Defendant’s being out of the vehicle for potentially hours denied the government any reliance on search incident because he was not a “recent occupant.” Moreover, reliance on the automobile exception was denied, essentially because of staleness of the facts. United States v. Gable, 2007 U.S. Dist. LEXIS 39854 (M.D. Tenn. May 31, 2007):

Here, the proof does not establish the amount of time that had passed since Gable left his truck and the officers’ arrival at Vines’s residence. Given Vines’s descriptions of the incident and Gable’s prior conduct, the passage of time could be an hour or several hours. When the officers arrived, Gable was inside Vines’s residence, where he was arrested. The Court concludes that the government has not established the facts necessary to invoke the Thorton rule requiring the defendant to have been a ‘recent occupant’ of the searched vehicle.

As to the search incident to probable cause, the government relies upon United States v. Swanson, 341 F.3d 524, 532-33 (6th Cir. 2003) and Smith v. Thornburg, 136 F.3d 1070, 1074 (6th Cir. 1998). In Swanson, the vehicle was used as an instrument of a crime and therefore, as a matter of law, was subject to seizure and search without a warrant. 341 F.3d at 532-33. (“First, the agents had probable cause to seize and search the vehicle. [The defendant] had used the Grand Am to deliver an automatic weapon thirty days earlier to a confidential informant …”). In Smith, this rule was held to apply to a warrantless search of a “readily mobile vehicle”. 136 F.3d at 1074. Gable’s vehicle was parked and Gable was inside Vines’s residence. Gable was initially in Vines’s residence and at the time of the search was handcuffed in Mashburn’s vehicle. There is not any proof that the Gable’s vehicle was “readily mobile”. Thus, Gable’s truck was “readily mobile” when Mashburn searched the truck for a weapon. Thus, the Court concludes that Swanson and Smith are factually inapposite and the search incident to probable cause doctrine is inapplicable here.

Officer’s failure to comply with Oregon law in informing a suspect he had a right to refuse consent was not relevant in federal court. United States v. Villanueva-Madriz, 234 Fed. Appx. 454 (9th Cir. 2007)* (unpublished).

Existence of a bench warrant saves the arrest as justified on probable cause, but material facts remain on whether the officer knew about it. Grindling v. Silva, 2007 U.S. Dist. LEXIS 39866 (D. Haw. May 30, 2007):

Defendant states in his declaration that Plaintiff also was arrested on an outstanding bench warrant, but, according to Plaintiff, that bench warrant did not come to light for another six hours. The existence of a bench warrant of which officers are not aware at the time of an arrest will not retroactively justify the arrest. See Moreno v. Baca, 431 F.3d 633, 638-41 (9th Cir. 2005). Thus, the bench warrant would “save” the arrest only if Defendant was aware of it at the time of the arrest. Defendant’s knowledge of the bench warrant is unclear at this time.

The District Court of Nassau Co. N.Y. holds that the police had probable cause for a search warrant for blood results after a motor vehicle accident, but suppresses the evidence based on the physican-patient privilege because it was drawn for medical purposes. People v. Muscarnera, 2007 NY Slip Op 27224, 16 Misc. 3d 622 (Nassau Co. 2007).*

Maryland holds that a police officer who had the only set of some files at his house and not at work where they belonged could be ordered to produce them under threat of disciplinary action without violating the Fourth Amendment. FOP Montgomery County Lodge 35 v. Manger, 175 Md. App. 476, 929 A.2d 958 (2007):

The files at issue belong to the MCPD and, thus, it was reasonable for them to demand appellant to produce the files. Thus, the action was justified at its inception. Had the files been located at the district station, the MCPD would have simply taken the files from the cabinet. The circumstances resulting from the accommodation of MCPD in permitting maintenance of files off site precluded the public employer, MCPD, from simply and as acknowledged by all parties, rightfully, taking the files. Reasonableness of the seizure, as considered under the circumstances, dictated that the MCPD demand appellant to produce the files immediately. Appellant’s invitation to the officers to enter his residence, simply for the purpose of carrying the boxes out, did not involve an unreasonable seizure as proscribed by the Fourth Amendment.

Sua sponte appellate determination of standing, based on defendant’s testimony, when the issue was not litigated below, was inappropriate because of the lack of a full record. “While the appeals court was not precluded from conducting a sua sponte inquiry into Moody’s standing, we conclude the panel should have limited its review to the record at the suppression hearing, which was lacking facts necessary to make a fully informed determination.” Moody v. People, 159 P.3d 611 (Colo. 2007).*

Suit over sexual harassment by teacher engaging in sexual relationship with a student in high school stated a claim under Title IX because a student is presumed to not be able to consent. The student’s Fourth Amendment claim on the same act at least survives summary judgment, too, on a claim of “bodily integrity.” Jeanette v. Pottsgrove Sch. Dist., 501 F. Supp. 2d 695 (E.D. Pa. 2007):

Section 1983 is a vehicle by which a plaintiff can assert a claim against a person who, acting under color of state law, deprives the plaintiff of a constitutional right. 42 U.S.C. § 1983. Here, Plaintiff alleges that Oakes violated her Fourth Amendment right to be free from unreasonable seizures and her Fourteenth Amendment due process right to bodily integrity. See U.S. Const. Amd. IV (providing protection from “unreasonable searches and seizures”); Stoneking II, 882 F.2d at 726-27 (holding that a student has a Fourteenth Amendment due process right to be free from intrusions of his bodily integrity, including “a right to be free from sexual assaults by his or her teachers”). Oakes does not contest the assertion that he was acting under color of state law.

Oakes’s defense is that, in having sex with Plaintiff, he did not “seize” her or violate her right to bodily integrity because she consented to the sex. However, Plaintiff, as a student in Oakes’s class, lacked the capacity to consent to engage in sexual conduct with him. Therefore, Plaintiff’s § 1983 claims against Oakes will survive summary judgment.

Defendant’s common law wife had the apparent authority to consent to a search for individuals to remove from the premises. Only after this protect sweep began and contraband was found did she seek to revoke consent, and then it was too late. United States v. Gocha, 2007 U.S. Dist. LEXIS 57906 (N.D. Iowa August 8, 2007).*

Traffic violation justified defendant’s stop, and furtive movements in the car was probable cause to search for what was being hidden because the officers already had reasonable suspicion to believe that he was involved in drug trafficking. United States v. Bowden, 2007 U.S. Dist. LEXIS 57858 (E.D. Mo. August 8, 2007).*

Officers had consent to enter plus probable cause for an entry and arrest on a state arrest warrant for the defendant when he was seen in the premises when the blinds were pulled back. United States v. Craig, 2007 U.S. Dist. LEXIS 58191 (S.D. W.Va. August 8, 2007).*

A prison inmate had no reasonable expectation of privacy in his incoming and outgoing mail based on the prison directives for security purposes. United States v. Solomon, 2007 U.S. Dist. LEXIS 26825 (W.D. Pa. April 11, 2007):

