Defendant moved to suppress challenging his co-defendant’s consent as involuntary. The co-defendant took the Fifth at the suppression hearing and that left only the officer’s testimony, so the trial court found it was by consent. United States v. Bruce, 2007 U.S. Dist. LEXIS 54786 (W.D. Wis. July 26, 2007):

Bruce moved to suppress the crack and cash recovered from 5187 Chester Circle on the ground that Detective Rietzler coerced Endia Matthews into consenting to this search. Matthews, however, asserted her Fifth Amendment privilege and declined to testify at the evidentiary hearing, so there is no factual support for Bruce’s claim.

Comment: Testimony about standing is privileged from use at trial against a party under the Simmons rule. How this happened I cannot quite figure out, but the defense lawyers should have gotten together on this. What if the co-defendant testifies at her own suppression hearing and establishes defendant’s standing? I would expect that he could reopen his own with the new testimony.

Defendant claimed that he denied consent, so officers seeking consent from wife was void under Randolph. Officers testified that he gave consent and they went and got it from her, too. The court credits the officer’s testimony. United States v. Hudson, 2007 U.S. Dist. LEXIS 54934 (N.D. Ill. July 26, 2007).*

Class certification granted case against Department of Homeland Security for allegedly abusive border detentions of U.S. citizens. Rahman v. Chertoff, 244 F.R.D. 443 (N.D. Ill. 2007):

The named plaintiffs, on behalf of all others similarly situated, have sued various government officials seeking declaratory and injunctive relief because defendants’ policies and practices, which purportedly cause repeated, lengthy and abusive border detentions of innocent U.S. citizens, allegedly violate their civil rights under the Fourth and Fifth Amendments. Before the Court is defendants’ objection to Magistrate Judge Sidney I. Schenkier’s Report and Recommendation (“R&R”) in which he recommends that the Court certify two classes.

In a police officer’s employment dispute with his department, officers entered his home without a warrant, seized property, and put it into the department’s property room. This stated a claim under the Fourth Amendment, and the use of the property room was arguably state action. Roemer v. City of Dayton, 496 F. Supp. 2d 873 (S.D. Ohio 2007).*

A warrantless entry on probable cause plaintiff had explosives in his house in violation of city ordinance justified an entry and gave the officers qualified immunity. Graham v. City of Cincinnati, 2007 U.S. Dist. LEXIS 55015 (S.D. Ohio July 30, 2007).*

Plaintiffs’ claims that their right to privacy was being violated by their being photographed on their property from the street was dismissed. Kane v. Village of Southern View, 2007 U.S. Dist. LEXIS 54980 (S.D. Ill. July 27, 2007).*

Minnesota holds that a dog sniff and alert founded on reasonable suspicion at an apartment door threshold was a valid basis for issuance of a search warrant. The apartment manager saw grow lights inside, and the defendant refused admission for them to fix a water leak. The court distinguished Kyllo because the sniff was from a common area [following other courts; see n. 16], and what was being detected was only evidence of crime and not other innocent activity. State v. Davis, 732 N.W.2d 173 (Minn. 2007):

In Wiegand, the police walked a narcotics-detection dog around the exterior of a motor vehicle that had been stopped because of a burned-out headlight. 645 N.W.2d at 128-29. Because there was “some expectation of privacy in an automobile,” and a dog sniff intrudes upon this privacy interest “to some degree,” we held that the police “cannot conduct a narcotics-detection dog sniff around a motor vehicle stopped for a routine equipment violation without some level of suspicion of illegal activity.” Id. at 134. We concluded that principles from Terry v. Ohio, 392 U.S. 1 (1968), were appropriately applied to the context of a motor vehicle stop, and we said that the Terry principles authorized the balancing of the level of intrusiveness of the use of the dog “against the importance of the governmental interest at stake.” Wiegand, 645 N.W.2d at 133-34. Based on this balancing, we adopted the reasonable, articulable suspicion standard as necessary to sustain the use of the dog sniff in Wiegand. Id. at 137. n8

n8 In Wiegand, we said that the reasoning of the Supreme Court in Kyllo “suggests that a dog sniff of a home might lead a court to conclude that a search requiring probable cause took place.” Wiegand, 645 N.W.2d at 130 (discussing Kyllo v. United States, 533 U.S. 27(2001)). But Wiegand was decided before the Supreme Court clarified the reach of Kyllo in the context of dog sniffs in Illinois v. Caballes, 543 U.S. 405, 408 (2005) (“Official conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment. We have held that any interest in possessing contraband cannot be deemed ‘legitimate,’ and thus, governmental conduct that only reveals the possession of contraband ‘compromises no legitimate privacy interest.'” (citation omitted)). See Carter, 697 N.W.2d at 208 (discussing Caballes and Kyllo).

. . .

We held in Carter that reasonable, articulable suspicion struck the appropriate balance between the privacy right of individuals and the government (and society’s) interest in effective law enforcement. 697 N.W.2d at 211-12. We conclude that the same result is warranted here. When we balance the minimal intrusion on Davis’s privacy interests inside his residence against the governmental interest in the use of narcotics-detection dogs as an investigative tool to combat drug crime, we conclude that the police needed a reasonable, articulable suspicion to walk a narcotics-detection dog down the common hallway outside Davis’s apartment. Use of the reasonable suspicion standard is consistent with this court’s goals of preserving the “law enforcement utility” of narcotics-detection dogs and ensuring that the police are not allowed to use narcotics-detection dogs “at random and without reason.” Id. at 211 (internal quotation marks omitted).

Comment: This is a significant case, and it produced a dissent that is equally persuasive. I personally have trouble with a dog sniff at the door of a home, but it is easier to distinguish between an apartment from a common area with clear reasonable suspicion and a house where the police have to enter upon the property. But courts always permit police to enter from the street up the sidewalk or driveway. Whether they will also accede to a drug dog coming along for a sniff is another matter entirely. At the minimum, reasonable suspicion should be required.

Officers on bicycles were patroling outside a bar in Richmond where about 500 people were milling about when a fight broke out among about 20 females. Backup was called, and defendant in a car made a furtive gesture, and an officer ordered him out of the car, and a .357 was found, and he was a felon. The search was reasonable. United States v. Jones, 233 Fed. Appx. 273 (4th Cir. 2007)* (unpublished).

Officer developed reasonable suspicion during traffic stop, and he could run a dog around the car. United States v. Jackson, 235 Fed. Appx. 707 (10th Cir. 2007)* (unpublished).

Plaintiff driving without a license and having his vehicle towed had no Fourth Amendment claim for his arrest or its being towed. There was probable cause for his arrest, and towing the vehicle was incidental. Acevedo v. City of O’Fallon, 2007 U.S. Dist. LEXIS 38062 (E.D. Mo. May 24, 2007)*:

Even liberally construed, plaintiff’s complaint fails to assert facts indicating that his arrest, the search of his person and vehicle, and the towing of his vehicle violated plaintiff’s constitutional rights. Plaintiff does not assert that his vehicle was properly registered as required by law (either state statute or municipal ordinance) or that he had a valid, non-revoked state driver’s license. To the contrary, plaintiff seems to believe that he does not need a driver’s license to operate a motor vehicle and that he does not need to comply with vehicle registration laws – these requirements being, in plaintiff’s view, “civil matters.” Driving, however, is a privilege, not a right. Stewart v. Dir. of Revenue, 702 S.W.2d 472, 475 n.2 (Mo. 1986).

