Use of stolen identity to rent a storage unit did not show a reasonable expectation of privacy in the storage unit. United States v. Johnson, 2007 U.S. Dist. LEXIS 81465 (D. Utah November 2, 2007):

While Defendant acknowledges that the storage unit was rented using a false name, he contends that he had an expectation of privacy in the storage unit because he placed his personal property inside it, paid the fees for it, placed a lock upon it, and never disavowed an interest in it. Nonetheless, it is questionable whether Defendant could have subjectively believed that this storage unit could remain free from a search if the fraudulent rental agreement was discovered by the storage facility employees, the police, or Haroldsen. The evidence indicates that Defendant directed Christensen to enter into the rental agreement using Haroldsen’s driver license. The rental agreement, itself, provides that only Shannon Haroldsen had authority to enter the unit.

Even if the court found that Defendant had a subjective expectation of privacy in the storage unit, society does not recognize that expectation as objectively reasonable. Defendant fraudulently used a stolen identity to rent a storage unit in an attempt to conceal criminal activities. It is not objectively reasonable to assume that the individual whose name has been used for such improper purposes would not have the right to consent to a search of the unit. Prohibiting Haroldsen, a victim of identity theft, from assisting law enforcement in the investigation of crimes perpetrated with the use of her name would elevate the privacy rights of Defendant over the rights of Haroldsen to clear her name. Defendant forfeited his privacy rights to the storage unit when he directed Christensen to enter into a fraudulent rental agreement in Haroldsen’s name. Society has no interest in protecting the rights of someone using another person’s name to fraudulently conceal his criminal activities.

A minimal description of things to be seized distinguishes this search warrant from the one in Groh v. Ramirez. Thus, the search was valid despite the general additional phrase “[o]r any other evidence indicative of the criminal offense of Burglary, Theft or Possession of Stolen Property.” United States v. Sims, 2007 U.S. Dist. LEXIS 81517 (C.D. Ill. November 2, 2007):

This court concludes that this is a close case. The description provided in the search warrant is certainly lacking in detail, and the warrant does not incorporate by reference Weinstock’s affidavit, which did include a description of particular items, such as the Aussie grill and yellow welder. However, this court agrees with the Government that Groh is distinguishable because the warrant in this case did include a description of the things to be seized. The Seventh Circuit has stated that, while a warrant must “describe the objects of the search with reasonable specificity, it need not be elaborately detailed.” United States v. Jones, 54 F.3d 1285, 1290 (7th Cir. 1995). A warrant need not “enable authorities to ‘minutely identify every item for which they are searching.'” United States v. Shoffner, 826 F.2d 619, 630 (7th Cir. 1987), quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir. 1984). It is sufficient if the executing officers are able “to identify the things to be seized with reasonable certainty.” Jones, 54 F.3d at 1290. “If detailed particularity is impossible, generic language is permissible if it particularizes the types of items to be seized.” United States v. Hall, 142 F.3d 988, 996 (7th Cir. 1998).

Indiana finds a traffic stop pretextual and invalidates it under the state constitution (albeit reading exactly like the Fourth Amendment), including a videotaped confession occurring shortly thereafter. Turner v. State, 862 N.E.2d 695 (2007):

Pretextual stops are not, per se, unreasonable under the Indiana Constitution. However, this admittedly pretextual stop facilitated by a traffic violation of questionable validity was not reasonable in the light of the circumstances and violated Turner’s rights under Article I, Section 11 of the Indiana Constitution.

Because the traffic stop was illegal under the Indiana Constitution, we must determine what evidence, if any, should be suppressed.

“[N]ot all evidence is the fruit of the poisonous tree because it is the result of an illegal search or seizure. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitations of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Evidence may be purged of the primary taint if the causal connection between the illegal police conduct and the procurement of the evidence is so attenuated as to dissipate the taint of the illegal action.”

Quinn v. State, 792 N.E.2d 597, 600 (Ind. Ct. App. 2003) (internal citations omitted), trans. denied 804 N.E.2d 753 (Ind. 2003). Three factors for consideration in determining whether the causal chain is sufficiently attenuated are: “(1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.” Id. (citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)). The important consideration in the third factor is whether the evidence came from “‘the exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'” Id. (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963)).

Maryland holds that refusal to submit to a search warrant for blood samples that defendant knew were in relation to a death was admissible as consciousness of guilt. [This is different from exercise of the right to refuse consent where no warrant is involved.] Thomas v. State, 397 Md. 557, 919 A.2d 49 (2007):

Despite Detective Knowlan’s expanded testimony, petitioner argues that the trial court should still have found the consciousness of guilt evidence inadmissible. His argument rests primarily on the first inference we noted in Thomas I: “from his resistance to the blood test, a desire to conceal evidence.” Petitioner claims that numerous other factors could have explained his reluctance to submit to the testing. He states that his reaction “would be the universal response” of anyone taken to a police interrogation room and told they would be required to provide a blood sample. Further, he posits that his reaction could have been due to religious objections or fear of needles, the sight of blood, pain, or possible infection. We find these arguments unconvincing.

We agree with the explication of the Court of Special Appeals, which stated as follows:

“Federal courts have also held that resistance to police requests for evidence could support an inference of consciousness of guilt. See United States v. Jackson, 886 F.2d 838, 846 (7th Cir. 1989) (stating that ‘evidence of the defendant’s refusal to furnish writing exemplars, like evidence of flight and concealment, is probative of consciousness of guilt’); United States v. Terry, 702 F.2d 299, 313-14 (2d Cir. 1983) (holding that evidence that defendants refused to permit investigators to obtain palm prints was admissible to show consciousness of guilt). Appellant courts in sister states have held that evidence of the refusal to provide a blood sample is admissible to support an inference of consciousness of guilt. [People v. Farnam, 28 Cal. 4th 107, 47 P.3d 988, 1022 (Cal. 2002)] (stating that evidence that the defendant initially resisted providing blood and hair samples, despite a court order that he do so, was admissible to show consciousness of guilt); [People v. Edwards, 241 Ill. App. 3d 839, 609 N.E.2d 962, 966, 182 Ill. Dec. 428 (Ill. App. Ct. 1993)] (stating that ‘Defendant’s initial refusal to submit to blood testing has some tendency to indicate a consciousness of guilt and is therefore relevant and generally admissible’).”

Thomas, 168 Md. App. at 710, 899 A.2d at 186-87. So long as the proper foundation is laid, consciousness of guilt evidence may be relevant and admissible.

Simply because there is a possibility that there exists some innocent, or alternate, explanation for the conduct does not mean that the proffered evidence is per se inadmissible. If it was the position of petitioner that he feared needles, or that the drawing of blood violated some religious belief he held, or any other innocent explanation for his conduct, it was incumbent upon him to generate that issue. He had the opportunity at trial to offer alternative theories explaining his resistance to the blood test, and the record is completely devoid of any such evidence. See 2 JAMES H. CHADBOURN, WIGMORE ON EVIDENCE § 276(e), p. 130 (Chadbourn rev. 1979) (stating that “the accused may always endeavor to destroy the adverse significance of his conduct by facts which indicate it to be equally or more consistent with such other hypothesis than that of a consciousness of guilt”). The State is not required to anticipate any or all conceivable innocent explanations for a party’s refusal to submit to a blood test, and its failure to do so is not a basis to exclude the evidence. See id. at § 276(b), p. 129 (stating that the “prosecution cannot be expected to negative beforehand all conceivable innocent explanations [for consciousness of guilt]”).