In Stroud v. United States, 251 U.S. 15, 21-22 (1919), the United States Supreme Court held that there was no violation of the Fourth Amendment when letters containing incriminating material written by a prisoner were intercepted by prison personnel and later introduced against him at trial. The Supreme Court noted that the letters came into the possession of prison officials under established practice, reasonably designed to promote institutional discipline. Id. at 21. Several circuit courts subsequent to Stroud have held that jail officials do not violate an inmate’s Fourth Amendment rights by inspecting the inmate’s mail. See, e.g., Stow v. Grimaldi, 993 F.2d 1002, 1004-05 (1st Cir. 1993) (holding that a New Hampshire State Prison practice of requiring nonprivileged outgoing mail to be submitted for inspection in unsealed envelopes does not violate prisoners’ constitutional rights); Smith v. Delo, 995 F.2d 827, 830 (8th Cir. 1993) (prison officials are justified in screening outgoing nonlegal mail for escape plans, contraband, threats, or evidence of illegal activity); United States v. Whalen, 940 F.2d 1027, 1034-35 (7th Cir.), cert. denied, 502 U.S. 951 (1991) (holding that because prison officials are permitted to examine inmate mail to ensure that the mail does not interfere with the orderly running of the prison, contain threats, or facilitate criminal activity, there is no expectation of privacy in mail that inmates are required to leave unsealed); United States v. Kelton, 791 F.2d 101, 103 (8th Cir. 1986) (prisoner’s Fourth Amendment rights were not violated when prison official inspected and copied prisoner’s outgoing mail); Smith v. Shimp, 562 F.2d 423, 426-27 (7th Cir. 1977) (reasoning that when a pretrial detainee sends non-privileged mail, he knowingly exposes same to possible inspection by jail officials and consequently yields to reasonable search and seizure); United States v. Baumgarten, 517 F.2d 1020, 1028 (8th Cir.), cert. denied, 423 U.S. 878 (1975) (holding that, under circumstances where prisoner knew of official policy of reading prisoners’ outgoing and unsealed mail, prisoner cannot say the state gained access to contents of a letter by unlawful search and seizure).

The record undeniably demonstrates that the Department of Corrections has a written policy which informs all prisoners that their mail, both incoming and outgoing, may be inspected; that Defendant Solomon had received a copy of the DOC Inmate Handbook, which reflected this policy; and that Detective Heberle had requested the monitoring of Defendant Solomon’s mail as part of an investigation into the homicide of Frank Helisek. When a prisoner is made aware that his nonlegal mail may be subjected to official scrutiny, pursuant to institutional policies, the inmate’s constitutional rights are not violated by the subsequent examination of such mail because he or she has no reasonable expectation of privacy in it.

The plaintiff failed to state a claim against a city’s SWAT teams dynamic entry policy even though it was used on two $20 buys. Estate of Brutsche v. City of Federal Way, 2007 U.S. Dist. LEXIS 26855 (W.D. Wash. April 11, 2007):

The Court need not resolve this dispute. The Court’s task on summary judgment is to determine whether there is any evidence that the SWAT team’s Dynamic Warrant Service policy caused the alleged unreasonable use of force against Jim Brutsche, not to determine whether the SWAT team’s deployment was reasonable. Plaintiffs have failed to provide any evidence that Jim Brutsche was injured by any reason specific to the SWAT team’s policies and procedures. Because the Dynamic Service Warrant policy, which was used to decide to deploy the SWAT team in this case, cannot be considered the cause of, or the moving force behind, Jim Brutsche’s injuries, the Court GRANTS IN PART the Cities’ and the Port’s motion for summary judgment, and DISMISSES with prejudice the Sixth Cause of Action to the extent that it is based on the VSRT’s Dynamic Warrant Service policy.

An anonymous tip that the defendant had a gun and was planning on using it on someone was sufficient for a frisk when defendant was found where it was said he would be plus his furtive movement. Because the furtive movement occurred in a car, the frisk could extend to the car under Long. United States v. Graham, 483 F.3d 431 (6th Cir. 2007).

Reliance on an arrest warrant justified the arrest. The fact the officer had to use binoculars to better see the defendant did not mean that he lacked probable cause. It was reasonable for the defendant to be ordered out of the car. United States v. Helton, 232 Fed. Appx. 747 (10th Cir. 2007)* (unpublished).

While the question was close, the court finds reasonable suspicion based on the defendant’s presence in a high crime area coupled with likely hand-to-hand transactions. United States v. Crawford, 2007 U.S. Dist. LEXIS 26642 (E.D. Ark. April 10, 2007):

The circumstances in the instant case are more indicative of specific criminal activity than the circumstances in Cornelius. Like the defendant in Cornelius, Crawford was observed in a high-crime area and was recognized as an individual with a criminal history. While Crawford’s conduct in exchanging something with another person could have been an innocent act, such conduct is also consistent with drug transactions. Moreover, the exchange took place at night, not during daylight hours. The Court recognizes that the defendant in Cornelius walked in another direction upon seeing the patrol car, and Crawford engaged in no such evasive action. The Eighth Circuit did not discuss this aspect of the defendant’s behavior in its analysis, however, focusing instead on the fact that the defendant put his hand in his pocket. See id. (citing United States v. Davis, 202 F.3d 1060, 1063 (8th Cir. 2000), and noting that the suspect in Davis “nervously plac[ed] hand in jacket pocket”). Making an exchange in a parking lot at night is at least as suspicious as placing one’s hand in one’s pocket while walking down the street in broad daylight.

From a reader, a seriously troubling case from the Tenth Circuit not supplied by Lexis this morning:

The police conducted a knock-and-talk in a child porn case based on an investigation of a child porn website, and defendant’s 91 year old father was the only person at home. A few leading questions later, nothing pertaining to equal access to the computer, the father was asked to consent to a search of his 51 year old son’s bedroom where, with his government computer equipped with EnCase, the officer opened child porn pictures. The Tenth Circuit found the officers reasonably could rely on the father’s apparent authority to consent to a search of his adult son’s room, a finding that defies common sense (few 91 year olds know a thing about computers, and the record shows that this one did not). The son was contacted, and the police stopped the search and waited for him and then arrested him. The court noted that EnCase enables the officers to by-pass all passwords on the computer. This computer was password protected, but that did not bother the court. The majority of the court essentially puts the burden on the defendant to show that password protection of computers is common and shows an expectation of privacy like a locked container, and finds that he did not in this case. United States v. Andreas, 2007 WL 1207081, 483 F.3d 711 (10th Cir. 2007) (2-1).

Wife had common authority to consent to a search of the attic. United States v. George, 232 Fed. Appx. 392 (5th Cir. 2007)* (unpublished).

Search issue was outside the COA, so it would not be considered. Menendez v. United States, 228 Fed. Appx. 897 (11th Cir. 2007)* (unpublished).

Officers in near hot pursuit had exigent circumstances to enter plaintiff’s house looking for a shooter just hours after the occurrence. Stoute v. Mink, 232 Fed. Appx. 881 (11th Cir. 2007)* (unpublished):

Here, Plaintiffs do not dispute that officers had probable cause to arrest Devon. n2 Therefore, the remaining issue is whether exigent circumstances justified the initial entry into Theola’s home to complete the arrest. We conclude that exigent circumstances existed. Devon was suspected of attempted murder; and, because he was accused of shooting the victim just hours before his arrest, it was not unreasonable for officers to believe that Devon was armed and posed a danger to them and to the public. Officers had probable cause to believe that Devon committed the crime because the victim identified him by name and in a photograph line-up. In addition, the victim told officers that Devon was living at the address of Theola’s house, which police research confirmed, and that he suspected Devon would attempt to flee. In the light of all of these circumstances, the district court did not err in concluding that exigent circumstances justified the initial entry into Theola’s home to arrest Devon.

