In a case handled in the trial court by one of Louisiana’s most respected lawyers and by me on appeal in the Fifth Circuit, the Northern District of Mississippi held that we were not ineffective for not arguing that defendant’s wife’s seizure of evidence in a joint criminal enterprise was distinct from her search. The facts are somewhat convoluted, but the defendant’s wife was involved in a bingo revenue skimming operation with the defendant, and she moved out when she suspected him of having an affair. Yet, she still had keys to the house, the code to the alarm system, and participated in altering records to effect the skim after they separated. There is no way defendant can prevail, so the § 2255 is denied without a hearing. The defendant assumed the risk that his wife would rat him out to the government and take information on the skimming operation to the IRS and FBI. [The District Court also noted the government’s response to the 2255 was faulty, too.] Shelton v. United States, 2007 U.S. Dist. LEXIS 85244 (N.D. Miss. November 16, 2007):

Jimmy Doug Shelton argues that his trial and appellate counsel were ineffective in failing to challenge Cheryl’s seizure of the evidence under the Fourth Amendment. He has cobbled together the holdings from several cases to support this argument, and if the cases had meshed better, he might have won the day. Unfortunately for Shelton, the fragments he attempts to assemble into a new rule of law arise out of factual scenarios distinguishable from the case at hand, and, in the end, cannot stand together.

. . .

Resolution of the Propriety of the Seizure of Evidence

A dilemma left unresolved under the authority cited by the parties is whether a spouse can have sufficient authority to consent to a search of the premises — yet have insufficient authority [*17] to consent to the seizure of evidence therefrom. The court concludes that such a situation is theoretically possible — but has not arisen under the facts of this case. As discussed below, the court finds that Cheryl Shelton had sufficient authority to seize the evidence in question and provide it to the government without a warrant. In addition, even if the court were to find that Cheryl Shelton did not have sufficient authority to seize the evidence without a warrant, Jimmy Doug Shelton assumed the risk that she would nonetheless do so, and the seizure was thus reasonable.

Jimmy Doug Shelton argues that the warrantless seizure of the papers from his home is presumptively unconstitutional unless it falls within one of the widely recognized exceptions to the warrant requirement, e.g., exigent circumstances, consent, plain view, national security, inventory search, or inevitable discovery. The exception at issue in this case is consent–Cheryl Shelton’s power to give the government permission to search the Jimmy Doug Shelton home–and permission to seize the evidence used against her husband. A fact complicating the court’s analysis of this issue is Cheryl Shelton’s decision to move out of the marital home after discovering evidence that her husband had been unfaithful to her. Had Cheryl Shelton remained in the marital home, she would clearly have had complete custody and control of the home and its contents and thus could have given valid consent to search and seize anything in the home and provide it to the government. Matlock v. United States, 415 U.S. 164, 171, n. 7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (mutual use of property, or joint access or control of it is generally sufficient). In this case, however, Cheryl Shelton had moved out of the marital home and moved in with her sister. She retained a key to the home, as well as the security code, and had agreed with her husband that she would periodically enter the home to retrieve her mail and other items. This arrangement appears to be an effort by each spouse to maintain civility during a turbulent time in their marriage. Both spouses understood that Cheryl Shelton had authority to enter the home outside the presence of Jimmy Doug Shelton. As such, no matter what restrictions she and her husband decided she should observe while there, she had unfettered–and unsupervised–access to everything inside. Cheryl and Jimmy Doug Shelton were still married–and could conceivably have reconciled if they had chosen to do so. Indeed, neither Cheryl nor Jimmy Doug Shelton took any legal steps to divorce. They were also both involved in the illegal bingo skimming operation.

This set of circumstances gave Cheryl Shelton authority to search the home and seize evidence from it–whether she acted as an agent of the government or for her own reasons. In addition, Jimmy Doug Shelton assumed the risk that his wife (who was also his partner in the bingo skimming operation) would turn on him by searching and seizing evidence of their crimes and turning it over to the government.

. . .

The Supreme Court has applied the Fourth Amendment to a seizure in the absence of a search [Soldal]–and held that a seizure may implicate the Fourth Amendment even when a defendant’s privacy interests in the seized objects are completely extinguished. However, as a matter of reason, many of the factors used to determine whether a defendant has a reasonable expectation of privacy in a home (to determine the reasonableness of a search) can also be used to determine the degree of a third party’s connection to a premises (to determine the reasonableness of a seizure). Naturally, the greater the connection a third party has to a premises, the lower the defendant’s expectation of privacy becomes–and the more reasonable a search or seizure authorized by that third party appears. These factors rise and fall together.

Wives and husbands are bound in the closest of relationships–matrimony–and they usually share a residence. As such, situations under which a wife could not consent to a search of the premises–and the seizure of evidence therefrom–will be rare. The intimate nature of the marital relationship gives either spouse the authority to consent to searches and seizures within the marital home. Cheryl Shelton chose to move out of the marital home and move in with her sister because Cheryl believed her husband had been unfaithful to her. Neither party, however, took any legal steps to initiate a divorce, and Jimmy Doug Shelton consented to Cheryl Shelton’s unfettered access to the home. He took no steps to hide the evidence of illegal skimming from the charity bingo operation from his wife by removing the evidence from the home or locking it away.

Prior history: United States v. Shelton, 181 F. Supp. 2d 649 (N.D. Miss. 2001), aff’d 337 F.3d 529 (5th Cir. 2003), cert. denied 540 U.S. 1229, 124 S. Ct. 1507, 158 L. Ed. 2d 172 (2004).

Officers were coming to 3513 to execute a search warrant, and one officer pulled his gun out. A gunshot was heard and one officer was hit in the vest. Officers thought a shot had been fired from 3511, and they returned fire. After firing into 3511, the officers went in to conduct a protective sweep and look for shooting victims. The protective sweep produced contraband. Even if the first gunshot was an accidental shooting of one officer by another, it produced return fire from the officers who believed at the time that the shots came from 3511. Therefore, the entry into 3511 was not unreasonable. State v. Cameron, 2007 Ohio 6066, 2007 Ohio App. LEXIS 5330 (8th Dist. November 15, 2007).

[*P24] First, there is no evidence in the record to suggest that what occurred here was anything but an accident. The police did not arrive on the scene and intentionally shoot at the house in an effort to gain entry. If the evidence suggested such a motive, our task would be simple. Obviously, the police cannot deliberately create the exigent circumstances in an effort to justify entering a residence without a warrant. Jenkins, supra.

[*P25] Second, even if officers had been informed by Detective Bush that he accidentally fired the initial shot, the police would be justified in conducting a protective sweep to search for injured individuals. See Minnesota [v. Olson], supra.

The confidential informant gave detailed information about defendant and his travels. The police did a trash pull, and the trash pull was a treasure trove of information that corroborated the informant, including a boarding pass that put defendant on the same flight the informant said he was on. There was thus probable cause. State v. Martin, 2007 Ohio 6062, 2007 Ohio App. LEXIS 5331 (8th Dist. November 15, 2007).

