Defendant was driving a car that was validly stopped, and a dog alerted on the car. That permitted a search of his person as well under the automobile exception. Morton v. Commonwealth, 232 S.W.3d 566 (Ky. App. 2007):

Since Morton concedes that his vehicle was legitimately stopped and that the drug dog’s alerts provided probable cause to search his vehicle, the issue is simply whether or not the probable cause which triggered the automobile exception extended to Morton, the lone occupant of the vehicle, permitting the search of his person. Although there is no Kentucky case law on point, we conclude that our precedents permit such a search under the facts of this case.

In this case, after Morton was stopped and while remaining in his car, a drug dog alerted Hord to two locations, including the driver’s side door, where Morton was sitting. After Morton denied Hord’s request to search his vehicle, Hord asked him to exit his vehicle at which time he searched Morton and found crack cocaine.

We find this case analogous to the facts presented in Dunn v. Commonwealth, 199 S.W.3d 775 (Ky.App. 2006), wherein the police smelled a strong odor of marijuana after approaching a vehicle with two occupants. Police then asked the driver, Dunn, to exit the vehicle and he was immediately searched for contraband. As a result of the search of his person, police found a cellophane packet containing cocaine.

Dunn moved the circuit court to suppress evidence of the cocaine under the theory that it was the fruit of an unlawful search. Overruling his motion, the circuit court ruled that the strong smell of marijuana emanating from Dunn’s vehicle provided probable cause to search the vehicle, all items contained therein, and the vehicle’s occupants. We affirmed.

Applying Dunn to the facts of this case, when the drug dog detected the odor of drugs inside Morton’s vehicle, particularly at the driver’s side door, Hord was provided with probable cause to search the vehicle pursuant to the automobile exception which extended to a search of Morton under the facts of this case.

Defendant’s testimony at suppression hearing was properly struck from the record after he refused to be cross-examined. Defendant testified on direct at his suppression hearing and then invoked his Fifth Amendment privilege against self-incrimination after he asked to consult with counsel. Since he was not subject to cross-examination, his direct testimony was stricken, and the district court’s answer to his questions did not coerce him out of testifying. While the Simmons rule provides some protection, there are always risks in testifying. United States v. Henry, 2007 U.S. Dist. LEXIS 62501 (E.D. Pa. August 24, 2007):

The Court’s interest in encouraging defendant to confer with counsel was to ensure that defendant understood the manner and extent to which his testimony could be used against him at trial. Indeed, the Court initially did so in response to defendant’s question “is that going to be held against me?” Jan. 29, 2007 Tr. at 139.

As the Third Circuit has recognized, placing a defendant on the stand at a suppression hearing may be “risky to his defense.” Reinert v. Larkins, 379 F.3d 76, 96 n.5 (3d Cir. 2004).

[Defendant] Reinert testified extensively at trial about the entire incident leading up to and following the death of Sean Brady. By taking the stand at the suppression hearing, Reinert may have been providing the Commonwealth with the means to impeach his testimony. …. Were we to adopt a similar interpretation of Simmons [as several other courts] and conclude that suppression testimony was fair game for impeachment purposes, the action of putting Reinert on the stand during the suppression hearing could have itself potentially become subject to an allegation of ineffectiveness.

Reinert, 379 F.3d at 96 n.5.

The Court notes that, as in Reinert, defendant decided to take the stand at trial, and thus, defendant’s suppression hearing testimony would have been admissible at trial to impeach him. The Court further notes that defendant does not argue that defense counsel misinformed him of the law pertaining to use of his suppression hearing testimony at trial. See Mot. at 8. In a hearing on defendant’s motions for new counsel conducted August 8, 2007, defense counsel confirmed that he properly informed defendant of the only way in which his testimony at the suppression hearing could be used against him at trial: as impeachment evidence if he testified at trial. Aug. 8, 2007 Tr. at 15-16.

In sum, it was proper for the Court to give defendant an opportunity to talk to counsel on this issue. The Court certainly did not coerce defendant to invoke his Fifth Amendment privilege against self-incrimination. Mot. at 8. Accordingly, the Court concludes that a new trial on this ground is not warranted.

While standing may be asserted on appeal by the state for the first time, it must not be inconsistent with the position taken in the trial court. Thus, where the state argued only consent in the trial court, it could not argue lack of standing on appeal. “When the deputy told Cardenas ‘he needed to come speak to [the deputy],’ under the circumstances, Cardenas was seized. As in Zubizareta and McAfee, the officer’s language was inherently coercive such that reasonable people would not believe they were free to go about their business.” This was not consent. State v. Cardenas, 143 Idaho 903, 155 P.3d 704 (2006).

Police responding to a domestic disturbance call were told by defendant’s girlfriend that he pointed a gun at her when he came to the house. He came to the door and they handcuffed him and emptied his pockets. No gun was found on him, and she directed the police to the back yard, but no gun was found there. He consented to a search of his car, but he denied knowing where the keys were. The officer got his keys and looked in the car, and two handguns were found in a briefcase, and he was a convicted felon. He voluntarily consented to the search although he was handcuffed. United States v. Flowers, 203 Fed. Appx. 221 (10th Cir. November 2, 2006)* (unpublished).

Co-defendant who tried to hide from police in motel parking lot professed to be staying in room 32. Officers approached the door, and they could smell marijuana, so they asked her for consent. Based on the totality, she had sufficient apparent authority to consent to an entry into the room. State v. Wallace, 2006 Tenn. Crim. App. LEXIS 858 (November 1, 2006):

Applying these principles to the facts of this case, we conclude that the officers had valid consent to enter and search the motel room. The facts show that Ms. Arnold was standing in the parking lot of the Savannah Motel and attempted to hide from Officer Rich when he drove by the motel on patrol. Officer Rich found her behavior suspicious and approached her to ascertain her identity and her reason for being at the motel. She gave her name and told Officer Rich that she was staying in room thirty-two at the motel. When Officer White arrived as back-up, Ms. Arnold agreed to accompany the officers to room thirty-two so that they could verify her identity and whether she was staying at the motel. As the officers approached the motel room, the door to the room opened and the officers immediately smelled marijuana. The occupants in the room verified Ms. Arnold’s identity and the fact that she was staying in the room. The officers then asked Ms. Arnold, “Do you care if we search the apartment? Because we do smell marijuana coming [from the room].” Ms. Arnold subsequently consented to a search of the room. Under the circumstances, it was reasonable for the officers to believe that Ms. Arnold had the authority to consent to a search of the motel room. Consequently, the search was a valid, legal search and was not in violation of Defendant’s Fourth Amendment rights. Defendant is not entitled to relief on this issue.

Officers received a report that several men were in a Boise park smoking marijuana, and a plainclothed officer responded and watched them, confirming the report. He approached the group and asked them to provide the joint and be cited or be subjected to a search and arrested if it was found. Defendant admitted to having brought the joint, and he then consented to a search of his car which produced more marijuana. The consent was not coerced or involuntary. State v. Garcia, 143 Idaho 774, 152 P.3d 645 (2006):

Initially, it should be noted that bowing to events, even if one is not happy about them, is not equivalent to being coerced. United States v. Miller, 589 F.2d 1117, 1132 n.13 (1st Cir. 1978). The voluntariness of consent is not impaired simply because one is faced with two unpleasant choices–which here, Garcia argues, was choosing between consenting to the search and allowing the marijuana in his truck to be discovered and not consenting and risking arrest of himself and his companions. In State v. Abeyta, 131 Idaho 704, 963 P.2d 387 (Ct. App. 1998), this Court addressed the voluntariness of consent to search in light of police threats to obtain a search warrant. Id. at 708-09, 963 P.2d at 391-92. There, the appellant’s choice boiled down to consenting to a search or having his premises searched pursuant to a warrant–two unappealing options for one who knew incriminating evidence would be found. This Court found the threat of securing a search warrant “does not necessarily render consent involuntary, [although] it is clearly a significant factor in determining whether consent to search was freely and voluntarily given.” Id. at 708-09, 963 P.2d at 391-92. In viewing the threat in light of all the circumstances, we concluded it was appropriate for officers to inform an individual of the police’s ability and intent to seek a search warrant as long as they “did not falsely or erroneously state they had a legitimate right to search his residence.” Id. at 709, 963 P.2d at 392. Accord Bumper v. North Carolina, 391 U.S. 543, 548 (1968) (holding consent is coerced where obtained after an officer asserts he has a warrant when, in fact, he does not). Accordingly, we concluded the officer’s threat to seek a search warrant was legitimate because, under the totality of the circumstances, the evidence gathered by the officer prior to the threat being vocalized provided requisite probable cause to support the acquisition of a search warrant. Id. See also United States v. Agosto, 502 F.2d 612, 614 (9th Cir. 1974) (statement of officer’s intention to obtain search warrant if consent was not given did not render consent per se involuntary).