Continuation of stop was by consent, even if defendant hesitated when giving it. United States v. Villa-Gutierrez, 2007 U.S. Dist. LEXIS 58403 (D. Neb. August 9, 2007):

If a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual, reasonable suspicion is not required, and the encounter will not evoke Fourth Amendment scrutiny unless it loses its consensual nature. … In this case, I conclude that after Officer Spaniel issued defendant a traffic citation, the officer’s subsequent request to search did not constitute a detention but was merely a consensual encounter between officers and a citizen. The officers did not use physical force, make a show of authority, or use demanding language, but simply asked the defendant whether he would consent to a search of his vehicle. While the defendant might have been initially hesitant when he responded “no” and questioned the officer’s tactics in not searching the previous vehicle, the fact remains that defendant agreed to allow the officers to search his vehicle. An officer that has no basis for suspecting a particular individual may generally ask questions of that individual, including a request consent to search, provided the officer does not convey a message that compliance with the request is required.

Comment: Hesitation would tend to indicate that the defendant did not feel free to leave, wouldn’t it?

Pepper spraying of plaintiff by arresting officers responding to a domestic disturbance call where plaintiff would not let the officers in to check on the caller and he struggled with them first was not excessive force. Wright v. City of Bridgeton, 2007 U.S. Dist. LEXIS 58285 (D. N.J. August 8, 2007).*

After spending about 15 pages on whether a Kansas Court of Appeals decision on the meaning of crossing the fog line would be followed by the Kansas Supreme Court, the District Court decides that the officer acted reasonably in stopping a vehicle which crossed the fog line while he was following [probably because the driver was looking in the mirror]. “A reasonable officer rationally could infer the likelihood that the car had been driven all night from these circumstances in combination with the pre-dawn hour of travel. An extended trip, the likelihood of overnight travel, the pre-dawn hour, and the sudden swerve are enough, though just barely, for a reasonable suspicion that the driver was having difficulty staying awake as to justify a stop for safety reasons.” The car was rented, and neither the driver or passenger were on the rental agreement. After getting consistent stories about the trip and finding both of their licenses suspended the officer said they could go, and stepped back, but he then stepped forward and asked for consent to search which was granted. An oddly gift wrapped package was supposed to be a 3D puzzle of Las Vegas, but it did not feel like it, and opening one end, the box was from car speakers. One end was opened on the consent and drugs were found. The search was by valid consent. United States v. Jones, 501 F. Supp. 2d 1284 (D. Kan. 2007).*

In a vehicle forfeiture case, the District of Oregon holds that a dog alert on money is probable cause to believe that the money is drug money [despite the fact there are dozens of cases holding to the contrary], and the fact that money wrapped in discrete piles by rubber bands is also probable cause to believe it is drug money [despite the fact that all businesses do it that way]. The purchase of the $70,000 vehicle was done with cash and structure payments reported by the dealer. United States v. Camarillo, 2007 U.S. Dist. LEXIS 58335 (D. Or. August 7, 2007).*

Suit challenging plaintiff’s federal conviction suing everybody involved, including the judge, was barred by Heck because it was intended to challenge the conviction separate from an appeal or post-conviction claim. Halter v. Sargus, 2007 U.S. Dist. LEXIS 58279 (S.D. Ohio August 9, 2007).*

This is the second case in three days on this issue:

Officers stopped a car in Kansas and spoke to the driver in limited Spanish. After returning the paperwork and saying “Adios” and stepping back two steps, the officer hesitated and stepped forward to the car and asked if he could ask more questions. Because it was not in a threatening or coercive manner, the continuation of the stop was consensual. United States v. Bastidas-Figueroa, 2007 U.S. Dist. LEXIS 58490 (D. Kan. August 6, 2007):

After returning defendants’ documents, Trooper Epperly told defendants “adios” and then took a couple of steps away from the vehicle. Trooper Epperly testified that he never leaned into the car, did not grab his weapon, and did not use an aggressive or commanding tone of voice when he asked for consent. Instead, after taking a couple of steps away, he asked if the defendants had a problem with him searching the vehicle.

Trooper Epperly testified that he speaks a small amount of Spanish and that the defendants spoke a small amount of English, but that his Spanish was good enough to establish basic communication during a traffic stop. Trooper Epperly further testified that although his Spanish is broken, he is able to obtain correct responses to his questions and he can tell when someone he is questioning does not understand him. When he asked to search, Trooper Epperly asked if he could “buscar su caro.” While this is not a literal translation for asking if he can search the vehicle, he testified that he had never had anyone indicate that they did not understand that question. Trooper Epperly testified that the defendants did not appear confused when he asked them this question and never attempted to ask him any questions before saying yes.

While Trooper Epperly never advised defendants that they had the right to refuse consent, the Tenth Circuit has “reject[ed] the suggestion that the trooper’s failure to advise [defendant] that he was free to leave, or that he could refuse consent to search, render[s] the consent involuntary” when the events occurring before the search were lawful. Further, defendants do not explain why the troopers were required to Mirandize defendants at this point given that it was a consensual encounter and no illegal activity had turned up prior to the search. The Court determines that Trooper Epperly lawfully obtained consent to search the vehicle under the totality of the circumstances.

Comment: See United States v. Jones, 501 F. Supp. 2d 1284 (D. Kan. 2007), posted August 12th, involving the same technique.

Motion to suppress 233 kgs of cocaine from defendant’s car was denied. The testimony of one of his witnesses testifying in Spanish was hopelessly confusing, and her claim that she did not understand English but understood certain phrases based on facial expressions just could not be credited. The uncontested testimony about where he parked and strange comings and goings from his car and parking his car two blocks from his house and walking home with the proferred justifications just made the defendant’s version incredible. United States v. Arreola, 2007 U.S. Dist. LEXIS 58596 (N.D. Ill. August 7, 2007).*

The police had plenty of probable cause for a search of defendant’s apartment under a search warrant where they received an anonymous call about drug dealing and surveilled the comings and goings. A little later, they had information from a CI that he bought drugs inside. Then officers did a trash pull from the premises. The product of all that made probable cause for issuance of the search warrant. State v. Kidd, 2007 Ohio 4113, 2007 Ohio App. LEXIS 3727 (11th Dist. August 10, 2007).*

Stop of vehicle was valid for no license plates. When the officer approached the car, he smelt burnt marijuana. The license plate was in the trunk, but neither the driver nor the passenger had valid driver’s licenses. The impoundment of the vehicle was valid rather than leave it where it was. Informant information and a dog alert led to a warrant for the car as well. The warrant was valid and not based on bare bones information. State v. Berry, 2007 Ohio 4122, 2007 Ohio App. LEXIS 3742 (5th Dist. August 6, 2007).*

ICE officers used the ruse of identity theft to gain access to defendant’s computer in his home. Once the child porn was found, the ruse had to end, but it did not, so the computer was suppressed. United States v. Richardson, 501 F. Supp. 2d 724 (W.D. Pa. 2007):

The Government legally obtained consent to enter the Defendant’s residence and image the hard drive of the Hewlett Packard computer and physically gain possession of the second Nascar PC by CISNET through the means of a ruse. The ruse was that the ICE agents implied without explicitly stating, and otherwise permitted the Defendant and his wife to suppose that they were victims of identity theft without discounting such a belief and that the ICE agents were present to investigate this possible identity theft. Actually, the agents believed that it was likely that the Defendant had in fact attempted unsuccessfully to purchase a subscription to a child pornography website based upon the information obtained from Operation Emissary with regard to the Defendant’s credit card account number, physical address, computer IP address and possible email address. The ruse was a permissible tool to obtain the Defendant’s consent to enter his residence and subsequently search these articles because the ICE agents were obtaining a view of matters that one would view if they were investigating a possible theft of one’s identity over the Internet. Indeed the ICE agents had not excluded the possibility that the Defendant was a victim of identity theft when they first approached him and requested his consent to review the contents of his computers. The ICE agents’ review of the copy of the Hewlett Packard hard drive and the Nascar PC by CISNET computer was thus consensual and permitted under the Fourth Amendment. However, once the ICE agents confirmed the presence of child pornography on the Hewlett Packard hard drive and continued to allow the Defendant to believe he was a victim of identity theft and proceeded to request that he produce the actual Hewlett Packard computer, such production by the Defendant under the ICE agents’ continued guise of investigating identity theft was not consensual under the Fourth Amendment and the Hewlett Packard computer itself must be excluded from evidence at trial absent the Government demonstrating that it would have obtained that computer in another lawful manner under the Fourth Amendment. Because the Defendant’s statements of September 22, 2006 were obtained based upon references to lawfully obtained evidence, such statements are admissible at trial.

