of arrest would be found in his vehicle. Grooms argues the law governing the Fourth Amendment exception for a search incident to arrest has diverged from the rationale expressed in Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). He argues the dual purpose behind a contemporaneous search incident to arrest of both the person arrested and the immediate surrounding area is (1) the need to remove weapons that might be used to resist arrest or escape and (2) the need to prevent concealment or destruction of evidence. Belton, 453 U.S. at 457-58 (citing Chimel, 395 U.S. at 762-63). Once a person has been arrested, frisked and handcuffed, Grooms argues the rationale for a search for weapons used to resist arrest or escape disappears. With respect to the need to prevent concealment or destruction of evidence, Grooms argues searches should be limited to those cases in which there is probable cause to believe evidence relevant to the crime of arrest might be found in the vehicle. He argues this case provides an excellent forum for determining whether Belton and Thornton should be modified in light of what he argues is an erosion of their underpinnings.

Officer telling defendant that if he turned over the gun he would not be charged with it amounted to coercion for consent when defendant ended up charged in federal court. United States v. Pantoja-Ramirez, 2007 U.S. Dist. LEXIS 92835 (D. Ida. December 17, 2007):

Still later, however, Officer Hemmert states that he is going to seize the shotgun, write a ticket for drug paraphernalia, “and then I’ll talk to the corporal and see what he wants to do about everything else.” See Transcript at p. 5. This is as close as Officer Hemmert gets to saying that he is not offering immunity for the shotgun and that the ultimate charging decision will be made elsewhere.

The bottom line is that Officer Hemmert’s attempt to procure the consent of Pantoja-Ramirez is confusing. Listening to the entire exchange, a reasonable person could conclude either that Officer Hemmert (1) offered immunity for the shotgun, or (2) offered only to defer charges now, and let someone else make the ultimate charging decision.

Such a “contradictory alternative message” has been held by this Circuit in the Miranda context to be “at best misleading and confusing, and, at worst, … a subtle temptation to the unsophisticated” defendant to waive a right. See United States v. Connell, 869 F.2d 1349, 1352 (9th Cir. 1989). The police cannot “appear to take away with one hand what they were offering with the other.” Id. at 1353 (quoting Emler v. Duckworth, 549 F.Supp. 379, 381 (N.D.Ind.1982)).

These principles apply with equal strength here. Officer Hemmert cannot appear to offer immunity, and then rely on other statements that contradict that offer. A reasonable person in Pantoja-Rameriz’s position could have concluded that Officer Hammert offered immunity for the shotgun. The Court must assume that Pantoja-Rameriez’s consent was based on that reasonable interpretation. When that promise was broken, the scope of the search exceeded the scope of the consent. Consequently, the Government has not carried its burden of showing that the search did not exceed the scope of the consent, and the motion to suppress must be granted.

Officer’s testimony that he smelled burnt marijuana when he stopped defendants and could read the label of a prescription bottle from outside the car was found just not credible. Nothing corroborated it at all. United States v. Shields, 2007 U.S. Dist. LEXIS 92929 (W.D. Tenn. December 18, 2007):

The Government asserts that probable cause to arrest the Defendants and, therefore, to search their persons, existed at the time Carter detected the marijuana smell coming out of the window and when he observed the prescription bottle bearing the name of another. However, the Court finds that Carter’s testimony with respect to the marijuana smell and the identification on the prescription bottle in Shields’ lap is not credible. It is uncontroverted that there was no objective evidence, such as rolling papers, roach clips or blunts, to indicate that Defendants had been smoking marijuana in the vehicle. Nor was there any evidence presented at the hearing to suggest that a small amount of marijuana in a sandwich bag hidden in a pants pocket, or a few small stems and seeds, would exude sufficient odor to cause the “quick gush” of the smell described by the officer to emanate from the two-inch crack in the window. See United States v. Mercadel, 75 F.App’x 983 at *5 (5th Cir. 2003) (failure of police to find any evidence of recently smoked marijuana supported court’s conclusion that officer’s testimony that he smelled marijuana was not credible).

Defendant lived with his mother and locked her out of the house. She called the police, and she was shaking and upset when they arrived. One of the officers went through a window to get in and offered to do a search of the premises to make sure she was safe, which she agreed to. This was a valid third party consent. The mother told the officers that she was told by her son that she could not go upstairs, which was locked, and the officers even removed the door from the hinges to get upstairs. State v. Wurm, 2007 Wisc. App. LEXIS 1086 (December 11, 2007):*

The room searched was the upstairs of the home in which Evelyn lived, and not a detached apartment [thereby distinguishing defendant’s authority]. While Evelyn stated that Wurm did not like her to go upstairs, she also testified that she stored pictures there. Further, Wurm did not pay rent but paid some of the bills. Based on these facts, we conclude that the circuit court properly found that Evelyn had the authority to consent to the search of the upstairs of her home. The circuit court correctly denied Wurm’s motion to suppress …

A stop of three men in a pickup truck for a seatbelt violation at 2 a.m., without more, is not cause for a patdown of anybody. When defendant, however, resisted his patdown (not just objecting to it), the officer had cause for a patdown. State v. Anderson, 2007 Iowa App. LEXIS 1312 (December 12, 2007).* Comment: So, the officer was not legally authorized to pat down any of these three men, but he can get away with it if one resists or nothing is found. If a weapon is found, the officer is safer; if drugs are found, the defendant is charged. The bottom line here is that this opinion will do little or nothing to change police procedure in Iowa.