Off-duty police officer working security at a bar was not acting as a governmental actor when he patted down the defendant for weapons on entering the bar. Also, the patrons were warned of the coming patdown. People v. Nadal, 48 V.I. 212, 2007 V.I. LEXIS 6 (V.I. Super. Ct. February 5, 2007).*

Search was suppressed because it was for “a dwelling” that was “white with a green roof” but three were searched and none had a green roof. People v. Trotman, 48 V.I. 156, 2006 V.I. LEXIS 31 (V.I. Super. Ct. December 14, 2006).*

A prison escapee had no reasonable expectation of privacy in the place entered to capture him. Also, the prison issued an administrative arrest warrant which was valid [concurring judges find it invalid but saved by good faith exception]. United States v. Lucas, 499 F.3d 769 (8th Cir. 2007) (en banc), reversing United States v. Lucas, 451 F.3d 492 (8th Cir. 2006):

As an escapee Lucas had only a minimal expectation of privacy in Scaife’s apartment. See Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978). Prisoners like Lucas who are on work release are subject to special restrictions just like probationers. Their liberty is legitimately constrained because “[p]robation, like incarceration, is a form of criminal sanction imposed by a court upon an offender after verdict, finding, or plea of guilty.” Griffin, 483 U.S. at 874 (internal quotation marks and citation omitted). The state has a duty to protect the community from harm when a probationer or escaped prisoner is “at large.” Id. at 875. For these reasons a warrantless search of a probationer’s home without probable cause is permissible if it is based on the reasonable suspicion of the probation officer. United States v. Knights, 534 U.S. 112, 121-22 (2001). The officers’ entry into Scaife’s apartment did not violate the Fourth Amendment since Lucas was a convicted escapee whom they were seeking under the authority of a valid administrative warrant issued by the responsible state official who had reasonable cause to believe that Lucas had escaped.

Lucas as an escapee from lawful custody had an even more circumscribed expectation of privacy than the probationer in Knights or the parolee in Samson v. California, 126 S. Ct. 2193, 2200 (2006) (state’s “overwhelming interest in supervising parolees” justified a warrantless search). Lucas had to sign a personalized plan agreeing to the terms of his work release program before he could participate in it, and these terms required him to return to the community corrections center after work. See Neb. Dep’t of Correctional Servs. Reg. 201.06 & app., available at http://www.corrections.state.ne.us/policies/files/201.06.pdf; see also Trial Tr. at 259 (stipulation that Lucas was obligated to return to Omaha Community Corrections Center after work). That Lucas expected to be recaptured wherever discovered is evidenced by his comment to the arresting officers, “Damn, I knew I was going to get caught eventually.”

Police received several 911 calls of gunshots from a particular apartment by an Hispanic male and pellets were falling in the parking lot. Police arrived and encountered defendant who admitted he lived in the apartment. Officers could not get in the apartment, and they attempted and failed to pick the lock. Finally, after ten minutes, they kicked in the door to do a “protective sweep” for the weapon and possible victims. A few shotgun shells were seen, and no evidence was seized. They retreated, stood at the door and sought a search warrant. The initial entry was based on a clear exigency. United States v. Valencia, 499 F.3d 813 (8th Cir. 2007):

In this case, the circumstances giving rise to exigency are clear. Several shotgun blasts were heard coming from an urban apartment. Some pellets landed across the street. When police arrived, they encountered the apparent tenant of the apartment where the shots allegedly originated, and he denied responsibility. Another part-time occupant refused to shed any light on the situation. As a result, all the police officers could have reasonably known at the time they entered Valencia’s apartment was that a deadly weapon had been fired multiple times by someone from that location roughly thirty minutes earlier, and some pellets from one or more of those shells landed across the street. The other shells were unaccounted for, no one had confessed to firing a weapon, and no weapon had been found. Viewing the circumstances objectively, these facts create clear justification for a reasonable law-enforcement officer to enter the apartment without a warrant to secure the shotgun and to discern if the shooter or any victims in need of medical attention remained inside.

Comment: This is an example of the phase “protective sweep” taking on a broader meaning to include a sweep for weapons and victims and not a person hiding who may “launch an attack” as originally envisioned by the Supreme Court when it first used the phrase in Maryland v. Buie, 494 U.S. 325 (1990).

The issuing judge by oversight failed to initial the place to be searched on the warrant while initialing elsewhere. This did not mean that the warrant was defective. The affidavit showed probable cause to search the place described without the initials being present, and the judge told the officer on signing the warrant that the warrant was “fine.” United States v. Hurd, 499 F.3d 963 (9th Cir. 2007):

When Officer Clifton presented this affidavit and the search warrant to Judge Kurshner at her home, the judge placed Officer Clifton under oath and reviewed the affidavit. She then instructed Officer Clifton to sign the affidavit and she also signed it herself. Judge Kurshner did not ask any questions about the information in the affidavit or the request to search Hurd, his residence, and his vehicle. She did not give any indication that probable cause only supported part of the requested search warrant, nor did she give any indication that there were any other problems with the warrant request. To the contrary, Judge Kurshner told Officer Clifton that “his warrant request was ‘fine’ (or words to that effect)” before signing the search warrant itself. Judge Kurshner signed the warrant promptly after reviewing and signing Officer Clifton’s affidavit, and that affidavit indisputably described the probable cause for searching Hurd’s residence. It is likely that if Judge Kurshner did not intend to authorize the search of Hurd’s residence, she would have done something to call Officer Clifton’s attention to whatever deficiency she found in the warrant request and she would not have simply indicated her approval of the warrant. An objective assessment of the circumstances surrounding the issuance of the warrant thus supports the conclusion that Judge Kurshner authorized the search of Hurd’s residence along with the search of his person and his vehicle.

Comment: This is one of those search warrant “defects” that falls in the category of “where’s the prejudice by the oversight?” If there isn’t any, the search under the warrant normally should not be suppressed. Officers and judges are allowed slight mistakes without jeopardizing the search.

The Third Circuit clarifies qualified immunity review after previously reversing summary judgment in an excessive force shooting case because of factual questions remaining then. Now, after trial resulted in a verdict for the officers (the plaintiff being an off-duty police officer), the court affirms finding that qualified immunity was a question of law for the court, not for a jury, which the law used to be. Curley v. Klem, 499 F.3d 199 (3d Cir. 2007):

Fundamental fairness dictates a totality-of-the-circumstances review, since the test for reasonableness “is not capable of precise definition or mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559 (1979). It depends on all of the chaotic details that emerge in real time in real life. 13 Yet the method that we and many other courts have taken to address the mixed legal and factual questions posed by the Saucier test cannot easily, perhaps cannot ever, capture those circumstances in their totality. When one picks and chooses a few questions to pose to a jury to ferret out historical facts, staying away from asking the broader question of what constitutes reasonable behavior under those facts, one cannot help but focus attention on some events to the diminution or exclusion of others. In short, a totality-of-the-circumstances test is replaced by a test focusing on those few circumstances featured in the questions a court is able and willing to articulate.

. . .

Confusion between the threshold constitutional inquiry and the immunity inquiry is also understandable given the difficulty courts have had in elucidating the difference between those two analytical steps. At the risk of understating the challenges inherent in a qualified immunity analysis, we think the most helpful approach is to consider the constitutional question as being whether the officer made a reasonable mistake of fact, while the qualified immunity question is whether the officer was reasonably mistaken about the state of the law.

Government’s failed knock and talk did not create probable cause and exigent circumstances nor did the occupants’ consent to an entry. The government could not claim on this record that exigent circumstances arose from the knock and talk. [This case is a fascinating analysis of reasonable suspicion never rising to probable cause and a government “gamble” that the knock and talk would work.] United States v. Ellis, 499 F.3d 686 (7th Cir. 2007):

We note that our conclusion relies on the fact that there is a minimum of information presented by the government about the 40th Street home on the probable cause issue. There was no effort by the government to develop additional evidence of criminal activity in the home before they decided to perform a knock and talk investigation. It was the government’s decision to inform the occupants of the 40th Street home that they were targets of a government investigation when the government knocked on the front door and asked for consent to come into the home. The government took a gamble hoping that the occupants would consent to their entry or would open the door revealing contraband in plain sight. Perhaps if the government had come up with a better story than, “We’re looking for a lost child, can we search the home?” they might have been able to convince Ellis to consent to their entry. However, once Ellis refused to consent, the occupants knew of the government’s investigation of the home and so the government was concerned that the occupants might destroy any drugs that could be in the home. However, it was the government’s choice to reveal itself to the home occupants by engaging in a “knock and talk” investigation and its decision backfired. It is perfectly lawful for the government to knock on the front door of home and ask to come in. However, once Ellis said no, the government could not save its case by kicking in the side door when it lacked either a warrant or probable cause coupled with exigent circumstances. We return the case to the district court to consider in the first instance whether there are any additional arguments to save the government’s search of the 40th Street home and with it the government’s case against Ellis.