Similarly, an officer’s implied or explicit offer not to arrest a suspect if he “turns over what he has” is not coercive if it merely informs the suspect of the officer’s intention to do something that is within the officer’s authority based on the circumstances. See State v. Medenbach, 48 Ore. App. 133, 616 P.2d 543, 545 (Or. App. 1980) (“[T]he action of the officer in advising defendant that he would be arrested unless he agreed to take some field sobriety tests was not constitutionally objectionable coercion because the trooper then had probable cause to arrest defendant for driving under the influence. Therefore, the officer threatened ‘only to do what the law permitted him to do.'”). Again, the district court in this case found the statement was in effect “Turn over what you have, and we’ll cite you” and “If you do not turn over what you have and if, in fact, you have drugs on you, then you’re going to be subject to arrest.” Thus, an initial inquiry here is whether the officers had probable cause to actually effectuate an arrest.

Police had a DV report by a wife that required an arrest under Wisconsin law. She also told the police that her husband had drugs and guns in the house. The victim consented to a search of the house and gave them a key to enter. Police went to the house and obtained entry by a ruse that the defendant’s wife had been in a car wreck and the police wanted to talk to him. Once inside, defendant was arrested, and the consent was valid for the search that produced guns and drugs. United States v. DiModica, 468 F.3d 495 (7th Cir. November 16, 2006).*

Anonymous uncorroborated tip was insufficient for a stop. United States v. Melvin, 2006 U.S. Dist. LEXIS 83034 (M.D. Ala. November 14, 2006):

The court concludes that, in this case, the United States has failed to establish that officer Crooks had reasonable, articulable suspicion sufficient to justify stopping Melvin. “Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the “totality of the circumstances — the whole picture.” Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). See also United States v. Heard, 367 F.3d 1275, 1278 (11th Cir. 2004). The undisputed evidence at the hearing demonstrated that Crooks stopped Melvin simply because Herring said “the guy you are looking for is in that car.” (Evid. Hr’g Tr. at 10).

Q: What did you do when they pointed to that car and said the person that you are looking for was in that car?

A: I pulled out behind it, ma’am, and started following it.

(Evid. Hr’g Tr. at 12).

Without more, Herring’s statement is simply insufficient to support the stop. The United States did not present any evidence that at the time Crooks stopped the car, he relied on any other information which he had or that he made any attempt to connect that information to the Herring’s statement about the “guy” in the teal-colored car. Consequently, the court concludes that these facts are insufficient as a matter of law to give rise to a reasonable suspicion that criminal activity was afoot and the defendant was involved.

The state failed to prove that defendant’s stop was required by the community caretaking function, and the motion to suppress should have been granted. Salinas v. State, 2007 Tex. App. LEXIS 1605 (Tex. App. — San Antonio February 28, 2007):

We engage in a two-step analysis to determine the propriety of a stop pursuant to the community caretaking function. First, we determine whether the police officer was motivated by a community caretaking purpose and second, we determine whether the police officer’s belief that the individual needed help was reasonable. See Corbin, 85 S.W.3d at n2; see also Wright, 7 S.W.3d at 151. Here, the trial court, as fact-finder and the exclusive judge of credibility, could have determined DeHoyos was primarily motivated by community caretaking concerns. As to the second issue, when deciding whether an officer has an objectively reasonable belief someone needs help, we consider the following: “(1) the nature and level of distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone and/or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others.” Id.

1. Level of distress. The first factor is entitled to the greatest weight because “the purpose of the community caretaking exception is to allow an officer to ‘seize’ and assist an individual whom he reasonably believes is in need of help.” Corbin, 85 S.W.3d at 277. “The greater the nature and level of distress exhibited, the more likely the police involvement will be a reasonable exercise of the community caretaking function.” Id. The weight of the first factor alone will not always be dispositive; instead, the remaining three factors help to give more definition to the first factor. Id. “A particular level of exhibited distress may be seen as more or less serious depending on the presence or absence of the remaining three factors.” Id.

According to DeHoyos, the only distress exhibited by Salinas was his moving through the intersection instead of immediately turning left or right, and finally making the turn when he was about five feet from the curb. DeHoyos asserted he could not understand why a driver would make the mistake Salinas made because the area was well-lit and any driver could see nothing was straight ahead except grass and the traffic light. However, DeHoyos admitted nothing else suggested the driver or anyone in the vehicle was in distress. Given the fact that DeHoyos observed no other problems with the driver’s operation of the van and that the driver appeared to immediately respond to the use of the police emergency lights, we conclude the nature and level of distress exhibited to be very low.

2. Location. The second factor emphasizes the location of the individual. Through his testimony, DeHoyos indicated Highway 90 and Zarzamora are well-traveled roadways and DeHoyos described the area at the T-intersection as “well-lit.” DeHoyos testified it was not “a very friendly area” because there were “a lot of courts” [sic] behind the Exxon station. However, the Exxon station was open for business. We conclude this factor weighs neither for nor against the stop.

3. Available assistance. The third factor analyzes whether the individual was alone or had assistance other than that offered by the police officer. DeHoyos said he could not see inside the van when he was stopped behind it at the red light and he did not know before the stop whether anyone other than the driver was inside the van. Although the Exxon station was in the immediate vicinity of the stop and the station was open, because DeHoyos could not determine if Salinas was alone or capable of seeking help, this factor weighs in favor of the stop.

4. Danger to himself or others. The extent to which an individual without assistance would present a danger to himself or others correlates to the nature and level of distress reasonably perceived. DeHoyos first observed Salinas when he saw the van stopped at a red light. Salinas did not begin to move until after the light turned green, at which point he proceeded straight ahead before making his turn. However, although Salinas initially proceeded straight through the intersection, he made his turn and then proceeded to the Exxon station after DeHoyos activated his overhead lights. DeHoyos failed to articulate any other action by Salinas that indicated he was a danger to himself or others. DeHoyos admitted there were no other vehicles on the road and Salinas did not impede any traffic. Thus, it appears that there is little objective evidence that Salinas posed danger to himself or others, and this factor weighs against the stop.

Defendant’s bizarre behavior justified a stop and a patdown, but it was apparent that defendant did not have a weapon on him, and emptying his pockets was too intrusive. State v. Watson, 143 Idaho 840, 153 P.3d 1186 (2007):

Because the officer intentionally removed the items that could not have been weapons when it was unnecessary to do so in order to remove the toothpaste container, he acted unreasonably and not in a minimally intrusive fashion. We hold that the officer exceeded the scope of a pat-down search for weapons when he emptied Watson’s pocket. If evidence is not seized pursuant to a recognized exception to the warrant requirement, the evidence discovered as a result of the illegal search must be excluded as the fruit of the poisonous tree. State v. Van Dorne, 139 Idaho 961, 963, 88 P.3d 780, 782 (Ct. App. 2004). The baggy of methamphetamine that the officer removed from Watson’s pocket was therefore the fruit of an unreasonable search and should have been suppressed.

State § 1983 claim of excessive force fails on plaintiff’s deposition that officers were professional and did not use excessive force. Thompson v. Faddis, 2007 Ohio 891, 2007 Ohio App. LEXIS 810 (11th Dist. March 2, 2007).*

The Northern District of California holds that officers exceeding the scope of a search warrant is not subject to the good faith exception. United States v. Chan, 2006 U.S. Dist. LEXIS 85703 (N.D. Cal. November 15, 2006):

Here, after examining the circumstances surrounding the issuance of the warrant, the contents of the search warrant, and the circumstances of the search, the Court concludes that the search of apartment 5B exceeded the scope of the warrant because there was no objective basis for believing that the area was under the control of Tam or Chan. The search warrant affidavit states that 226 Irving Street is a multi-family dwelling, that Tam owned the building, that Tam and Chan resided at other locations, and that Chan had listed his address at various times as “226 Irving Street Apt. 3,” and at that address without an apartment number. When officers executed the search, they discovered that the Panatches were tenants of apartment 3, and that Chan received mail at apartment 3. According to the Panatch and Crowe declarations, the Panatches told officers they were not aware of any storage areas in the building, that Chan told them he was renovating the downstairs portion of the building, and that Chan had keys to the entire building and acted as a property manager.