Backpack could be inventoried at the jail on defendant’s arrest. State v. McCormick, 37 Kan. App. 2d 829, 159 P.3d 194 (2007).*

Chemical smell alone was not sufficient for exigent circumstances for a warrantless entry. The officers have to fear an explosion that will harm people. State v. Leffler, 140 Wn. App. 223, 165 P.3d 386 (2007):

¶20 In sum, the emergency exception only applies where there is an imminent threat of substantial injury to persons or property. The evidence demonstrates no such threat here. The initial response team was clearly concerned for their own safety, but that is insufficient to justify a warrantless search under the emergency exception.

Defendant was clearly told he was free to leave when he gave a statement implicating himself in a murder, so his rights were not violated. State v. Britton, 283 Conn. 598, 929 A.2d 312 (2007).*

Officer had reasonable suspicion for a patdown of the defendant after a traffic stop because he had seen the defendant at the scene of a couple of search warrant executions. State v. Bones, 230 S.W.3d 364 (Mo. App. 2007):

Officer Walthall testified that when he pulled Defendant over he recognized him as an individual that had been present at some residences where he, as a member of the special response team, had served search warrants. These search warrants were considered high risk because of the possibility of the presence of weapons and other dangerous factors at the locations to be searched. Officer Walthall testified that Defendant was present at these high risk locations “two or three times” and weapons were located during these searches. Officer Walthall said that due to his familiarity with Defendant, especially knowing that Defendant had been present where weapons were found, he feared for his own safety. It was his fear, based upon his familiarity with Defendant, which caused Officer Walthall to call for backup.

Two cases on mistake of law from Illinois and W.D. Pa. showing a split in the authorities making the issue cert worthy:

In Illinois, an officer stopped the defendant because a strand of beads was hanging off the rearview mirror, and he determined that it obstructed the driver’s view in violation of Illinois law. The law required it materially obstruct the view, which this could not, so the stop was invalid. People v. Cole, 369 Ill. App. 3d 960, 874 N.E.2d 81, 314 Ill.
Dec. 171 (4th Dist. 2007).

Recognizing a circuit split, the W.D. Pa. holds that “the Court of Appeals for the Third Circuit distinguished the decisions of the ‘sister circuits’ which held that ‘mistakes of law–even reasonable ones–can render a traffic stop “unreasonable” under the Fourth Amendment,’ and held that mistakes of law are not per se unreasonable.” Officer’s reasonable mistake as to taillight law did not make stop unreasonable. United States v. Burks, 2007 U.S. Dist. LEXIS 2147 (W.D. Pa. January 11, 2007).*

False arrest and search claim is barred by Heck, absent successful appeal or post-conviction. Karboau v. Lawrence, 2007 U.S. Dist. LEXIS 2060 (D. Ore. January 8, 2007).*

Marijuana eradication helicopter flight passed over defendant’s property enroute to another piece of land and they saw marijuana growing on defendant’s land. Circling back to look, the helicopter descended to 100-200′. This was not an illegal search. The defendant’s claim that the warrant was backdated was without any evidentiary support. Differ v. State, 2007 Ala. Crim. App. LEXIS 22 (January 12, 2007).

Multiple controlled buys showed timely nexus to defendant’s premises. Commonwealth v. Gallagher, 68 Mass. App. Ct. 56, 859 N.E.2d 893 (January 12, 2007):

“The information in the affidavit must be adequate to establish a timely nexus between the defendant and the location to be searched and to permit the determination that the particular items of criminal activity sought reasonably could be expected to be found there.” Commonwealth v. Eller, 66 Mass. App. Ct. 564, 565, 849 N.E.2d 859 (2006). “The connection between the items to be seized and the place to be searched does not have to be based on direct observations; it may be found by looking at the type of crime, nature of the items, the suspect’s opportunity to conceal items, and inferences as to where the items are likely to be hidden.” Commonwealth v. Olivares, 30 Mass. App. Ct. 596, 600, 571 N.E.2d 416 (1991).

The police received regular tips from a person they had talked to repeatedly who had given information about various crimes that had proved reliable. He claimed to be an insomniac who rode his bike around the neighborhood at all hours, and he reported what he saw. He gave information about drug usage at a particular house described by its color and location but not street address. Police did a knock and talk at 4 a.m., and people left the premises when they showed up. This justified the stop of defendant, and the officer did not act unlawfully in opening the car door. Hampton v. Commonwealth, 231 S.W.3d 740 (Ky. 2007), released for publication September 13, 2007:

The police, however, had other information that justified their stop of Appellant when combined with the tip. The officers testified that they went to the house to perform a so-called “knock and talk,” wherein they would knock on the front door of the house, ask some questions, and request consent to look in the house. They had received previous reports of drug activity at the house, so it was not unknown to them as a possible site of ongoing crime. In fact, the house had been the subject of some surveillance by the local Drug Task Force.

As the officers approached the house, eight to ten people left and got into their cars. Officer Eversoll testified that some of the people were walking and that others were running. Officer Woodward, however, testified that all the people were running and that all the people were hurrying. The trial court apparently believed the testimony of Officer Woodward because its findings of fact note, “As they approached, Officers Woodward and Eversoll observed 8-10 people run out of the house and into cars parked outside. This occurred at approximately 4:00 a.m.” (Emphasis added.)

. . .

When the fleeing is combined with the somewhat reliable tip that drug activity was occurring at the house, along with previous reports of drug activity at the house and the fact that the fleeing occurred just as police began approaching, the situation takes on an entirely new–and suspicious–light. The convergence of those events gives rise to more than a nebulous and inchoate suspicion of criminal activity, and would lead a reasonable officer to conclude that the people had been involved in drug activity at the house and were then attempting to leave the scene of the crime. That Appellant was one of the fleeing people would justify the officers’ belief that it was appropriate to investigate him, stopping him temporarily in the process. In light of the totality of the circumstances, it is clear that the officers had a reasonable and articulable suspicion that Appellant was engaged in criminal activity, thereby justifying a brief investigatory stop.

Random license plate checks are not unconstiutitonal, and defense counsel could not be ineffective for not challenging it. Maloney v. State, 872 N.E.2d 647 (Ind. App. 2007).*

Defendant was in the hospital being treated after an accident, and officers believed he was DUI-drugs. He was not in police custody when he was questioned, so Miranda did not apply; his “detention” was not state action. Exigent circumstances permitted the taking of blood at night without a search warrant. It is common knowledge that it is more difficult and problematic to get a search warrant in the middle of the night. Grant of motion to suppress reversed. State v. Steimel, 155 N.H. 141, 921 A.2d 378 (2007).

Plaintiffs allegedly being forced to join an alcohol dependency program did not allege whether it was inpatient or outpatient, so the claims were dismissed for not alleging a seizure. [This was pled as a civil RICO case, too.] MacShane v. City of New York, 2007 U.S. Dist. LEXIS 25014 (E.D. N.Y. March 30, 2007)*; McNamara v. City of New York, 2007 U.S. Dist. LEXIS 25015 (E.D. N.Y. March 30, 2007)*; Miller v. City of New York, 2007 U.S. Dist. LEXIS 25016 (E.D. N.Y. March 30, 2007).*

Here, Figueroa testified that he observed the defendant pacing back and forth and was subsequently seen giving Hassett an item that he had hidden in his shoe. Figueroa also testified that the area where he observed the defendant was a place where there was a high incidence of drug trafficking and an area where he had made between ten to fifteen heroin-related arrests in the preceding year. Figueroa also testified that he believed that the activity that he had observed was consistent with a drug transaction. All of these facts, taken together, support Figueroa’s belief that a criminal act had just occurred, and his approach to the defendant thus was based on a reasonable suspicion that a crime had been committed. Commonwealth v. Hernandez., 448 Mass. 711, 863 N.E.2d 930 (2007).*

Consent denial binding under Randolph does not have to occur at the threshold; it can be elsewhere. Inevitable discovery also rejected on these facts. United States v. Weston, 65 M.J. 774 (N.-M. Ct. App. 2007):

The appellant’s facts fall in the middle ground between Matlock and Randolph–neither co-tenant was present at the residence but both were asked for consent to search, resulting in competing consents. Applying the Randolph analysis here, based on shared social expectations and common understanding of co-tenant rights and relationships, and weighing and balancing the competing interests, we conclude that the consent colloquy in this case, held away from the residential front door and resulting in competing consents, is constitutionally no different than one held at the physical residential front door.