Gravity of the crime under investigation is the prime factor justifying a stop under United States v. Hensley, and a loud music stop that endangers no one does not qualify. The ability to stop is less applicable to a past crime unless there is a danger. Here, the court analyzed federal and state cases to come to its conclusion, and it concludes that there was no reasonable suspicion for stopping the defendant. United States v. Grigg, 498 F.3d 1070 (9th Cir. 2007):

We adopt the rule that a reviewing court must consider the nature of the misdemeanor offense in question, with particular attention to the potential for ongoing or repeated danger (e.g., drunken and/or reckless driving), and any risk of escalation (e.g., disorderly conduct, assault, domestic violence). An assessment of the “public safety” factor should be considered within the totality of the circumstances, when balancing the privacy interests at stake against the efficacy of a Terry stop, along with the possibility that the police may have alternative means to identify the suspect or achieve the investigative purpose of the stop.

B

We conclude that Officers Roeder’s and McGuire’s investigatory stop of Grigg was not reasonable. As discussed above, the exceedingly harmless past misdemeanor conduct — allegedly playing one’s car stereo at a volume in suspected violation of a local noise ordinance — need not spur the police into instant action as might the opportunity to stop a reputedly armed felon, street fighter, or reckless driver. Cf. Hensley, 469 U.S. at 223; Devils Lake, 639 N.W.2d at 467; Myers, 490 So. 2d at 704. So far as we can discern, if Officers McGuire and Roeder had not stopped Grigg, the threat to public safety from his loud music would have been nil. Given the lack of exigency to seize Grigg temporarily, his interest in personal security against governmental intrusion is entitled to more deference.

The government showed probable cause from informant hearsay that was corroborated and a controlled buy, among other things, and a warrantless search of defendant’s car was justified contemporaneously with his arrest when he showed up at the scene where police were waiting for him. United States v. Ball, 499 F.3d 890 (8th Cir. 2007).*

The informant had been corroborated by the police. While he was not a model citizen, he got nothing in return except an expected good word with the prosecutor, which was to his benefit. The key, however, was corroboration. United States v. Brown, 500 F.3d 48 (1st Cir. 2007):

In this instance, the CI was not a model citizen — he sported a criminal record and unresolved state criminal charges were looming. The defendant asserts that the police knew little or nothing more about the CI. He adds that, although no money had been offered or explicit promises made, the CI obviously expected a good reference from the officers to the local district attorney as a quid pro quo for the tip.

This assertion understates what the police knew and when they knew it. For one thing, the CI was not anonymous. Since he was known to the police, he could have been held accountable if his information proved inaccurate or false. Cf. Adams v. Williams, 407 U.S. 143, 146-47, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972) (suggesting that informant’s reliability was buttressed by the fact that he risked prosecution should he make a false report). For another thing, at the time of the tip that prompted the arrest, the CI had been cooperating with the authorities for approximately one month. During that period, Cashman had several interactions with him. Moreover, even prior to July 7, the CI had provided trustworthy information and had demonstrated his knowledge of the drug trade in the Portland area. Thus, by July 29 the CI had compiled some record of reliability.

The defendant raised a host of problems with the search including the files in the U.S. District Clerk’s office not being in order, a computer search occurring where the only basis was that in two picture the screen was not lit in an earlier one and lit in a later one [bump the mouse?], overbreadth, failure to knock and announce (foreclosed by Hudson), none of which prevailed. It was a complex financial fraud case, and the government gets more leeway there. United States v. Tylman, 2007 U.S. Dist. LEXIS 61638 (C.D. Ill. August 22, 2007).*

Defendant was illegally stopped and searched and the gun on him suppressed. His friend was the object of the police interest, but he was stopped too. “Watson stated that Kielb ‘stopped [Alston]. Said, we need to talk to you, ….'” An unintended stop is still governed by the Fourth Amendment. United States v. Stewart, 2007 U.S. Dist. LEXIS 61715 (E.D. Va. August 22, 2007):

This “seizure” inquiry has three features relevant here. First, it is an objective test. It does not turn on the subjective belief of the defendant, nor on the subjective intentions of the officer. See California v. Hodari D., 499 U.S. 621, 628 (1991) (holding that the standard “is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.”).

Second, to determine whether a reasonable person would have felt free to leave, the inquiry “tak[es] into account all of the circumstances surrounding the encounter ….” Bostick, 501 U.S. at 437. Application of the “totality of the circumstances” test involves the assessment of “numerous factors,” including, but not limited to:

. the time, place and purpose of the encounter,
. the words used by the officer,
. the officer’s tone of voice and general demeanor,
. the officer’s statements to others present during the encounter,
. the threatening presence of several officers,
. the potential display of a weapon by an officer, and
. the physical touching by the police of the citizen.

United States v. Weaver, 282 F.3d 302, 310 (4th Cir. 2002) (citing Bostick, 501 U.S. at 437; Michigan v. Chesternut, 486 U.S. 567 (1988); Mendenhall, 446 U.S. 544 (1980)).

Finally, “an unintended person may be the object of the detention,” so long as the detention is the result of an officer’s willful act. Brendlin, 127 S. Ct. at 2405 (quoting Brower v. County of Inyo, 489 U.S. 593, 596 (1989) (ellipses and brackets omitted)). Thus, the conduct of officers who stop person “A” may, for purposes of the Fourth Amendment, effect a stop of person “B” as well, where a reasonable person in person “B’s” shoes would conclude from the officers’ conduct that he, too, was not free to leave.

This principle has found its application in cases where officers, by show of authority in seizing one person, also seize another. In United States v. Goddard, ___ F.3d ___, 2007 WL 1791093 (D.C. Cir. June 22, 2007), police officers approached a group of four men, among them the defendant, who were standing together. 2007 WL 1791093 at *1. ….

Following an Anders brief, probable cause from a dog alert justifies opening a locked glove compartment in a car. State v. Buckner, 2007 Ohio 4329, 2007 Ohio App. LEXIS 3877 (2d Dist. August 24, 2007).

Defendant’s stop was based on fact, and the consent was granted after the defendant was told he was free to go and did not have to consent. Commonwealth v. Duncan, 2007 PA Super 267, 932 A.2d 226 (2007):

When Duncan exited the vehicle, Officer Sacks did not act on his observation of the contraband lying in plain view on the driver’s seat but instead proceeded with the traffic stop. After he had finished his investigation, the officer told Duncan he was free to go, but that due to his license suspension he would have to contact someone else to remove the car. Significantly, the record also establishes that when Officer Sacks made his request to search, he reminded Duncan that he did not have to consent and was in fact free to go. Thus, Officer Sacks assured Duncan of the voluntary nature of the continuing interaction not once, but twice.

Police entered an apartment without cause or exigent circumstances and observed defendant passing a marijuana pipe to another person. The state argued the defendant lacked standing, but the court held that to reward the government’s conduct here would “’emasculate'” the Fourth Amendment and State constitution. Commonwealth v. Arnold, 2007 PA Super 248, 932 A.2d 143 (2007):

[*P16] For these reasons, we conclude that the fact that Arnold was not a resident of the apartment is not relevant in the disposition of this matter. Indeed, to apply the reasoning of Millner under the facts found here would permit police officers to provide retroactive justifications and randomly invade homes on the pretense that any person found to be a non-resident after the fact could be searched. See Demshock, 854 A.2d at 556-57 (finding police must articulate exigent circumstances at time of entry and cannot provide retroactive justifications to demonstrate exigent circumstances). Allowing the Commonwealth to provide such justifications following a random invasion into a home without a warrant or probable cause and exigent circumstances would trivialize the protections afforded by the United States and Pennsylvania Constitutions. See Davis, 743 A.2d at 953 (reiterating that allowing the police to observe illegal activities by their own unlawful means “emasculates the protections afforded to appellant and all citizens by the United States and Pennsylvania Constitutions.”). As the police officers did not legally enter the apartment, we conclude that the drug evidence and paraphernalia should have been suppressed as the fruits of an illegal entry and search. See Demshock, 854 A.2d at 559 (concluding that the entry and search of the apartment was unconstitutional and hence the fruits of the search should have been suppressed).