George Washington University room was searched for marijuana by a college supervisor with campus police (actually special police officers (SPOs) of D.C. with limited authority to arrest) standing by outside. The search was valid as campus administrative search without state action. The SPOs are only acting as police when they arrest. Here, they were standing by outside. Limpuangthip v. United States, 932 A.2d 1137 (D.C. App. 2007):

We have not articulated what is required to create a nexus with the state where the SPO has not made an arrest. However, in determining whether state action exists, we have not focused on the fact of an arrest alone. For instance, although an arrest took place in Lucas v. United States, 411 A.2d 360, 362 (D.C. 1980) [cited in Treatise], we determined whether SPOs were public officers by focusing broadly on whether they were performing their “police” functions. In that case, two SPOs employed by a department store approached and questioned a customer, inquired whether she had receipts, and conducted a search after the plastic tags in her bag set off a “sensormatic device,” which the SPOs monitored. Id. at 362. We held that the SPOs were acting as agents of the state “because of the nature of their duties.” Id. We further stated that “when they are performing their police functions, they are acting as public officers and assume all the liabilities attaching thereto.” Id. We also concluded that the SPOs were significantly involved in the use of the sensormatic device because they operated and monitored it. Id. Thus, we held that there was sufficient state action to trigger Fourth Amendment protections.

. . .

In this case, the SPOs were “deputized” with special legal powers pursuant to D.C. Code § 23-582(a); however, their actions were directed and controlled by the University whose administrative official, Ms. Davis, made the decision to conduct the search. From the moment Ms. Davis telephoned the SPOs and asked them to accompany her to room 715, Ms. Davis was in control of the situation. She alone spoke to appellant and conducted the search, while the SPOs took little, if any, initiative. They accompanied Ms. Davis to room 715 at her request, produced a master key and evidence bags for her use, and held the evidence bags while she conducted the search. We have held that SPOs are not in all their actions equated with regular police officers. Woodward & Lothrop v. Hillary, supra, 598 A.2d at 1146 (citing Alston, supra, 518 A.2d at 443). Rather, the relevant circumstances surrounding the actions in question must be weighed. While the fact that an SPO wore a uniform and carried a baton and a radio, as occurred here, may be a relevant factor, see Williams, supra, 341 U.S. at 99 (fact that SPO “went about flashing his badge” relevant to whether he acted under color of law), it does not of itself amount to an assertion of state authority. More is required.

In contrast to the passive behavior of the SPOs in this case, in each of the cases discussed above in which a court found that the SPOs acted as state agents, the SPOs were actively asserting their authority from the state to a significant degree at the time of the challenged act.

Comment: So, under Lewis, if the SPOs came in the room, it would have tranformed the search from private action of GWU to state action. They obviously were trained to know their limits, and their merely standing by is not aiding in the search.

Under the “no good deed goes unpunished” category:

A Michigan homeowner sued a conservation officer who came onto his unoccupied property after seeing tiretracks stop and footprints continue in the snow. The officer conducted a property check to assure himself that the house had not been broken into because the curtains were open and unoccupied houses usually have the curtains drawn, and open curtains could indicate a burglar inside looking for approaching persons. The officer determined there was no break-in, but left his business card. The plaintiff had a security video running, and he sued the officer for nominal damages. The defendant agreed in the district court that the homeowner had a reasonable expectation of privacy, but determined that the officer’s entry onto the land and even looking in the windows was such a low level of intrusion that it did not satisfy the second Katz requirement. Taylor v. Mich. Dep’t of Natural Res., 502 F.3d 452, 2007 FED App. 0377P (6th Cir. 2007):

The nature of the property in which plaintiff claims an expectation of privacy weighs in favor of finding that society is willing to recognize that expectation as reasonable. After all, Officer Rose’s “property check” entailed observation of the interior of the home, “the prototypical and hence most commonly litigated area of protected privacy.” Kyllo v. United States, 533 U.S. 27, 34 (2001). However, it is important to note that Officer Rose did not enter the plaintiff’s home. Rather, he checked the doors and windows to assure that they were secure, and he engaged in a relatively unintrusive view into the building’s interior, per departmental custom. His survey of the premises lasted only around five minutes. “[T]he Fourth Amendment has drawn a firm line at the entrance to the house,” requiring exigent circumstances to justify a warrantless search. Payton v. New York, 445 U.S. 573, 590 (1980) (emphasis added).

There is even an exception to this rule based on suspicion of burglary. Past cases reveal an “established precedent that the police may ‘enter a residence … [if they] believe that there is a burglary in progress.” United States v. McClain, 430 F.3d 299, 304-305 (6th Cir. 2005), (citing United States v. Reed, 141 F.3d 644, 649 (6th Cir. 1998)). While such cases have indicated that probable cause and exigency are both required to justify warrantless entry, it makes sense for the law to impose a greater burden on officers entering a home to ensure its safety than it demands to justify looking inside through open windows. Officer Rose did not enter plaintiff’s home. He observed the interior of the house and its exterior from the outside only. The Supreme Court has stated that even the fact “that [an] area is within the curtilage does not itself bar all police observation.” Ciraolo, 476 U.S. at 213. Thus it becomes critical to examine the extent of the government intrusion, which Widgren has prescribed should include an inquiry into the methods used and purpose for the conduct at issue. Widgren, 429 F.3d at 583.

Considering Officer Rose’s limited methods of observation and the purpose of his conduct, we conclude that this “property check” is not a Fourth Amendment search. In terms of methods, existing Fourth Amendment jurisprudence distinguishes between cases in which officers engaged in “ordinary visual surveillance” and those in which the officers employ “technological enhancement of ordinary perception.” Kyllo, 533 U.S. at 31, 33. … Officer Rose, however, engaged in only a brief, minimally intrusive visual inspection.

A violation of state law does not make an arrest unreasonable per se. United States v. Laville, 48 V.I. 1012, 480 F.3d 187 (3d Cir. 2007):

Application of a per se rule could also lead to the creation of different standards governing arrests made by peace officers of different states for the same federal offense. Conceivably, fifty different constitutional standards of arrest, each one dictated by a respective state’s positive and decisional law, could result. What would be reasonable and constitutional in one state could be unreasonable and unconstitutional in another. Meanwhile, federal courts of appeals would be compelled to recognize–and, indeed, to perpetuate–such disparities among the states and territories within their jurisdictions. If, for instance, we were to uphold the District Court’s application of a per se rule here, we might nevertheless conclude, in some future case, that an otherwise identical arrest occurring in New Jersey is reasonable and constitutional. Such a patchwork of federal constitutional standards, arising as it were from the individual legislative enactments of the various states and territories, is inconsistent with our single federal constitution. See Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 347-48 (1816) (noting “the importance, and even necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution”).

Moreover, a per se rule could well create disparity in the constitutionality of arrests performed by state and federal officers for the same offense within the same state or territory. It is easy to imagine a scenario in which officers of the VIPD and officers of the ICE, working on a joint law-enforcement detail, simultaneously approach a group of suspected illegal aliens under circumstances similar to those presented here. Acting on what they believe to be probable cause, a VIPD officer and an ICE officer make simultaneous, warrantless arrests. If we were to apply a per se rule, we would likely be compelled to find that the arrest made by the VIPD officer was unreasonable per se and, therefore, unconstitutional, whereas the identical arrest made by the ICE officer was reasonable and constitutional. The Fourth Amendment does not permit, much less require, any such thing.

By engrafting territorial procedural requirements onto the federal constitutional standards governing seizure, the District Court went beyond simply determining the reasonableness of Laville’s arrest. Rather, the Court effectively required Santos to be certain that a misdemeanor had been committed, by virtue of having witnessed its commission, and to ensure that conviction was possible. A significant body of caselaw makes clear why any such requirements simply cannot be, and why a Fourth Amendment determination cannot turn on the exigencies of the law of a particular state or territory or an officer’s knowledge of the elements of a particular offense and whether each element has been satisfied. “The test is one of federal law, neither enlarged by what one state may have countenanced nor diminished by what another may have colorably suppressed.” Elkins v. United States, 364 U.S. 206, 223-24 (1960). As the Supreme Court emphasized in Draper v. United States, there is a “‘difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search.'” 358 U.S. 307, 311-12 (1959) (quoting Brinegar v. United States, 338 U.S. 160, 173 (1949)). And, as Judge Learned Hand recognized more than sixty years ago, the “‘reasonable cause’ necessary to support an arrest cannot demand the same strictness of proof as the accused’s guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties.” United States v. Heitner, 149 F.2d 105, 106 (2d Cir. 1945) (quoted in Draper, 358 U.S. at 312 n.4); see also Graham v. Connor, 490 U.S. 386, 396, 104 L. Ed. 2d 443 (1989) (stating that in determining whether use of force violates the Fourth Amendment, “‘reasonableness’ … must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight”).