. . .

Applying the law of inevitable discovery to the facts in this case leads us to the conclusion that the Government’s evidence establishes no more than that the seized evidence “could” have been discovered if an alternative procedure had been implemented as part of the investigation. Only speculation can get the Government beyond what “could” have been done and what results “might” have been achieved. Because we must focus on the “demonstrated historical facts capable of ready verification or impeachment,” without speculation, Nix, 467 U.S. at 444 n.5, we conclude that the Government did not carry its burden of establishing inevitable discovery by a preponderance of the evidence. Accordingly, we find that the military judge abused his discretion in concluding that the seized evidence would have been inevitably discovered merely because CID had a legal basis upon which search authorization could be sought–probable cause.

Officers reasonably believed that consenter used the premises as a secondary residence and could consent. United States v. Silva, 2007 U.S. Dist. LEXIS 73241 (D. Or. September 27, 2007):

The officers’ observation of Lowe led them to believe she had just showered at the 502 residence, and she did not disclaim control over the residence. Further, it appears that she may have actual control over the residence as she stated she comes over to the residence every few weeks to work. It is objectively reasonable to conclude Lowe had authority to consent to search of the residence. The officers reasonably believed that although it was not her primary residence, it was a secondary residence shared with defendant when Lowe came to Medford to work as a care giver or housekeeper. Thus, the issue is whether Lowe provided voluntary consent.

Comment: This one is really thin.

Plaintiff stated a claim for relief for ATF agents allegedly trashing his house and stealing $2000 during search because it is a question of reasonableness of search. Springer v. Horn, 2007 U.S. Dist. LEXIS 73399 (N.D. Okla. October 1, 2007).*

Qualified immunity denied two officers who were accused of arresting plaintiffs for the content of their speech. “Little precedent” was not enough reason for qualified immunity. McCabe v. Macaulay, 2007 U.S. Dist. LEXIS 73385 (N.D. Iowa October 1, 2007).*

The defendant was picked up on a PV warrant and jailed. The parole officers went to his house to conduct a parole search and found a weapon. Defendant ramained on parole until revoked. Alternatively, his mother had authority to consent to the search. State v. Allen, 2007 Ohio 3930, 2007 Ohio App. LEXIS 3532 (5th Dist. August 2, 2007):

[*P28] Because appellant’s PRC had yet to be revoked, appellant remained on PRC at the time of the search. Contrary to appellant’s argument, appellant’s arrest for a violation of his PRC did not automatically terminate his PRC status. Thus, the officers and appellant’s parole officer were justified in conducting a warrantless search of his home pursuant to the “conditions of supervision” form signed by appellant. As is stated above, condition nine of the form authorized a warrantless search of appellant’s home.

Second hand information received by school official from another that could not be supported in fact was insufficient for reasonable suspicion to base a school search. In re J.N.Y., 2007 PA Super 227, 931 A.2d 685 (2007).

Anonymous tip was sufficient. “Law enforcement officers were able to verify the tip’s information about who lived in the home, the appearance of the home, and one of the vehicles parked at the home. The anonymous caller provided specific and detailed information about the criminal history and record of Andrews, including accurately describing an arrest in the mid 1990’s that resulted in drug and firearms charges and ultimately a twenty-year prison sentence. Hence the anonymous tip provided substantial and verifiable “inside information” regarding Andrews, which suggests that the caller had access to reliable information about him.” Andrews v. State, 2007 OK CR 30, 166 P.3d 495 (2007).*

Oregon considers trash searches under its state constitution, and it declines to find a reasonable expectation of privacy. State v. Howard, 342 Ore. 635, 157 P.3d 1189 (2007):

We note, as an initial matter, that defendants do not argue on review that they retained either an ownership or a possessory interest in the garbage once the sanitation company picked it up. It follows that, if defendants had no ownership or possessory interest in the garbage once the sanitation company collected it, the officers did not seize the garbage in violation of defendants’ Article I, section 9, rights; that is, the officers did not interfere, significantly or otherwise, with defendants’ ownership or possessory interests. See Owens, 302 Ore. at 207 (explaining that a seizure occurs when government officials significantly interfere with a person’s “possessory or ownership interests in property”). Rather, the sanitation company lawfully possessed the property once it collected it. See Haslem v. Lockwood, 37 Conn 500 (1871) (citizen who raked into piles horse manure abandoned on public thoroughfare lawfully possessed it as against other citizens). If any entity had a constitutionally protected possessory interest, it was the sanitation company but that company voluntarily turned the property over to the police.

Defendants focus on review solely on the question whether they retained a protected privacy interest in the garbage, the invasion of which would give rise to a “search.” See Owens, 302 Ore. at 206 (defining a search as an invasion of a protected privacy interest). On that issue, as we noted above, defendants do not contend that they retained an ownership or possessory interest in the garbage once the sanitation company picked it up. Similarly, they have not identified any other subconstitutional right or relationship that would prohibit the sanitation company from doing what it did here. For instance, defendants have not claimed that their contract with the sanitation company limited what the company could do with the garbage once the company took possession of it.

Texas’s exclusionary rule does not exclude evidence of a new crime. “Thus, the evidence that must be excluded under article 38.23 is evidence of the crime that was committed before the officer’s unlawful search or seizure, not evidence of a crime that was committed thereafter.” State v. Iduarte, 232 S.W.3d 133 (Tex. App. — Ft. Worth 2007).*

Defendant claimed she was detained for a dog sniff because she refused to consent, but the officer [barely] had reasonable suspicion based on the totality of circumstances [giving the officer every benefit of the doubt and the citizen none]. State v. Daniels, 221 S.W.3d 438 (Mo. App. S.D. 2007):

Considering the “totality of the circumstances” after drugs were found on one of the group, and taking “into account a police officer’s trained instinctive judgment operating on a multitude of small gestures and actions impossible to reconstruct,” the trial court could plausibly conclude the police had more than an “inchoate and unparticularized suspicion or hunch” that criminal activity was afoot, and a “minimal level of objective justification” to hold the two cars long enough to run the drug dog (arguably the quickest and least intrusive “search” possible) in aid of their investigation. Thus, the trial court did not err and the evidence was admissible. The judgment and conviction are affirmed.

The district court suppressed the search of defendant’s property because the person the police sought consent from did not have apparent authority to consent and retrieve a gun for them. The fact they slept together a few times at his house, and he left her there alone on the day in question, did not create the usual incidents of apparent authority. United States v. Cos, 498 F.3d 1115 (10th Cir. 2007):

Applying the Rith standard for actual authority, we are not convinced by the government’s arguments. The government maintains that Ms. Ricker had joint access to the apartment because she had used it in the past and because, on the day of the search, Mr. Cos had left her alone there. According to the government, the record also establishes the alternative standard for actual authority–control for most purposes. As to that standard, the government asserts, Ms. Ricker had “an established personal relationship” with Mr. Cos and thus Mr. Cos had no “expectation of exclusive access” to the apartment. Aplt’s Br. at 16-17. For support, the government observes that Ms. Ricker had slept in Mr. Cos’s bedroom on previous occasions and, on the day of the search, had gone through the bedroom where the gun was found in order to use the bathroom.