Bankruptcy trustee was governed by the Fourth Amendment in seeking assets that belonged to the debtor that the trustee believed were being secreted. The court ordered entry complied with the Fourth Amendment. Youngman v. Bursztyn (In re Bursztyn), 366 B.R. 353 (Bankr. D. N.J. April 10, 2007):

Based on an investigation of court records of the debtor’s divorce, the trustee believed that the debtor was concealing valuable jewelry and artwork. The trustee applied to the court on an ex parte basis for an order authorizing her to enter the debtor’s home to inspect and obtain the jewelry and artwork that constituted property of the estate. The court granted the request. The United States Marshals Service, accompanied by the trustee, her counsel, and appraiser personally served the order upon the debtor at her residence. The search uncovered 189 pieces of fine jewelry and 10 works of art, which were, according to an appraisal, valued at $242,767. The court held that the Fourth Amendment was applicable to the trustee, because the position, status, and function of a bankruptcy trustee evidenced a sufficiently close nexus to governmental action. The court held that the trustee did not violate the debtor’s Fourth Amendment rights because the trustee justifiably believed that the debtor was hiding valuable assets, which were of the type easily transported and concealed, and the scope of the trustee’s search was reasonably related to the circumstances. [Lexis overview]

A conviction for obstructing an officer or resisting arrest can bar a separate 1983 claim under Heck. Mitchell v. City of Ypsilanti, 2007 U.S. Dist. LEXIS 56575 (E.D. Mich. August 3, 2007).*

After obtaining a search warrant and conducting a raid, officers decided only to conduct a protective sweep and they left the residence when it was decided that the persons inside could not have been the drug dealers they were looking for. At best for plaintiffs, this was an honest mistake which officers are allowed to make, and summary judgment was granted for the officers. Also, there was no constitutional right to display of the warrant before the search occurs under Groh as long as particularity is observed. Tovar v. City of Fresno, 2007 U.S. Dist. LEXIS 56657 (E.D. Cal. August 3, 2007):

In discussing the execution of the search warrant on the subject residence, Detective Lincoln, stated, “It was–I believe now it to be false. I believe that my–I’m not going to say that I didn’t make a mistake.” Deposition of Lincoln, 64:16-19. However, the Fourth Amendment is not violated solely by a mistaken execution of a valid search warrant on the wrong premises. L.A. County v. Rettele, 127 S. Ct. 1989 (2007) (search did not violate Fourth Amendment where search warrant executed on home despite its sale four months prior and search discontinued within reasonable time); Graham v. Connor, 490 U.S. 386 (1989); Maryland v. Garrison, 480 U.S. 79 (1987) (search does not violate Fourth Amendment when police entered adjacent apartment and discontinued search as soon as they became aware of that fact). The Supreme Court has recognized that police officers have “latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants.” Maryland v. Garrison, 480 U.S. 79, 88 (1987).

There was reasonable justification for plaintiff’s arrest based on an incorrect computer entry which was a mistake of fact, not of law. Plaintiff also exacerbated the situation by her own conduct. Defendant’s motion for summary judgment granted.Weinstein v. City of Eugene, 2007 U.S. Dist. LEXIS 56554 (D. Or. August 1, 2007)*:

In sum, Alford, Beier, and Frunz are distinguishable because in those cases, the arresting officers based their decisions on misguided legal conclusions. In contrast, Officer Harrison’s determination was fact-based. Furthermore, observed facts and information available from trustworthy sources provided probable cause for plaintiff’s arrest. Summary judgment in favor of Officer Harrison is appropriate.

In dicta, the U.S. District Court for the Western District of Texas held that a Mexican citizen in the United States and subject to the penal laws of the United States was protected by the Fourth Amendment. The stop and detention of the defendant was otherwise valid. United States v. Hernandez-Reyes, 501 F. Supp. 2d 852 n. 3 (W.D. Tex. 2007):

In holding that the Fourth Amendment provided no extraterritorial protection to a Mexican citizen whose home in Mexico was searched by federal agents without a warrant, the Supreme Court stated that its prior cases “establish only that aliens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.” United States v. Verdugo-Urquidez, 494 U.S. 259, 271, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990). The Fifth Circuit recently declined to decide whether that statement in the Verdugo-Urquidez opinion was controlling law, given the statement in Justice Kennedy’s concurring opinion: “If the search had occurred in a residence within the United States, I have little doubt that the full protections of the Fourth Amendment would apply,” Verdugo-Urquidez, 494 U.S. at 278 (Kennedy, J., concurring). Martinez-Aguero v. Gonzalez, 459 F.3d 618, 624 (5th Cir.), cert. denied, 127 S. Ct. 837, 166 L. Ed. 2d 667 (2006). Prior to the Verdugo-Urquidez decision, the Fifth Circuit had “explicitly held[] that the Fourth Amendment applies to aliens.” Id. Because the Government does not argue that Defendant is not entitled to constitutional protections, Defendant was within the United States when he was arrested, Defendant is now subject to the penal laws of the United States, no evidence was presented indicating that Defendant’s “connection with the United States is so tenuous that he cannot reasonably expect the protection of its constitutional guarantees,” and the Fifth Circuit has not explicitly overruled the application of the Fourth Amendment to aliens within the United States, the Court will assume that Defendant was entitled to the protections guaranteed by the Constitution on the date of his arrest. Id. at 625. Furthermore, the Court is unaware of any case denying a criminal defendant’s motion to suppress evidence obtained inside the United States on the grounds that the defendant, as an alien, does not possess rights under the Fourth Amendment. See, e.g., United States v. Uscanga-Ramirez, 475 F.3d 1024, 1027 (8th Cir. 2007) (affirming district court’s denial of motion to suppress filed by a defendant charged with being an illegal alien in possession of a firearm “because of the consent and exigent-circumstances exception to the warrant requirement”); United States v. Torres-Castro, 470 F.3d 992, 1000 (10th Cir. 2006) (affirming district court’s denial of motion to suppress filed by a defendant charged with being an illegal alien in possession of a firearm in part because of the inevitable discovery doctrine); United States v. Herrera-Ochoa, 245 F.3d 495, 498 (5th Cir. 2001) (affirming a district court’s denial of a motion to suppress an A-file filed by a defendant charged with illegal reentry because the A-file is not suppressible under the fruit of the poisonous tree doctrine).