And it is reasonableness that is the central inquiry under the Fourth Amendment. United States v. Williams, 417 F.3d 373, 376 (3d Cir. 2005). “[S]ufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment.” Hill v. California, 401 U.S. 797, 804 (1971); see also Locke v. United States, 11 U.S. (7 Cranch) 339, 348, 3 L. Ed. 364 (1813) (recognizing that probable cause “means less than evidence which would justify condemnation”). Probable cause exists whenever reasonably trustworthy information or circumstances within an arresting officer’s knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed by the person being arrested. Draper, 358 U.S. at 313; Myers, 308 F.3d at 255.

Reasonable suspicion was based on the defendant’s drug history and apparent drug deals going on. Further detention for dog sniff was justified. United States v. Ramirez, 479 F.3d 1229 (10th Cir. 2007).*

Defendant on supervised release had the same rights of privacy in his girlfriend’s house that he would have in his own house. He was subject to searches, and there was reasonable suspicion. United States v. Taylor, 482 F.3d 315 (5th Cir. 2007):

Taylor’s rights while on supervised release are more limited than those of the average citizen. In United States v. Knights, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001), the Supreme Court considered the effect of a consent statement similar to the one here on the warrantless search of a probationer’s home. The Court declined to decide “whether Knights’ acceptance of the search condition constituted consent in the Schneckloth sense of a complete waiver of his Fourth Amendment rights,” id. at 118, but instead determined that “the search of Knights was reasonable under [the] general Fourth Amendment approach of examining the totality of circumstances with the probation search condition being a salient circumstance.” Id. (internal quotation marks and citation omitted). After weighing the effect of the probation condition on Knights’s privacy interest, the Court concluded that the Fourth Amendment reasonableness inquiry “requires no more than reasonable suspicion to conduct a search of this probationer’s house. The degree of individualized suspicion required of a search is a determination of when there is sufficiently high probability that criminal conduct is occurring to make the intrusion on the individual’s privacy interest reasonable.” Id. at 121.

Presuming that Taylor was a houseguest, he was entitled to the same Fourth Amendment protections in his girlfriend’s apartment that he would have received in his own home. The question therefore, is whether there was a sufficiently high probability that criminal conduct was occurring. In this case, unlike in Knights, the police had a misdemeanor arrest warrant at the time they entered the house. They also had evidence suggesting that Taylor was in possession of a firearm and that he was in violation of the conditions of his parole. This evidence is sufficient to support a determination that the police had reasonable suspicion that Taylor may have been engaged in criminal conduct.

This analysis does not address the question whether the police’s warrantless entry may have violated the Fourth Amendment rights of Katherine Johnson, who occupied the apartment as a resident. Taylor cannot, however, reasonably assert that his Fourth Amendment rights have been violated by this intrusion. Under the Knights test, the search would have been lawful, had it occurred in his home.

The N.D. N.Y. at Syracuse held that the strip search of plaintiff was unconstitutional as a matter of law, and this was not error. He was searched twice, finding nothing, handcuffed, and then strip searched. There simply was no reason to believe that plaintiff had drugs on his person. Also, the defendants lost on qualified immunity. Plaintiff’s verdict was $5 compensatory and $25,000 punitive. The punitive award was justified based on the way plaintiff was treated before and during the strip search because the jury obviously credited the plaintiff. Derrick v. Aquino, 233 Fed. Appx. 73 (2d Cir. 2007)* (unpublished):

Defendants’ sufficiency challenge to the punitive damages award merits little discussion. Despite the verdict in defendants’ favor on Wilson’s false arrest and excessive force claims, the jury could reasonably have found that defendants’ illegal strip search was conducted out of evil motive or intent, or that defendants acted recklessly or callously. See Smith v. Wade, 461 U.S. at 56. Wilson testified that (1) he was familiar with the defendants prior to the incident; (2) defendants verbally abused him with obscenities suggesting that they were strip searching him because he was a drug dealer without regard to any belief that he was then in possession of drugs; (3) each defendant participated in punching and kicking him in the course of forcibly removing his clothes; and (4) at least one defendant physically taunted Wilson during the strip search. Drawing all inferences in Wilson’s favor as we are obliged to do in reviewing a sufficiency challenge, this evidence was sufficient to support a jury finding that the defendants, individually and as a group, acted with evil motive or intent, or at least recklessly or callously, in conducting the strip search.

Comment: Clients always tell me that they were told all kinds of bad things were going to happen to them in jail and that they were verbally abused by the police. Here, the jury credited the plaintiff on malice and whacked the defendants, at least comparing the compensatory and punitive damages.

While the Fourth Amendment claim of the officers’ entry into plaintiff’s house was a close call, the court instead moved to the qualified immunity question which it found not close at all. The officers acted reasonably in responding to a 911 call and entering based on the information they had. Dockery v. Doyle, 237 Fed. Appx. 426 (11th Cir. 2007)* (unpublished):

In Holloway, F.3d at 1338, this court held that, based on the exigent circumstances of a 911 call reporting arguing and gunshots, “police officers in this case did not violate the Fourth Amendment when they conducted a warrantless search of Appellant’s home.” In Burgos, F.2d at 1526, we held that although agents conducted a warrantless search of defendant’s home, the “threat of injury to the neighborhood and arresting officers justified the avoidance of delay involved in obtaining a warrant.” Nothing in these decisions establishes that Patterson’s conduct violated the Fourth Amendment.

Defendant’s flight on being questioned by the officer gave reasonable suspicion, and the district court erred in holding to the contrary. There was reasonable susicion on the totality. United States v. Lawson, 233 Fed. Appx. 367 (5th Cir. 2007)* (unpublished):

Lawson claims, however, and the district court held: the Officer had “no right to detain him and stop him” after Lawson refused to talk to him; and, indeed, the Officer’s actions “caused” Lawson’s flight. An attempt to initiate a consensual encounter on the street does not constitute provocation; to the contrary, “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place [and] by asking him if he is willing to answer some questions”. Royer, 460 U.S. at 497.

Lawson’s “unprovoked flight” upon seeing the Officer was “not going about one’s business; in fact, it [was] just the opposite”. See Wardlaw, 528 U.S. at 125. It, along with other factors, discussed below, gave the Officer reasonable suspicion to conduct a Terry stop. Id.

Lawson also contends the other factors cited by the Officer in justifying the Terry stop do not establish reasonable suspicion: for example, the general description of the robbery suspect as a “tall, large-built black male” has de minimis value in a predominantly black neighborhood; and the Officer’s conclusion that Lawson was in a high-crime neighborhood does not mean Lawson was the suspect. Each factor by itself may not justify a Terry stop; but, the totality of these factors, along with Lawson’s unprovoked flight, provided the Officer with reasonable suspicion to detain him. E.g., Sokolow, 490 U.S. at 7-8.