Comment: This has been a bone of contention for me for decades: When the defendant becomes a target of illegal police conduct, he should have standing to challenge blatantly illegal conduct directed at him because of “bad faith,” notwithstanding the officer’s subjective intent is irrelevant. But, can bad faith be proved objectively? Sometimes yes. Stated another way, suppose the police are willing to conduct an illegal stop and search of A with the purpose of gaining evidence against B, entirely willing to sacrifice the case against A because B is the “bigger fish.” What then? This is the gist of “target standing,” a concept that has long been rejected by SCOTUS. The question of standing here is factual and should not be “once removed”; i.e., the target defendant should be there and directly involved, not indirectly involved because the illegal search of a place where he had no standing reveals evidence against him that was left or is otherwise present when the defendant is not.

Officer’s subjective intent to search the defendant was irrelevant when there was probable cause for a traffic stop and reasonable suspicion developed because of defendant’s conduct during the stop and that led to a patdown. United States v. McMahan, 2007 U.S. Dist. LEXIS 64600 (N.D. Tex. August 30, 2007).*

Defendant’s parents, the owners of the property, went overseas on a trip, and they left their daughter in control of their house. The police showed up and sought and received consent to enter. Defendant, a son of the parents, was allegedly running a drug operation from his parent’s house. He cited a case involving a handyman who obviously did not have common authority, and a case involving intentional bypass of a person with a superior interest in the property. Here, there was no intentional bypass because the parents were more than just unavailable. The daughter was in control of the property at the time, and this did not involve bypass of one with a superior property interest. United States v. Ayoub, 498 F.3d 532, 2007 FED App. 0322P (6th Cir. 2007):

Having established that Atoui possessed authority to consent to a search of her parents’ home, the next question is whether Ayoub’s asserted possessory interest in the home eliminated Atoui’s authority to consent to the search. Even assuming that Ayoub had a possessory interest in the home and that it was greater than Atoui’s–a colorable assumption, as he was seen going to and from the house–he never cut off Atoui’s authority to consent to the search. Unlike the defendant in Jones, Ayoub never denied consent.

Defendant’s confession two days after an illegal search was attenuated to dissipate the taint under the four part test of Brown v. Illinois which the court analyzed and found satisfied. United States v. Stark, 499 F.3d 72 (1st Cir. 2007):

To determine whether the initial taint has been removed, we must balance the following factors: (1) the voluntariness of the statement; (2) “[t]he temporal proximity” of the illegal search and the confession; (3) “the presence of intervening circumstances”; and (4) “the purpose and flagrancy of the official misconduct” (“Brown factors”). Brown v. Illinois, 422 U.S. 590, 603-04 (1975).

Consent to open the door to look at VIN on door after already having seen it through the windshield was valid, even though the officer was able to look at seat bolts and determine that they had been tampered with, and that gave cause to go further. The officer already had reasonable suspicion from answers to questions. United States v. Grajeda, 497 F.3d 879 (8th Cir. 2007).

A Native American ran a smoke shop in Rhode Island, and the police came in. One thing led to another, and plaintiff was arrested for disorderly conduct, and he was taken down to the floor in such a way that his ankle was broken. (The initial search was before the court in Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16 (1st Cir. 2006)(en banc).) After a jury trial, he was awarded $301,100 for excessive force, but the district court set aside the verdict on qualified immunity grounds. The First Circuit reversed on qualified immunity and ordered reinstatement of the jury verdict. Taking the testimony in a light that supports the jury verdict, Officer Jones applied increased force to plaintiff even after he stopped resisting, and that would be excessive force. Jennings v. Jones, 499 F.3d 1 (1st Cir. 2007).*

Defendant’s challenge to the admission of her statements was waived by not filing a motion to suppress in the district court. United States v. Colino, 2007 U.S. App. LEXIS 19595 (9th Cir. August 14, 2007)* (unpublished).

Plaintiffs’ arrest was with probable cause to believe that they committed “some crime,” so summary judgment for the officers was appropriate. Phillips v. Stevens, 2007 U.S. Dist. LEXIS 60215 (S.D. Ohio August 16, 2007).*

Summary judgment for defendant officer granted on excessive force claim. Handcuffing was alleged to be too tight and uncomfortable during drive to book-in, and the officer had to use some “force” to put the plaintiff in the police car, but none of it was excessive. Judson v. Mount Desert Police, 2007 U.S. Dist. LEXIS 60204 (D. Me. August 10, 2007).*

Michigan statute that permitted searches of minors for alcohol without probable cause was unconstitutional. Platte v. Thomas Twp., 504 F. Supp. 2d 27 (E.D. Mich. 2007):

The conclusion is inescapable here as well that section 436.1703(6) authorizes police officers to perform a search of minors without a warrant or a legal excuse for not obtaining one, and therefore the statute “endorses procedures to authorize a search that clearly do not comport with the Fourth Amendment.” Warshak, 490 F.3d at 477. The statute, Michigan Compiled Laws § 436.1703(6), therefore is unconstitutional on its face. To the extent that the state defendants’ defense is based on the validity of this statute, it must fail.

Officers had a valid search warrant issued on probable cause for the search of plaintiff’s apartment for identity theft. Plaintiff was admittedly asleep when the entry occurred and that did not make a fact question sufficient to rebut the officers’ claim they knocked and announced before entering. Abdullah v. Fetrow, 2007 U.S. Dist. LEXIS 71370 (M.D. Pa. September 26, 2007)*:

The court finds Abdullah’s allegations insufficient to create a genuine dispute of fact as to whether the officers knocked and announced their presence. In reaching its decision, the court is persuaded by the reasoning of the United States Court of Appeals for the Seventh Circuit in Molina ex rel. Molina v. Cooper, 325 F.3d 963 (7th Cir. 2003). In that case, the plaintiff was asleep when the defendant-police officers entered her residence to execute a search warrant. Id. at 972. The plaintiff claimed that the officers failed to knock and announce and testified that she “awoke to ‘screaming and yelling’ but could not understand what was being said.” Id. The Seventh Circuit held that because the plaintiff was asleep at the time the warrant was executed, her assertions could not create a “genuine dispute as to whether the officers ‘knocked and announced.” Id. Like the plaintiff in Molina, Abdullah admits that he was asleep in his bedroom at the time of the officers’ entry.

Plaintiff is incarcerated as a sexually violent predator in Missouri who claimed a pat search was conducted on him that involved touching his genitals. “As a result, Plaintiff claims that he has suffered emotional distress and extreme headaches.” Suit was filed the next day. His generalized claim of a touching in prison is insufficient to state a claim. Carter v. Chamberlin, 2007 U.S. Dist. LEXIS 71073 (E.D. Mo. September 25, 2007).*

The Brian Mayfield case referred to in the post of September 27th holding parts of the USA PATRIOT Act unconstitutional is now available on Lexis. Mayfield v. United States, 504 F. Supp. 2d 1023 (D. Ore. 2007):

Prior to the Patriot Act, the government was required to certify that the primary purpose of its surveillance was to obtain foreign intelligence information. The Patriot Act now authorizes FISA surveillance and searches as long as a significant purpose of the surveillance and searches is the gathering of foreign intelligence. 50 U.S.C. §§ 1804(a)(7)(B) and 1823(a)(7)(B). This amendment allows the government to obtain surveillance orders under FISA even if the government’s primary purpose is to gather evidence of domestic criminal activity. See In re All Matters Submitted To The Foreign Intelligence Surveillance Court (“In re FISC“), 218 F. Supp. 2d 611, 615 n.2 (FISC 2002). The practical result of this amendment, objected to by plaintiffs, is that in criminal investigations, the government can now avoid the Fourth Amendment’s probable cause requirement when conducting surveillance or searches of a criminal suspect’s home or office merely by asserting a desire to also gather foreign intelligence information from the person whom the government intends to criminally prosecute. The government is now authorized to conduct physical searches and electronic surveillance upon criminal suspects without first proving to an objective and neutral magistrate that probable cause exists to believe that a crime has been committed. The government need only represent that the targeted individual was an agent of a foreign power (a representation that must be accepted unless “clearly erroneous”) and that “a significant purpose” of the surveillance and search is to collect foreign intelligence.