Thus, based upon the search of apartment 3 and the information obtained from the Panatches, there was no basis to conclude that a locked room–much less a rental unit–located off of the garage, containing some personal items, was an area controlled by either Tam or Chan. The facts that Tam owned the building, and that officers understood from the Panatches that Chan had keys to the units in the building, are not sufficient to authorize officers to search every part of that building. See United States v. Whitney, 633 F.2d 902, 907 (9th Cir. 1980). Officers still needed some objective basis to believe that the area they were searching was a storage area controlled by Tam or Chan. At the very least, once officers crawled through the window and saw the kitchen, bathroom, and bags of clothes, they should have understood that they were not in a storage room, and likely were in another rental unit. Once inside the unit, there was no basis for concluding that the unit was occupied and/or controlled by Chan or Tam, as opposed to some other individual.

The United States argues that the evidence from the search need not be suppressed under the exclusionary rule if officers honestly, and in “good faith,” believed that the warrant being executed was valid under United States v. Leon, 468 U.S. 891 (1984). The question is limited “to the objectively ascertainable question whether a reasonably well trained officer would have known the search was illegal despite the magistrate’s authorization.” See Leon, 468 U.S. at 922. Leon does not apply and suppression of the evidence is appropriate when the officers could not have “harbored an objectively reasonable belief that probable cause existed.” Id. at 923-24. The government bears the burden of proving that reliance upon the warrant was objectively reasonable. See United States v. Kow, 58 F.3d 423, 428 (9th Cir. 1995).

Here, for all of the reasons stated supra, the Court concludes that reasonably well trained officers would have known that they were exceeding the scope of the search warrant, at least at the point when officers saw that the “storage area” had a kitchen, bathroom, and bags of clothes on the floor. At that point, the officers could no longer harbor a good faith belief that the warrant authorized the search of that area. The only rental unit for which a probable cause determination had been made was apartment 3; no other rental unit in the building was covered by the warrant. Accordingly, once officers crawled through the window and saw the kitchen, bathroom and clothes in bags, they had [an objective basis for concluding that they were, in fact, in another rental unit. Indeed, Parry admits as much in his declaration. See Parry Decl. P 7(b) (“It should be pointed out that at this point [prior to entering the unit], it was unclear whether this area was a ‘unit’; we could tell that it was vacant and used for storage, but only later–after making entry–did we ascertain that there was a kitchen and a bathroom in there, which then suggested that this was a vacant ‘in law’ unit unoccupied at [the] present time.”).

The Court concludes that a reasonably well trained officer would have known the search of that unit was not covered by the search warrant, and that any search would require a separate warrant. Accordingly, the Court concludes that the Leon good faith exception does not apply.

Defendant as a mere passenger in a car had no standing to challenge the search of the car. Even if he did, he would lose on the merits because furtive movements led to officers have reasonable suspicion to detain him longer. State v. Thomas, 98 Conn. App. 542, 909 A.2d 969 (November 28, 2006).*

Reasonable suspicion required in Idaho for a probationer search, and it was present here. State v. Klingler, 143 Idaho 494, 148 P.3d 1240 (Ida. 2006)*:

Moreover, if a probationer has a drug history, courts should be more willing to find that reasonable grounds exist for a search. Anderson, 140 Idaho at 487-88, 95 P.3d at 638-39. In Anderson, this Court held that a probationer’s drug history, indicating that a heightened need of supervision was necessary to protect him or her from society, is a factor for courts to consider in deciding whether reasonable grounds exist for a search. State v. Klingler, 2006 Ida. LEXIS 146 (November 24, 2006)*:

In this case, a probation officer heard from a detective at an intel meeting, with police and probation officers present, that Klingler may be dealing drugs. It was the second time the probation officer had heard allegations about Klingler’s drug use. Further, it is apparent the trial court had some concerns about Klingler’s possible drug use, as evidenced by its recommendation that Klingler complete an inpatient substance abuse treatment program as well as the court’s second probation order requiring him to refrain from possessing or using any controlled substance. Based on the source of the tip (a police detective), the setting in which it was received (an intel meeting regarding felons on probation), and conditions on Klingler’s probation, the probation officer had reasonable grounds to search Klingler’s residence.

Plain feel was not obvious enough to justify seizing evidence off the defendant. Commonwealth v. Jones, 217 S.W.3d 190 (Ky. 2006)*:

Applying Dickerson and Crowder to the case at hand compels a finding that the search of Jones does not fall within the plain feel exception. In many respects, the facts in those cases are more compelling than those found in this case because, unlike those cases, there is no suggestion in the sparse record that Jones’s residence or neighborhood were either high-crime areas in general or were known specifically as being narcotics-trafficking hotspots, nor is there any indication that Jones himself was suspected of being a drug trafficker. As did the suspects in Dickerson and Crowder, Jones began to walk away once he noticed the presence of authorities. But even if Jones’s retreat from Teagle is considered to be a “flight,” that flight, in and of itself, is insufficient to establish probable cause.

Illinois does not have an elaborate regulatory structure for its probationers, unlike in Griffin and Samson, so the “special needs” exception does not come into play. Instead, the totality standard with a reasonable suspicion standard of Knights applies. While the probationer still has a reduced expectation of privacy, the search here lacked any reasonable suspicion and was invalid. People v. Ward, 308 Ill. Dec. 899, 862 N.E.2d 1102 (1st Dist. 2007).

In a Texas state § 1983 case, the plaintiff stated enough to survive summary judgment on the legality of the search and seizure and qualified immunity. The case started with a “civil assist” of a “bad breakup” which led the police to enter the plaintiff’s property and assist in taking things. The officers were on notice that they were conducting a search and seizure and that it was contrary to plaintiff’s rights. Poteet v. Sullivan, 218 S.W.3d 780 (Tex. App. — Ft. Worth 2007) (substituted opinion on rehearing).*

Plaintiff sued claiming that a search warrant for his house in relation to an administrative search of his business was void for lack of a showing of nexus to the business. Partial summary judgment was granted for the plaintiff on that claim. Lister v. Schnitzius, 2007 U.S. Dist. LEXIS 8064 (N.D. Cal. January 23, 2007).*

The fact that a police car’s blue lights remain on after the stop is completed is not proof that the defendant was not free to leave after he was told he was free to leave. [The lights also serve a safety function.] State v. Henage, 143 Idaho 655, 152 P.3d 16 (Ida. 2007).

Defendant’s sister had apparent authority to consent to a search of her car being driven by the defendant stopped 228 miles away. Defendant implied that if the police wanted to search the car, they had to get consent from the owner, so they did. United States v. Buckles, 220 Fed. Appx. 631 (9th Cir. 2007) (unpublished).

Defendant who opened his garage door did not waive his expectation of privacy in the garage. State v. Jenkins, 143 Idaho 918, 155 P.3d 1157 (2007):

The State’s argument unnecessarily expands Santana. Jenkins opened an otherwise enclosed garage to gain access to his home. His exposure of the garage to public view was temporary and is more analogous to the opening of a door to a private home than to the continued, knowing display of a walkway, driveway, or open porch where visitors are expected to go. See State v. Wren, 115 Idaho 618, 623, 768 P.2d 1351, 1356 (1989) (differentiating between a “public” unenclosed porch and an enclosed porch indistinguishable from the attached home). A garage with a large door that exposes much of a garage’s interior when open is admittedly different from a house; nevertheless, an attached, enclosed garage is typically an area where people expect privacy and expect to secure their possessions and perform private activities away from public view. While it is true that there can be no reasonable expectation of privacy as to observations which can be made from a driveway impliedly open to public use, this is limited by the principle that police officers without a warrant are only permitted the same level of intrusion as one would expect from a reasonably respectful citizen. See Christensen, 131 Idaho at 147, 953 P.2d at 587. Moreover, a privacy interest is not destroyed simply because an officer has open view into an area. See State v. Clark, 124 Idaho 308, 313, 859 P.2d 344, 349 (Ct. App. 1993) citing Texas v. Brown, 460 U.S. 730, 738 n. 4, 103 S. Ct. 1535, 1541 n. 4 (1983) (“An open view observation alone, absent exigent circumstances or other Fourth Amendment justification, does not authorize a warrantless seizure or entry into an area where a privacy interest does exist. However, what is seen in open view may furnish probable cause for obtaining a warrant.”). Jenkins’ garage was part and parcel of the structure constituting his home, and was secured with a door closed at the time police arrived at the home. On the facts of this case, Jenkins had a reasonable expectation of privacy in his temporarily opened attached garage, and this space was subject to Fourth Amendment protection.