Plaintiff was awarded $900,000 and $545,973.50 in attorney fees and costs of $7,105.37 in a suit over a search warrant alleged to have been issued without probable cause. The appellate court found that the warrant was not facially invalid, and the officer was entitled to qualified immunity in any event, and the judgment for the plaintiff was reversed. Wood v. Emmerson, 155 Cal. App. 4th 1506, 66 Cal. Rptr. 3d 847 (4th Dist. 2007).*

The trial court ruled that the defendant was patted down without reasonable suspicion that he was armed. Even reasonable suspicion was iffy, because the defendant was cooperative and compliant and gave no reason to believe he was a danger to the officers. Affirmed. State v. Prevo, 2007 Ohio 5452, 2007 Ohio App. LEXIS 4789 (8th Dist. October 11, 2007).*

Defendant’s arrest under a Cleveland ordinance was unjustified under the ordinance, so the product of that arrest was properly suppressed. State v. Baker, 2007 Ohio 5450, 2007 Ohio App. LEXIS 4784 (8th Dist. October 11, 2007).*

Defendant was stopped next to a fire hydrant and an officer approached his car with a flashlight in hand, which revealed a handgun between the seats. Search for the handgun was valid. United States v. Fuller, 2007 U.S. Dist. LEXIS 75403 (E.D. N.Y. October 10, 2007).*

Record supports the USMJ’s finding of reasonable suspicion. “The only new argument is found in defendant’s objection that the magistrate judge erred in finding that his circuitous, elusive and nebulous actions while driving his vehicle late at night on deserted city streets gave rise to reasonable suspicion of criminal activity.” United States v. Howard, 2007 U.S. Dist. LEXIS 75683 (E.D. Tex. October 10, 2007)* (classic Terry).

Tennessee probation search of defendant’s computer was based on reasonable suspicion, and it was not unreasonable on the totality to use a program designed to scan the private spaces of the computer for illicit images. United States v. Herndon, 501 F.3d 683, 2007 FED App. 0353P (6th Cir. 2007):

The requisite weighing of Herndon’s diminished privacy interest in his computer activities and the government’s comparatively substantial interest in monitoring probationers’ activities leads us to the conclusion that Harrien required no more than reasonable suspicion to conduct a check of Herndon’s computer. Knights, 543 U.S. at 119-21. On this issue, Herndon contends that the information possessed by Harrien did not provide him with the necessary reasonable suspicion to conduct a check under Directive 5. The Supreme Court has directed reviewing courts making reasonable suspicion determinations to consider “the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks omitted); see also Payne, 181 F.3d at 788. “[T]he likelihood of [wrongdoing] need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard.” Arvizu, 534 U.S. at 274.

A federal inmate was entitled to a hearing on whether the government still possessed evidence that he was allegedly entitled to recover, even though he is doing life plus 327 months. United States v. Stevens, 500 F.3d 625 (7th Cir. 2007).*

Inquiry about drugs in defendant’s house when police were in it caused defendant to reach for his pocket, and that led the officer to grab defendant’s arm as he attempted to pass by, resulting in their both falling on the couch. The attempt to patdown for officer safety was justified. The granting of defendant’s motion to suppress was reversed. United States v. Ellis, 501 F.3d 958 (8th Cir. 2007).

Accidentally shooting a man fleeing from an arrest when the officer thought he pulled out a Taser is unquestionably a stop with force “intentionally applied” under Brendlin. The case was remanded for further discovery on the officer’s training on the use of handguns and Tasers for qualified immunity purposes. Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007):

Having identified the relevant facts, we now turn to the question of whether these facts establish that Purnell seized Henry within the meaning of the Fourth Amendment. “A person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement, through means intentionally applied.” Brendlin v. California, ___ U.S. ___, 127 S. Ct. 2400, 2405 (2007) (citations and internal punctuation omitted) (emphasis in original). Purnell unquestionably terminated Henry’s freedom of movement by means of physical force when he shot him; however, he contends that because he intended to shoot Henry with the Taser, rather than the Glock, he did not terminate Henry’s freedom of movement “through means intentionally applied.” The district court rejected this argument, as do we.

. . .

We are not presented with a case where police stopped someone by mere happenstance, such as the passerby who is pinned when a police car slips its brake, or by the unintended consequences of an attempted seizure, such as the fleeing suspect who crashes his vehicle. Instead, the undisputed evidence in the record establishes that Purnell’s specific intent was to stop Henry from fleeing by means of firing a weapon, and Henry was in fact stopped by the very instrumentality (i.e., the Glock) that Purnell set in motion. We recognize that Purnell did not intend to use the Glock, but we are also mindful of the Brower Court’s admonition that we should not draw too fine a line in determining whether the means that terminate a person’s freedom of movement is the very means that an officer intended. If, as the Court noted, a seizure would occur when a person is stopped by the accidental discharge of a gun that an officer meant to use only as a club, then we believe that a seizure surely occurred here where Purnell intended to stop Henry by firing a weapon at him and succeeded in doing so. Accordingly, we affirm the portion of the district court’s order finding that Purnell seized Henry. See 428 F. Supp. 2d at 395-96.

An independent finding of probable cause by a magistrate that defendant is in the house is not required. Payton only requires that the officers have reason to believe that the defendant is inside. Brown v. United States, 932 A.2d 521 (D.C. App. 2007):

Appellant argues that even if Payton is applicable by extension, the Payton warrant exception requires an independent magistrate to determine that appellant is in the dwelling to be entered. See Steagald, 451 U.S. at 214 n.7 (“[T]he magistrate, rather than the police officer, must make the decision that probable cause exists to believe that the person or object to be seized is within a particular place.”). Because an independent magistrate did not determine that there was probable cause to believe that appellant was in Ms. Powell’s home, appellant argues, his Fourth Amendment rights were violated.

We find this argument unpersuasive. Payton mandates that officers have a “reason to believe the suspect is within.” 445 U.S. at 603. As the United States Court of Appeals for the Fifth Circuit has observed, while

Probable cause . . . must always be determined by a magistrate unless exigent circumstances excuse a warrant. . . . Reasonable belief embodies the same standards of reasonableness but allows the officer, who has already been to the magistrate to secure an arrest warrant, to determine that the suspect is probably within certain premises without an additional trip to the magistrate.

United States v. Woods, 560 F.2d 660, 665 (5th Cir. 1977) (internal citation and quotation omitted). See also United States v. Route, 104 F.3d 59, 62 (5th Cir. 1997). We agree with the United States Court of Appeals for the Sixth Circuit and other courts that a “reasonable belief standard, and not probable cause, is sufficient to allow officers to enter a residence to enforce an arrest warrant ….” Pruitt, 458 F.3d at 482. See also Valdez v. McPheters, 172 F.3d 1220, 1226 (10th Cir. 1999) (identifying several factors that could indicate that a defendant was on the specified premises); Route, 104 F.3d at 62 n.3 (collecting cases adopting the “reasonable belief” standard from the Second, Third, Eighth, Tenth, and Eleventh Circuits); United States v. Magluta, 44 F.3d 1530, 1534-35 (11th Cir. 1995) (quoting Woods, 560 F.2d at 665); United States v. Terry, 702 F.2d 299, 319 (2d Cir. 1983) (detailing the evidence officers used to conclude there was a “reasonable basis for believing” appellant was in the apartment).

In this case, two undercover police officers actually saw appellant in Powell’s apartment and stood only about five feet away from him. Investigator Parker knew appellant from previous police contact. On his way from the apartment, Parker even addressed appellant by name and appellant responded. When he returned to his vehicle, Parker radioed the arrest team and mentioned appellant by name. This was sufficient evidence to provide the investigators and arrest team with a reasonable belief that appellant was in Powell’s apartment.