Here, the government chose to go to the FISC, despite the following evidence: Mayfield did not have a current passport; he had not been out of the country since completing his military duty as a U.S. Army lieutenant in Germany during the early 1990s; the fingerprint identification had been determined to be “negative” by the SNP; the SNP believed the bombings were conducted by persons from northern Africa; and there was no evidence linking Mayfield with Spain or North Africa. The government nevertheless made the requisite showing to the FISC that Mayfield was an “agent of a foreign power.” That representation, which by law the FISC could not ignore unless clearly erroneous, provided the government with sufficient justification to compel the FISC to authorize covert searches and electronic surveillance in support of a criminal investigation.

. . .

At issue here are two fundamental concerns: the safety of our nation and the constitutional rights of citizens. With the passage of the Patriot Act, these concerns are now placed in conflict. The court recognizes that a difficult balance must be struck in a manner that preserves the peace and security of our nation while at the same time preserving the constitutional rights and civil liberties of all Americans.FN7

7. See Doe v. Gonzalez et al., CV 04-2614 (S.D. N.Y. Sept. 6, 2007) (sections of the Patriot Act, as amended, authorizing the issuance of “national security letters” held unconstitutional).

Prior to passage of the Patriot Act, the government would have been required to follow the traditional process and demonstrate probable cause to a “detached and neutral magistrate” that Mayfield had committed a crime. Therefore, prior to issuing a search warrant, the Fourth Amendment required that law enforcement have reasonable grounds to believe that the law was being violated. FISA does not contain this criminal standard of probable cause. Instead, FISA contains a “foreign intelligence standard” of probable cause which requires a showing that the target may be an agent of a foreign government and the place or facility to be searched is being used in furtherance of espionage or terrorist activities.

Significantly, a seemingly minor change in wording has a dramatic and significant impact on the application of FISA. A warrant under FISA now issues if “a significant purpose” of the surveillance is foreign intelligence. Now, for the first time in our Nation’s history, the government can conduct surveillance to gather evidence for use in a criminal case without a traditional warrant, as long as it presents a non-reviewable assertion that it also has a significant interest in the targeted person for foreign intelligence purposes.

Since the adoption of the Bill of Rights in 1791, the government has been prohibited from gathering evidence for use in a prosecution against an American citizen in a courtroom unless the government could prove the existence of probable cause that a crime has been committed. The hard won legislative compromise previously embodied in FISA reduced the probable cause requirement only for national security intelligence gathering. The Patriot Act effectively eliminates that compromise by allowing the Executive Branch to bypass the Fourth Amendment in gathering evidence for a criminal prosecution.

In 1967, the Supreme Court held that a New York statute authorizing electronic surveillance violated the Fourth Amendment because: (1) “it did not requir[e] the belief that any particular offense has been or is being committed; nor that the ‘property’ sought, the conversations, be particularly described;” (2) it failed to limit the duration of the surveillance to impose sufficiently stringent requirements on renewals of the authorization; and (3) the statute “has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts.” Berger v. New York, 388 U.S. 41, 58-60 (1967).

The Court specifically rejected the state’s argument that Fourth Amendment requirements should be relaxed because the surveillance statute was essential in its fight against organized crime. The Court held:

[W]e cannot forgive the requirements of the Fourth Amendment in the name of law enforcement. This is no formality that we require today but a fundamental rule that has long been recognized as basic to the privacy of every home in America. While the requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement, it is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one’s home or office are invaded. Few threats to liberty exist which are greater than that posed by the use of eavesdropping devices.

Id. at 62-63 (internal quotation and citation omitted).

Subsequently, the Supreme Court in Katz v. United States, 389 U.S. 347 (1967), held that the Fourth Amendment’s probable cause and warrant requirements apply to electronic surveillance. In a footnote, however, the majority opinion expressly deferred deciding whether the Fourth Amendment requires prior judicial authorization of surveillance in cases involving national security. Id. at 358 n.23. Four years later, the Supreme Court revisited the issue in United States v. United States District Court, 407 U.S. 297 (1972) (Keith). That case arose from the prosecution of three citizens who were allegedly conspiring to bomb a CIA office in Ann Arbor, Michigan. Id. at 299. While the Supreme Court recognized both the Executive Branch’s interest in protecting national security and the value of electronic surveillance in detecting security threats, the Court nonetheless noted:

There is understandably, a deep-seated uneasiness and apprehension that this [surveillance] capability will be used to intrude upon cherished privacy of law-abiding citizens. We look to the Bill of Rights to safeguard this privacy. Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance.

Id. at 312-13(footnote omitted).

. . .

The decisions in Katz and Keith drew a line between surveillance conducted by law enforcement officials to investigate crime–which requires a traditional warrant based on probable cause–and surveillance conducted by intelligence officials to obtain foreign intelligence information. Notably, the primary purpose of the electronic surveillance and physical searching of Mayfield’s home was to gather evidence to prosecute him for crimes. Mayfield was ultimately arrested to compel his testimony before a Grand Jury investigating his alleged involvement in the crimes of bombing places of public use, providing national support to terrorists and conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign county. In Re: Federal Grand Jury 03-01 Matter of Material Witness, No. 04-MC-9071 (D. Or. 2004). The government stipulated that it did not demonstrate to the FISC that its primary purpose in wiretapping, electronically eavesdropping, or physically searching Mayfield’s home or law office was to gather foreign intelligence. “In the FISA applications, the government did not seek to establish, and under the terms of FISA was not required to establish, all of the requirements set forth in 18 U.S.C. § 2510 et seq. and Rule 41, Fed. R. Crim. P.” Recitation of Stipulated Facts (“Stip.”), P a. Thus, FISA now permits the Executive Branch to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment. As plaintiffs allege, when proceeding pursuant to FISA, “there is no [need for] showing or finding that a crime has been or is being committed, as in the case of a search or seizure for law enforcement purposes.” Plaintiffs’ Memo in Support of Summary Judgment, p. 26. “Additionally, and with respect to the nexus to criminality required by the definitions of an ‘agent of a foreign power,’ the government need not show probable cause as to each and every element of the crime involved or about to be involved.” Id. When the FISC reviews a FISA search application, the government satisfies most FISA requirements simply by certifying that the requirements are met. 50 U.S.C. § 1804(a)(7). The statute directs that the FISC is not to scrutinize such statements, but is to defer to the government’s certification unless it is “clearly erroneous.” Id. at § 1805(a)(5); § 1824(a).

This procedure allows the government to avoid traditional Fourth Amendment judicial oversight used to obtain a surveillance order. The government must provide the court with “a full and complete statement of the facts and circumstances relied upon by the applicant to justify his belief that an order should be issued.” 18 U.S.C. § 2518(1)(b). The court may “require the applicant to furnish additional testimony or documentary evidence in support of the application.” Id. at § 2518(2). Finally, as to most substantive requirements, the court must find probable cause to believe they are satisfied. Id. at § 2518(3).

The FISA also allows the government to retain information collected, and use the collected information in criminal prosecutions without providing any meaningful opportunity for the target of the surveillance to challenge its legality. Nor does FISA require notice. The Fourth Amendment ordinarily requires that the subject of a search be notified that the search has occurred. Although in some circumstances the government is permitted to delay the provision of notice, the Supreme Court has never upheld a statute that, like FISA, authorizes the government to search a person’s home or intercept his communications without ever informing the person that his or her privacy has been violated. Except for the investigations that result in criminal prosecutions, FISA targets never learn that their homes or offices have been searched or that their communications have been intercepted. Therefore, most FISA targets have no way of challenging the legality of the surveillance or obtaining any remedy for violations of their constitutional rights.