The defendant was entering a music festival and private security searched his backpack. The security person told the police nearby who conducted his own search incident on probable cause. The initial search was a private search, and it led to probable cause to search further by the police. People v. Ruppert, 2007 NY Slip Op 6182, 42 A.D.3d 817, 839 N.Y.S.2d 866 (3d Dept. 2007).*

California holds that a local ordinance permitting vehicle forfeitures for minor nuisance offenses, such as soliciting a prostitute, are preempted by state law. O’Connell v. City of Stockton, 41 Cal. 4th 1061, 63 Cal. Rptr. 3d 67, 162 P.3d 583 (2007).*

Informant’s reliability about a marijuana trafficking investigation led to a trash pull. That did not provide much support for trafficking, but evidence of marijuana use was found. The search warrant was for evidence of distribution, but that would be severed from the search warrant because the trash pull only gave reason to believe that there was additional marijuana in the house, but not evidence of trafficking. Court of appeals order suppressing the search reversed. People v. Keller, 479 Mich. 467 (2007).*

Despite citizen informant’s tip, the officers had no reasonable suspicion to believe that anything illegal was occurring when defendant was pulled over. Their own testimony showed that any traffic offense that occurred was after the blue lights came on. Stop suppressed. State v. Melvin, 2007 Ohio 3779, 2007 Ohio App. LEXIS 3441 (8th Dist. July 26, 2007).*

Similarly, the same court held the same day that a 911 call that somebody was knocking on their door at 11 pm who went away did not justify stopping a car with three juveniles in it and seeking consent to search a backpack in which alcohol was found. City of Brecksville v. Jones, 2007 Ohio 3770, 2007 Ohio App. LEXIS 3440 (July 26, 2007).*

Defendant’s wife validly consented to search of her home for husband’s firearms just after she obtained an order of protection. He was a felon in possession, and he was convicted of being an armed career criminal. After the trial and not making a motion to suppress, he raised the issue on appeal with what he had over the issue of whether he was in “possession” of the firearms. The wife’s consent was valid. United States v. Shipp, 233 Fed. Appx. 847 (10th Cir. 2007)* (unpublished).

Comment: I have read literally hundreds of cases where a female partner suffers physical or verbal abuse at the hands of the defendant, and she calls the police and consents to a search. Then, the search reveals weapons (and he’s felon in possession), drugs, or other evidence of crime in plain view. Sometimes, the defendant commits a crime against the police. The stupidity of the average criminal never ceases to amaze me. The entire criminal justice system survives off this staple.

Defendant was arrested outside, and he told the officers that all the people inside were outside. The officers were not obliged to take the defendant’s word that everybody was out, and they could do a protective sweep. State v. Quartman, 2007 Ohio 329, 2007 Ohio App. LEXIS 2267 (2d Dist. January 26, 2007):

[*P35] With respect to the issue of exigent circumstances, we agree with the trial court that the evidence in the record, which it cited, supports a finding of exigent circumstances, justifying a protective sweep of the house. Although Smith testified that it was his understanding, “based on what Mr. Quartman is telling me,” that the only occupants of the residence had exited, and that it was then vacant, the police could reasonably distrust the information they received from Quartman. Quartman had not been especially cooperative with the police, given that it took an hour before he deigned to communicate with them.

[*P36] Given the fact that Quartman was charged with a violent act involving a firearm, for which a magistrate had found probable cause, his reluctance to even talk to the police who came to arrest him, and the 2002 incident in which police officers came to his residence and a shot was fired from the inside of the house through the door, we conclude that the police had sufficient grounds to be concerned that one or more individuals might remain inside the house, armed, and with hostile intent. This justified a protective sweep of the house. Maryland v. Buie (1990), 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276.

Officers were in the defendant’s driveway to talk to him, and they took him to the stationhouse. An officer stayed behind to look in the yard over a solid fence with a flashlight, and he saw a headband that had evidentiary value, which he seized. The court finds that the first and third prong of the plain view exception were met, despite the fact that he was looking over a solid fence but from the driveway. The second prong, however, was the subject of questions from defense counsel that received unresponsive answers. The case was remanded for a further determination of the officers’ purpose that remains unexplained. State v. Lane, 393 N.J. Super. 132, 922 A.2d 828 (2007):

There is no dispute, however, that the headband was located within an enclosure immediately adjacent to the home. The record does not reveal the nature of the uses to which this area was put, but the record gives no reason to doubt that the owner’s use of this area — as demonstrated by the encircling impervious wooden fence — was intended to be kept private from observations by passersby. In short, the record permits no dispute about the fact that the area in which the headband was found was within the curtilage and subject to the protection of the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution.

That the item seized is found within the curtilage, however, does not foreclose the applicability of the plain view exception. The curtilage may include certain “semi-private areas,” where visitors would be expected to go, such as walkways, driveways and porches. State v. Johnson, supra, 171 N.J. at 209, 793 A.2d 619 (quoting LaFave, supra, § 2.3(f)). “Observations made from such vantage points are not covered by the Fourth Amendment.” Ibid. Accordingly, the seizure of an item seen within the curtilage is not invalid if the officer had a right to be at his vantage point, such as a semi-private area or on the street.

The trial judge found credible the testimony of Detective Braconi that, while standing on the driveway near an open gate in the fence surrounding the backyard, he saw with the aid of a flashlight, a headband in plain view. Bound by the finding that the officer was standing on the driveway at this time, State v. Locurto, 157 N.J. 463, 470-71, 724 A.2d 234 (1999), we are required to conclude that the officer was in a “semi-private area” where a visitor might be expected to go and what he may have seen in plain view from that vantage point, even with the aid of a flashlight, would not preclude a finding that the first prong of the plain view exception was met.

Officer chasing a motorcycle killed the motorcyclist in a collision. While there was evidence of prior bad blood between the officer and the deceased, that was at best speculation that the officer intentionally killed the deceased. Steen v. Myers, 486 F.3d 1017 (7th Cir. 2007).*

Officers had qualified immunity for arresting the plaintiff because there was ample probable cause from the alleged victim’s statements and picking plaintiff out of a photo array. Brock v. City of Zephyrhills, 232 Fed. Appx. 925 (11th Cir. 2007)* (unpublished).

The Sixth Circuit approves of an inventory search of a duffle bag after defendant had an accident and was there with it. He ran off the road and crawled up the embankment with the duffle bag and a computer bag. A good samaritan stopped and called for help and waited as EMTs and police arrived. The defendant was slipping in and out of consciousness, and he expressed concerned about the duffle bag he had with him, and the police looked in it, finding an unlawful gun and silencers. Against the argument that the police had an investigatory motive, the court followed the Second Circuit and found that not controlling. United States v. Tackett, 486 F.3d 230 (6th Cir. 2007):

Second, Tackett argues that even if the police had an established inventory policy, his asserted privacy interest outweighs the police department’s interest in opening the bag. More to the point, he insists that, in general, the police rely post hoc on such policies simply to legitimize their investigatory motives. The Second Circuit’s decision in United States v. Markland addressed and rejected a similar claim, and we find its analysis persuasive. 635 F.2d 174 (2d Cir. 1980). In Markland, the court considered an inventory conducted after a driver lost control of his jeep. Id. at 175. When the jeep turned over, objects including a zippered beverage container flew out the windows of the jeep. Id. When a state trooper picked up the container, it felt heavier than he expected, so he opened it and found stolen packages from the driver’s employment at the post office. Id. The Second Circuit rejected the driver’s argument that police departments should take a “hands-off” approach to private property in order to eliminate their potential liability for lost, stolen, or damaged items. Id. at 176. Instead, the Second Circuit held that police officers’ duty to protect citizens’ property and prevent crimes justified the practice of inventory searches. Id. Moreover, officers have the right to protect themselves. See id. (“This impersonal package could have contained anything from beer to bullion or a bomb. Its contents might have been perishable, valuable, or dangerous.”).