Defendant’s stop by a park ranger was not unreasonable because the ranger was unaware of which person in the car was involved in an altercation. There is no requirement for the reasonable suspicion standard that it be based on personal knowledge. Knowledge from another law enforcement officer suffices. United States v. Cuesta, 2007 U.S. Dist. LEXIS 69293 (E.D. Cal. September 13, 2007).*

The defendant’s co-tenant could consent as long as there was no showing that the defendant’s removal from the premises was not to prevent him from consenting, following United States v. Groves, 470 F.3d 311, 321(7th Cir. 2006). United States v. Ryerson, 2007 U.S. Dist. LEXIS 2279 (W.D. Wis. January 9, 2007).*

Owner of a tire shop in Memphis was arrested and he consented to a search of his business. Officers already had a conversation on a wire where one employee bragged that they had guns on the premises and one was an armed felon, and that gave reasonable suspicion to confront the employees with drawn weapons. Defendant was not an employee of the tire shop, but it was understood that he was to the officers when they entered. The initial detention was reasonable under Summers and the frisk of defendant was reasonable based on officer safety. United States v. Bearden, 213 Fed. Appx. 410 (6th Cir. 2007)* (unpublished).

After an anonymous tip of marijuana growing on defendant’s property, police got a search warrant. “What is in dispute is the timing of the search vis-a-vis the issuance of the warrant.” The trial court found the search followed issuance of the warrant, and that was not clearly erroneous. United States v. Hartman, 213 Fed. Appx. 396 (6th Cir. 2007)* (unpublished).

Excessive force claim during seizure for mental evaluation of reportedly suicidal citizen failed because the officer’s conduct under all the circumstances was not unreasonable and did not shock the conscience. Clark v. Summit County, 508 F. Supp. 2d 929 (D. Utah 2007).*

Ohio recognizes that the driver of a car owned by another and with permission of the owner normally has an expectation of privacy. When stopped with others, however, defendant remained silent when they were all asked by a police officer about his relationship to the car because the keys had been tossed. [Tossing the keys is an act designed to disassociate from the vehicle.] State v. Middleton, 2007 Ohio 2227, 2007 Ohio App. LEXIS 2076 (8th Dist. May 10, 2007):

[*P27] In the instant case, Middleton attempts to argue that he “took normal precautions to maintain his privacy” in the area searched. During the incident, Middleton maintains that although he was outside the vehicle, he remained in close physical proximity to the Chevy Caprice. He also claims that the keys were discovered on the ground of the parking lot, only two feet away from him and that the doors to the vehicle were closed and locked. Finally, Middleton argues that the jacket was located on the floor of the vehicle, not in plain view and that the gun was discovered because Detective McClendon reached inside the pocket of the jacket.

[*P28] However, if Middleton wanted to take normal precautions to maintain privacy, he should have declared to the police officers that he was in lawful possession of the Chevy. Detectives McClendon and Crayton stated that they asked Middleton and the other individuals who owned the Chevy and who owned the keys that were found on the ground of the parking lot. No one acknowledged ownership and no one seemed to know who owned the vehicle or the keys. Middleton did not assert ownership of the vehicle, nor did he contend that he was in lawful possession of the vehicle. Thus, Middleton lacks standing to challenge the search and seizure.

Asking plaintiff to leave was not a Fourth Amendment violation. The case was intertwined with a First Amendment claim, which also was dismissed. Qualified immunity also applied. Ramos v. Carbajal, 508 F. Supp. 2d 905 (D. N.M. 2007).*

Applying the state consitution only, the Delaware court finds that the defendant’s stop was with reasonable suspicion. Ross v. State, 925 A.2d 489 (Del. 2007).*

Officer saw same unique truck configued for a hidden compartment again on the same highway. The videotape broke, so the exchange between the officer and the motorist was lost, but it was up to 50 minutes long, which the court finds was not too long to issue a traffic ticket [which is a real stretch]. That led to consent. State v. Faga, 2007 Iowa App. LEXIS 554 (May 9, 2007):

court noted, our supreme court has previously upheld a detention of fifty minutes as reasonable following a routine traffic stop. Id. at 559. We recognize this may have been a long time to issue a speeding ticket; however, it was not unreasonable under the circumstances. The length of the detention and the action of the trooper were justified by the traffic violation, the time needed to perform routine checks on the truck and the defendant, the trooper’s reasonable suspicion based on the unusual configuration of the truck, his past experience with a nearly identical truck, the implausibility of the defendant’s account of her use of the truck, and the defendant’s nervousness. We find no violation of the defendant’s rights based on the length of the stop.

Watching defendant drive the wrong way on a one-way street a second time was reason enough to stop him. State v. Poling, 2007 Iowa App. LEXIS 559 (May 9, 2007).*

Plaintiff was arrested in her house and removed to the street in a short nightgown. She asked to be allowed to dress before going outside, and her request was denied. She was seen by her neighbors outside in her nightgown being arrested, apparently without cause. She was taken in and questioned. “Plaintiff was released from custody after about four hours, at approximately 10:30 a.m. Plaintiff, still in her nightgown and blanket, was left in the lobby of the sheriff’s office waiting for her sister to arrive to provide transportation back to her home. See Docket No. 11 & Docket No. 39 at 2. Plaintiff avers that, at some point after she was taken to the sheriff’s office for questioning, she returned to her home and witnessed her ‘property [] covered with news media personnel, along with numerous law enforcement agents. The house was wide open and people were traveling in and out of the residence, carrying bags of unknown property and articles of clothing.’ PSOF, Exh. B. Plaintiff later ‘observed live news broadcasts from my home on several local television stations, stating that the property was used to conduct a jet ski chop shop.’ Id., Exh. B. However, there is no evidence presented to the Court that Defendants invited the news media onto Plaintiff’s property or facilitated their activities, if that in fact occurred.” The front door was broken and could not be locked because of damage from the battering ram used to break down the door. Bettin v. Maricopa County, 2007 U.S. Dist. LEXIS 42979 (D. Ariz. June 11, 2007):

Plaintiff’s detention outside her residence in her nightgown, notwithstanding her request to dress, while boorish and unprofessional, did not exceed the scope of detention authorized by Summers. However, Defendants did not continue to detain Plaintiff at the scene of the search. Defendants removed Plaintiff from her home and took her to the sheriff’s office for questioning without placing Plaintiff under arrest and without having a reasonable belief that Plaintiff was suspected of criminal activity. At that time, any reliance defendants might have had upon a Summers detention evaporated. Ganwich, 319 F.3d at 1124.

. . .

Taking the facts in the light most favorable to Defendants for the purpose of Plaintiff’s motion for summary judgment, at best Defendant Hayman suspected Plaintiff, as Mr. Jorgensen’s girlfriend, might be a witness to Mr. Jorgensen’s alleged criminal acts. Defendants could have served Plaintiff with a grand jury subpoena and obtained whatever information she might have possessed through her grand jury testimony. In this manner, Plaintiff’s Fourth Amendment rights would not have been violated. However, Defendants did not exercise this option. The Court concludes Defendants violated Plaintiff’s Fourth Amendment right to be free of an unreasonable seizure by taking her into investigative custody without reasonable suspicion of her criminal conduct or probable cause to arrest her. See Heitschmidt, 161 F.3d at 838-39. Additionally, Plaintiff’s detention was unnecessarily degrading, and prolonged, and it involved an undue invasion of Plaintiff’s privacy

.