. . .

In this case, the court declines to adopt the analysis and conclusion reached by the FISCR in In re Sealed Case. Notably, the FISCR’s two fundamental premises underlying its ruling are contradictory. FISCR determined both that FISA never contained a purpose requirement, and that in altering the purpose requirement, Congress did not undermine the validity of searches conducted pursuant to FISA. Regarding FISCR’s second premise, FISCR found that the primary purpose test “generates dangerous confusion and creates perverse organizational incentives arising from the purported need to distinguish between intelligence gathering and criminal investigation.” Id. at 743. However, a provision of the Patriot Act, unchallenged by plaintiffs here, eliminates the DOJ “wall” and with it the “dangerous confusion” and “perverse organizational incentives” referred to and relied on by the FISCR. Moreover, to the extent the “primary purpose” test imposes any restraint on the sharing of FISA surveillance with criminal investigators, investigators are, of course, free to seek orders authorizing surveillance under Title III, and traditional search warrants that satisfy Fourth Amendment requirements. Finally, Title III includes predicate offenses for which surveillance is justified for virtually all terrorism and espionage-related offenses. 18 U.S.C. § 2516(1). As such, Title III provides a satisfactory alternative when criminal investigators cannot have access to FISA surveillance.

The FISCR also attempts, without merit, to distinguish the Supreme Court’s “special needs” cases. In re Sealed Case, 310 F.3d at 745-46 n. 33. “Special needs” cases are those where the Supreme Court has found it appropriate to carve out an exception to the Fourth Amendment’s requirement of probable cause based upon an individualized suspicion of wrongdoing. In these cases, the Court found that special needs, beyond the normal need of law enforcement, might justify an otherwise unconstitutional search. Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 619 (1989). Prior to the Patriot Act, FISA may have had as its “general programmatic purpose … to protect the nation against terrorism and espionage threats directed by foreign powers.” In re Sealed Case, 310 F.3d at 46. After the Patriot Act, however, FISA surveillance, including the surveillance at bar, may have as its “programmatic purpose” the generation of evidence for law enforcement purposes–which is forbidden without criminal probable cause and a warrant.

Finally and perhaps most significantly, In re Sealed Case ignores congressional concern with the appropriate balance between intelligence gathering and criminal law enforcement. It is notable that our Founding Fathers anticipated this very conflict as evidenced by the discussion in the Federalist Papers. Their concern regarding unrestrained government resulted in the separation of powers, checks and balances, and ultimately, the Bill of Rights. Where these important objectives merge, it is critical that we, as a democratic Nation, pay close attention to traditional Fourth Amendment principles. The Fourth Amendment has served this Nation well for 220 years, through many other perils. Title III, like the Supreme Court’s pronouncements in Katz and Berger, recognizes that wiretaps are searches requiring fidelity to the Fourth Amendment.

Moreover, the constitutionally required interplay between Executive action, Judicial decision, and Congressional enactment, has been eliminated by the FISA amendments. Prior to the amendments, the three branches of government operated with thoughtful and deliberate checks and balances–a principle upon which our Nation was founded. These constitutional checks and balances effectively curtail overzealous executive, legislative, or judicial activity regardless of the catalyst for overzealousness. The Constitution contains bedrock principles that the framers believed essential. Those principles should not be easily altered by the expediencies of the moment.

Despite this, the FISCR holds that the Constitution need not control the conduct of criminal surveillance in the United States. In place of the Fourth Amendment, the people are expected to defer to the Executive Branch and its representation that it will authorize such surveillance only when appropriate. The defendant here is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so.

For over 200 years, this Nation has adhered to the rule of law–with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised. In this regard, the Supreme Court has cautioned:
The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.

Keith, 407 U.S. at 314.

Therefore, I conclude that 50 U.S.C. §§ 1804 and 1823, as amended by the Patriot Act, are unconstitutional because they violate the Fourth Amendment of the United States Constitution. Plaintiffs’ Amended Complaint for declaratory relief is granted.

See the article on Vengeance is Brandon Mayfield’s by my friend Garrett Epps on salon.com.

A 2005 order in the Brian Mayfield case (the final order, Mayfield v. United States, 504 F. Supp. 2d 1023 (D. Ore. 2007), posted here) appeared on Lexis overnight: In Mayfield’s Bivens claim, the affidavit for his arrest rather than a subpoena was shown to be sufficiently doubtful that the motion for summary judgment was denied because of false statements under Franks. Mayfield v. Gonzales, 2005 U.S. Dist. LEXIS 45684 (D. Ore. July 28, 2005):

Defendants ultimately assert that “probable cause existed because of the fingerprint match.” Id. at p. 12. Plaintiffs, however, have raised serious issues surrounding the validity of those fingerprint matches as made by the three individual defendants. Plaintiffs allege that Werder’s statement that Mayfield’s print was a “100% match” was at least reckless and possibly intentionally false. Regarding specific information on Mayfield, it is unclear to plaintiffs what information the individual defendants had available to them prior to and during their individual fingerprint analyses.

Moreover, plaintiffs allege that the “corrected” affidavit fails to provide sufficient probable cause that Mayfield would not honor a subpoena. The Ninth Circuit has stated that, “sufficient facts must be shown to give the judicial officer probable cause to believe that it may be impracticable to secure the presence of the witness by subpoena. Mere assertion will not do.” Bacon v. United States, 449 F.2d 933, 943 (9th Cir. 1971). The court in Bacon held that “the fact that Bacon had access to large sums of money is at best remotely relevant to her possible recalcitrance. There was no showing of past attempts by Bacon to evade judicial process, nor of past clandestine travels by Bacon.” Id. at 945.

Plaintiffs assert that Werder’s “corrected affidavit” provides no basis for a court to conclude that Mayfield, an attorney with roots in the community, would not obey a subpoena. Again, plaintiffs’ allegations of intentional or reckless misstatements greatly concern this court. Therefore, the court will allow discovery on the issue of what information was known to the defendants regarding Mayfield’s flight risk and the likelihood that he would not obey a subpoena; specifically, of any past attempts to evade judicial process, or past clandestine travels.

Mayfield even got discovery in the face of a national security argument by the government:

As set forth above, plaintiffs move for an injunction requiring the government to retrieve and destroy all materials pertaining to plaintiffs that they allege were illegally collected, disseminated, and retained by the government pursuant to FISA. Plaintiffs also move for a declaratory judgment that FISA, as amended by the Patriot Act, is unconstitutional. Defendants first respond to plaintiffs’ request for injunctive relief, arguing that plaintiffs’ 12th claim is moot due to defendants’ willingness to turn over the material requested by plaintiffs. Next, pursuant to Fed. R. Civ. P. 12(b)(6), defendants move to dismiss plaintiffs’ claim of unconstitutionality of the Patriot Act for failure to state a claim for which relief can be granted. At this stage in the proceedings, the court will address only plaintiffs’ request for injunctive relief.

In that regard, defendants assert that “upon the conclusion of the relevant proceedings, the government is willing to destroy the materials seized or reproduced during the execution of searches authorized by the FISC and communications intercepts obtained during the execution of surveillance authorized by the FISC.” Defendants’ Reply in Support of Motion to Dismiss, p. 14. Defendants are further willing, “during the pendency of the relevant proceedings, to retrieve these materials and secure them in the vault at the FBI, in the same manner that the materials gathered pursuant to criminal search warrants are being maintained pursuant to Judge Jones’ order and consistent with the classified nature of the materials.” Id. Therefore, with the “resolution of [plaintiffs’] request for injunctive relief,” defendants argue that Count 12 must be dismissed.