Driving too slow was not reasonable suspicion in itself. State v. Bacher, 2007 Ohio 727, 170 Ohio App. 3d 457, 867 N.E.2d 864 (1st Dist. 2007).* Comment: The court felt compelled to use this as the second heading:

II. The Fourth Amendment Applies Even to Fools

The court never says anything thereafter that relates to this heading. The subject matter comes from the preceding paragraph which the court obviously felt compelled to include:

Because this case concerns whether Norton’s initial traffic stop was supported by probable cause or a reasonable suspicion, the facts after the initial stop are inconsequential. But given the arrogance of Bacher’s post-arrest antics, we feel compelled to address some of his apparent delusions, misconceptions, and concerns: (1) this decision was not reached as a result of influence on the part of Bacher’s “father in law, Judge Spiegel”; (2) to our knowledge, Officer Norton has not been fired from the Blue Ash Police Department for pulling Bacher over, as was threatened; (3) Bacher’s in-cruiser statements that he “was not driving all that fast” were exceedingly candid–especially when Officer Norton told him numerous times that she had pulled him over for driving too slowly, not for speeding; (4) Bacher questioned Officer Norton about impounding him, but in Ohio, we impound cars and incarcerate people; (5) the record fails to show that Bacher was in any way being treated like a “terrorist”–in fact, Officer Norton was quite attentive to Bacher’s needs despite his brash demeanor; and (6) contrary to Bacher’s belief, the Ohio Revised Code provides that vehicles be impounded by the Bureau of Motor Vehicles and not the American Automobile Association. Clearly Bacher “had the right to remain silent, but not the ability.”n2

n2 See Ron White, Tater Salad.

Defendant’s third party consent claim argument that the third party “was so stoned that any consent to enter was not intelligently made” was rejected. On the totality, the record supported that it was. Also, it is not determinative that he did not know of the right to refuse consent. State v. Loyer, 2007 Ohio 716, 2007 Ohio App. LEXIS 659 (8th Dist. February 22, 2007).*

Defendant did a drug deal outside his trailer, and he saw the police and ran inside, with the police in hot pursuit. The police entry was justified. United States v. Echevarria, 2007 U.S. App. LEXIS 13087 (11th Cir. June 6, 2007)* (unpublished):

Additionally, Echevarria instigated the hot pursuit justifying Philippe’s warrantless entry, rather than Philippe and Detective Dorcely having created the exigent circumstances, because he first became aware of police presence and his impending arrest while he was outside of his trailer, and subsequently decided to walk quickly into his trailer. The fact Echevarria decided to flee into his trailer after having conducted a drug transaction and then observing the police, only made it more likely he would have destroyed the drugs or fled the area, which, in turn, made it more reasonable for Philippe to fear the destruction or removal of the evidence before a warrant could be secured. See United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991). Accordingly, Echevarria’s argument the police created the exigent circumstances is meritless. n1 We conclude Philippe’s entry into Echevarria’s trailer to arrest him was valid, and the drugs and gun that were found were admissible. See United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999) (stating, in reviewing a motion to suppress, that factual findings should be reviewed for clear error and the application of the law to the facts should be reviewed de novo.”).

Five controlled buys gave the police plenty of time to get a search warrant, so they could not rely on exigent circumstances to justify their entry after a knock and talk. They also claimed that local magistrates preferred arrests on probable cause rather than bothering them with warrant requests, and that was rejected, too. United States v. Khut, 490 F. Supp. 2d 35 (D. Mass. 2007).

A person near the detainee could be detained, too, when there is reasonable suspicion as to the companion. United States v. Kinzalow, 236 Fed. Appx. 414 (10th Cir. 2007)* (unpublished):

In the instant case, the evidence in the record, viewed in the light most favorable to the government, leads us to conclude that Mr. Kinzalow was seated in an area immediately adjoining Miron Moaning when he was arrested. Thus, pursuant to Buie and Maddox, Mr. Kinzalow could be detained for officer safety purposes regardless of whether the officers possessed a reasonable suspicion that he posed a danger.

Defendant’s car parked 30-40 yards from his house was not within the curtilage, and the police could walk up and look in the windows. Opening the doors, however, violated the Fourth Amendment. United States v. Manning, 2007 U.S. Dist. LEXIS 41699 (M.D. Tenn. June 7, 2007):

In this case, the four factors indicate that the Nissan was not within the curtilage of the home. It was parked approximately 30-40 yards from the house and out in the open off the side of a long driveway leading to the house. No steps were taken to shield the area from observation and, in fact, the Nissan was visible from the road. See, United States v. Lakoskey, 425 F.3d 965, 973 (8th Cir. 2006)(expectation of privacy cannot be extended to driveway, walkway, or front door area); United States v. Hatfield, 333 F.3d 1189, 1194 (10th Cir. 2003)(“an owner does not have a reasonable expectation of privacy and … police observations made from the driveway do not constitute a search); United States v. Reyes, 283 F.3d 446, 465 (2d Cir. 2002) (“driveways that are readily accessible to visitors are not entitled to the same Fourth Amendment protections as are the interiors of defendants’ houses”); United States v. Smith, 783 F.2d 648, 651 (6th Cir. 1986) (no expectation of privacy in driveway which was not obstructed and where there was no effort made to screen off or enclose area). Because the Nissan was not within the curtilage of the home and further because the officers were executing a valid arrest warrant, they had a right to walk by or stop next to the vehicle and look inside. However, they had no right to simply open the doors to the vehicle and search inside.

. . .

“The plain view exception to the warrant requirement applies when (1) the officer did not violate the Fourth Amendment in arriving at the place where the evidence could be plainly viewed, (2) the item is in plain view, and (3) the incriminating character of the evidence is immediately apparent.'” United States v. Calloway, 116 F.3d 1129, 1133 (6th Cir. 1997). Here, the officers did not violate the Fourth Amendment by being next to and looking into the vehicle since the vehicle was not within the curtilage and the officers had a warrant for Defendant’s arrest. However, this Court has found as a matter of fact that neither weapon was in plain view and therefore their incriminating nature could not have been apparent. Accordingly, Defendant’s Motion to Suppress Evidence will be granted and the shotguns seized on August 22, 2006 will not be admitted at trial.

Defendant’s argument that his stop was invalid was frivolous. He claimed on appeal that manufacturer’s tinting was exempt from state law, and that made the stop illegal, but it did not. Reasonable suspicion on the detention was a closer question, but the government got the benefit of the doubt on that. On the last question, a 90 minute delay for a drug dog to arrive was not unreasonable on these facts because the police were not delaying the stop. United States v. Leal, 235 Fed. Appx. 937 (3d Cir. 2007)* (unpublished).

Defendant was already known to be a felon and a carrier of weapons when he was stopped, and a furtive motion was made. That justified the officer looking for a gun. United States v. Horn, 234 Fed. Appx. 466 (9th Cir. 2007)* (unpublished).

Defendant was at the apartment of a woman he had known for 15 years and had just come out of the shower when the police arrived with a search warrant. The Washington Supreme Court held that he had standing to challenge the search of the premises even though he was not an overnight guest. He fell into the area in between a casual visitor with no standing and an overnight guest with standing that required a fact intensive inquiry. State v. Link, 2007 Wash. App. LEXIS 70 (January 17, 2007) (the case name is a free link if one wants to see the cases in fn. 11-12):

Link [inexplicably] did not challenge the search warrant [implying that he should have]; instead he moved to suppress the evidence found in Woolsey’s house under CrR 3.5 and 3.6. The trial court held that Link had standing to challenge the search because he was more than a casual guest in Woolsey’s apartment, as evidenced by Link’s (1) romantic relationship with Woolsey; (2) having a key to the apartment; and (3) being in a state of semi-undress when he was apprehended.

But the trial court denied Link’s motion to suppress. …

. . .