The court did recognize, as we do, that some situations [*8] create a greater expectation of privacy. To take two examples, a repository of personal effects could deserve more privacy than a generic container, or an individual could manifest her privacy expectations with an objective signal. See id. at 177. Neither situation applies here. The large backpack in this case is not akin to a “repository of personal effects,” such as a purse.

Tackett contends that in removing the bag from the car and carrying it with him to the truck, he manifested his privacy interest in the bag. But Franks testified that although Tackett removed the bag from his car, he eventually left it on the road, where it could have been damaged, lost, or stolen. Although Tackett may have had a greater privacy expectation for the backpack than for other items in plain sight in his car, he never gave the police any clear signal asserting his privacy.

Comment: Yet he was in and out of consciousness. What do they expect?

Heck barred plaintiff’s claim because, despite his conduct the claim applied only to acquitted conduct, that was not true because it also applied to counts he was convicted of. Baxter v. Crawford, 233 Fed. Appx. 912 (11th Cir. 2007)* (unpublished).

Defendant answered knock at the door and it was a police officer he’d dealt with before. He stepped back and essentially offered entry. That was consent to enter. The court also found the consent after the entry was valid. United States v. Rutherford, 2007 U.S. Dist. LEXIS 36903 (E.D. Mo. May 21, 2007):

Addressing first the entry itself, the Court finds both that Defendant voluntarily consented to Det. Van Mierlo’s entry into the apartment, and that in any event she reasonably understood Defendant to be providing consent to enter. There was no show of force by Det. Van Mierlo. She simply knocked on the door during the daylight hours and Defendant, who knew her from their prior interaction, stood back from the door and permitted her to enter. On these facts, it was also reasonable for Det. Van Mierlo to understand that Defendant was allowing her to enter. See, e.g., United States v. Carter, 378 F.3d 584, 588 (6th Cir. 2004) (holding officers reasonably understood they had consent to enter where defendant, after being asked if they could enter, moved away from the door and backed up), cert. denied, 543 U.S. 1155 (2005); United States v. Ramirez-Chilel, 289 F.3d 744, 748, 752 (finding officers properly interpreted actions as consent to enter where defendant opened door and stepped aside, even though search occurred at midnight); accord United States v. Hampton, 260 F.3d 832, 833, 835 (8th Cir. 2001) (consent to enter found where defendant told police his identification was inside and held door open to admit them).

The district court granted defendant’s suppression motion because the defendant would not feel detained, seizing on one word of the officer’s statement to the defendant. He testified that he said he “would like to see [Campbell’s] ID, just to log that I talked to him.” United States v. Campbell, 486 F.3d 949 (6th Cir. 2007):

Officer Salser’s first statement was that he would like to see Campbell’s ID. The use of the word “like,” as opposed to “need” or “want,” suggests that a reasonable person would feel free to decline this request and leave the scene. Moreover, Salser had not yet called for backup. He was alone with Campbell at this point in the encounter and had neither drawn his weapon nor activated his emergency lights or siren.

Comment and Practice Pointer: This is, to be blunt, farce. How can a person pulled over on the side of the road, blue lights flashing, not accede to a request for a driver’s license? In questioning the officer, pin him down on whether the driver was free to leave: “If my client had just said ‘no, I’m leaving now,’ you would have stopped him or arrested him for fleeing or disobeying an officer, wouldn’t you?” I bet the answer always will be yes. It always has been for me.

Service member consented to a search of his barracks room and to seize his computer elsewhere. He knew that the officers were looking for child porn and his consent to seize included consent to search. United States v. Sloan, 2007 U.S. Dist. LEXIS 37565 (D. Haw. May 22, 2007).* Also, the fact the officers could have done more to investigate the defendant and find more probable cause is not relevant if there was, in fact, probable cause.

Officer had qualified immunity from suit for searching defendant’s bedroom by consent of his parents. Hughes v. Coconut Creek Police Dep’t, 233 Fed. Appx. 919 (11th Cir. 2007)* (unpublished).

Officers are usually entitled to absolute immunity for relying on a warrant, but they have only qualified immunity for the method of execution of the warrant. Haugen v. Fields, 2007 U.S. Dist. LEXIS 37609 (E.D. Wash. May 23, 2007)*:

Defendants argue that they should receive absolute immunity for their conduct in executing the search warrant. With regard to P.L.’s claims that he was unlawfully seized, the Court agrees. However, Defendants are not entitled to receive absolute immunity for the conduct in executing the search warrant. See San Jose Charter of the Hells Angels Motorcycle Club, 402 F.3d at 971 (analyzing whether officers were entitled to qualified immunity for unreasonable execution of a search warrant); Motley v. Parks, 383 F.3d 1058 (9th Cir. 2004) (analyzing whether officers were entitled to qualified immunity for warrantless search of apartment and excessive use of force claim).

Plaintiff’s previous § 1983 case was dismissed under Heck v. Humphrey, but he later overturned the conviction, and that enabled the suit to be refiled and go foward. Skinner v. Chapman, 489 F. Supp. 2d 298 (W.D. N.Y. 2007).*

Informant’s detailed information about the defendant, including his “gold gun” corroborated by the police was probable cause. United States v. King, 233 Fed. Appx. 969 (11th Cir. 2007)* (unpublished).

Defendant was an internet traveler coming to Georgia from Florida allegedly to have mother-daughter sex with a 9 year old. The FBI staged an arrest of the “mother” (a female FBI agent) too, and took the defendant in for questioning. His car was driven in and searched at the FBI headquarters. The search was justified both as under the automobile exception and inventory. United States v. Grossman, 233 Fed. Appx. 963 (11th Cir. 2007)* (unpublished).

Person who had no discernable property interest in a home who was constructively evicted had no Fourth or Fourteenth Amendment claim. Sullivan v. Stein, 487 F. Supp. 2d 52 (D. Conn. 2007).*

Post-conviction claim for failing to file a motion to suppress failed where the search claim itself would fail on consent grounds, which was alternatively decided on the merits. Chico-Polo v. Metrish, 2007 U.S. Dist. LEXIS 38931 (E.D. Mich. May 30, 2007).*

Michigan rejects contructive entry from repeated requests by the police to enter. People v. Gillam, 479 Mich. 253, 734 N.W.2d 585 (2007):

At issue in this case is whether repeated requests by police officers for defendant to come out of his apartment constituted constructive entry into his home for Fourth Amendment purposes, thereby invalidating his arrest without a warrant and rendering subsequently obtained evidence inadmissible. We conclude that even if we were to adopt the constructive entry doctrine recognized by several federal circuit courts of appeals, defendant in this case would fail to establish that the police constructively entered his home in violation of his Fourth Amendment right to privacy. Accordingly, we reverse the judgment of the Court of Appeals that held to the contrary and remand this case to the trial court for further proceedings consistent with this opinion.

. . .

Hence, Payton prohibited only the actual physical entry by the police into a suspect’s home. Since Payton, however, the Sixth Circuit Court of Appeals has expanded the bar against actual physical entry to encompass situations involving constructive entry, which occurs when a suspect leaves his or her home in response to coercive police conduct. United States v Morgan, 743 F.2d 1158, 1166 (CA 6, 1984). The Third, Ninth, and Tenth circuit courts of appeals have likewise recognized the doctrine of constructive entry. Sharrar v Felsing, 128 F.3d 810, 819 (CA 3, 1997); United States v Al-Azzawy, 784 F.2d 890, 893 (CA 9, 1985); United States v Maez, 872 F.2d 1444, 1450 (CA 10, 1989).