Detention of 16 minutes during traffic stop was not unreasonable, and the use of a dog during that stop was also not unlawful. United States v. Montes, 2007 U.S. Dist. LEXIS 43029 (N.D. Okla. June 13, 2007).*

Plaintiff alleged a claim for excessive force for allegations that he was unnecessarily choked for 30-40 seconds while being arrested. The only claims to survive were individual claims against the officers there. Hamilton v. City of Jackson, 508 F. Supp. 2d 1045 (S.D. Ala. 2007).*

City’s entry onto property that the plaintiff loan company was going to sell to another potentially violated the rights of the seller (some views were made from off the property and were objectively reasonable, other views from within, but with alleged consent), but the plaintiff was denied summary judgment and the defendants granted summary judgment because of apparent authority of persons on the premises to allow the entry. Lincoln Loan Co. v. Brown, 2007 U.S. Dist. LEXIS 43218 (D. Ore. June 13, 2007).*

A traffic stop led the officer to observe a marijuana pipe in plain view, and that justified a search of the car. Glenn v. State, 285 Ga. App. 872, 648 S.E.2d 177 (2007).*

Government agents were in the heat of a kidnapping investigation, trying to locate the victim. They had consent to enter defendant’s hotel room from his girlfriend, but she did not know the combination he picked for the hotel safe. Her consent to enter did not extend to the hotel safe, but the officers had exigent circumstances to get into the safe with the help of the hotel without a warrant to look for anything that might assist in locating the kidnapping victim. United States v. Bell, 500 F.3d 609 (7th Cir. 2007):

In this particular case, there was no question that the police were entitled to enter and search Bell’s hotel room. Disregarding any potential exigent circumstances, Bell’s girlfriend consented to the search of the hotel room, and the prohibition on warrantless searches does not apply to situations in which voluntary consent has been obtained, either from the individual whose property is searched, or from a third party who shares, or is reasonably believed to share, authority over the area. Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 1518 (2006); Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). In this case, there is no dispute that Bell’s girlfriend could and did consent to a search of the hotel room. Likewise, there is no dispute that she lacked access to or authority over the safe and could not, therefore, consent to its search.

The only question, therefore, is whether the government can bear the burden of demonstrating that the police faced exigent circumstances when they searched the safe. See United States v. Marshall, 157 F.3d 477, 482 (7th Cir. 1998). Exigent circumstances exist if a officer had an objectively “reasonable belief that there was a compelling need to act and no time to obtain a warrant.” United States v. Andrews, 442 F.3d 996, 1000 (7th Cir. 2006). Bell argues first that any exigencies dissolved once the police arrived and realized that the kidnapping victim, Colon, was not and never had been in the room. Furthermore, he argues that the police had ample time to obtain a warrant.

The question as to whether exigent circumstances exist is viewed through the eyes of a reasonable police officer. Stuart, 126 S. Ct. at 1948. When the officers arrived, they did indeed conclude that Colon was not in the room and never had been there. That conclusion, however, did not eviscerate the exigency. When the officers arrived at the Holiday Inn at 1:30 a.m., Colon was still missing and the ransom was four hours late. The kidnappers, who had already threatened to kill Colon, had called the victim’s family again demanding to know why the ransom had not yet been paid. Police officers also knew that the kidnappers were conducting counter-surveillance and that they probably knew that Bell had been arrested.

Bell argues that because Colon himself could not have been hidden in the small safe there were no exigencies that permitted a search of the safe. Although it is true that there was no evidence that Colon had ever been in the room, there was a great deal of evidence to suggest that Bell had been in the room and the officers had compelling reasons to suspect that Bell was involved in the kidnapping. They did not believe that the kidnappers would have trusted a complete stranger to pick up $100,000 in ransom, and the force with which Bell resisted arrest made the officers believe that he knew he was on the hook for a serious crime. By the time they found the safe, the officers knew that Bell had lied about being homeless (they knew that, at a minimum, he had been renting a hotel room for a long time and paying in cash), that he lied about having checked out of the Holiday Inn, and that he had tried to conceal the location of the Holiday Inn in which he had been staying. Of course Colon himself could not have been concealed in the safe, but it could have contained phone numbers to reach accomplices, maps to a hide-out location, notes about the kidnapping plan, or Mr. Colon’s wallet or car keys or other personal effects that would have confirmed Bell’s knowledge of Colon’s whereabouts.

Comment: This is the classic sliding scale of exigent circumstances referred to by Justice Jackson dissenting in Brinegar v. United States, 338 U.S. 160, 183 (1949):

If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.

Officers received a report of a gun pointed at a citizen from an SUV, and the SUV was stopped, and a protective sweep of the SUV was appropriate under the circumstances. The fact that the defendant was out of the vehicle was no answer because he would return to the vehicle, and, if a gun were there, it could be used against the officers. State v. Bragg, 2007 Ohio 5993, 2007 Ohio App. LEXIS 5242 (6th Dist. November 9, 2007):

[*P16] The only issue, then, is whether the officers had, at the moment appellee was stopped, an articulable suspicion that appellee presented a danger and a weapon was in the vehicle, sufficient to justify a protective search. Kay and Konzen were told by an excited and agitated witness that the SUV’s driver had a gun and had pointed the gun at him. U.S. v. Witherow (C.A. 6, 1996), 95 F.3d 1153. Although alternative explanations may be conjured for why one driver may accuse another of waving a handgun in traffic, these facts led the officers to rationally choose the side of caution and the resulting Long search of the vehicle was not unreasonable. State v. Williams, 5th Dist. No. 2004CA00354, 2005 Ohio 3345 (anonymous phone call that particularly described driver was waving gun out of car window justified Long search); State v. Day (1984), 19 Ohio App.3d 252, 255-256, 19 Ohio B. 405, 483 N.E.2d 1195 (officer acts reasonably by conducting Terry search of suspect’s person for concealed handgun on basis of anonymous tip that suspect had handgun).

Officer had reasonable suspicion to stop the defendant based on a hand to hand buy that occurred four days earlier, when the defendant successfully fled from the officer. State v. Lane, 2007 Ohio 5948, 2007 Ohio App. LEXIS 5255 (8th Dist. November 8, 2007).*

The police did not act unreasonably in denying defendant access to his property while a search warrant arrived because they feared destruction of evidence of sexual abuse. The police even permitted a woman to enter to get a baby bottle. State v. Mooneyhan, 2007 Tenn. Crim. App. LEXIS 861 (October 30, 2007):

The police balanced privacy concerns with the needs of law enforcement. When the defendant arrived at home, the officers restricted his access until they could execute the search warrant. They also restricted the access of the defendant’s family members but allowed limited access for things such as allowing the defendant’s mother-in-law to obtain a bottle for a child. The restraint was imposed for a limited period of time. Although there was evidence that the process took as long as five hours, the evidence reflects that the police were corroborating information from their initial interview with the victim and obtaining the search warrant during this time. Further, the defendant was not restrained from his home for that entire period of time. The record reflects that he arrived at his residence sometime after being at his mother’s house at 3:25 p.m. and that the search warrant was executed at 8:00 p.m. Nothing suggests that the brief time period was greater than that needed for diligent officers to complete these tasks. We conclude that the trial court properly denied the motion to suppress.

Georgia holds that acceptance of probation with a condition that any law enforcement officer may conduct a probation search made this search valid as preapproved consent. There was no showing that the officers were arbitrary or harassing. Peardon v. State, 287 Ga. App. 158, 651 S.E.2d 121 (2007):

A law enforcement officer may conduct a search pursuant to a special condition of probation “at any time, day or night, and with or without a warrant, provided there exists a reasonable or good-faith suspicion for search, that is, the police must not merely be acting in bad faith or in an arbitrary and capricious manner (such as searching to harass [the] probationer).” (Citations and punctuation omitted.) Reece v. State, 257 Ga. App. 137, 140 (2) (570 SE2d 424) (2002).