First, because no injunctive relief has been provided to plaintiffs at this point in time, I disagree that plaintiffs’ Claim Twelve is currently in a posture to be dismissed on that basis. Further, despite defendants’ representation to the contrary, I find that defendants’ willingness to gather back, all of the disseminated materials and hold them in a secure place until this ligation has concluded while allowing access to the materials to defend this lawsuit and to respond to any “pending internal investigations,” is not the injunctive relief plaintiffs have requested.

I am persuaded by plaintiffs’ argument that “consideration of the facial constitutionality of FISA, as amended by the Patriot Act, without the factual development of the full context of the case and the extent of deprivation of the Mayfield family’s rights, is out of order.” Plaintiffs’ Memo in Opposition to Defendants’ Motion to Dismiss Counts Twelve and Thirteen, p. 14. In order for plaintiffs to achieve the injunctive relief they seek, that is, the purging of all government files of information collected on plaintiffs during FISA surveillance and searches, plaintiffs are first entitled to an opportunity to determine the nature of the surveillance and searches conducted, and a specific description of the data and documents collected. Pursuant to 50 U.S.C. § 1806, even if the Attorney General certifies that any disclosure would “harm the national security of the United States,” plaintiffs are still entitled to request that this court review the materials ex parte and in camera “to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” 50 U.S.C. § 1806(f).

Regarding FISA authorized physical searches, 50 U.S.C. § 1825(b) holds that if the Attorney General determines that there exists no national security interest in continuing to maintain the secrecy of the search, the “Attorney General shall provide notice to the United States person whose residence was searched of the fact (of the search) conducted pursuant to this chapter and shall identify any property of such person seized, altered, or reproduced during the search.” 50 U.S.C. § 1825(b).

The defendants subsequently provided plaintiffs notice pursuant to 50 U.S.C. § 1825 (b) via a letter to plaintiffs dated March 24, 2005, wherein the government formally advised Mr. Mayfield that he was the “target of physical searches of his residence, and … the following property was seized, altered or reproduced during FISA searches of his residence: three hard drives of three desk top computers and one loose hard drive were copied; several documents in the residence were digitally photographed; ten DNA samples were taken and preserved on cotton swabs and six cigarette butts were seized for DNA analysis; and approximately 335 digital photographs were taken of the residence and property therein.” Ex. A, Plaintiffs’ Supplemental Memo of Law. Mayfield was also formally notified that “he was the target of electronic surveillance and other physical searches authorized pursuant to FISA.” Id.

The government also sought to retain copies of items for civil litigation from the sneak and peak warrant, which the court allowed.

Officer’s failure to include a failed controlled buy in a search warrant affidavit was not a Franks violation. If the omitted information was included, it did not diminish the probable cause at all. United States v. Johnson, 504 F. Supp. 2d 554 (S.D. Iowa 2007).*

Officers had probable cause for defendant’s arrest based on overhearing a telephone call for a delivery of drugs. When arrested with his car, the police could conduct an automobile search of the interior (which produced nothing to suppress). Then the officer obtained a search warrant for the trunk which the court finds was issued with probable cause but irrelevant because the officer could have searched the trunk under the automobile exception. United States v. Wilcox, 2007 U.S. Dist. LEXIS 63689 (E.D. Pa. August 28, 2007).*

Arrest warrant for defendant located in a motel room was validly executed by a forcible entry after they heard glass break. It was also lawful to detain the person breaking through the window. United States v. Gavino-Cardona, 2007 U.S. Dist. LEXIS 63592 (D. Neb. August 27, 2007):

The officers were also legally justified to force their way into the room after hearing someone crash through the motel room’s window. Once inside the room, the officers were legally justified in detaining Ochoa-Guzman and removing him from the room. The officers were legally justified in detaining Gavino-Cardona after he crashed through the motel window and rolled to ground near Deputy Molden. The officers’ actions were permissible under the Fourth Amendment and were supported by a reasonable articulable suspicion of criminal activity. … Such criminal activity being: fugitive from an outstanding arrest warrant, harboring a fugitive, flight to avoid arrest, and destruction of motel property. Furthermore, the officers had probable cause to arrest either one of the defendants as Mateo Alvarez on the Arizona warrant and the other defendant for harboring a fugitive.

Judge Thompson of the M.D. Alabama holds that a student frisk on an anonymous tip that one student would have a gun on school premises violated the Fourth Amendment and there was no reasonable suspicion as to the plaintiff. The officer, however, did not have fair notice of this reading under T.L.O., and he was entitled to qualified immunity. M.D. v. Smith, 504 F. Supp. 2d 1238 (M.D. Ala. 2007):

The opposite conclusion would give police nearly unbridled authority in situations involving uncorroborated anonymous tips that “someone” has a firearm: an officer could search anyone who fails to comply with an officer’s order, even if the officer’s order is impossible to comply with, as was the case here. It would be but a small step to allow officers to search anyone they encounter while investigating the anonymous tip because that person might be the armed suspect. Such a result is insupportable because the Supreme Court has expressly rejected the notion that the Fourth Amendment’s requirement of reasonableness and individualized suspicion is suspended when officers respond to allegations of an armed person, J.L., 529 U.S. at 272. Accordingly, the court concludes that the frisk violated M.D.’s Fourth Amendment right to be free from unreasonable searches and seizures.

ii. Clearly established law

In determining whether a right was clearly established, courts may examine whether case law existing at the time of the violation would put a reasonable officer on notice that the officer’s conduct violates constitutional rights. See Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002). The Eleventh Circuit frames this inquiry as whether the officer had “arguable reasonable suspicion” for the search or seizure. Brent v. Ashley, 247 F.3d 1294, 1303 (11th Cir. 2001).

As already noted, neither the Supreme Court nor the Eleventh Circuit has considered a case where an anonymous tip of an armed person on school grounds converged with a student’s failure to obey a police officer’s orders. Because this case presents an uncharted question of Fourth Amendment jurisprudence, a reasonable officer in Deputy Sheriff Smith’s position could believe that M.D.’s failure to obey Smith provided reasonable suspicion that M.D. was armed, even without any evidence linking the anonymous tip to M.D. Moreover, in T.L.O., the Supreme Court left open, and the Eleventh Circuit has yet to consider, whether searches conducted by police officers on school grounds that are not requested by school officials are governed by Terry. Finally, this court appears to be the first to consider whether the Supreme Court’s recent decision in Devenpeck undermines the holding in Knowles that an officer cannot conduct a search incident to arrest absent a full custodial detention.

Because the law is unsettled in several areas relevant to this case, Deputy Sheriff Smith did not have “fair notice,” Vinyard, 311 F.3d at 1350, that his actions violated M.D.’s Fourth Amendment right. He therefore possessed arguable reasonable suspicion to conduct the frisk and is entitled to qualified immunity on the unreasonable search-and-seizure claim.

Consent to search a suitcase for drugs revealed two candles that appeared to the officer to have been tampered with because they looked tampered with. Inside was drugs. The consent to search for drugs in a suitcase includes any closed containers inside that could contain drugs. United States v. Santana-Aguirre, 2007 U.S. Dist. LEXIS 47760 (D. Neb. June 29, 2007), following United States v. McKines, 933 F.2d 1412, 1423 (8th Cir. 1991) (en banc) (soft drink bottle inside suitcase contained drugs).

Plaintiff doctor came back to work at a university medical center from a life threatening illness, and she was transferred to another department. Her supervisor ordered that university police search her office and retrieve her university computer from her home so the hard drive could be copied. Plaintiff alleged a Fourth Amendment violation that apparently defeats qualified immunity. Maes v. Folberg, 504 F. Supp. 2d 339 (N.D. Ill. 2007):

Once we determine a reasonable expectation of privacy, we must consider whether plaintiff has sufficiently pled a violation of her Fourth Amendment [*20] rights. In O’Connor, the Supreme Court articulated a reasonableness standard for workplace searches. 480 U.S. at 725. The O’Connor court held that “public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.” Id., at 725-26. The O’Connor reasonableness standard requires both justification in the inception and reasonableness of scope. Id., at 726. Plaintiff contends that the search was not justified in its inception, nor was it reasonably related in scope to the circumstances.