The government’s argument regarding the first alternative Rith inquiry–mutual use of the property by virtue of joint access–completely ignores our statement that the government must show that the third party “entered the premises or room [that was subjected to the search] at will, without the consent of the subject of the search.” Rith, 164 F.3d at 1330 (emphasis added). Here, Ms. Ricker testified at the evidentiary hearing that she did not have a key to the apartment, and the district court expressly found that “the United States has not established that [Ms.] Ricker had, in fact, a key to the apartment.” Aplt’s App. vol. I, at 62. Moreover, Ms. Ricker also testified that she could not enter the apartment without Mr. Cos’s consent and that she had to ask for his consent to invite other people over, like the children who came to the apartment to swim on the day of the search. Thus, like the district court, we conclude that Ms. Ricker could not enter the apartment without Mr. Cos’s consent.

Moreover, as the district court also observed, there are additional facts indicating that Ms. Ricker “was more like an occasional visitor whom [Mr.] Cos allowed to visit, rather than one who asserted a right to access the property jointly with [Mr.] Cos.” Id. Ms. Ricker did not leave her personal belongings in the apartment, but instead took them with her when she left, indicating that she could not come and go as she pleased. Further, she had only been alone in the apartment on two occasions before the day of the search, and each occasion was only for a brief period. Ms. Ricker’s limited access to the apartment is therefore insufficient to demonstrate actual authority under the first Rith inquiry. See United States v. Warner, 843 F.2d 401, 403 (9th Cir. 1988) (affirming the district court’s finding that a landlord lacked actual authority to consent to a search of a tenant’s property because “at best, the landlord had permission to enter the property for the limited purpose of making specified repairs and occasionally mowing the lawn”); United States v. Corral, 339 F. Supp. 2d 781, 791-92 (W.D. Tex. 2004) (holding that a part-time housekeeper lacked actual authority to consent to a search of the defendant’s residence because she “enjoyed only limited access to the residence,” “was present for specific and limited purposes only,” did not have a key, and never let others into the house nor had permission to do so); see also United States v. Salimonu, 182 F.3d 63, 76 (1st Cir. 1999) (Lipez, J., dissenting) (concluding, on an issue not reached by the majority, that a third party who had permission to enter the defendant’s apartment solely for the purpose of facilitating the move of his possessions into storage lacked actual authority to consent to search of the apartment because “[a]ccess to the apartment for that limited purpose cannot be reconciled with the joint access or control for most purposes which is required for valid consent”).

As to the second Rith inquiry–control over the apartment for most purposes–the government’s argument is similarly unconvincing. The relationship between Ms. Ricker and Mr. Cos, who had dated for a short time and were friends (having “an established personal relationship,” in the government’s words), is not the equivalent of the relationships we recognized in Rith as establishing a presumption of control: those between parent and child and husband and wife. Rith, 164 F.3d at 1330. If, as we stated in Rith, co-tenant relationships do not establish a presumption that each party has control over the property for most purposes, we fail to see how this particular personal relationship should create such a presumption. See id.

Comment: One might think that the fact the court took so many pages to explain its rationale would support the government’s justification for the search, but, here, the contrary is true. It took that many pages to dispose of the government’s argument.

Eleventh Circuit holds today that a Florida automobile salvager subjected to an administrative search by the local SWAT team should not have had his § 1983 case dismissed by the district court. Plaintiff sold a car that had a wrong VIN number on it [because the car came from a government seizure], and the chop shop investigators decided to conduct an administrative search. The “administrative search” here was too filled with discretion and went way too far for the limits imposed on an administrative search. Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007). This is an interesting and wonderful opinion. The facts are, in a word, startling:

The two officers decided to conduct an administrative inspection of the Premises, as authorized by Florida Statute § 812.055. The statute permits a warrantless physical inspection of salvage yards and repair shops (among other businesses) during normal business hours “for the purpose of locating stolen vehicles …; investigating the titling and registration of vehicles …; inspecting vehicles … wrecked or dismantled; or inspecting records required [to be kept by such businesses]. Id.

On January 15, 2001, at about 10:30 in the morning, Root, Glantz, and Edward Kelly led a group of approximately twenty officers to the Premises. The officers arrived in unmarked trucks and SUVs, and surrounded the entire Premises, blocking all exits. Some of the officers were dressed in SWAT uniforms-–ballistic vests imprinted with SWAT in big letters, camouflage pants, and black boots. They entered the Premises with guns drawn – all were armed with Glock 21 sidearms; some carried Bennelli automatic shotguns. When the officers entered the Premises, they ordered the employees to line up along the fence. Vincent Lewis, who was working on a car, felt something touch his back and turned around to find an officer pointing a shotgun at him. The officers patted down and searched the employees. Pockets and purses were searched. The officers took at least Lewis’s driver’s license.

Judy Bass, the office manager, testified that she gave the officers paperwork showing that the car purchased by the complaining citizen had mismatched VINs because Bruce had purchased the car with the mismatched VINs from a government theft recovery program and was authorized to resell it that way. Root admitted receiving this paperwork during the search, but testified that it had “no bearing on his investigation.” Bruce arrived at the Premises about ten minutes after the officers. Kelly told him that the officers were there to do an administrative records check. Another officer asked Bruce if he had the titles to all the cars that he had on the lot. Bruce gave the titles to the officer.

. . .

At approximately 1:00 p.m., the officers began to thoroughly search the Premises. They went through every file, including tax, bookkeeping, and accounting records, and the office computer. They inspected all 150 plus vehicles on the lot-–cutting some open with chain saws. These activities-–including the detention of at least several employees-–continued until after 6:00 p.m.

The warrantless administrative inspection, however, remains an exception to the Fourth Amendment’s general rule that a warrant–-supported by probable cause and specifying what is to be seized-–is required when law enforcement seeks to search private property. The warrantless administrative inspection, however, remains an exception to the Fourth Amendment’s general rule that a warrant-–supported by probable cause and specifying what is to be seized-–is required when law enforcement seeks to search private property. The administrative search exception does not confer authority on law enforcement to ignore the requirement for a warrant where “the primary purpose [of the search or seizure] was to detect evidence of ordinary criminal wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). In Burger, the Court rejected the idea that an administrative inspection may be used to gather evidence as part of what is, in reality, a criminal investigation. 482 U.S. at 691 and 716 n. 27. The Court upheld the inspection of Burger’s automobile junkyard, in part, because “[t]here [was], furthermore, no reason to believe that the instant inspection was actually a ‘pretext’ for obtaining evidence of respondent’s violation of the penal laws.” Id. See also United States v. Johnson, 994 F.2d 740, 742 (10th Cir. 1993) (an administrative inspection is a “sham” where it is “a pretext solely to gather evidence of criminal activity”).

Furthermore, even when permitted, the Constitution requires that administrative inspections be “appropriately limited.” Edmond, 531 U.S. at 37. The authorizing statute must “carefully limit[] their time, place, and scope.” Burger, 482 U.S. at 718 (Brennan, J., dissenting, but noting no disagreement with the Court’s “general rule”).