However, several other federal circuit courts of appeals have declined to adopt the doctrine, and the United States Supreme Court has yet to address the issue. United States v Carrion, 809 F.2d 1120, 1128 (CA 5, 1987); United States v Berkowitz, 927 F.2d 1376, 1386 (CA 7, 1991); Knight v Jacobson, 300 F.3d 1272, 1277 (CA 11, 2002). Although state courts are bound by United States Supreme Court decisions construing federal law, they are not similarly bound by the decisions of the lower federal courts, and when there is a conflict of authority among the lower federal courts, this Court is free to follow the authority it deems the most appropriate. Abela v. GMC, 469 Mich. 603, 606; 677 N.W.2d 325 (2004). Indeed, even when there is no conflict among the lower federal courts, we are free to follow or reject their authority. Id. at 607.

. . .

[After distinguish cases:] Moreover, while defendant claims he was coerced into leaving his apartment by the repeated requests of the officers, he fails to indicate how a second request that he step out of the apartment is any more coercive than a single request. And, as noted in Thomas, an officer’s request that an individual step out of his house to speak with the officer is not coercive. Additionally, defendant failed to identify any specific statements of compulsion.

D.C. App. holds that a possible hand-to-hand transaction was ambiguous enough that it did not provide probable cause for a search. Shelton v. United States, 929 A.2d 420 (D.C. App. 2007):

Nonetheless, in the present case, even viewing the evidence of record in the light most favorable to the government, we are not satisfied that an adequate foundation was developed to show that Officer Prade could reasonably believe that there was a sufficient probability that criminal activity had occurred based on the activities he observed. Before ordering appellant’s arrest, Officer Prade saw: (1) appellant sitting in a car in a convenience store parking lot, (2) a pedestrian holding currency approach appellant’s driver’s side window and give that money to appellant, (3) the pedestrian receive back from appellant some kind of “small object,” and (4) both parties depart the scene. Although Officer Prade’s suspicions may indeed have been reasonably raised by the conduct he observed to justify a Terry stop, we cannot conclude that probable cause existed on the record before us.

Plaintiff’s arrest for not complying with an order to “get down” where he picked up a gun by the barrel and pushed it in the direction of an officer was justified, and summary judgment granted the officers. Kepley v. Lantz, 2007 U.S. Dist. LEXIS 51944 (N.D. Ohio July 18, 2007).*

“Constructive entry” explained and rejected on these facts. United States v. Grayer, 232 Fed. Appx. 446, 2007 FED App. 0255N (6th Cir. 2007)* (unpublished):

In United States v. Morgan, 743 F.2d 1158 (6th Cir. 1984), we explained that a “constructive entry” may occur when a suspect emerges from a house “in response to coercive police conduct.” Id. at 1166; accord United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005) (explaining that a constructive entry occurs “when the police, while not entering the house, deploy overbearing tactics that essentially force the individual out of the home”). Coercive police conduct is “such a show of authority that [the] Defendant reasonably believed he had no choice but to comply.” United States v. Saari, 272 F.3d 804, 809 (6th Cir. 2001). There is nothing, however, preventing the police from knocking on a home’s door and questioning a suspect or an individual with information about an investigation. See, e.g., Thomas, 430 F.3d at 277 (citing, among others, Ewolski v. City of Brunswick, 287 F.3d 492, 504-05 (6th Cir. 2002) (approving of “knock and talk” investigations)). And if, during the course of this questioning, the suspect willingly and voluntarily acquiesces to noncoercive police requests to leave the protection of the house, then, absent a show of force that would provide a basis for a reasonable person to believe he was compelled to leave the house, a subsequent outside-the-home seizure does not offend Payton. See id.

Grayer argues that it was reasonable for him to believe that he was under arrest once the officers knocked on his door and, therefore, the officers constructively entered the residence without a warrant. Grayer points out that the house was surrounded by four police officers, a K-9 unit was present, and three police cars (along with an unmarked Chevrolet Suburban) were parked on the street outside the house.

Even assuming these facts as true, Grayer’s argument fails. The officers’ show of force did not rise to the level of a constructive entry. None of the hallmarks of constructive entry were present: (1) drawn weapons; (2) raised voices; (3) coercive demands; or (4) a large number of officers in plain sight. See, e.g., Saari, 272 F.3d at 808-09 (constructive entry where police knocked forcefully and where one officer had a twelve-gauge, pump-action shotgun in the “ready position” and the other officers had their service weapons drawn); Morgan, 743 F.2d at 1161 (constructive entry where ten officers surrounded the house, blocked the suspect’s car, “flooded the house with spotlights[,] and summoned [the suspect] from his mother’s home with the blaring call of a bullhorn”); accord Sharrar v. Felsing, 128 F.3d 810, 819 (3d Cir. 1997) (constructive entry where police surrounded the house, pointed machine guns at the windows, and ordered the occupants out); United States v. Al-Azzawy, 784 F.2d 890, 893 (9th Cir. 1985) (constructive entry where “the police had completely surrounded [suspect’s] trailer with their weapons drawn and ordered him through a bullhorn to leave the trailer and drop to his knees”).

The record reflects that only two officers approached the front door of the residence. The other two officers were stationed to the side and back of the house and were not visible from the front door. Likewise, according to Officer Cunningham’s testimony, the three police squad cars and unmarked police Suburban were parked in a manner blocked from Grayer’s view from the front door. Further, neither officer at the door had his gun drawn. Those two officers simply knocked on the door, asked the man who answered the door if he was Grayer, and asked him to step outside. Indeed, Grayer testified that he complied with that request willingly. Without more, this does not amount to a constructive entry. See Thomas, 430 F.3d at 278 (near-identical facts).

It cannot be said that officers acted unreasonably in their use of force against plaintiff when his car backed up after they saw a gun in the car. Plaintiffs seized on one clause in a deposition of the defendants that was contrary to the video of the stop, so qualified immunity applies. Webster v. Beary, 228 Fed. Appx. 844 (11th Cir. 2007)* (unpublished).

Traffic stop that led to questions about citizenship and running the names was not unreasonable. United States v. Cantu, 227 Fed. Appx. 783 (11th Cir. 2007)* (unpublished).

Occupants of a motel room that was rented by another who were waiting for a drug deal to go down did not have standing under Carter. United States v. Domenech, 2007 U.S. Dist. LEXIS 25758 (W.D. Mich. April 6, 2007).

Only excessive force allegation survives summary judgment against NYPD which started from a 911 call with a hang up, and calls back that led to profanity toward the police saying they could not enter without a warrant. Younger v. City of New York, 480 F. Supp. 2d 723 (S.D. N.Y. 2007).*

At trial the defendant claimed self-defense, and the state was permitted to impeach him with his refusal to be fingerprinted at the time of his arrest. This was not penalizing him for excercise of a constitutional right. Coulthard v. Commonwealth, 230 S.W.3d 572 (Ky. 2007):

Specifically, the Commonwealth argued that Appellant’s claim of self defense was not credible in light of the circumstances which transpired in this case. These circumstances included evidence which tended to show that Appellant initially did everything in his power to deny involvement, destroy evidence, and avoid prosecution. Only when these attempts failed, the Commonwealth argued, did Appellant change his story and claim self defense. The evidence regarding Appellant’s refusal to consent to fingerprint sampling was introduced during a string of testimony which suggested that not only did Appellant fail to come forward with his claim of self defense despite several opportunities to do so, but also he took affirmative steps to undermine the investigation. Police testified that Appellant was initially cooperative with them, readily agreeing to talk and denying any knowledge of the circumstances surrounding the victim’s death. However, when police mentioned that they recovered fingerprints from the scene and asked whether Appellant would mind providing fingerprint samples, Appellant suddenly became evasive and uncooperative.