DUI roadblock was validly approved and established [even under Tennessee’s more rigorous procedures]. State v. Boddie, 2007 Tenn. Crim. App. LEXIS 935 ( December 11, 2007).*

On the defendants’ omnibus suppression motion (this does not cover all issues, there are too many):

Government did not violate the Stored Communications Act in how it handled e-mails after acquiring them, and, even if it did, that would not be a valid ground for suppression of evidence under Hudson because it had nothing to do with the seizure. Also, there was no Franks violation. This was a mail and credit card fraud scheme involving continuing charges to accounts, and the defense presented a list of perceived defects with the affidavit for the search warrant that probable cause would not exist if the defects were cured. None of them required further elaboration because, on the totality, there was still probable cause on the totality under Gates to show that defendant was on notice that there was great consumer dissatisfaction with his business practices that were of really doubtful validity. Finally, the use of 50 agents to seize the premises and seven tons of documents, including whole file cabinets and personal papers of employees, including a Snickers bar, was not considered unreasonable. The court considered the government’s representation that the employees would testify to the need for a swift securing of the evidence at a large property to prevent destruction of evidence. United States v. Warshak, 2007 U.S. Dist. LEXIS 91741 (S.D. Ohio December 13, 2007) (the court uses “well-taken” so many times referring to the “government’s position” or “not well-taken” as to the defendants’ that it ended up as a “core term” on Lexis):

Having reviewed this matter, the Court does not find Defendants’ position well-taken. Even assuming Defendants’ allegations are true, the fact is that when the agents executed the warrant on March 16, 2005, time was of the essence. The Berkeley facilities are immense, and the agents were justified in quickly securing each location so as to prevent the destruction of any evidence. The fact that some employees may have been rattled by the swift, no-nonsense entry of fifty agents does not justify the suppression of evidence. Berkeley may have not been the lair of a drug kingpin, but the warrants were supported by probable cause for massive consumer fraud.

As such, the Court takes the government’s representation in good faith that its agents would testify as to the propriety of their conduct in executing the warrants. Such representation is more than conclusory, as the government does more than say “the searches were reasonably executed,” but indicates it has agents who will testify as much. The Court finds no hearing necessary on this question. Finally, the fact that irrelevant information and materials were swept up in the large-scale seizure here is a mere by-product of the practical reality faced by the agents who acted quickly as required so as to keep the search and seizure within the bounds of reasonableness. Surely, had the agents camped out at Berkeley and closed the operation for weeks on end, so as to sift out irrelevant information, Defendants very well may have had a basis to argue the search was conducted in an oppressive manner.

Employees who had decided to cooperate and turned over their company laptops to the government did so as individuals. Confidentiality agreements did not create any separate expectation of privacy when probable cause already exists:

The Court finds itself again on the side of the government. The Court sees no convincing evidence the cooperating witnesses were acting as anything more than private individuals in turning over evidence to the government. Even should the cooperating witnesses qualify as “agents,” such that the Fourth Amendment applies, the Court finds no real question that they voluntarily consented to the searches of their laptops. The Court further finds unavailing Defendants’ arguments that the witnesses lacked the authority to do so. The witnesses had common authority over their laptops, as evidenced by their possession and password access. United States v. Matlock, 415 U.S. 164, 171-72 (1974). Defendants’ heavy reliance on the fact they had confidentiality agreements with their employees is misplaced. A company cannot use such a confidentiality agreement to shield itself from government inquiry into evidence of potential illegal behavior, when the government has probable cause based on witness statements that such evidence exists, and the witnesses consent to the search. Defendants’ position simply conflicts with public policy. McGrane v. The Reader’s Digest Association, Inc., 822 F.Supp. 1044, 1046 (S.D. N.Y. 1993)(“Courts are increasingly reluctant to enforce secrecy arrangements where matters of substantial concern to the public-as distinct from trade secrets or other legitimately confidential information may be involved”), Chambers v. Capital Cities/ABC, 159 F.R.D. 441, 444 (S.D. N.Y. 1995)(“agreements obtained by employers requiring former employees to remain silent … concerning potentially illegal practices … can be harmful to the public’s ability to rein in potentially harmful behavior”), Ventura v. Cincinnati Enquirer, 396 F.3d 784, 791 (S.D. Ohio, 2005) (J. Weber) (rejecting efforts to enforce an agreement to withhold evidence of crimes, because “reporting criminal activity to a prosecutor is not actionable”). For all of these reasons, the Court rejects Defendants’ Motion to Suppress the evidence derived from the laptops turned over to the government by cooperating witnesses.

In yesterday’s Washington Post is this: FBI Prepares Vast Database Of Biometrics:

CLARKSBURG, W. Va. — The FBI is embarking on a $1 billion effort to build the world’s largest computer database of people’s physical characteristics, a project that would give the government unprecedented abilities to identify individuals in the United States and abroad.

Digital images of faces, fingerprints and palm patterns are already flowing into FBI systems in a climate-controlled, secure basement here. Next month, the FBI intends to award a 10-year contract that would significantly expand the amount and kinds of biometric information it receives. And in the coming years, law enforcement authorities around the world will be able to rely on iris patterns, face-shape data, scars and perhaps even the unique ways people walk and talk, to solve crimes and identify criminals and terrorists. The FBI will also retain, upon request by employers, the fingerprints of employees who have undergone criminal background checks so the employers can be notified if employees have brushes with the law.

“Bigger. Faster. Better. That’s the bottom line,” said Thomas E. Bush III, assistant director of the FBI’s Criminal Justice Information Services Division, which operates the database from its headquarters in the Appalachian foothills.

The increasing use of biometrics for identification is raising questions about the ability of Americans to avoid unwanted scrutiny. It is drawing criticism from those who worry that people’s bodies will become de facto national identification cards. Critics say that such government initiatives should not proceed without proof that the technology really can pick a criminal out of a crowd.

Aside from WaPo, it appeared on FreeInternetPress.

This isn’t a hidden issue: A web search also produced the budget justification from the FBI, and websites that appear to be the FBI’s and other government biometric specifications website.