Nor may an authorizing statute commit the conduct of such an inspection to the unbridled discretion of the inspector. Id. at 703. The statute must “limit the discretion of the inspecting officers” and the inspection must have a “properly defined scope.” Id. There must be “reasonable legislative or administrative standards for conducting an … inspection.” Camara v. Municipal Court, 387 U.S. 523, 538 (1967). “Where a statute authorizes the inspection but makes no rules governing the procedures that inspectors must follow, the Fourth Amendment and its various restrictive rules apply.” Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970). The fundamental function of these rules is to protect citizens from the “unbridled discretion [of] executive and administrative officers.” Marshall v. Barlow’s, Inc., 436 U.S. 307, 323 (1978).

Stop based on no plates but with knowledge derived from what was later conceded by the state to be an illegal wiretap that defendant would have drugs on her person would not be excluded because the taint was dissipated. Moreover, exclusion here would serve no purpose of the exclusionary rule because it was “inadvertent illegal behavior.” Hall v. State, 2007 WY 138, 166 P.3d 875 (2007):

[*P10] Appellant was in violation of the law. The truck she was driving did not have valid plates. The officer had the clear right to be where he was (on a public street) when he observed that violation. He acted appropriately and according to protocol by pulling Appellant over, and by arresting her when he discovered she was driving with a suspended license. Nothing in the record suggests he lacked probable cause for that stop. He then followed the standard procedure by taking Appellant to the jail, where she was processed and booked as normal. The fact that the officer’s initial observation of Appellant was motivated by information garnered through an illegal wiretap does not change the fact that the evidence at issue was properly gathered during a stop and arrest fully supported by probable cause. This evidence, unlike the excluded evidence related to the drug sting, was a product of the traffic stop and subsequent pat-down booking search. As such, it need not be excluded as fruit of the poisonous tree.

[*P11] Even were it possible to apply the exclusionary rule to this evidence, there would be very little incentive for a court to do so under these facts. The purpose of the exclusionary rule is to deter law enforcement from obtaining evidence through illegal means. Wong Sun, 371 U.S. at 485-86, 83 S.Ct. at 416. However, the public has a vital “interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.” United States v. Ceccolini, 435 U.S. 268, 276, 98 S.Ct. 1054, 1060, 55 L.Ed.2d 268 (1978) (quoting Alderman v. United States, 394 U.S. 165, 174-75, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969)). “[A]pplication of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.” Ceccolini, 435 U.S. at 275, 98 S.Ct. at 1060 (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974)). “The penalties visited upon the Government, and in turn upon the public because its officers have violated the law, must bear some relation to the purposes which the law is to serve.” Ceccolini, 435 U.S. at 279, 98 S.Ct at 1061-62.

[*P12] Application of the exclusionary rule and extension of the fruit of the poisonous tree doctrine would serve no purpose here. Law enforcement officers believed they were working pursuant to a valid, statutorily authorized wiretap. As the 10th Circuit Court of Appeals stated when it rejected a claim based on ineffective assistance of counsel for failure to notice the expiration of the wiretapping statute, “the Wyoming Attorney General’s Office, several state district court judges, the Wyoming Supreme Court, the United States District Court for the District of Wyoming, dozens of defense attorneys, the Wyoming Legislature, the United States Attorney’s Office, and the Natrona County District Attorney’s Office also failed to notice the expiration of the statute.” United States v. Salazar, 323 F.3d 852, 857 (10th Cir. Wyo. 2003) (quotation marks omitted). We fail to see how law enforcement can be deterred from inadvertent illegal behavior.

No reasonable cause is needed for officer to open door of apparently disabled driver. This is a natural extension of Mimms and Wilson where the driver can be ordered out of the car without justification. United States v. Meredith, 2007 U.S. App. LEXIS 4235 (5th Cir. February 26, 2007):

We offer no opinion on whether these facts and circumstances were sufficient for Officer Micheu to form the reasonable suspicion necessary before he opened the vehicle’s passenger-side door and pierced the vehicle’s interior airspace. Instead, we take this opportunity to recognize the natural extension of the Supreme Court’s holdings in Mimms and Wilson, viz., that the officer needed no suspicion to open the door and perform a brief visual check of the disabled occupant any more than he needed suspicion to order the occupants to step out of the car in the first place.

In Mimms, the Court held that once a vehicle has been lawfully detained for a traffic violation, safety concerns permit law enforcement officers to order the driver out of the vehicle. In Wilson, the Court extended its holding in Mimms to permit law enforcement officers to order any passengers in the vehicle to exit.

Checkpoint stop was valid as a traffic safety checkpoint, even though one officer testified it was to curb burglaries and drug trafficking. At least the District Court’s findings are not contrary to the evidence. United States v. Regan, 218 Fed. Appx. 902 (11th Cir. 2007)* (unpublished):

In this case, testimony at the suppression hearing supports the district court’s finding that the checkpoint was implemented primarily to respond to traffic safety concerns. District Court Opinion at 12 (“The Government has shown that the primary purpose of the checkpoint in question was not to engage in general crime control, but instead to police the intersection for drunk driving, to perform routine checks for drivers’ licenses and vehicle registration, and to enforce compliance with general traffic laws.”). The Monroe County Sheriff’s Office policy regarding checkpoints indicated that they were to focus on the problem of road safety. In addition, Officer Duncan and Cpl. Grindstaff reported that the purpose of the checkpoint was to respond to complaints of motorists running the four-way intersection at Teagle and Brownlee Roads, that the intersection was plagued with intoxicated drivers coming from neighboring counties, and that each vehicle was stopped to check the motorists’s license and proof of insurance. See Sitz, 496 U.S. at 445, 110 S. Ct. at 2481; Prouse, 440 U.S. at 663, 99 S. Ct. at 1401.

Furthermore, even though Deputy Blanks stated at one point that the purpose of the checkpoint was to respond to a high volume of burglaries and narcotics offenses in the area, that did not invalidate the lawfulness of the checkpoint. As the district court noted, Deputy Blanks was not employed by the sheriff’s office in a supervisory capacity; instead, he was in training at the time of the checkpoint. Thus, he did not have a role in approving the checkpoint. In addition, Deputy Blanks’s statement was not corroborated by other documentary and testimonial evidence, and, at the suppression hearing, he clarified that the checkpoint had a dual purpose.

With respect to the balancing of competing interests, the district court did not err in finding that the checkpoint advanced an important state interest as compared to the level of intrusion on individual’s privacy. First, the district court did consider the competing interests implicated in carrying out the checkpoint, namely, the county’s interest in maintaining highway safety, the checkpoint’s effectiveness at achieving that goal, and the level of intrusion on an individual’s privacy, and concluded that the balance of the interests weighed in favor of finding the checkpoint reasonable under the Fourth Amendment.

Second, the after arrest reports and suppression hearing testimony confirmed that the checkpoint was executed for the important state interest of ensuring compliance with the state’s driver licensing and vehicle registration laws, and to check for drunk drivers. See Sitz, 496 U.S. at 445, 110 S. Ct. at 2481; Prouse, 440 U.S. at 657-58, 99 S. Ct. at 1398. The documentary and testimonial evidence also showed that every motorist who drove through the intersection during the checkpoint was stopped. Thus, the officers did not engage in randomized stops; instead, every vehicle was stopped and every motorist was asked for documentation. See Prouse, 440 U.S. at 661, 99 S. Ct. at 1400.

The evidence shows a checkpoint designed to comply with the Constitution. Even though records of the time required to conduct the document inspection were not kept, at the hearing Duncan testified that the checkpoint stop lasted an average of one or two minutes. See Merrett, 58 F.3d at 1551 (upholding a less than one minute checkpoint stop for document inspection and external sniff by a K-9 unit). Evidence presented at the hearing showed that the sheriff’s office had received complaints of traffic safety violations at the intersection.