At the hearing on Peardon’s motion to suppress, the trial court explained that it had imposed the consent to search as a special condition of probation, and that Peardon’s tacit acceptance of this mandatory condition should not be construed as a waiver of any constitutional right. The only choice Peardon made, the trial court explained, was to accept the conditions of his probation or to refuse them, in which case he would have served six months. The trial court’s order confirmed its finding that the search conditions had been imposed as a special condition of probation.

Peardon’s tacit acceptance of this special condition provided police with the authority to search him, his van, and his house pursuant to a tip. See Reece, supra, 257 Ga. App. at 139-140 (2) (information that defendant was living with a drug user and had appeared intoxicated provided reasonable suspicion to search probationer); State v. Cauley, 282 Ga. App. 191, 195 (1) (638 SE2d 351) (2006) (parolee consented to search as condition of parole, and search was not conducted in bad faith).

Georgia also held that same day that a parole search was valid because it was a condition of parole. Thomas v. State, 287 Ga. App. 163, 651 S.E.2d 116 (2007).*

Plaintiff’s claim that the defendant City wrongfully tore down his house stated a Fourth Amendment seizure claim that was distinct from a Fifth Amendment takings claim that was not yet ripe. Perez v. City of Pharr, 2007 U.S. Dist. LEXIS 57718 (S.D. Tex. August 7, 2007).

Officers found defendant with a woman who had previously been arrested by the same officers, and they found she had a child who had been left alone at a motel room. They asked if they could go with her to check on the child and did, and the child was fine. They then asked for consent to search for weapons in the room, which was found to have been valid on the totality, and drugs were found. Miller v. State, 287 Ga. App. 179, 651 S.E.2d 103 (2007).*

Incriminating nature of a baggie for drugs was immediately apparent for a plain view. “The relatively small size of the protruding portion of the baggie did not undermine the incriminating character of the observed item.” State v. Norman, 2007 Iowa App. LEXIS 880 (August 8, 2007).*

FL 2DCA: Mere propinquity to contraband on the ground is not probable cause to search the person closest to it. Tarver v. State, 961 So. 2d 1094 (Fla. App. 2d Dist. 2007):

[T]he trial court erred when it concluded that the baggie of cannabis found at Mr. Williams’ feet was in the constructive possession of both men and supplied probable cause for their arrest and the subsequent search of Tarver. Mere proximity to contraband found in a public place and in the vicinity of several individuals does not warrant a finding that a law enforcement officer had probable cause to believe that the person or persons closest to the contraband possessed it. See Edwards v. State, 532 So. 2d 1311, 1314 (Fla. 1st DCA 1988); see also Isaac v. State, 730 So. 2d 757, 758 (Fla. 2d DCA 1999); J.G. v. State, 881 So. 2d 25, 26 (Fla. 4th DCA 2004). The trial court erred in ruling that Tarver was in constructive possession of the cannabis found at Mr. Williams’ feet, five or more feet away from where Tarver was standing.

Carotid hold, a choke hold, constitutes deadly force. Claim for wrongful death can go forward. Ayala v. City of S. San Francisco, 2007 U.S. Dist. LEXIS 54051 (N.D. Cal. July 13, 2007), relying on Nava v. City of Dublin, 121 F.3d 453 (9th Cir. 1997).

Conclusory pleadings are not enough to state a constitutional claim under § 1983. Here, the pleadings apparently did not even rise to the level of notice under F.R.C.P. 8. Lee v. United States Drug Enforcement Agency, 2007 U.S. Dist. LEXIS 54217 (S.D. Cal. July 24, 2007).*

California’s Fifth District holds that it is bound by the California Supreme Court, and the mere fact the defendant was on parole and signed an implied consent parole agreement justified the search, an issue left open in Samson. People v. Solorzano, 153 Cal. App. 4th 1026, 63 Cal. Rptr. 3d 659 (5th Dist. 2007).*

“Because this informant’s reliability was doubtful and because the police failed to corroborate the information that he had provided, Mr. Wallace’s detention was not based on a well-founded suspicion. For this reason, the trial court erred in failing to suppress the statements made by Mr. Wallace after his illegal detention. Accordingly, we reverse the trial court’s order that revoked Mr. Wallace’s probation.” Wallace v. State, 964 So. 2d 722 (Fla. App. 2d Dist. 2007).*

Officer lacked reason to believe that the defendant had been in a “collision” on his motorcycle where he allegedly fell off the bike. Therefore, the defendant’s seizure for DUI test was unconstitutional. State v. Williams, 114 Haw. 406, 163 P.3d 1143 (2007).*

The facts apparent to the officers at the time of the third party’s consent showed she had apparent authority to consent. United States v. Hilliard, 490 F.3d 635 (8th Cir. 2007):

Viewing the facts known to the officers at the time of the search, we conclude the officers reasonably believed Cole resided in the Arden residence and had authority to consent to the search. Cole’s invitation to the officers to enter the Arden residence and to follow her into the bedroom, her collection of pieces of clothing off the floor to dress herself, and Cole’s instantaneous retrieval of the contraband evidenced Cole’s familiarity with the premises and the items contained and concealed therein. Cole’s conduct, along with the visible presence of women’s clothing and other personal items strewn about the residence, bolstered the reasonableness of the officers’ belief Cole resided in the house. Although Hilliard was present and had the opportunity to object, he never opposed Cole’s invitation to the officers to enter the residence or Cole’s request that Officer Church follow her into the bedroom. Hilliard’s silence in the face of events taking place before him in his own residence gave the officers no reason to believe Hilliard had a superior privacy interest or to doubt Cole’s authority over the Arden residence.

Comment: This case assumes too much: such as the fact a suspect is supposed to know that he has to voice objection to the presence of officers in his house when they were let in by another. Just how much did the police tell him when he saw they were there? “She let us in.” Then what is he supposed to say? How is a citizen supposed to know he can object to armed police officers in his house unless he is a criminal defense lawyer or prosecutor? Trained police officers are not always charged with knowledge of all the nuances of the Fourth Amendment, hence the good faith exception, but the courts seem to require citizens to be. This case is such an example. The courts put the burden on the defendant to confront officers at the scene. Remember Bumper v. North Carolina, 391 U.S. 543, 548-59 (1968)? “This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” The next case shows somewhat what happens when one objects and then runs.

Officer entered a shed without a warrant looking for the defendant in a child neglect case where children were unattended and the father had not been seen, and the defendant was seen sitting with another guy. When the officer was seen, the defendant reached down and his hands were not visible to the officer, and the officer feared he was hiding contraband or reaching for a gun. He drew his weapon and ordered the defendant to put his hands up, and he did not. “Officer Sweetin drew his service revolver and ordered the defendant to his feet. The defendant jumped out of his chair, headed towards the officer and yelled that the officer should ‘Get out.’ Officer Sweetin told the defendant to turn around and that he was under arrest, but the defendant did not comply with this order. He became even more excited, and headed for the rear door of the shed, saying that the officer should leave. Officer Sweetin again directed the defendant to stop, but he did not comply. The defendant attempted to remove a wood 2 x 4 which barred the rear door. Officer Sweetin holstered his weapon. The defendant managed to get the door open, but Officer Sweetin was able to stop and restrain him by using a taser.” The entry was valid under exigent circumstances. United States v. Venters, 2007 U.S. Dist. LEXIS 43094 (S.D. Ill. June 14, 2007).*

Defense counsel filed an Anders brief on the search question, and the search issue was frivolous. United States v. Neuby, 2007 U.S. App. LEXIS 13977 (3d Cir. June 13, 2007)* (unpublished) (citing only Anders and no cases on the merits).