Federal and state courts that analyzed whether a social guest had standing found importance in the following factors: (1) the defendant’s relationship with the homeowner or tenant; (2) the context and duration of the visit during which the search took place; (3) the frequency and duration of the defendant’s previous visits to the home; and (4) whether the defendant kept personal effects in the home. n11 Relating to the second factor, courts typically have found no standing when the defendant was merely the guest attending a large party or the defendant failed to prove that he was the legal occupant’s guest. n12 We adopt these four factors as relevant, but not exhaustive, guidelines for the ultimate question of whether the defendant manifested a subjective expectation of privacy that society recognizes as reasonable. Jacobs, 101 Wn. App. at 87.

Looking at these four factors, we conclude that Link had a legitimate expectation of privacy in Woolsey’s home and thus has standing.

THE DEFENDANT’S RELATIONSHIP WITH THE HOMEOWNER OR TENANT

Link and Woolsey had a romantic relationship. This factor indicates that Link would have a reasonable subjective expectation of [*15] privacy when he was alone with Woolsey and her children. Society recognizes that a tenant’s intimate partner has an expectation of privacy while in his partner’s home and that this expectation is reasonable.

THE CONTEXT AND DURATION OF THE VISIT DURING WHICH THE SEARCH TOOK PLACE

Link testified that he was helping Woolsey pack and move, while the State theorized that Link was in the apartment to manufacture and use methamphetamine. It is clear, however, that the purpose of Link’s visit was not simply to engage in illegal and commercial activities; he took a shower and was partially undressed when Officer Mettler intruded. This is more evidence that Link had a subjective expectation of privacy that society would recognize as reasonable.

THE FREQUENCY AND DURATION OF THE DEFENDANT’S PREVIOUS VISITS TO THE HOME

Link spent the night at Woolsey’s home once or twice before, he had stayed in Woolsey’s apartment alone once, and had his own key. Link had a greater sense of privacy than would a visitor who was helping Woolsey move and who had not been entrusted with a key to the home.

WHETHER THE DEFENDANT KEPT PERSONAL EFFECTS IN THE HOME

Link kept an extra hat, jacket, and possibly a pair of shoes in Woolsey’s home. These items established Link’s frequent and possible overnight guest relationship at the apartment and evidence a subjective expectation of privacy in the apartment.

In summary, all four factors indicate that Link had a legitimate expectation of privacy in Woolsey’s home. Accordingly, we hold that Link has standing as a social guest to challenge Officer Mettler’s warrantless search.

Contrast this: The defendant contended that he had no interest in a trailer in an effort to distance himself from the drugs found in it. The court held that he had moved out and he was merely contributing to rent for the occupant. Therefore, he had no standing; yet, he [somehow] could consent to its search. Halderman v. State, 964 So. 2d 1163 (Miss. App. 2007):

P10. This Court holds that the trial court correctly determined that Halderman had no standing to challenge the warrantless search. Halderman testified that he recently had moved and did not live in the trailer. He also testified that he received his mail at a different address. While he admitted to paying rent and some utilities for his girlfriend, Baker, he maintained that he did so to assist her because she had a small child. Because Halderman disavowed any possessory interest in the property, he has no standing to challenge the search. Id.

P11. Even if Halderman had standing to challenge the warrantless search, the Court finds that the trial court did not err in determining that the signed consent was valid to waive the warrant requirement under the Fourth Amendment. See, e.g., Moore v. State, 933 So.2d 910, 917-918 (PP18-25) (Miss. 2006). The two officers that explained the consent form to Halderman and witnessed his signing of the form testified that the form was completed prior to Halderman’s signing and that Halderman consented to a search of the trailer. Halderman’s statement that the form was blank when he signed it and that he agreed only to a search of his vehicle was the only testimony that contradicted the officer’s testimony. Id. at 918 (P24) (citing Jones v. State, 607 So.2d 23 (Miss. 1991)). Accordingly, even if Halderman did have standing to challenge the search, he waived his right to do so when he signed the consent to search form.

Comment: Defense counsel: take note. A defendant can often be standingless yet still be held to be in possession. A standing inquiry should be used to either embrace standing and an expectation of privacy in the premises or to distance oneself as far as possible from the contraband. Sometimes it can be done, often not. This depends, at times, on appearances. After all, what is “apparent authority” but an appearance of authority? One could appear to the police to have authority at the time of the search but, on closer examination after the search, be found without it, and the police could still rely on his apparent authority to consent.

Officer’s seeing the defendant in possession of drugs is probable cause [Duh!]. United States v. Lopez, 2007 U.S. Dist. LEXIS 2807 (D. P.R. January 12, 2007).*

The Washington Supreme Court held that a misdemeanor arrest warrant authorizes police to enter to make an arrest, but only an arrest. It finds it cannot distinguish Payton from misdemeanor arrest warrants because a neutral and detached magistrate made a probable cause finding. The court added, however, that it will not permit the use of misdemeanor arrest warrants as a pretext for search of a home. State v. Hatchie, 161 Wn. 2d 390m 166 P.3d 698 (2007). This is an interesting holding that merits reading, but here is just a part:

Here the warrant was issued by a neutral and detached magistrate. A judicial officer determined there was probable cause to believe a crime was committed and Schinnell committed that crime. This determination constitutes authority of law that justifies an intrusion into the suspect’s home to execute the arrest under limited circumstances. Hatchie, on the other hand, essentially asks us to hold police may never enter a residence on a misdemeanor arrest warrant.

Considering we have held felony arrest warrants provide limited authority to effect an arrest in the home, we see no way to distinguish a misdemeanor arrest warrant to not provide similar authority of law. To do so would create a system whereby some warrants provide authority of law and some do not. As we see it, an arrest warrant is either authority of law to invade the home or it is not.

Of course, but for that warrant, police entry into a private home to make a misdemeanor arrest is per se invalid. As our Court of Appeals said, “When the government’s interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.” Welsh, 466 U.S. at 750 (footnote omitted); see id. at 749 n.11 (“Because we conclude that, in the circumstances presented by this case, there were no exigent circumstances sufficient to justify a warrantless home entry, we have no occasion to consider whether the Fourth Amendment may impose an absolute ban on warrantless home arrests for certain minor offenses.”).

Of course, there is room for the police to abuse this authority. Therefore, we take pains to point out an arrest warrant does not allow for a general search of the premises. Rather, it allows the police only the limited ability to enter the residence, find the suspect, arrest him, and leave. Police action that deviates from the narrow bounds of this authority has no authority of law. In the past we have carefully scrutinized police conduct when they effectuate an arrest warrant, and we have not hesitated to suppress evidence gained from unauthorized extensions of an officer’s arrest authority. See Chrisman II, 100 Wn.2d at 820; State v. Kull, 155 Wn.2d 80, 118 P.3d 307 (2005). In Chrisman II, we considered whether an officer’s search incident to arrest violated article I, section 7. 5 We focused on the officer’s actions after he arrested the suspects. We “recognized that the presence of an officer, which is initially lawful, can be rendered unlawful by his movement.” Chrisman II, 100 Wn.2d at 820. But here we are asking if the officers’ initial presence was lawful, not if some later act after the arrest exceeded the officers’ scope of their authority. …

Similarly, the police cannot use an arrest warrant–misdemeanor or otherwise–as a pretext for conducting a search or other investigation of someone’s home. As the American Civil Liberties Union of Washington (ACLU-WA) points out in its amicus brief, there are thousands of misdemeanor arrest warrants in the state that have not been served. Amicus Curiae Br. of ACLU-WA at 9-10. Here while Hatchie at times alluded to a pretext argument, he never specifically raised such an argument so we do not consider it. But we do note that the police cannot use arrest warrants as a guise or pretext to otherwise conduct a speculative criminal investigation or a search. State v. Michaels, 60 Wn.2d 638, 644, 374 P.2d 989 (1962) (“An arrest may not be used as a pretext to search for evidence.” (citing United States v. Lefkowitz, 285 U.S. 452, 52 S. Ct. 420, 76 L. Ed. 877 (1932); Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961))); see Ladson, 138 Wn.2d at 353 (“Just as an arrest may not be used as a pretext to search for evidence, a traffic infraction may not be used as a pretext to stop to investigate for a sufficient reason to search even further.”). A sounder practice would be for police to secure a search warrant for a particular premise. A neutral magistrate’s determination that police have probable cause to search a particular residence gives police broader authority when they enter a home and also negates any suspicion of a pretextual intrusion to effectuate an investigation.