Once Appellant submitted himself to cross-examination after claiming self defense at trial, it was not only appropriate but necessary for the Commonwealth to impeach Appellant’s credibility and rebut his allegations. As the traditional truth-testing devices of the adversarial process, impeachment and rebuttal are vital to ensuring a just and fair trial. Thus, preserving each party’s right to utilize such devices at trial should weigh heavily when considering counterbalancing claims of “constitutional privilege.” See Jenkins, 447 U.S. at 238 (“Once a defendant decides to testify, ‘[t]he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.'”) (quoting Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 627, 2 L.Ed.2d 589 (1958)).

Indeed, a similar governmental practice was condoned by the U.S. Supreme Court in Jenkins, supra. On trial for murder, the defendant testified that he killed in self defense. In an attempt to impeach the defendant’s credibility, the prosecutor introduced evidence demonstrating that he failed to voluntarily come forward with his story until after he was apprehended by police two weeks after the murder. The U.S. Supreme Court held that use of the defendant’s prearrest silence against him at trial was not unconstitutional since “impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial.” Jenkins, 447 U.S. at 238.

Officers had reasonable suspicion to stop defendant, and it ripened to probable cause to search his car. The officers received an alarm call and arrived at the scene of the alarm within two minutes and a car that obviously saw the officers stopped and was turned off, sitting there at 4:20 a.m. in the bitter cold. Other officers verified the break-in at the business, and they watched the car for several minutes to see what the driver would do before approaching it. Defendant was seen hiding on the floorboard of the car after the driver got out. State v. Washington, 2007 ND 138, 737 N.W.2d 382 (2007).*

The smell of burnt marijuana plus the defendant’s admission of recently smoking marijuana gave a reasonable probability that marijuana would be in the vehicle. There is no difference, at least in the Sixth Circuit, between the smell of burnt and fresh marijuana for probable cause purposes. United States v. Robinson, 2007 U.S. Dist. LEXIS 53290 (E.D. Tenn. July 23, 2007):

Additionally, as the magistrate judge pointed out, the Sixth Circuit has explicitly indicated there is no difference between burnt and fresh-smelling marijuana in a probable cause analysis. See United States v. Foster, 376 F.3d 577 (6th Cir. 2004). In Foster the Sixth Circuit determined when officers detected the smell of marijuana coming from the defendant’s vehicle, probable cause was established to search it without a warrant. Id. at 588. The officers’ testimony regarding whether they smelled fresh or burnt marijuana was conflicting. Id. at 583-84. At the suppression hearing in Foster, one of the officers testified he smelled burnt marijuana and at the trial, another officer testified he smelled fresh marijuana coming from defendant’s vehicle. Id. at 582 n.4. The Sixth Circuit noted this inconsistency was not significant and would not alter the ultimate outcome of its probable cause analysis. Id. at 584 (finding the odor of marijuana emanating from a vehicle provided officers with probable cause to search a vehicle, regardless of “whether it was burnt or fresh-smelling marijuana”).

State officers’ failure to comply with state law on nighttime searches is irrelevant in a federal prosecution. Also, F.R.Crim.P. 41 does not apply to a state warrant. The warrant is examined in federal court under the Fourth Amendment. United States v. Barrett, 496 F.3d 1079 (10th Cir. 2007). Comment: This is settled law. I went down this road many years ago. Arkansas has a relatively stringent nighttime search rule, and the police clearly failed to comply with it, and my motion to suppress in state court would have been granted. Seeing this coming, the state prosecutor nolle prossed before the suppression hearing, and the client was indicted in federal court about two weeks later, where I could not win. My only issue was a violation of state law and not the Fourth Amendment. So, watch out what you ask for. The client in that case probably came out about the same on the time served in prison because a significant quantity was involved, but, in some cases, it could be significantly different, such as a crack case that goes federal. It also requires defense lawyers assess the risk that the case could go federal if the state throws in the towel on your motion. Then there is the Petit policy: if the state case went to conclusion, the federal government is far less likely to take it over.

Reliance on third party’s ability to consent was reasonable because surveillance put him there for several days before the entry based on consent. United States v. Meza-Beltran, 2007 U.S. Dist. LEXIS 53329 (D. Ariz. July 23, 2007):

Here, the Court finds that Agent Henry and Officer Biascoechea’s observation of Edgardo’s apparent authority over the home was reasonable and warranted by the totality of the circumstances. The officers reasonably relied on Edgargo’s appearance of control over the home and his comment that Arturo, the adult they anticipated to find, was not home at the time.

Plaintiff received a summons for shoplifting rather than be arrested. A summons was not a seizure. Banton v. Dowds, 2007 U.S. Dist. LEXIS 78355 (C.D. Ill. August 20, 2007):

The issue of whether the issuance of a summons and requirement that Plaintiff appear in court constitutes a seizure is not the subject of an abundance of case law. “The sparsity of case law on the question suggests not that the principle is dubious but that it is too obvious to have incited many challenges.” Amati v. City of Woodstock, 176 F.3d 952, 956 (7th Cir. 1999). However, of the few courts which have dealt directly with the issue at hand, none have extended the Fourth Amendment concept of seizure to include issuance of a summons or the requirement to appear at an arraignment. Britton v. Maloney, a case with a similar set of circumstances as those alleged herein, considered the question of “whether a state actor effects a ‘seizure’ within the meaning of the Fourth Amendment by filing baseless criminal charges against someone, even when those charges never cause the respondent to be arrested or detained.” Britton v. Maloney, 196 F.3d 24, 29 (1st Cir. 1999). The Britton court determined that the issuance of a summons is not a seizure under those circumstances because “neither the use of physical force nor a show of authority amounts to a seizure unless it results in the ‘intentional acquisition of physical control’ over the subject and causes a ‘termination of [his] freedom of movement.'” Id. at 30 (emphasis in original). The court concluded that “[a]bsent any evidence that [plaintiff] was arrested, detained, restricted in his travel, or otherwise subject to a deprivation of his liberty before the charges against him were dismissed, the fact that he was given a date to appear in court is insufficient to establish a seizure within the meaning of the Fourth Amendment.” Id. See also Myers v. Shaver, 245 F. Supp. 2d 805, 812 (W.D. Va. 2003) (“A summons to answer charges on a criminal complaint is not, by itself, a seizure under the Fourth Amendment.”).

Heck bar applies to probation revocation proceedings. Cougle v. County of Desoto, 2007 U.S. Dist. LEXIS 78929 (N.D. Miss. October 24, 2007).*

Plaintiff, a native born Latina woman, was stopped by ICE officers for no suspicion of any crime, and alleged she was pretextually stopped. The court [troubled by it] finds that the officers would prevail on qualified immunity because the stop at least was reasonable under all the circumstances. Mancha v. Immigration and Customs Enforcement, 2007 U.S. Dist. LEXIS 78859 (N.D. Ga. October 23, 2007).*