When the officer determined that the man he just handcuffed was not the suspect he was looking for, the continuation of the stop became unlawful. State v. Gunn, 2007 Ohio 6874, 2007 Ohio App. LEXIS 6035 (1st Dist. December 21, 2007):

Regardless of whether Gunn had been properly stopped based on the confidential informant’s tip, the moment that Officer Hennie learned that Gunn was not the suspect, the reason for detaining Gunn dissipated, and Gunn should have been free to leave unless there were some reasonable, articulable facts giving rise to a suspicion of illegal activity. Here, there were no such facts presented by the state. Officer Hennie testified that he had initially stopped Gunn because he matched the description of the suspect and because Gunn was in the area where the drug purchase had allegedly occurred. He did not testify to any other behavior that would have led him to suspect that Gunn had been involved in illegal activity. Thus, Gunn’s detention became illegal when he was kept handcuffed and on his knees, after the police had learned that Gunn was not the suspect.

Probable cause to search defendant’s car permitted police to seize a pair of shoes to match them to footprints at the scene of the crime. The fact the car was parked on private property was of no moment when it was found. It had just been driven and was mobile, and potentially mobile is the question. State v. Miller, 2007 Ohio 6909, 2007 Ohio App. LEXIS 6045 (4th Dist. December 12, 2007).*

A Chicago federal jury awarded $15M to a man arrested in the murder and rape of his daughter and held for eight months until the DNA sample from the rape kit exonerated him. Later, other DNA evidence exonerated him, too. Fox gets $15.5 million, from the Chicago Tribune. The defense vows an appeal contending the trial judge refused to admit evidence of probable cause. The defendants were found liable for false arrest but not false imprisonment or conspiracy.

In what is believed to be the largest award of its kind in Illinois history, a federal jury Thursday awarded $15.5 million to Kevin Fox and his wife, after deciding Will County sheriff’s detectives falsely arrested Fox in the sexual assault and murder of his 3-year-old daughter, Riley.

The five-man, five-woman jury held Sgt. Edward Hayes, three sheriff’s deputies who worked as detectives under him and the estate of a fourth deputy liable for false arrest, violation of Fox’s due-process rights, malicious prosecution and infliction of severe emotional distress to Fox and his wife. They also held the men liable for loss of consortium, a count brought by Fox’s wife, Melissa.

. . .

The jury deliberated for more than 16 hours over three days at the end of the seven-week trial.

Some opinions are: Fox v. Office of the Sheriff of Will County, 2005 U.S. Dist. LEXIS 11720 (N.D. Ill. May 26, 2005), motion granted in part, denied in part, Fox v. Tomczak, 2006 U.S. Dist. LEXIS 27654 (N.D. Ill. Apr. 26, 2006).

AP has this story from yesterday: Botched Raid Terrorizes Minn. Family:

With her six kids and husband tucked into bed, Yee Moua was watching TV in her living room just after midnight when she heard voices–faint at first, then louder. Then came the sound of a window shattering.

Moua bolted upstairs, where her husband, Vang Khang, grabbed his shotgun from a closet, knelt and fired a warning shot through his doorway as he heard footsteps coming up the stairs. He let loose with two more blasts. Twenty-two bullets were fired back at him, by the family’s count.

Then things suddenly became clear.

“It’s the police! Police!” his sons yelled.

Khang, a Hmong immigrant with shaky command of English, set down his gun, raised his hands and was soon on the ground, an officer’s boot on his neck.

The gunmen, it turned out, were members of a police SWAT team that had raided the wrong address because of bad information from an informant – a mistake that some critics say happens all too frequently around the country and gets innocent people killed.

“I have six kids, and only one mistake almost took my kids’ life,” said Moua, 29. “We will never forget this.”

No one was hurt in the raid Sunday, conducted by a task force that fights drugs and gangs, though two police officers were hit by the shotgun blasts and narrowly escaped injury because they were wearing bulletproof vests.

Police apologized to the family and placed the seven officers on leave while it investigates what went wrong.

Such mistakes are a fact of police work, some experts said.

“Does going to the wrong address happen from time to time? Yes,” said John Gnagey, executive director of the National Tactical Officers Association in Doylestown, Pa. “Do you corroborate as best you can the information the informant gives you? Absolutely. But still from time to time mistakes are made.”

Volume 39, number 4, of the Texas Tech Law Review has a series of articles about consent searches from the Texas Tech Symposium on Citizen Ignorance, Police Deception, and the Constitution:

Essay:

–Arnold H. Loewy, Police, Citizens, the Constitution, and Ignorance: The Systemic Value of Citizen Ignorance in Solving Crime, 39 Tex. Tech. L. Rev. 1077 (2007)

Consent Searches by Ignorant Citizens:

–John M. Burkoff, Search Me?, 39 Tex. Tech. L. Rev. 1109 (2007)

–Morgan Cloud, Ignorance and Democracy, 39 Tex. Tech. L. Rev. 1143 (2007)

–Christo Lassiter, Consent to Search by Ignorant People, 39 Tex. Tech. L. Rev. 1171 (2007)

–Russell L. Weaver, The Myth of “Consent”, 39 Tex. Tech. L. Rev. 1195 (2007)

There are other articles about police lying and confessions:

Do We Want Citizens to Know Their Rights, and If So, How Do We Tell Them?

–Susan R. Klein, Lies, Omissions, and Concealment: The Golden Rule in Law Enforcement and the Federal Criminal Code, 39 Tex. Tech. L. Rev. 1321 (2007)

–Alan C. Michaels, Rights Knowledge: Values and Tradeoffs, 39 Tex. Tech. L. Rev. 1355 (2007)

–Andrew E. Taslitz, Bullshitting the People: The Criminal Procedure Implications of a Scatalogical Term, 39 Tex. Tech. L. Rev. 1383 (2007).