A City of Pasco city ordinance requires landlords to get a certificate of inspection of rental property, and the certificate is obtained from private inspectors, not governmental agents. The Washington Supreme Court held that the ordinance did not implicate the Fourth Amendment or the privacy provision of the State Constitution: City of Pasco v. Shaw, 161 Wn. 2d 450 (2007) (concurrence; dissent):

¶18 The Pasco ordinance requires a landlord to submit a certificate of inspection, but it does not authorize the city itself to search for housing violations. The petitioners point to Kuehn v. Renton School District No. 403, 103 Wn.2d 594, 600, 694 P.2d 1078 (1985), in which we held that parent chaperones of a high school student trip acted with enforcement authority of school officials when they searched student bags. However, under the Pasco ordinance a landlord can engage private inspectors in order to further the private objective of obtaining a certification needed to maintain a business license. Significantly, if a private inspector finds code violations, the ordinance does not require the inspector to turn his or her findings over to the city. Thus, a landlord can remedy any violations found by an independent inspector, submit to another inspection, and obtain a license based on the new inspection, without the city ever being notified of the original violations. The city insists only upon the certificate that an inspection has been successfully completed. Landlords first and foremost further their own ends when they engage in the inspections contemplated by the ordinance. In sum, the petitioners have not met their burden of showing that landlords and their privately engaged inspectors are state actors. Absent state action, neither the Fourth Amendment, nor article I, section 7 was violated.

¶19 We also note that RCW 59.18.150(1) already provides that a tenant cannot unreasonably withhold consent to the landlord to enter into the rental unit in order to inspect the premises, and the act allows some third parties to accompany the landlord upon entrance.

Police surveilled a building about which they heard crack was being sold. They stopped a person leaving with a bag in hand. The stop was without reasonable suspicion that the defendant was committing a crime, and the motion to suppress should have been granted. State v. Parish, 2007 Ohio 4686, 2007 Ohio App. LEXIS 4211 (5th Dist. September 10, 2007).*

Police dog’s inadvertent attack on plaintiff could be shown to be no more than mere negligence, so summary judgment granted for the officer. Walker v. Yates, 2007 U.S. Dist. LEXIS 67204 (E.D. Okla. September 10, 2007).*

Officer’s “silence and his body language in response to defendant’s inquiry regarding whether he had a choice to consent, and by what he describes as his reasonable belief that he would immediately be arrested if he declined to consent. Even assuming that Settell’s demeanor was as described by defendant, it was not sufficiently coercive to render his consent to search involuntary.” State v. Dunlap, 215 Ore. App. 46, 168 P.3d 295 (2007).*

Former TSA employee was interrogated about theft of $20 found in a bin of discarded lighters, a $20 bill he alerted somebody to when he saw it. He claimed to be held incommunicado and interrogated for hours without Miranda warnings and told that he would be imprisoned if he did not confess. He confessed, was fired, and later sued. He stated a claim for relief under the Fourth Amendment. Galindo v. Arrington, 2007 U.S. Dist. LEXIS 56391 (W.D. Tex. July 18, 2007)*:

Here, Defendants first argue that courts have rejected the idea of “a stand-alone false confession claim based on the Fourth Amendment, rather than the Fifth Amendment or the due process clauses.” However; the Court disagrees with the Defendants’ simplistic framing of Plaintiff’s cause of action. Accepting Plaintiff’s factual allegations as true and drawing all reasonable inferences in his favor, the Court finds at this stage Plaintiff’s allegations amount to more than a simple “stand-alone false confession claim” and state a valid seizure of a person claim.

Officers corrobrated named informants information with their own observations, so there was probable cause for issuance of the search warrant by the state judge that led to federal prosecution. United States v. Crissler, 495 F. Supp. 2d 1019 (D. N.D. 2007).*

Seizure of drugs from the defendant was not from exploitation of an illegal arrest where the defendant struggled with the officers and fled and abandoned drugs while running. His own illegal act was the cause of the abandonment, not the police, as in the dicta in Hodari D. People v. Keys, 375 Ill. App. 3d 459, 874 N.E.2d 577 (4th Dist. 2007).

Search warrant for the first floor of a building was not exceeded where suspects fled up the stairs after the forcible entry, and the officers followed them in hot pursuit. Officers found a gun and money upstairs where one defendant was hiding. Officers were also excused from knocking and announcing since somebody inside looked out the window and saw them coming and quickly moved away. They also had information about weapons inside. State v. Morrison, 2007 Ohio 3895, 2007 Ohio App. LEXIS 3540 (8th Dist. August 2, 2007).*

In a related appeal from the same raid, the court also held that the warrant for the “curtilage, common and storage areas” allowed searches of a car in the driveway and a common basement. Another address found from information in the car was properly searched with a warrant. A sweep of that apartment before receiving the warrant was proper, given a concern that evidence could be destroyed. State v. Mitchell, 2007 Ohio 3896, 2007 Ohio App. LEXIS 3553 (8th Dist. August 2, 2007).* The third related case is State v. Williams, 2007 Ohio 3897, 2007 Ohio App. LEXIS 3551 (8th Dist. August 2, 2007).*

Defendant’s car was stopped on the side of the road at night, so the officer pulled over to check on the driver, and he was found drunk. The encounter was reasonable. Commonwealth v. Conte, 2007 PA Super 232, 931 A.2d 690 (2007).*

Defendant sought discovery under Fed. R. Crim. P. 16(a)(1)(E) for the government’s computer search protocols, just to see if there was a basis for a suppression motion. The court finds it irrelevant to application of the exclusionary rule because some deviations from the protocols are permitted. Also, when the evidence is offered, there may be some other basis for excluding, but not the search. United States v. Fumo, 2007 U.S. Dist. LEXIS 80543 (E.D. Pa. October 30, 2007). Because of the ubiquity of computer searches in everyday practice of computer searches, I quote a lot from this case:

When a defendant’s Fourth Amendment rights have been violated by a search or seizure of his property, “the principal means today for effectuating the rights secured by the Fourth Amendment is through the judicially created exclusionary rule.” United States v. Christine, 687 F.2d 749, 757 (3d Cir. 1982). If a seizure pursuant to a warrant is overbroad, the appropriate remedy is exclusion from use at trial of evidence outside the scope of the warrant. Id. This suppression remedy is available under Rule 12(b)(3)(C), which lists “motion to suppress” as one of five types of pretrial motions. To facilitate the making of this motion, Rule 12(b)(4) allows the government, “[a]t the arraignment or as soon afterward as practicable” to “notify the defendant of its intent to use specified evidence at trial.” Thus, if Fumo later discovers that evidence offered by the government is beyond the scope of the items described in the warrants, he should file a motion to suppress individual exhibits.

The search protocols and keywords used by the government are irrelevant to the decision whether the warrants were overbroad or the seizures exceeded the scope of the warrants. In both cases, the constitutionality of the warrants and of the seizures of particular documents can be determined by examining only the warrants and the evidence.FN5

5. Fumo does not argue that the warrants permitting the searches and seizures were in any way deficient, so I assume, when necessary, that they were not.

Individual documents offered into evidence might be subject to suppression because (1) the warrants allowing the seizures were overbroad, or (2) the seizure exceeded the scope of the warrants. First, if evidence offered by the government for admission at trial is the result of seizure pursuant to an overbroad warrant, overbreadth can be determined from the face of the warrant, and no further discovery is necessary. See, e.g., Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955, 960 (3d Cir. 1984) (referring only to the inclusive language in a warrant authorizing a search of a law office to determine that the warrant was overbroad). The warrant can be evaluated and, if necessary, redacted; evidence seized pursuant to the offending portions of the warrant can be excluded. Christine, 687 F.2d at 758 (“Materials seized under the authority of those parts of the warrant struck for invalidity must be suppressed, but the court need not suppress materials seized pursuant to the valid portions of the warrant.”). No information about search protocols or keywords is necessary or relevant to the analysis.

Second, if the seizure exceeded the scope of the warrant, this will be apparent when the evidence offered is compared to the description on the face of the warrant of items to be seized and when defense counsel questions the proponent of the evidence about the circumstances of its seizure. Cf. United States v. Coleman, 805 F.2d 474, 483 (3d Cir. 1986) (noting that “[t]o the extent material outside the list [contained in the warrant] was seized, the district court properly determined that that material could be suppressed”). Again, information about search protocols or keywords is unnecessary and immaterial to the determination. Therefore, I will deny Fumo’s motion to compel.