Comment: As far as I’m concerned, the presence of a drug dog at a “traffic safety checkpoint” invalidates it because it shows a true ulterior motive. The 11th Cir. has already rejected that argument. This is a bad line of cases, so watch for it.

In an identity fraud case, defendant’s brother turned over documents received at their house in another person’s name, a person whose wallet was stolen. The brother took documents to the police, and then went back and got more in a search of the defendant’s room. In the third search, the police could be seen as having instigating it. Even if the court suppressed the third search and all the information from that is excised from the search warrant application, there still was probable cause for a search warrant on the remainder. United States v. Silva, 502 F. Supp. 2d 143 (D. Mass. 2007).*

District Court suppresses a stop of a man on the street who apparently mistakenly flagged down an undercover car that he thought was a livery cab. Two officers got out of the car and confronted him because that was what they were doing on the street anyway. Motion to suppress granted because the court finds the officers’ explanation implausible. United States v. Williams, 2007 U.S. Dist. LEXIS 13070 (E.D. N.Y. February 26, 2007).*

Motion to suppress was granted in the search of a guest at a house. [The government even argued that the defendant had no standing to contest the search of his own person, which is ludicrous.] United States v. Tate, 2007 U.S. Dist. LEXIS 13017 (N.D. Ohio February 26, 2007)*:

Defendant Tate’s Motion to Suppress has merit for two independent and sufficient reasons: (1) Jackson’s consent to search was not an intervening act of free will sufficiently removed from the detectives’ illegal search so as to purge the taint of their unlawful activity; and (2) the search of the boot did not fall within (a) the parameters of Jackson’s consent to search; (b) a limited, self-protective frisk; or (c) the plain view of an officer. For these independent and sufficient reasons, the crack and confession must be suppressed.

A. Standing

The government argues that Defendant Tate was merely a transitory house guest with no legitimate expectation of privacy. As such, the government argues that Tate lacks standing to challenge the constitutionality of the search that revealed crack in his boot. The Court disagrees.

Both Jackson and Tate testified that the defendant had been staying overnight at the apartment approximately three to four nights per week since the summer. The presence of an additional fold-out bed in the living room supports this notion. Likewise, both Jackson and Tate testified that the defendant ate meals at the apartment, kept toiletries at the apartment, and occasionally received mail at the apartment. Additionally, both Jackson and Tate testified that the defendant kept a significant amount of clothing at the apartment, as well as numerous pairs of shoes. Jackson testified that although Tate did not pay rent, he helped out by purchasing groceries on a regular basis.

The Court credits the testimony of both Jackson and Tate as it relates to the defendant’s regular overnight presence in the apartment. Defendant Tate was not merely a transitory house guest, a first time visitor or a guest in the apartment for a business purpose. Rather, as a regular overnight guest who kept a significant amount of personal possessions at the apartment, the defendant maintained a reasonable expectation of privacy sufficient to warrant standing to challenge the search.

(In trial today; I’ll get back when I can.)

Plaintiff stated a claim for relief for officers’ arrest of her at her car in a parking lot then taking her home handcuffed and searched her house, finding no contraband, and unhandcuffing her and leaving. Butler v. City of Sacramento, 2007 U.S. Dist. LEXIS 60006 (E.D. Cal. August 6, 2007)*:

In the case at bar, plaintiff alleges that the police had no reason to detain her once they completed the search of her car. She alleges that she remained handcuffed and kept in the police car despite the fact that nothing incriminating was found in her car. Although defendants claim that the detention in between the searches was reasonable, the court is adjudicating a motion to dismiss, not a motion for summary judgment. The facts of the allegation are taken as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972). While it may be that the police had legitimate reasons to detain plaintiff, these facts are not contained in the complaint. In determining whether a detention incident to a search was reasonable, the court looks at the totality of the circumstances. Meredith v. Erath, 342 F.3d 1057, 1063 (9th Cir. 2003). At this point, the court does not know all the circumstances surrounding the searches and cannot determine if plaintiff’s detention was “carefully tailored” and the law enforcement interests outweighed the intrusion on plaintiff’s privacy. See Ganwich, 319 F.3d at 1122.

For these reasons, plaintiff has alleged sufficient facts so as to state a claim that defendants violated her Fourth Amendment right to be free from illegal seizure. Although the police found no contraband in plaintiff’s car, they continued to detain her in handcuffs. Once the car search was complete, plaintiff contends that there was no reason to continue the detention. Moreover, she was detained at some distance from her house, which is an increased invasion of plaintiff’s privacy interests. See Hogan, 25 F.3d at 693. These factual allegations are sufficient to state a claim and for this reason, defendants’ motion to dismiss plaintiff’s claim based on the Fourth Amendment is denied.

Plaintiff’s search claims that were five years before the Kentucky statute of limitations were barred. The plaintiff had to know about them. Stewart v. Municipality of Louisville, 2007 U.S. Dist. LEXIS 60118 (W.D. Ky. August 15, 2007).*

Wrongful search and seizure claim of the person states a claim, but an additional state false imprisonment claim is duplicative and dismissed. Armstrong v. Sexson, 2007 U.S. Dist. LEXIS 60023 (E.D. Cal. August 7, 2007).*

Plaintiff stated a privacy interest in his sickle cell trait that was violated by defendant’s disclosure of his medical condition. Fleming v. State Univ. of N.Y., 502 F. Supp. 2d 324 (E.D. N.Y. 2007).*

Defendant had been harassing his 81 year old neighbor, and various acts of vandalism had occurred which the police linked to defendant. Oil and a powder laced with said were found on her property. A search warrant was obtained by the police for what defendant would have been putting on the property, and that led to an intense search of the property into drawers and closets. An illegal fiream and silencer were found. Defendant moved to suppress over the imparticular description of “any oil” and it was granted. The government countered that the description “any chemical” was sufficient. The impossibility of a better description by the police made the description used sufficient. United States v. Klebig, 228 Fed. Appx. 613 (7th Cir. 2007)* (unpublished):

In this case, the officers did not know exactly what chemicals Klebig had used to sabotage his neighbor’s house. Some of the chemicals were liquid–for instance, the chemicals sprayed over the fence on the house–while others were powder, like the white powder found on the lawn mower. The magistrate judge, in its recommendation adopted by the district court, believed that “caustic chemicals” was a more apt description. Without that limitation, the judge concluded that the “any chemicals” category would justify the seizure of “the sodium chloride in the salt shaker” and the “acetylsalicylic acid (aspirin) in the medicine cabinet.” However, contrary to the magistrate judge’s analysis, a reasonable officer would not read the “any chemicals” category as justifying the seizure of anything that could be expressed with a chemical name. Nor does it seem that the adjective “caustic” would add much to the meaning of the warrant, given the unique circumstances of this case, namely that many household chemicals, if misused, could inflict damage to lawns or paint. Since a detailed particularity was impossible in this case, the generic language “any chemicals” was therefore sufficient for purposes of the Fourth Amendment.

Question during traffic stop “Do you have any weapons or other illegal items in your vehicle?” was, as to weapons, legitimate, if not “advisable.” The question about “illegal items” did not prolong the stop. Defendant’s answer “Not that I know of” was curious enough to justify further questions. United States v. Valenzuela, 494 F.3d 886 (10th Cir. 2007):

Detective Baxter’s second question, “may I search,” also did not violate Defendant’s Fourth Amendment rights. Again, the key inquiry is whether Defendant’s detention was reasonable. Patterson, 472 F.3d at 776. Detective Baxter asked for consent to search the vehicle as a follow-up question to his original question regarding the presence of weapons or other illegal items in the vehicle. Because Defendant answered the first question with the equivocal response of “not that I know of,” and because the possible presence of weapons in the vehicle posed an immediate danger, Detective Baxter reasonably asked whether he could search the vehicle. Indeed, Defendant’s equivocal response to Detective Baxter’s first question engenders the notion that weapons may be in the vehicle but Defendant does not necessarily know of any.