Id. at 1421-23:

There is far less data on consent searches and warnings. Yet the available data similarly supports the conclusion that rights warnings do not increase noncooperation with the police. Sociologist Illya Lichtenberg, for example, in a study of the Maryland State Police and the Ohio State Highway Patrol, found that 88.5% to 96.5% of those asked to consent to automobile searches by police officers did so when no warnings were given. When the police gave warnings, however, there was no substantial decrease in the percentage of instances in which police consent-to-search requests were granted. These statistics held across race, sex, and age. Lichtenberg concluded from this data that “verbal warnings are an ineffective means of encouraging citizens to exercise freely their constitutional rights.” 293 On the other hand, combining both the confessions data and the consent-to-search data, Lichtenberg explains:

Finally, for those who still fear that verbal warnings will render our criminal justice system ineffective and lead to marauding criminals on the street with no means to control them, these findings suggest that such fears are unfounded. The criminal justice system appears to operate quite effectively with verbal warnings in place. Research suggests that verbal warnings do not have any substantial impact on consent or confessions.

Indeed, Lichtenberg found that 12.9% of those consenting to searches were found to be in possession of illegal narcotics. They consented anyway.

What explains compliance in the face of warnings? One possible explanation is simple fear of the police. Lichtenberg found in a survey of some of those consenting to searches in Ohio (an admittedly small sample), use that they “consented to search for one primary reason: fear of reprisal if they refused.” Other scholars have relied on older research on compliance to conclude that, at a minimum, suspects are likely to blindly obey authority, especially uniformed authority. Thus, in the well-known experiments of Professor Stanley Milgram, subjects purportedly involved in a study about learning patterns’ relationship to negative reinforcement were willing to give increasingly higher voltage shocks to a “learner” when he made mistakes. This escalation in voltage continued upon the experimenter’s command, despite the learner’s at first modest, then vigorous, and finally painfully screaming, protests. As Professor Ric Simmons has pointed out, however, Milgram’s experiments involved obedience to orders, not requests, and did not turn on subjects’ ignorance about their legal rights or the authority figure’s intentions.

Scholars challenging the voluntariness of consent to search as illusory have also relied on Professor Leonard Bickman’s experiments involving authority figures wearing uniforms. The experimenter dressed as a civilian, then a milkman, then a guard (police-type uniform but with no gun). In each pose, the experimenter ordered passersby to do one of three things: pick up a bag, give a dime to a person near a parking meter, or change locations. Compliance rates were much higher in the two uniformed than the one civilian situation and were particularly high-89%-when the guard uniform was worn. Again, as with Milgram’s experiments, orders, rather than requests, were involved, and rights awareness versus rights ignorance was not tested, making the experimental circumstances very different from those involved in consent searches or in interrogations. Nevertheless, these studies suggest that the reasons for citizen obedience to the police are far more complex than fear or a knee-jerk obedience to authority, even if those forces do play some role and perhaps under certain circumstances an important role.

Research psychologist Tom Tyler recently conducted a series of studies and a literature review of when and why Americans obey government agents, including the police and the courts. Tyler found at least two important psychological processes to be at work: a sense of personal responsibility to defer to legitimate government authorities and a desire to empower government to solve social problems, particularly in the face of a perceived crisis. (footnotes omitted)

Everything in the affidavit failed to satisfy Aguilar-Spinneli, the state standard: There was no showing of the reasons for veracity of the confidential informants part of the criminal milieu and the citizen informant’s statements showed nothing for basis of knowlegde. The result is dismissal of the case. State v. Graves, 2007 Tenn. Crim. App. LEXIS 929 (December 5, 2007).*

“The proof does not preponderate against the trial court’s finding that Rose waited for the Appellants to return home and asked them for consent to search the rest of the house, which we conclude that they provided, without reluctance, in written form, voluntarily and without coercion. We hold that in this case the State carried its burden of establishing that the Appellants’ consent to search their home was freely and voluntarily given.” State v. Lard, 2007 Tenn. Crim. App. LEXIS 928 (December 5, 2007).*

Probable cause was based on overhearing the informant and the defendant talk about a drug deal and then seeing it go down. State v. Scruggs, 2007 Ohio 6416, 2007 Ohio App. LEXIS 5634 (12th Dist. December 3, 2007).*

There is no freedom from search and seizure in a prison, even one the inmate perceives is harassing. Reznickcheck v. N. Cent. Corr. Inst., 2007 Ohio 6425, 2007 Ohio App. LEXIS 5621 (3d Dist. December 3, 2007).*

Search of defendant’s person for a lump at his belt that was apparently a bag of drugs. The stop was valid, and the lump was seen immediately when defendant got out. There was no time to get a warrant. State v. Blandin, 2007 Ohio 6418, 2007 Ohio App. LEXIS 5620 (3d Dist. December 3, 2007).*

The video of defendant’s driving showed a factual basis for his stop. State v. Boon, 2007 Tenn. Crim. App. LEXIS 915 (December 4, 2007).*

The officer spotlighted the defendant in a high crime area from 35′ away but quickly approached him and asked if he was on parole. This could only be considered a seizure, despite the lack of emergency lights or a verbal command. People v. Garry, 156 Cal. App. 4th 1100 (1st Dist. 2007):

In the present case, the argument can be made that no detention occurred prior to Crutcher learning about defendant’s parole status. Crutcher’s testimony indicates that he parked his car 35 feet away from defendant, a considerable distance, had no other officers with him, did not use emergency lights, did not draw a weapon, made no verbal commands, went to defendant rather than asking defendant to come to him, did nothing to prevent defendant from leaving, and did not touch defendant prior to learning that he was on parole.

However, Crutcher’s testimony makes clear that his actions, taken as a whole, would be very intimidating to any reasonable person. Crutcher testified that after only five to eight seconds of observing defendant from his marked police vehicle, Crutcher bathed defendant in light, exited his police vehicle, and, armed and in uniform, “briskly” walked 35 feet in “two and one-half to three seconds” directly to him while questioning him about his legal status. Furthermore, Crutcher immediately questioned defendant about his probation and parole status, disregarding defendant’s indication that he was merely standing outside his home. In other words, rather than engage in a conversation, Crutcher immediately and pointedly inquired about defendant’s legal status as he quickly approached. We think only one conclusion is possible from this undisputed evidence: that Crutcher’s actions constituted a show of authority so intimidating as to communicate to any reasonable person that he or she was “‘not free to decline [his] requests or otherwise terminate the encounter.'” (In re Manuel G., supra, 16 Cal.4th at p. 821.)