Plaintiff’s complaint suggests no justification for a search of her computer. In fact, the complaint alleges that the search was taken in retaliation for plaintiff’s exercise of her First Amendment and FMLA rights. Taking the complaint as fact, as we must, we find that Folberg’s search was not justified in its inception, and therefore, violative of O’Connor‘s first prong. But compare Gossmeyer v. McDonald, 128 F.3d 481 (7th Cir.1997) (workplace search was justified in its inception because anonymous tip of employee misconduct showed sufficient signs of reliability); Clark v. Regents of the University of California, 1997 WL 564066 (N.D. Cal. 1997) (receipt of tips from two employees as to plaintiff’s misconduct justified search under O’Connor). Nor are we convinced that Folberg’s search was reasonable in its scope. While escort by UIC police officers may not have created Fourth Amendment liability as to plaintiff’s person, the use of a police escort may be considered unreasonably intimidating. But see Clark, 1997 WL 564066, at *4 (university supervisor’s decision to choose plaintiff’s supervisor as an escort to his house to retrieve university-owned computer was less intimidating than a university police officer or member of the audit team, and therefore, reasonable in scope).

[The officer had to know that the search was likely illegal, so qualified immunity denied.]

The presentment of claim requirement of the California Tort Claims Act does not apply to § 1983 claims. Barsch v. O’Toole, 2007 U.S. Dist. LEXIS 47538 (N.D. Cal. June 21, 2007).

After police officers observed a minor in possession of a cigarette in violation of state statute, a civil offense for which a citation may be issued, the officers’ suspicion that the minor might be in possession of additional tobacco products did not justify their frisk and search of the minor’s person. The minor moved to suppress the evidence of illegal drugs that the police discovered when they conducted their search. In re Calvin S., 175 Md. App. 516, 930 A.2d 1099 (2007). The search could not be considered as one for “contraband” or a Terry frisk because a Terry frisk is limited to weapons:

The State relies on Calvin’s violation of CL § 10-108 as a valid basis for conducting the search of his person. We conclude, however, that the officers were not permitted to search Calvin incident to the citation issued for possession of tobacco products. The Supreme Court addressed an analogous issue in Knowles v. Iowa, 525 U.S. 113, 115 (1998), a case in which a police officer stopped a driver for speeding and issued the driver a citation. The officer then proceeded to conduct a full search of the vehicle, finding marijuana and drug paraphernalia. Id. The Supreme Court held that the driver’s motion to suppress the drug evidence should have been granted, explicitly rejecting the argument that a “search incident to citation” is permitted by the Fourth Amendment. Id. at 118.

Administrative subpoenas for motel occupancy tax audit purposes were not a violation of the Fourth Amendment under Oklahoma Press. Administrative search cases are “inapt.” [This subject is discussed at length in Ch. 39 of the Treatise.] City of Santa Cruz v. Patel, 155 Cal. App. 4th 234, 65 Cal. Rptr. 3d 824 (6th Dist. 2007):

“As regulatory schemes have become increasingly important in enforcing laws designed to protect the public’s health and welfare, reliance on ‘probable cause’ as a means of restraining agency subpena power has all but disappeared. (See United States v. Morton Salt Co. (1950) 338 U.S. 632, 641-643; see also 1 Davis, Administrative Law Treatise (2d ed. 1978) Investigation, § 4.2, pp. 228-232.)” (Craib v. Bulmash (1989) 49 Cal.3d 475, 481.) Okla. Press Pub. Co. v. Walling (1946) 327 U.S. 186 (Oklahoma Press) explained the interaction between Fourth Amendment principles and administrative investigations. Oklahoma Press was discussed in detail in Craib v. Bulmash, supra, 49 Cal.3d 475. Because it is so directly pertinent to the issue at hand, we quote at length from that discussion.

. . .

“Accordingly, Oklahoma Press articulated a test which applied Fourth Amendment requirements only by analogy. The notion that a subpena could be enforced only where a specific charge or complaint is pending was explicitly rejected. Instead, said the court, the investigation need only be for ‘a lawfully authorized purpose, within the power of [the legislative body] to command.’ (327 U.S. at p. 209, italics added.) In addition, the requirement of ‘”probable cause, supported by oath or affirmation,” literally applicable in the case of a warrant,’ is satisfied as long as the subpenaed documents are ‘relevant’ to the inquiry. (Ibid., italics added.) ‘Beyond this the requirement of reasonableness, including particularity in “describing the place to be searched, and the persons or things to be seized,” also literally applicable to warrants, comes down to specification of the documents to be produced adequate, but not excessive, for the purposes of the relevant inquiry.’ (Ibid., italics added.) In a later case, the court emphasized that, while the subpena may be issued and served by the agency, the subpenaed party must have the opportunity for judicial review before suffering any penalties for refusing to comply. (See v. City of Seattle (1967) 387 U.S. 541, 544-545 [in dictum].) [P] This test has been routinely applied by the high court to reject various Fourth Amendment challenges to official demands for records.” (Craib v. Bulmash, supra, 49 Cal.3d at pp. 481-482, fn. omitted.)

The government had reasonable suspicion for a stop of the defendant’s vehicle with blacked out windows on the border near Calexico, California. This was reasonable suspicion under Arvizu: “The scouting activity, the manner in which the Honda SUV was being operated, the vehicle’s appearance all fit the familiar and specific profile for drug smuggling. The determination of the agents was buttressed by their experience in which virtually every vehicle of the many vehicles stopped under similar circumstances had been determined to be smuggling narcotics. Reasonable suspicion abounded to strip the vehicle on Interstate 8 and detain Defendants.” United States v. Payan-Valenzuela, 2007 U.S. Dist. LEXIS 68360 (S.D. Cal. September 14, 2007).*

The Fresno homeless person property destruction case has been certified as a class action. The differences in damage claims was not enough to defeat Kincaid v. City of Fresno, 244 F.R.D. 597 (E.D. Cal. 2007):

This case concerns a number of clean-up operations (sweeps) conducted by Defendants. For more than a year, Defendants implemented a policy of seizing and immediately destroying personal property of homeless individuals in an effort to clean up the City of Fresno. (Doc. 113, SAC, 1 38.) A number of these clean up efforts occurred on property belonging to Caltrans, including the raids on May 3, 2006, May 25, 2006, June 22, 2006, and August 26, 2006.

In bringing this action Plaintiffs seek a permanent injunction and declaration of illegality of Defendants’ conduct. Secondarily, Plaintiffs seek damages for the losses suffered from seizure and destruction of their property, much of which is common. According to Plaintiffs, the overarching issue of Defendants’ liability will involve elements of common proof. The common issues include:

1. whether Defendants’ policies and practices in conducting the sweeps at issue are unlawful, in that they result in immediate destruction of property of the homeless;

2. whether Defendants’ policies and practices in conducting the sweeps at issue are unlawful in that they fail to provide adequate pre- or post-seizure notice and fail to provide any opportunity to recover seized property;

3. the nature of injunctive relief that should be ordered, including notice requirements, the amount of time allowed to move property, and what must be done with property that is removed; and

4. whether Defendants are liable for statutory and/or punitive damages and if so, how much. (Doc. 131, Motion to Certify Class, Filed June 15, 2007.)

Plaintiffs now seek certification of class members.

. . .

Based on the totality of all factors considered. Plaintiffs have established the requisites of Fed. R. Civ. P. §§ 23(a)(1)-(4), 23(b) (2) and (b)(3) and shown that certification of the class is superior to all other methods of adjudication.

Plaintiffs’ motion to certify class is GRANTED. The following class definition shall apply:

“All persons in the City of Fresno who were or are homeless, without residence, after October 17, 2003, and whose [*31] personal belongings have been unlawfully taken and destroyed in a sweep, raid, or clean up by any of the Defendants.”

Comment: I remember a prior post about this case, but it predates the current blog format, and I cannot find it. It likely was deleted in an semi-annual clean up of the old website.