Accord: United States v. Hernandez-Torres, 234 Fed. Appx. 752 (9th Cir. 2007)* (unpublished):

We reject Hernandez-Torres’s argument that Trooper Moonin unlawfully prolonged the stop and broadened the scope of questioning by asking him whether he was carrying contraband. Even if we assume that the stop was not a consensual encounter after Trooper Moonin returned Hernandez-Torres’s paperwork and told him he was free to leave, see United States v. Chavez-Valenzuela, 268 F.3d 719, 724-25 (9th Cir. 2001), amended by 279 F.3d 1062 (9th Cir. 2002), we conclude that reasonable suspicion supported the decision to prolong the stop and broaden the scope of questioning.

A count for forfeiture in the indictment justified a warrantless seizure of defendant’s vehicle. “Under these circumstances, we agree with the district court that there was probable cause to support the warrantless seizure of the Tahoe and that the subsequent inventory search of the vehicle was proper. See Cooper v. California, 386 U.S. 58, 61-62 (1967) (holding that, when a vehicle is seized for forfeiture purposes, a warrantless inventory search can be made); United States v. Alvarez, 833 F.2d 724, 728 (7th Cir. 1987) (holding that, once a vehicle is seized for forfeiture, it can be searched without a warrant).” United States v. Melvin, 2007 U.S. App. LEXIS 16794 (4th Cir. July 13, 2007)* (unpublished).

Defendant officers prevailed after a four day trial. They could detain those present during the execution of a warrant. Syfu v. Cooke, 234 Fed. Appx. 763 (9th Cir. 2007)* (memorandum):

The district court’s instructions were consistent with our holding in Dawson, where we held that an officer may detain a building’s residents during a search “so long as the officer conducts the detention in a reasonable manner.” Dawson v. City of Seattle, 435 F.3d 1054, 1066 (9th Cir. 2006); see also Muehler v. Mena, 544 U.S. 93, 98 (2005) (“An officer’s authority to detain incident to a search is categorical; it does not depend on the quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure.” (internal quotation marks omitted)).

Plaintiff arrested with a friend who had burglarized a tire store and had tires in his truck survived summary judgment. There was reasonable suspicion for a stop and probable cause for an arrest of the friend but not the plaintiff. Grindling v. Loo, 2007 U.S. Dist. LEXIS 50757 (D. Haw. July 12, 2007):

The simple fact that Grindling was standing next to a truck containing suspected stolen goods, speaking to the driver of that truck, while in a public park that is not described as being particularly known for this type of criminal activity, is insufficient to alert a reasonably prudent police officer to conclude that Grindling had committed a criminal offense, without more information as to Grindling’s behavior. Grindling’s presence at the park is easily justified as innocent–two acquaintances meeting by chance at a park. See Brown v. Texas, 443 U.S. 47, 52 (1979) (holding that officers did not have reasonable suspicion for an investigatory stop when they detained two men who were walking away from each other in an alley in an area known for drug trafficking because “the … activity was no different from the activity of other pedestrians in that neighborhood”); ….

Defendant went into the security line at the Honolulu airport, but it was noted on his boarding pass that he presented “No ID” to get through security. He was accordingly selected for secondary screening, although he was protesting that his flight was about to leave, which it was. A handheld wand went off on a front pants pocket three times, and he protested that he had nothing in his pocket. The TSA officer used the back of his hand to feel what might be setting off the alarm on the wand, and something was in there but he could not tell what it was. Defendant at that point asked to leave the airport because he changed his mind about flying. The TSA officer told him to empty his pockets, and a meth pipe was found in the front pocket. A further search of his person revealed meth. The Ninth Circuit held that airport searches no longer are dependent upon implied consent; they are now administrative searches because flying on an airplane in a post-9/11 world is now the same as a “highly regulated industry.” Any “implied consent,” thus, cannot be revoked once the passenger elects to enter the secure area. Such searches, however, are not limitless; they are limited by their justification: screening for terrorists. This search was reasonable under the circumstances. United States v. Aukai, 497 F.3d 955 (9th Cir. 2007) (en banc):

We have held that airport screening searches, like the one at issue here, are constitutionally reasonable administrative searches because they are “conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.” United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973); see also United States v. Hartwell, 436 F.3d 174, 178 (3d Cir.), cert. denied, 127 S. Ct. 111 (2006); Marquez, 410 F.3d at 616. Our case law, however, has erroneously suggested that the reasonableness of airport screening searches is dependent upon consent, either ongoing consent or irrevocable implied consent.

The constitutionality of an airport screening search, however, does not depend on consent, see Biswell, 406 U.S. at 315, and requiring that a potential passenger be allowed to revoke consent to an ongoing airport security search makes little sense in a post-9/11 world. Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by “electing not to fly” on the cusp of detection until a vulnerable portal is found. This rule would also allow terrorists a low-cost method of detecting systematic vulnerabilities in airport security, knowledge that could be extremely valuable in planning future attacks. Likewise, given that consent is not required, it makes little sense to predicate the reasonableness of an administrative airport screening search on an irrevocable implied consent theory. Rather, where an airport screening search is otherwise reasonable and conducted pursuant to statutory authority, 49 U.S.C. § 44901, all that is required is the passenger’s election to attempt entry into the secured area of an airport. See Biswell, 406 U.S. at 315; 49 C.F.R. § 1540.107. Under current TSA regulations and procedures, that election occurs when a prospective passenger walks through the magnetometer or places items on the conveyor belt of the x-ray machine. The record establishes that Aukai elected to attempt entry into the posted secured area of Honolulu International Airport when he walked through the magnetometer, thereby subjecting himself to the airport screening process.

To the extent our cases have predicated the reasonableness of an airport screening search upon either ongoing consent or irrevocable implied consent, they are overruled.

IV.

Although the constitutionality of airport screening searches is not dependent on consent, the scope of such searches is not limitless. A particular airport security screening search is constitutionally reasonable provided that it “is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [] [and] that it is confined in good faith to that purpose.” Davis, 482 F.2d at 913. We conclude that the airport screening search of Aukai satisfied these requirements.

The search procedures used in this case were neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons or explosives. After passing through a magnetometer, Aukai was directed to secondary screening because his boarding pass was marked “No ID.” Aukai then underwent a standard “wanding procedure.” When the wand alarm sounded as the wand passed over Aukai’s front right pants pocket, TSA Officer Misajon did not reach into Aukai’s pocket or feel the outside of Aukai’s pocket. Rather, Misajon asked Aukai if he had something in his pocket. When Aukai denied that there was anything in his pocket, Misajon repeated the wanding procedure. Only after the wand alarm again sounded and Aukai again denied having anything in his pocket did Misajon employ a more intrusive search procedure by feeling the outside of Aukai’s pocket and determining that there was something in there.