We find a detention occurred despite the fact that Crutcher did not make any verbal commands. “It is not the nature of the question or request made by the authorities, but rather the manner or mode in which it is put to the citizen that guides us in deciding whether compliance was voluntary or not.” (Franklin, supra, 192 Cal. App. 3d at p. 941.) No matter how politely Crutcher may have stated his probation/parole question, any reasonable person who found himself in defendant’s circumstances, suddenly illuminated by a police spotlight with a uniformed, armed officer rushing directly at him asking about his legal status, would believe themselves to be “under compulsion of a direct command by the officer.” (People v. McKelvy, supra, 23 Cal. App. 3d at p. 1034.) Crutcher’s actions set an unmistakable “tone,” albeit largely through non-verbal means, “indicating that compliance with the officer’s request might be compelled.” (In re Manuel G., supra, 16 Cal.4th at p. 821.)

Valid traffic stop quickly led to reasonable suspicion just from observations. The officer filled out a warning in two minutes and then told the driver she was free to leave, but asked questions. That quickly led to consent, and the interior of the car had been tampered with, so the officer could search further. United States v. Diaz-Medina, 2007 U.S. Dist. LEXIS 83470 (D. Utah November 8, 2007).*

Defendant who left his belongings at the side of the road in plastic bags along with a TV set after moving out of a mobile home who called somebody to assist in picking them up did not abandon them. He did, however, have a reduced expectation of privacy from the placement and appearance of the property. The defendant had been arrested, and the police decided to go back and take the property as evidence. Commonwealth v. Nattoo, 70 Mass. App. Ct. 625, 876 N.E.2d 431 (2007):

The reason that the defendant’s motion to suppress fails is because of his inability to establish that his subjective expectation of privacy was reasonable. Unlike certain exceptions to the warrant requirement, where the burden of demonstrating that an exception applies is allocated to the Commonwealth, here the defendant “must bear the threshold burden of showing that a warrantless search or seizure occurred.” Commonwealth v. Bly, 448 Mass. at 490, citing Commonwealth v. D’Onofrio, 396 Mass. 711, 714-715 (1986). Put differently, before a defendant may thrust on the Commonwealth the burden of justifying why a warrant was not obtained, that defendant must establish initially that a search in the constitutional sense has occurred. See Commonwealth v. D’Onofrio, supra at 714 (“Unless the defendants had a reasonable expectation of privacy at [the premises] when the officer made observations there, there was no ‘search’ within the meaning of the Fourth Amendment”). In these circumstances, the defendant must demonstrate both that he had a subjective expectation of privacy and that society would recognize such expectation as reasonable. See Commonwealth v. Mamacos, 409 Mass. at 639; Commonwealth v. Montanez, 410 Mass. at 301.

. . .

The defendant indeed may not have relinquished his purpose, which was to retain the property without interference by others. He did, however, surrender control of the property in a manner that was inconsistent with a reasonable expectation that the bags would be left undisturbed. “In evaluating the reasonableness of an individual’s expectation of privacy, we look to a number of factors, including … whether the defendant controlled access to the area … and whether the area was freely accessible to others.” Commonwealth v. Montanez, 410 Mass. at 301-302. “[A]n individual can have only a very limited expectation of privacy with respect to an area used routinely by others.” Sullivan v. District Ct. of Hampshire, 384 Mass. 736, 742 (1981). We look also to whether a defendant “has taken normal precautions to protect his privacy.” Commonwealth v. Berry, 420 Mass. 95, 106-107 & n.9 (1995) (cigarettes and matches left on counter in public area of police station; expectation of privacy not reasonable).

Here, the defendant left his property by the side of the road. He could not reasonably have been confident that the bags would not be taken by a traveler who thought that the contents had been discarded, or who had no concern whether the bags belonged to another. Nor could he rely reasonably on an assumption that a passerby would not look in the bags. While, as the judge noted, there was no evidence regarding the level of use of the road, it is not disputed that the road was available for public use. “It is well established that, in general, government agents may make a warrantless search of areas in which the public has free access ….” Commonwealth v. Krisco Corp., 421 Mass. 37, 42-43 (1995), citing United States v. Hall, 47 F.3d 1091, 1095 (11th Cir.), cert. denied, 516 U.S. 816 (1995). The facts here differ considerably from those of Commonwealth v. Straw, 422 Mass. 756, 758-762 (1996) (locked briefcase thrown into fenced-in curtilage), and Commonwealth v. Small, 28 Mass. App. Ct. at 535-536 (reasonable expectation of privacy where luggage in airline transit unclaimed for three hours). The police had no less a right to look in the bags, or to carry them away, than did any passerby.

Comment: The logic of this opinion is compelling, and one cannot quarrel with it.

“[*P13] In the instant case, however, we are asked to consider as a matter of first impression in this Commonwealth whether an officer may similarly order a passenger of a lawfully stopped vehicle to remain inside or get back into the vehicle. We join the numerous other state and federal courts which have held that an officer may, in fact, do so without violating an individual’s Fourth Amendment rights.” For the first time, Pennsylvania follows Pennsylvania v. Mimms, 434 U.S. 106 (1977), and Maryland v. Wilson, 519 U.S. 408 (1995) under state law, which it had practically done, anyway. Commonwealth v. Pratt, 2007 PA Super 217, 930 A.2d 561 (2007).