Regardless of the search protocols or keywords used by the government, the government may open and briefly examine each computer file to determine whether it is within the description recited in the warrant. The Supreme Court has been clear that a search need not be conducted in the least intrusive manner. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 663, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995). For example, in a search of a file cabinet, the government may examine briefly many documents in the course of looking for a particular document: “In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized.” Andresen v. Maryland, 427 U.S. 463, 482 n.11, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976). The Third Circuit expanded on this observation, adding that “no tenet of the Fourth Amendment prohibits a search merely because it cannot be performed with surgical precision.” Christine, 687 F.2d at 761. Instead, “flexibility is especially appropriate in cases involving complex schemes spanning many years that can be uncovered only by exacting scrutiny of intricate financial records.” Id. These rules are particularly applicable in the case of documents on computers, where files may be disguised, relevant documents may be intermingled with irrelevant ones, and “there is no way to know what is in a file without examining its contents.” United States v. Hill, 459 F.3d 966, 978 & n.14 (9th Cir. 2006); see also United States v. Vilar, No. S305CR621KMK, 2007 U.S. Dist. LEXIS 26993, 2007 WL 1075041, at *35-38 (S.D.N.Y. Apr. 4, 2007). For these reasons, search protocols and keywords do not mark the outer bounds of a lawful search; to the contrary, because of the nature of computer files, the government may legally open and briefly examine each file when searching a computer pursuant to a valid warrant.

In support of his argument that “forensic investigators are not permitted to randomly peruse computer data simply because they have lawfully seized digital media” (Def.’s Mem. 5), Fumo cites United States v. Carey, 172 F.3d 1268 (10th Cir. 1999). In Carey, a computer technician and detective searching computer files for evidence of drug sales happened upon one image of child pornography in the course of their search. Id. at 1270-71. The Tenth Circuit held that they exceeded the scope of the warrant when they abandoned the original search and began looking for other pornographic images, id. at 1276, noting that the file cabinet analogy was “inadequate” and “inapposite,” id. at 1275. The court, however, limited its holding to the facts of the case. See id. at 1276 (“[W]e are quick to note these results are predicated only upon the particular facts of this case, and a search of computer files based on different facts might produce a different result.”). Additionally, the Tenth Circuit has narrowly construed the holding of Carey to be the truism that “law enforcement may not expand the scope of a search beyond its original justification.” United States v. Grimmett, 439 F.3d 1263, 1268 (10th Cir. 2006). Evidence seized must simply be “consistent with the probable cause originally articulated by the … judge.” Id. at 1268-69. As noted above, this comparison may be performed without reference to search protocols and keywords.

For the reasons set out above, there is no requirement that the government, in executing a warrant, limit itself to its search protocols or keywords, so long as the search and seizure actually conducted are supported by the probable cause and within the scope of the particular descriptions recited in the warrants. Because deviations from search protocols and keywords are permissible, knowledge of those protocols and keywords will not allow Fumo or a court to draw conclusions about the reasonableness of the search actually conducted. If the evidence is within the scope of the warrant, it will be admissible. If it is not, it will be suppressed unless an exception to the warrant requirement applies.

Arkansas parole conditions permitted parole search based on reasonable suspicion and not suspicionless searches. Nevertheless, the PO here had reasonable suspicion based on the testimony at the hearing. Part of it was defendant’s failure to promptly respond to the door when the PO knocked because sounds from inside made it sound as though he were hiding something. United States v. Hamilton, 2007 U.S. Dist. LEXIS 81266 (W.D. Ark. October 25, 2007).* Comment: Note the similarity to reasonable suspicion from noise from inside after an announcement which is indicative of people secreting things and not coming to the door. Since dispensing with announcement is based on reasonable suspicion, this is a valid analogy. Not one the court drew, but one I draw.

Defendant’s vehicle was lawfully impounded under the community caretaking function. He had been arrested, and the car was unlocked and illegally parked on the street and would have been subject to theft and the officers had no idea when he would be back to claim it, if ever. United States v. Barrios, 2007 U.S. Dist. LEXIS 81136 (S.D. N.Y. November 1, 2007):

Moreover, to the extent that Edmond can be read to permit Barrios to challenge the programmatic purpose behind the seizure itself, the discussion above establishes that Barrios’s vehicle–which credible testimony showed was illegally parked, potentially unlocked, likely to be unattended for an unknown but significant period of time — was seized pursuant to the “community caretaking” policy that is inherent to the law enforcement function, see generally United States v. Rodriguez-Morales, 929 F.2d 780, 784-85 (1st Cir. 1991), and that has been repeatedly endorsed by both the Supreme Court and the courts of this circuit.

An involuntary commitment is a seizure under the Fourth Amendment, and it would not be unreasonable if with probable cause. Based on the pleadings, the plaintiff states a claim for relief. Van Cortlandt v. Westchester County, 2007 U.S. Dist. LEXIS 80977 (S.D. N.Y. October 31, 2007).*

Private shipping company had a hard time attempting to deliver multiple boxes to the defendant. The address was no good, and the telephone numbers given did not work. So, they opened the packages to see if there was more inside aiding in identification of the recipient, and contraband was found and the police were called. This was purely a private search. United States v. Garcia-Bercovich, 2007 U.S. Dist. LEXIS 81089 (N.D. Fla. October 13, 2007).*

Defendant used a cellphone at work to take a picture of a minor’s private area, and the police extrapolated from that that they should get a warrant for his place of business and his home. A Rhode Island trial judge found no nexus between the use of the cellphone and a search of the defendant’s business and home and suppressed the search, noting also that RI has still not adopted the good faith exception. The search in fact turned up evidence of an “unsavory” nature, but the court reminded the state that the product of the search cannot be used to justify it. State v. Byrne, 2007 R.I. Super. LEXIS 163 (November 5, 2007):

The Fourth Amendment was forged from the flames of rebellion that led the colonial settlers in Rhode Island and other colonies to resist the arbitrary rule of royal tyranny. See 1 John Wesley Hall, Search and Seizure §§ 1.5, 1.6 (3d ed. 2000); James J. Tomkovicz, Technology and the Threshold of the Fourth Amendment: A Tale of Two Futures, 72 Miss. L.J. 317, 325 (2002). Since then, this limitation on government authority has become a revered landmark of our nation’s laws and culture. Modern society is mesmerized by media images captured by technological innovations not imagined when the framers put quill to parchment. Photographic and data storage technology has advanced to the point where it is within anyone’s grasp–literally–to capture digital images with palm-sized cameras and cell phones, and quickly and quietly store them on personal computers for private viewing or public distribution.

The proliferation of these devices and the elusiveness of the images captured and stored on these devices pose unique challenges to privacy rights and law enforcement. Seven years ago, two commentators wrote, “[t]he future surely will bring more legal cases involving video voyeurism, as technology becomes smaller, more affordable, and easier to use.” Clay Calvert & Justin Brown, Video Voyeurism, Privacy, and the Internet: Exposing Peeping Toms in Cyberspace, 18 Cardozo Arts & Ent. L.J. 469, 568 (2000). This case proves the accuracy of that prediction. Nonetheless, the challenges presented by media technology neither permit nor require a departure from the bedrock principles enshrined in the Fourth Amendment. Notwithstanding the disturbing actions allegedly committed by the defendant, this case is a reminder that the Fourth Amendment stands its ground in the face of new technology and condemnable behavior.

. . .

On the other hand, search warrants issued upon affidavits that wholly failed to reference the location to be searched or failed to link the property to be seized with the location to be searched have later been found to lack probable cause. In a particularly relevant case, the United States Court of Appeals for the Fourth Circuit considered a challenge to the nexus requirement brought by a defendant whose residence was searched in accordance with a warrant in spite of the fact that neither the affiant nor the police informants stated that the contraband searched for was to be found at the defendant’s residence. See United States v. Lalor, 996 F.2d 1578, 1579-80 (4th Cir. 1993). In fact, the affidavit did not provide facts alleging that the defendant’s criminal actions occurred at or near his residence. See id. at 1582-83. Consequently, the court found the affidavit lacked probable cause to issue a warrant. See id. at 1583. Similarly, in United States v. Schultz, the United States Court of Appeals for the Sixth Circuit considered a situation in which an informant under arrest for drug related activity identified the defendant as his drug supplier. 14 F.3d 1093, 1096 (6th Cir. 1994). Subsequent police investigations and observations of the defendant failed to yield evidence of any illegal activity by the defendant. See id. Importantly, the informant, the only person to have alleged that the defendant was involved in criminal activity, made no mention of safe deposit boxes for which a warrant was issued. See id. Consequently, the court found a “lack of evidentiary nexus in this case, prior to the search, between the safe deposit boxes and any criminal activity.” Id. at 1097.