Police were permitted in a hotel room to look for contraband. The way the defendant moved toward a chair in the room caused them to suspect that there might be something there, and they moved the cushion and found a gun. The investigative defenant was reasonable under the circumstances. United States v. Msugar, 236 Fed. Appx. 929 (5th Cir. 2007)* (unpublished).

The search of defendant’s car after a traffic stop was justified by his custodial arrest as either search incident to his arrest or an inventory. United States v. Shaw, 2007 U.S. Dist. LEXIS 43145 (S.D. Fla. June 14, 2007).*

(More later.)

Arresting defendant outside his home, handcuffing, and neutralizing him as a threat dissipated the exigency for any entry of the home. Hicks v. State, 287 Ga. App. 105, 650 S.E.2d 767 (2007):

This finding of exigency ignores the uncontroverted evidence that before the second search began, police had taken Hicks outside his residence, handcuffed him, and placed an armed officer as a continuous watch over him. Indeed, in light of these security measures taken by police, the officer who watched over Hicks testified: “After he was handcuffed[,] he was not a threat.” The officer stated further that “at the time [police] made the decision to continue part two of the search[, Hicks] was not a threat,” since he was handcuffed, had no weapon, was under continuous watch, was outside the house, and presented no danger. See id. (no exigent circumstances where one of the officers “explicitly testified that there was no reason to believe that anybody was in danger”) (punctuation omitted).

The handcuffing of a weaponless Hicks and the police’s placement of him outside the house under the continuous watchful eye of an armed officer removed any exigent circumstances involving danger to the officers or the public, for Hicks could no longer access any weapons inside the home. Indeed, we have previously held that handcuffing a car’s driver and securing his keys “dispelled the exigent circumstances,” McKinney v. State, as there was “no earthly way” the driver could present a danger of accessing contraband or weapons in the car. Hardwick v. State.

Consent to search a car did not include dismantling the glove compartment by removing the screws, reaffirming State v. Johnson, 116 Nev. 78, 993 P.2d 44 (2000). State v. Ruscetta, 123 Nev. Adv. Rep. 32, 163 P.3d 451 (2007).

Summary judgment denied for officers in shooting death case during raid. The defendants were using the wrong standard of review; it is what their opponent’s case shows. Wells v. City of Dayton, 495 F. Supp. 2d 797 (S.D. Ohio 2006):

Above, this Court has concluded that, construing the evidence in the manner most favorable to Plaintiffs, Wells did not present a risk of harm to either officer or to anyone else. His hands were empty and were not in his pockets. He did not possess a weapon, nor did he approach Cornwell in a threatening manner or otherwise. He made no threatening gestures, and did not say anything which could have caused Cornwell to fear for his or anyone else’s safety. Based upon the evidence before the Court, the jury could find that Cornwell moved into the doorway after McCall had pushed the door open and instinctively shot the first individual he saw, even though that individual was unarmed and presented no risk of harm to anyone. Moreover, Cornwell fired those shots without affording the individual any opportunity of surrendering.

In a case of first impression in the state, the state sought a subpoena duces tecum for a DNA sample, and it was approved by a judge. That made it valid. State v. Lee, 964 So. 2d 967 (La. App. 1st Cir. 2007):

Because the validity of the use of an LSA-C.Cr.P. art. 66 subpoena duces tecum to acquire a DNA sample appears to be a case of first impression in Louisiana, we adopt the rationale set forth in In re Shabazz, 200 F.Supp.2d 578, 581 (D.S.C. 2002). Although Shabazz involved a subpoena duces tecum issued by a grand jury, we find the reasoning employed by that court in finding the subpoena a valid means of obtaining a saliva sample equally applicable to an LSA-C.Cr.P. art. 66 subpoena duces tecum authorized by a trial court judge. In both instances an intervening authority (either a grand jury or a trial judge) passes on the reasonableness of the individualized suspicion that the subject of the subpoena has been involved in the alleged crime, thereby reducing the possibility of prosecutorial abuse.

The obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels–the “seizure” of the “person” necessary to bring him into contact with government agents and the subsequent search for and seizure of the evidence. It is well-established that “a physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable.” In re Shabazz, 200 F. Supp. 2d at 581, citing Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 616, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1989) (drug and alcohol testing of railroad employees), Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (blood test for alcohol), and Winston v. Lee, 470 U.S. 753, 760-61, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985) (order to compel surgical operation to remove a bullet). However, what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection; accordingly, subpoenas compelling voice samples, handwriting samples, fingerprints, and hair samples are not “searches” and therefore do not implicate the Fourth Amendment. [citations omitted]

Nevertheless, as pointed out by the Shabazz court, the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. Thus, under certain circumstances, searches and seizures may be permissible under the Fourth Amendment “based on suspicions that, although ‘reasonable,’ do not rise to the level of probable cause.” In re Shabazz, 200 F.Supp.2d at 583, citing New Jersey v. T.L.O, 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Shabazz court reasoned that probable cause need not be a prerequisite for the issuance of a grand jury subpoena ordering a DNA saliva test because the very purpose of requesting the information is to ascertain whether probable cause exists.

The Shabazz court concluded that the privacy concerns that led the Supreme Court to require probable cause in other cases are not as pronounced with a saliva swab because it is not as intrusive as a blood test or a surgical bullet-removal procedure. Although the saliva swab involves a slight invasion of a person’s bodily integrity, it is not a “surgical procedure” and therefore does not fall within Schmerber’s threshold requirement of probable cause, so no showing of probable cause is needed before the issuance of a subpoena duces tecum requiring a saliva sample. In re Shabazz, 200 F.Supp.2d at 584.

Nexus for search of defendant’s house was shown for the drugs he had been selling, and this is established by normal inferences that judges draw. Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 866 N.E.2d 930 (2007):

A magistrate may draw “‘normal inferences as to where a criminal would be likely to hide’ the drugs he sells.” Id. at 302, quoting from Commonwealth v. Cinelli, 389 Mass. 197, 213, 449 N.E.2d 1207, cert. denied, 464 U.S. 860, 104 S. Ct. 186, 78 L. Ed. 2d 165 (1983). “An inference drawn from circumstantial evidence ‘need only be reasonable and possible; it need not be necessary or inescapable.'” Commonwealth v. Gilbert, 423 Mass. 863, 868, 673 N.E.2d 46 (1996), quoting from Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977). See Smith, Criminal Practice & Procedure § 179 (2d ed. 1983 & Supp. 2006).

. . .

These inferences were reinforced by evidence indicating that after Luthy left his residence, he entered his vehicle, drove away, and soon thereafter arrived at the location appointed for the second controlled buy. Although there may have been some ambiguity in the affidavit as to whether Luthy drove directly from his residence to the buy location, it was reasonable for the magistrate to infer that Luthy likely took drugs from a cache stored in his residence and then proceeded directly to his destination.

Request for consent to search a car within first minute of a traffic stop for window tinting was valid. State v. Watts, 2007 Ohio 2411, 2007 Ohio App. LEXIS 2231 (2d Dist. May 18, 2007)*:

The mere fact that Defendant was detained by police pending issuance of a traffic citation, standing alone, does not render Defendant incapable of voluntarily giving consent for the search. [¶] Because Defendant’s consent to search his vehicle was obtained during his lawful detention for a traffic violation, and Defendant had voluntarily consented to that search, his Fourth Amendment rights were not violated. Therefore, the trial court erred in suppressing the evidence discovered in the course of that search.