Convict plaintiff already in prison could not make a Fourth Amendment false arrest claim concerning allegations made by prison officials that he was involved in an escape attempt and was put in Ad Seg as a result. Zimmerman v. Seyfert, 2007 U.S. Dist. LEXIS 52388 (N.D. N.Y. July 19, 2007).*

The search of a box with a relatively small quantity of some meth ice in it was harmless on the totality. There was significantly more ice testified to procured and sold by defendant, and this seizure was not even mentioned in the closing argument. United States v. Aguilar, 237 Fed. Appx. 956 (5th Cir. 2007) (unpublished):

There was overwhelming evidence that Aguilar purchased ice methamphetamine in quantities of quarter-pounds and larger from two different suppliers, that he sold ice on numerous occasions in quantities ranging from grams to ounces, and that he and a supplier opened a used car business together as a front for their drug business. Although the evidence against Aguilar consisted largely of the testimony of informants, there is no basis for concluding that the jury would have rejected the informant testimony in the absence of the evidence of the methamphetamine found in the box.

Window tint violation justified defendant’s stop. Since the officer could not see the people inside, he ordered them all out. When the door opened, he could smell marijuana, and that justified the search. United States v. Moody, 240 Fed. Appx. 858 (11th Cir. 2007) (unpublished).*

Moore v. Andreno, 505 F.3d 203 (2d Cir. 2007):

Courts have long acknowledged that a person has the right to establish a private sanctum in a shared home, a place to which he alone may admit or refuse to admit visitors. Yet, with the recurrence of domestic violence in our society, we are loath to assume that a man may readily threaten his girlfriend, take her belongings, lock her out of part of his house, and then invoke the Fourth Amendment to shield his actions. Deputies Joseph A. Andreno and Kurt R. Palmer, responding to an emergency call, were faced with reconciling these two competing interests. While they misapplied the relevant constitutional calculus, they are police officers, not lawyers or mathematicians. And thus, because the law governing the authority of a third party to consent to the search of an area under the predominant control of another is unsettled, and because Deputies Andreno and Palmer made a reasonable mistake in applying that law to the situation with which they were confronted, the district court erred in denying them summary judgment on qualified immunity grounds.

Plaintiff appeared to have abandoned his property in his hotel room when he planned to keep his stuff in the room for four days but be gone, having paid for it. However, he was gone for an additional week or so, and he failed to respond to voicemails to his cellphone. The hotel moved his stuff out, and found a lot of cash, and called the police. Cook v. United States DEA, 2007 U.S. Dist. LEXIS 77769 (W.D. Pa. October 19, 2007).*

Officer had probable cause to believe that the defendant was the suspect in a credit union robbery that just occurred. He was on foot, matched the description, was sweating, and had paperclipped money bulging in his cargo pants pockets. United States v. Morgan, 2007 U.S. Dist. LEXIS 77826 (N.D. Ill. October 19, 2007).*

Defendant had child porn on a server, and it was downloaded by the FBI. This is not a search. “We further reject Genao’s argument that the evidence seized from his home and computer should have been suppressed. With regard to the downloading of files from Genao’s servers by the undercover agent, this did not constitute a warrantless search and seizure because Genao made these files available to the public.” United States v. Genao, 2007 U.S. App. LEXIS 6276 (2d Cir. March 16, 2007)* (unpublished).

Officer’s belief that defendant’s live-in girlfriend had apparent authority was based on the officer’s prior experience with them from a domestic disturbance call and her actions when she consented to the entry. “In sum, we conclude that a reasonable officer in the position of Officer McGee would have believed that Hays shared joint access to the home with Crabb, and thus possessed the authority to consent to the agents’ entry into and search of the house.” United States v. Crabb, 221 Fed. Appx. 722 (10th Cir. 2007)* (unpublished).

Execution of warrant did not unreasonably exceed the terms of the warrant to subject the officers executing it to civil liability. Gagliardi v. Fisher, 513 F. Supp. 2d 457 (W.D. Pa. 2007)*:

It cannot be said that the scope of the search at issue in this case, as defined in the warrant, exceeded reasonable bounds with respect to the objective of locating evidence related to the preparation or origin of a letter that was believed to have been forged. Id. at 84-85 (“Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase.” (quoting Ross, 456 U.S. at 824)). So long as there exists “a nexus between the evidence to be seized and the alleged offenses,” a warrant is not invalid merely because it authorizes a search for a large amount of documents and records. United States v. Yusuf, 461 F.3d 374, 394 (3d Cir. 2006) (quoting United States v. American Investors of Pitts., 879 F.2d 1087, 1105-06 (3d Cir. 1989). “The breadth of items to be searched depends upon the particular factual context of each case” and the “information available to the investigating agent that could limit the search at the time the warrant application is given to the magistrate.” Id. at 395. Plaintiff’s complaint, which includes extensive allegations of facts, even accepting those facts as true and drawing all reasonable inferences from those facts in favor of plaintiff, does not state a claim entitling plaintiff to relief under any viable legal theory relating to the scope of the search. Accordingly, the court must dismiss count 11 of the complaint, insofar as it alleges a violation of the Fourth Amendment, with prejudice.

Multiple constitutional seizures may occur during a stop. Aside from the stop itself, unzipping defendant’s jacket is a seizure. In this case, it was reasonable. United States v. Askew, 482 F.3d 532 (D.C. Cir. 2007. D.C. Cir. decides to explain what is permissible under Terry, apparently to clarify, which is at least worth reading, too:

To resolve this case, we must initially review the Supreme Court’s case law analyzing the following key question: What investigative steps are permissible and impermissible during a Terry stop?