Claim of entrapment to commit crime did not nullify the arrest warrant for his arrest, so the search incident to defendant’s arrest was valid. The fruit of the poisonous tree does not apply to such situations. Tercero v. State, 963 So. 2d 878 (Fla. App. 4th DCA 2007), released for publication September 7, 2007:

The District Court for the Eastern District of New York made a similar finding in Torres v. Marquardt, No. 93-CV-2993 JG, 1997 WL 1068680 (E.D.N.Y. Apr. 3, 1997). There, in addressing the same argument, the court held that the defense of entrapment “does not ‘negate the commission of the crime'” or any of its elements. Id. at *4 (quoting People v. Millard, 90 A.D.2d 590, 456 N.Y.S.2d 201, 203 (N.Y. App. Div. 1982)). Rather, the defense is a “‘confession and avoidance.'” Id. (quoting People v. Morris, 68 A.D.2d 893, 413 N.Y.S.2d 757, 758 (N.Y. App. Div. 1979)). The court concluded, “[i]ndeed, the validity of an arrest does not turn upon the ultimate finding of guilt or innocence, but whether probable cause existed at the time of arrest. Thus, the probable cause arising from Torres’ actions remains unaffected by the subsequent finding of entrapment.” Id. (citation omitted).

Other federal courts have held that “[e]ntrapment is not part of our Fourth Amendment probable-cause-to-arrest analysis.” Humphrey v. Staszak, 148 F.3d 719, 724 (7th Cir. 1998). Whereas a probable cause analysis “requires one to examine the circumstances from the view of an objectively reasonable police officer[,] [e]ntrapment … is an affirmative defense of a criminal defendant to otherwise culpable conduct.” Id. To negate probable cause, “the plaintiff must provide evidence that the officer ‘knowingly or intentionally or with a reckless disregard for the truth, made false statements to the judicial officer, and that the false statements were necessary to the judicial officers’ determinations that probable cause existed for the arrests.'” Kramer v. Vill. of N. Fond du Lac, 384 F.3d 856, 866 (7th Cir. 2004) (quoting Molina ex rel. Molina v. Cooper, 325 F.3d 963, 968 (7th Cir. 2003)).

Defendant failed in a Franks challenge where the omitted information did not detract from the probable cause showing. United States v. Willis, 2007 U.S. Dist. LEXIS 61258 (S.D. Ga. August 20, 2007).*

The affidavit for child porn on defendant’s computer showed probable cause because of the detail shown in the FBI investigation into a Yahoo! posting and tracing back to defendant’s computer and subscriber information from internet service providers. United States v. Huitt, 2007 U.S. Dist. LEXIS 60980 (D. Idaho August 17, 2007).*

Alabama Board of Massage Therapy did not commit an illegal administrative search by sending into petitioner’s massage business an undercover person whom he touched unlawfully. He had no reasonable expectation of privacy that the person would not report it. Knoblett v. Alabama Bd. of Massage Therapy, 963 So. 2d 640 (Ala. Civ. App. 2007), released for publication July 26, 2007:

T.D.’s alleged search consisted of her simply receiving a massage from Knoblett. Knoblett has not established that he had a reasonable expectation of privacy in conducting typical business with the public at his massage-therapy establishment. Like the defendant in Hoffa who invited the informant into his hotel room, Knoblett invited T.D. to receive a massage at his massage-therapy establishment. See Ex parte Kraatz, 775 So. 2d 801, 803 (Ala. 2000) (quoting Raspilair v. Bruno’s Food Stores, Inc., 514 So. 2d 1022, 1023 (Ala. 1987)) (“‘Generally, a patron of a business … is an invitee.'”). Similarly, Knoblett had no legitimate expectation that whatever wrongdoing he perpetrated during the May 3, 2002, massage of T.D. would not be reported to the authorities by T.D. Although she was hired by the Board, T.D. received massages from Knoblett in the same manner as any other member of the general public might. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 351 (1967). Accordingly, we conclude that T.D.’s receiving a massage from Knoblett does not constitute a Fourth Amendment search.

Officer’s observation of a hand-to-hand drug deal followed by defendant’s flight was reasonable suspicion. State v. Fletcher, 2007 Ohio 989, 2007 Ohio App. LEXIS 917 (8th Dist. March 8, 2007).*

Officer stopped the defendant after a report from a city councilman that defendant was involved in drug trafficking. Defendant consented to a search then and nothing was found, but the vehicle had a temporary tag and the officer told the defendant to take care of getting the vehicle licensed. Days later, the vehicle was seen again parked with the window down in 20º weather which made the officer think that defendant was engaged in drug sales from his vehicle. The officer parked and approached, and, in plain view on the seat, was a rock of crack. The view was lawful and that was probable cause. State v. Biggs, 2007 Ohio 982, 2007 Ohio App. LEXIS 924 (8th Dist. March 8, 2007).*

Officer pulled over defendant’s vehicle because the driver of the vehicle behind it was flashing her lights and waving. The stop was without reasonable suspicion that a crime was occurring. State v. Day, 2007 Tenn. Crim. App. LEXIS 212 (March 7, 2007):

In the instant case, the officer did not, at the time he pulled over the defendant’s vehicle, possess enough information upon which an officer could reasonably suspect that the defendant had committed or was about to commit a criminal offense. Prior to pulling over the defendant’s vehicle, the only communication between the officer and the other driver consisted of the driver’s flashing her lights at the officer and gesturing toward the defendant’s vehicle. At the time the officer pulled over the defendant, the officer knew nothing about either driver or about the nature of the citizen’s concern regarding the defendant. Without speaking to the unknown citizen, the officer was unable to assess or establish her reliability or the basis for her knowledge of the defendant’s supposed offense–or if the other driver even knew anything about the defendant. The two required elements to be established under Pulley were clearly missing in this case.

Had the officer spoken to the citizen before pulling over the defendant’s vehicle, this court may well have reached a different decision. However, the officer did not speak to the citizen and gather the requisite information necessary to create a reasonable suspicion until after the officer pulled over the defendant’s vehicle–a clear violation of the Pulley-Binette mandate that such reasonable suspicion be created before the officer switches on his blue lights.

A juvenile adjudicated of a felony in juvenile court may have DNA taken from him. In re Calvin S., 150 Cal. App. 4th 443, 58 Cal. Rptr. 3d 559 (3d Dist. 2007).

Insurance company’s investigator was not acting as an agent of the state when he entered and reentered insured’s property investigating a fire. The trial court erred in holding that he was. People v. Pilkington, 156 P.3d 477 (Colo. 2007):

We agree with the Tenth Circuit’s observation that there are “two important inquiries” that aid in determining whether an individual is acting as an agent of the government: (1) whether the government “encourage[d], initiate[d], or instigate[d] the private action,” and (2) whether “the party performing the search intended to assist law enforcement efforts or to further his own ends.” United States v. Smythe, 84 F.3d 1240, 1242-43 (10th Cir. 1996) (citing Pleasant v. Lovell, 876 F.2d 787 (10th Cir. 1989)). On previous occasions this court has paid special attention to these factors when considering whether private actors are agents of the government.

A Kansas State Trooper had reasonable suspicion to pull over the defendant for weaving onto the shoulder. Once stopped, the officer developed probable cause to believe that the car was stolen, and that justified defendant’s arrest. United States v. Brown, 234 Fed. Appx. 838 (10th Cir. 2007)* (unpublished).

Defendant was arrested in a national park and tried for assault before a U.S. Magistrate Judge. Instead of moving to suppress evidence, he moved to dismiss, and that did not provide a remedy. An illegal arrest does not void a subsequent conviction. United States v. Vasquez, 2007 U.S. Dist. LEXIS 31278 (E.D. Cal. April 10, 2007).*

Defendant consented to a search of his person, and finding a “large amount of cash” [$525] and suspected contraband on him gave probable cause to search his car. State v. Hawkins, 2007 Ohio 2080, 2007 Ohio App. LEXIS 1941 (5th Dist. April 23, 2007).*