This nexus between the property searched for and the location to be searched is critical with respect to the search warrant issued for Byrne’s residence. This Court cannot consider the items seized from Byrne’s residence, unsavory as they are, in determining whether probable cause existed. See Joseph, 337 A.2d at 527. Rather, the Court can and must turn only to the affidavit submitted by Camara. That affidavit provides great detail regarding the actions purportedly taken by the defendant at the coffee shop. However, the facts contained in the affidavit do not implicate Byrne’s residence in any way. In fact, the affidavit is almost entirely devoid of any reference to Byrne’s residence. …

. . .

Moreover, the Court is not inclined to follow the novel reasoning presented by the State during oral arguments: “one man’s speculation … is another man’s reasonable inference.” (Tr. 13). The application of our laws is not, and should not be, so fickle. …

Record supports the USMJ’s conclusion that the officers’ repeated requests to enter the defendant’s premises amounted to coercion. Furthermore, a protective sweep of the premises was unjustified because there was no reason to believe anybody was inside. The defendant made a disturbance call. The smell of marijuana is all that was not tainted by the illegal entry, so the warrant was suppressed. United States v. Ortega, 2007 U.S. Dist. LEXIS 82514 (M.D. Fla. November 6, 2007):

Both officers consistently testified that defendant was very reluctant to allow them to enter the residence, and only agreed after being told that the officers were concerned for the safety of people inside the house and “needed” to check it (Doc. # 41 at 10) or that the officers “need to clear the residence,” (Doc. # 41 at 22, 24), or they “needed to verify that there is nobody else injured inside the house” (Doc. # 41 at 63, 67). While the officers believed defendant’s acquiescence to their claimed authority constituted consent by defendant, the Court concludes that under the totality of the circumstances they were incorrect. See, e.g., Denehy v. State, 400 So. 2d 1216, 1217 (Fla. 1980)(noting that repeated requests for consent to search can constitute coercion.) Accordingly, the entry into the residence cannot be justified under the consent exception to the search warrant requirement. The government’s objection is overruled, and this portion of the Report and Recommendation is accepted and adopted.

. . .

At the time of the entry, defendant had not been arrested and was not viewed as a suspect; rather, he was the victim of an assault which had taken place outside the residence. No suspects were believed to be in the residence; at best, the officers simply did not know who else was in the residence, if anyone. The officers’ lack of information cannot justify a warrantless protective sweep. United States v. Chaves, 169 F.3d 687, 692 (11th Cir. 1999). There was no contradiction between what defendant said and the information known to the officers. The suspects were reported to have left the area, and there was no report that more than one victim was involved. There was no reason to disbelieve defendant’s statement that everything was alright at the time of the officers’ arrival. …

Defendant’s own motion to suppress showed he lacked guest standing, so the motion was denied. United States v. Tolley, 2007 U.S. Dist. LEXIS 81937 (W.D. Ky. November 2, 2007):

Tolley states only that at the time of the search, he was a lawful guest of a resident who he describes as an “acquaintance.” He offers nothing to suggest that he was anything more than a casual visitor to the Madison Avenue residence. Tolley contends that he is entitled to a hearing because the nature of his relationship with the owners is a “factual one.” However, he does not offer any facts which are in dispute. The United States does not disagree that Tolley was present in the residence with the consent of an acquaintance.

Officer was entitled to qualified immunity for justifiably shooting and killing plaintiff’s decedent during an arrest. The scuffle started over an investigation of whether the decedent was involved in vandalizing a Coke machine, and the events spiraled out of control to a pepperspraying, dragging the officer from a moving car, and then going for the officer’s gun. Wright v. Powell, 2007 U.S. Dist. LEXIS 82062 (M.D. Ga. November 2, 2007):

Under these circumstances, the Court finds that Wright presented a risk of danger to Powell, and possibly others, sufficient to justify the use of deadly force. Wright had shown that he was hostile and aggressive and had already made at least one attempt to gain control of Powell’s gun. Powell was justified in shooting Wright as they struggled over the gun because it was objectively reasonable for Powell to be concerned that Wright would continue to fight him for the gun and might succeed in gaining control of the gun and ultimately shooting Powell or others in the area.

“Woman scorned” was a credible informant, showing probable cause. United States v. High, 2007 U.S. Dist. LEXIS 82102 (W.D. Wisc. November 2, 2007):

So which is Sims? She is not an anonymous telephonic informant with an inscrutable personal agenda, nor is she a paradigmatic street informant unwillingly working off a beef. Detective Woodmansee found her to be a credible citizen conflicted by friendship but motivated by her desire to do the right thing. High tries to impeach Sims’s motives by insinuating that she was trying to punish Ross-High because of their spat, but this was not Detective Woodmansee’s impression at the time and on these facts it is an illogical premise. Sims’s report of what Ross-High told her and why Ross-High said it was much too intricate and indirect to qualify as a fabrication intended to get even with Ross-High. As circuitous as Sims’s tale may have been, it was internally consistent and logical: a jealous wife, humiliated by her footloose husband in front of others, lashes out to salve her pride and punish his transgression.FN3

3 “Heaven has no rage like love to hatred turned
“Nor hell a fury like a woman scorned”

— William Congreve, “The Mourning Bride.”

Defendant left his computer open for Internet access for peer to peer access to download files, and this did not show he maintained a reasonable expectation of privacy in his computer. Moreover, there was probable cause for issuance of a search warrant off those entries into the computer. United States v. Stults, 2007 U.S. Dist. LEXIS 81975 (D. Neb. November 2, 2007):

In his supplemental motion to suppress, Stults argues government agents illegally searched his computer prior to the issuance of the search warrant and used such information to establish probable cause for the issuance of the search warrant. Stults contends Agent Cecchini conducted a warrantless search when he viewed the files from IP address 24.252.31.129 (Stults’s IP address) after Agent Cecchini launched the P2P program searching for child pornography. Stults argues Agent Cecchini was able to determine the contents of Stults’s computer, retrieve files from Stults’s computer, and view those files at a distant location without Stults’s consent. Stults asserts without such information, there would be insufficient probable cause to obtain a search warrant of Stults’s premises or computer files.

The application and affidavit detail the workings of a P2P network and that of Limewire which was used in this instance. The application and affidavit set forth how Agent Cecchini accessed the P2P network, noted the downloads of various files by IP address 24.252.31.129, and then downloaded those particular files from the P2P network for viewing. The P2P network is a file sharing network that belies a reasonable expectation of privacy. Absent such an expectation, the Fourth Amendment does not prohibit law enforcement officers accessing the P2P network and viewing files that have been downloaded by various IP addresses. Stults’s assertion that Agent Cecchini’s actions amounted to a warrantless search tainting the application and affidavit is without merit.

In a qualified immunity analysis, the question is not probable cause; it is arguable probable cause, and here there was not, so qualified immunity is no protection. Defendants’ argument of exigency also fails because they had three hours to procure a warrant. Barnette v. City of Phenix City, 2007 U.S. Dist. LEXIS 82300 (M.D. Ala. November 6, 2007).*

Plaintiff was taken down by the officer when he refused arrest, and this was not excessive force because he was resisting. Cardinal v. Allain, 2007 U.S. Dist. LEXIS 81862 (M.D. La. November 5, 2007):

Deputy Balcuns used a straight arm bar take down tactic to bring Mr. Cardinal to the ground. Such a tactic was not excessive force because Mr. Cardinal was jerking way from Deputy Balcuns to prevent Deputy Balcuns from handcuffing him. In addition, when Deputy Balcuns made a second attempt to handcuff Mr. Cardinal, Plaintiff again responded by jerking away and pushing Deputy Balcuns. It was Mr. Cardinal’s conduct and intoxicated state which created the situation at issue.