We begin by describing the category of impermissible steps. A Terry stop occurs when the police have “reasonable suspicion” of criminal activity — but the police’s justification has not yet risen to the level of “probable cause” needed for an arrest. Because the police do not yet have probable cause for an arrest, the police during a Terry stop may not engage in what the Supreme Court has called a “full search.” Terry, 392 U.S. at 26; see id. at 30 (“general exploratory search for whatever evidence of criminal activity [officer] might find”); see also Minnesota v. Dickerson, 508 U.S. 366, 378, 124 L. Ed. 2d 334 (1993) (“evidentiary search,” namely one raising prospect that officer will “rummage and seize at will” beyond “specific authorization”)(internal quotation marks omitted); Florida v. Royer, 460 U.S. 491, 499 (1983) (plurality opinion of White, J.) (“In the name of investigating a person who is no more than suspected of criminal activity, the police may not carry out a full search of the person or of his automobile or other effects.”) (emphasis added). As the Court has explained, such a “full search” — sometimes called an exploratory or evidentiary search — occurs when the police rummage through a person’s pockets, bags, and clothing for contraband the person may be carrying, such as stolen goods, drugs, or other tangible evidence of crime. See Sibron v. New York, 392 U.S. 40, 64-65 (1968).

Other than the forbidden “full search,” the Supreme Court has held that other investigative steps during a Terry stop are permissible if “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20; see also Hiibel, 542 U.S. at 185. The Terry “reasonably related in scope” standard is far from self-defining, but the Supreme Court’s rulings have provided guidance — permitting “several investigative techniques which may be utilized effectively in the course of a Terry-type stop.” Summers, 452 U.S. at 700 n.12 (quoting 3 LAFAVE, SEARCH AND SEIZURE § 9.2 pp. 36-37 (1978)). The permissible investigative steps include the following:

. The police may ask questions to the individual who has been stopped. See Terry, 392 U.S. at 6-7 (“Officer McFadden approached the three men, identified himself as a police officer and asked for their names.”); see also United States v. Hensley, 469 U.S. 221, 229 (1985) (recognizing police ability to “ask questions, or check identification” during Terry stop); Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (“[T]he officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions. But the detainee is not obliged to respond.”); Terry, 392 U.S. at 34 (White, J., concurring) (“[T]he person may be briefly detained against his will while pertinent questions are directed to him.”).

. When the police have a reasonable basis for believing that a traveler is carrying luggage that contains drugs, the police may seize the luggage “briefly to investigate the circumstances” that give rise to their suspicion, and they may subject the luggage to a dog sniff for narcotics. United States v. Place, 462 U.S. 696, 706-07 (1983); see also Illinois v. Caballes, 543 U.S. 405, 408-09 (2005) (allowing dog sniff of motorist’s lawfully stopped car).

. The police may obtain fingerprints; in particular, such fingerprinting is authorized “if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with [a] crime, and if the procedure is carried out with dispatch.” Hayes v. Florida, 470 U.S. 811, 817 (1985).

. A witness show-up is permissible: When it is “known that an offense has occurred in the area, the suspect may be viewed by witnesses to the crime.” Summers, 452 U.S. at 701 n.12 (quotation marks omitted). (Whether the resulting witness identification may be admitted as evidence in a criminal trial is an analytically separate question. See Manson v. Brathwaite, 432 U.S. 98, 111-14 (1977); United States v. Washington, 359 U.S. App. D.C. 185, 353 F.3d 42, 44-45 (D.C. Cir. 2004).)

. . .

We assess on the other side of the Fourth Amendment balance the extent of the additional intrusion on individual privacy — that is, the additional intrusion caused by unzipping the outer jacket. Here, to begin with, the police did not conduct a “full search,” which Terry ruled flatly impermissible in a stop based solely on reasonable suspicion. 392 U.S. at 26. In unzipping Askew’s jacket, Officer Willis was not conducting a “general exploratory search for whatever evidence of criminal activity he might find.” Id. at 30. Moreover, the primary intrusions on Askew’s individual privacy resulted from the forcible detention itself and the initial protective frisk, both of which were plainly permissible under Terry. Our focus therefore is on the additional step of unzipping a jacket to reveal clothing underneath. Contrary to Askew’s contention, this is a relatively minimal additional interference with individual privacy. The Supreme Court in Pennsylvania v. Mimms, for example, authorized officers conducting traffic stops to order the driver out of the car. The Court reasoned that during a valid stop, the “additional intrusion” that leaving the car imposed upon the driver’s personal privacy “can only be described as de minimis. The driver is being asked to expose to view very little more of his person than is already exposed.” 434 U.S. 106, 111 (1977). That provides a fair description of the additional intrusion in this case as well.

. . .

In sum: Balancing the competing interests and taking our cues from Supreme Court precedent, especially Hayes, we conclude that the police during a Terry show-up may reasonably maneuver a suspect’s outer clothing (such as unzipping an outer jacket so a witness can see the suspect’s clothing) when taking that step could assist a witness’s identification. In this case, therefore, the Fourth Amendment allowed the police to initially unzip Askew’s outer jacket so that the robbery victim could see Askew’s clothing, thereby assisting the victim’s identification during the show-up. That step was “reasonably related in scope to the circumstances which justified” stopping Askew in the first place. Terry, 392 U.S. at 20.

Prosecutorial immunity for allegedly ordering illegal wiretaps could not be decided at this point in the proceedings. There was no absolute immunity because this involved alleged illegal searches they ordered, and plaintiff alleged enough to go forward until the defense came up with more to defeat it. Bansal v. Russ, 513 F. Supp. 2d 264 (E.D. Pa. 2007).*

Defendant’s stop for a traffic offense was valid, and the officer detected “an especially strong smell of marijuana that he suspected emanated from the trunk. Given these facts, [the officer] had probable cause to search the trunk” under the automobile exception. United States v. Carter, 2007 U.S. Dist. LEXIS 25519 (E.D. Va. April 5, 2007).

Defendant had no standing of a search of his co-defendant brother’s home. Defendant’s Franks challenge fails: “The Abdallahs have not made a substantial showing that allegations in the supporting affidavit were deliberate falsehoods or made with a reckless disregard for the truth.” The good faith exception also applies. Medicaid fraud “all records” warrant was valid because of the nature of the claimed crime. United States v. Abdallah, 2007 U.S. Dist. LEXIS 90196 (S.D. Tex. December 7, 2007).*

Observations from a citizen informant and an off-duty officer were sufficient to show reasonable suspicion. State v. Haynie, 2007 Tenn. Crim. App. LEXIS 931 (December 7, 2007):

Consequently, we conclude that Investigator Land acted with reasonable suspicion supported by specific and articulable facts supplied by his dispatcher, a known citizen informant, and an off-duty law enforcement officer that at least one of the occupants of the suspect vehicle was engaged in illegal activity when he activated his cruiser’s blue lights and stopped Defendant Ouzts’s vehicle. The Defendants do not challenge the validity of Defendant Ouzts’s consent to the ensuing search. Therefore, the trial court did not err by admitting the evidence recovered.

Where the evidence on consent is equally balanced, the government fails on its burden of proof on the voluntariness of consent. United States v. Metcalf, 2007 U.S. Dist. LEXIS 55188 (E.D. Tenn. July 30, 2007):

Officer Callahan and Mr. Noblitt testified to what the Court views as equally plausible versions of how the pertinent events may have unfolded on the day in question. Despite the vigorous cross-examination of each witness by opposing counsel, the Court could discern nothing which in any way materially disproved either alternative version of events. Under these circumstances, and in the absence of any substantially corroborative or impeaching evidence on either side, the Court must conclude that the evidence is equally balanced.

Accordingly, the Court finds that the Government has failed to carry its burden of proof of establishing, by a preponderance of the evidence, the Defendant’s consent to the warrantless search of his residence.

Defendant arrested at a motel was asked what room he stayed in, and he told them. It was not a question designed to elicit an incriminating response. Consent was valid. Timmons v. State, 961 So. 2d 378 (Fla. App. 4th Dist. 2007).*

Defendant’s stop on information from another agency on a named informant’s information lacked reasonable suspicion of criminality to justify defendant’s detention. Jamerson v. State, 870 N.E.2d 1051 (Ind. App. 2007):

While a tip’s tendency to identify a determinate person and predict future behavior may support its reliability and the corresponding reliability of its assertion of criminality, here there was never any assertion of criminality in the tip, so the fact that Jamerson was, as described, sitting in a car in the back of a house at a certain address does nothing to buttress a claim of reasonable suspicion. See Washington v. State, 740 N.E.2d 1241, 1245-46 (Ind. Ct. App. 2000), trans. denied. The State made no argument at trial, nor does it claim upon appeal, that the tip from the residents of the house included any assertion of illegality. See id.

Defendant was stopped for a seatbelt violation, and the officer’s prior knowledge of defendant’s propensity for violence justified a patdown, which produced nothing. Then the officer asked about contraband and defendant admitted that he had some marijuana. That question went too far, and the marijuana was suppressed. Pearson v. State, 870 N.E.2d 1061 (Ind. App. 2007).

Officers received a 911 call with anonymous information about defendant’s drug dealing. Officers found him and engaged in conversation, which was legitimate, and reasonable suspicion developed from being in a drug trafficking area, nervousness, and ambiguity in defendant’s answers as to what he was doing there. State v. Taylor, 966 So. 2d 631 (La. App. 5th Cir. 2007).*

Claimant passed through a TSA checkpoint, and the officers decided to search his bags. When cash was found in his shaving kit, he became excessively nervous, and that permitted a greater search for safety reasons. United States v. Eighty Thousand Six Hundred Thirty-Three Dollars ($80,633.00), 512 F. Supp. 2d 1196 (M.D. Ala. 2007).

Terry stop does not have to be based on information that is contemporaneous with the stop. Here, it was information from the previous day, and that was valid. United States v. McIntosh, 2007 U.S. Dist. LEXIS 8670 (W.D. Pa. February 6, 2007).

“The agents initially relied on an informant who identified Nunez as an illegal alien and stated that Nunez would attempt to purchase a firearm from a dealer who did not require an ATF background check. Although the basis of the informant’s information is not on record, nor is there evidence of his reliability beyond Agent Barger’s statement to that effect, the informant’s information was specific and corroborated.” United States v. Nunez-Sanchez, 478 F.3d 663 (5th Cir. 2007).*

Defendant’s wife’s consent to search was valid. After defendant was arrested, he was removed from the premises and then his wife gave consent. “[O]nce defendant was legally off the premises, his case was like Matlock and not like Randolph and his consent was not necessary for a reasonable search of his residence.” United States v. DiModica, 2007 U.S. Dist. LEXIS 8735 (W.D. Wis. February 6, 2007).*

Defendant owned computer servers that were in Amsterdam, and the company with possession of the computers had complete access to them. At the request of the FBI, they mapped the computers and later told the FBI that the computers were being FedExed to Phoenix. When the computers arrived in Phoenix, the FBI got a search warrant to seize the computers. The warrants were valid. United States v. Kilbride, 2007 U.S. Dist. LEXIS 8432 (D. Ariz. February 5, 2007).*

Probable cause existed from the officer’s report that defendant broke a window to toss drugs out of the apartment, among other things, as officers were entering with an arrest warrant. United States v. Pignard, 2007 U.S. Dist. LEXIS 8611 (S.D. N.Y. February 2, 2007)*:

Judge Weiss was presented with information that gave rise to probable cause. Pignard was observed by Piermont police officers dropping a glassine envelope containing cocaine out of a bedroom window (which he smashed in order to get access to the outside) as the FBI were entering his home to arrest him. Defendant was a known drug dealer: Judge Weiss was told that: (1) Pignard had a prior felony narcotics conviction for possessing over an eighth of cocaine; (2) Pignard had previously admitted that he dealt cocaine to pay his bills; and (3) that a prior search of Pignard’s residence had led to the seizure of a scale and packaging materials in his bedroom. (Holihan Search [*11] Warrant Aff. P 8).