Stop was not consensual because a reasonable defendant would not have felt free to leave. “Despite the return of documents, the court cannot conclude that Defendant would have felt free to leave. Nixon testified that he was not actually going to let Defendant go because of the suspicions he and Jensen had regarding illegal activity.” Nevertheless, there was reasonable suspicion. United States v. Ferro, 2007 U.S. Dist. LEXIS 78670 (D. Utah October 23, 2007). (Comment: Finally, a court that is capable of seeing the truth of a traffic stop that a motorist is not free to leave just because the paperwork has been returned.)

Although appellant succeeded in suppressing the evidence in his criminal case, Logan v. Commonwealth, 47 Va. App. 168, 622 S.E.2d 771 (2005) (en banc), that same evidence could be used to revoke his previous probation because the exclusionary rule does not apply to probation revocation proceedings. Logan v. Commonwealth, 2007 Va. App. LEXIS 393 (October 23, 2007).

There is no Franks violation where the informant was corroborated by listening to his telephone calls with the defendant. United States v. Mikulewicz, 2007 U.S. Dist. LEXIS 78801 (W.D. Wis. October 19, 2007):

Agent Ohm could have included in his warrant application every single impeaching fact–true or not–proffered by Mikulewicz against Colegrove and it would have not affected the court’s probable cause determination a whit. So what if Colegrove were a meth addict who stole $ 1300 of her Sugar Daddy’s cash to pay for drugs? The police possessed and had listened to a recording of Colegrove’s phone calls with third parties intercepted by Mikulewicz. This is the evidentiary equivalent of a junkie snitch charged with drug crimes handing the police a tape recording of her dealer saying “thanks for the two hundred dollars, here’s your eightball of crack.” Probably enough to convict, definitely enough to establish probable cause of a crime.

The bottom line is that Agent Ohm provided sufficient information to establish probable cause that Mikulewicz repeatedly violated § 968.31(1)(a), and Agent Ohm did not withhold information that was genuinely material to the court’s probable cause determination. This is not a basis to quash the warrant or suppress evidence.

Plaintiff’s car was searched on school property with reasonable suspicion of marijuana possession under T.L.O. Morgan v. Snider High Sch., 2007 U.S. Dist. LEXIS 79103 (N.D. Ind. October 23, 2007):

The searches of Kevin’s vehicle were “justified at [their] inception” and “reasonably related in scope to the circumstances,” T.L.O., 469 U.S. at 341, as there was at least a reasonable suspicion that his car contained contraband, particularly so since Kevin admitted that he drove a student onto school property who was found to be under the influence and in possession of marijuana. Moreover, the initial search was with Kevin’s oral consent (as well as the prior consent derived from his parking permit application), a status that presumably continued as the second search proceeded with a flashlight. As to the alleged third search, it was conducted after some marijuana pieces were found in the car and after Kevin admitted that he had recently smoked marijuana, so clearly by then a more thorough search was reasonable. Finally, while the Plaintiffs complain that the searches were conducted, or at least initiated, in the absence of Kevin’s parents, they cite no authority that would suggest the searches were thus unconstitutional.

Exigent circumstances of a threat with a gun permitted an entry despite lack of consent. Even consent argument is unavailing, though, because defendant had no standing in the place searched. United States v. Henderson, 2007 U.S. Dist. LEXIS 79036 (W.D. Mo. October 24, 2007).*

Officers were investigating a hit and run and they were looking at defendant’s vehicle in his driveway when he came out and pointed a gun at them and told them to get away. He then tried to go inside with the officer holding on, and the officers went in after him. The entry was lawful. State v. Jankite, 2007 Ohio 5706, 2007 Ohio App. LEXIS 5010 (8th Dist. October 25, 2007):

[*P12] In addition, a police officer may not make an arrest on a misdemeanor without a warrant unless the offense is committed in the presence of the arresting officer. R.C. 2935.03, State v. Mathews (1976), 46 Ohio St.2d 72, 346 N.E.2d 151. At the suppression hearing Officer Alvarez testified that he witnessed appellant threaten to shoot him and Officer Mladek. On the basis of this threat, Officer Alvarez attempted to arrest appellant for aggravated menacing, a misdemeanor. The court found that the police attempted to arrest appellant in the backyard and only entered the home when appellant dragged Officer Alvarez through the back doorway.

[*P13] Officer Alvarez was not required to obtain a warrant under the circumstances in which he found himself at appellant’s house. Officer Alvarez testified at the suppression hearing that, in his lawful attempt to arrest appellant, appellant pulled him inside the house, through the back door, and into the vestibule. There was no conflicting testimony at the suppression hearing as to how the police officer gained entry into appellant’s house. The court found sufficient evidence to support Officer Alvarez’s account of the facts that the arrest of appellant began in the backyard and ended in the house.

Allegation that plaintiffs were repeatedly tasered while handcuffed stated enough to go forward for an excessive force claim. Crihfield v. City of Danville Police Dep’t, 2007 U.S. Dist. LEXIS 79182 (W.D. Va. October 11, 2007).*

Passenger’s walking away from a vehicle that pulled into a convenience store and officer put on blue lights was a factor in reasonable suspicion as to the driver. United States v. Johnson, 2007 U.S. Dist. LEXIS 79270 (S.D. Ohio October 12, 2007):

Officer Sykes approached the vehicle because the front seat passenger quickly exited the vehicle and rapidly walked to the convenience store immediately after the officers arrived in a marked cruiser. This Court finds that the actions of the passenger provided reasonable suspicion for Officer Sykes to further investigate. In Illinois v. Wardlow, 528 U.S. 119 (2000), the United States Supreme Court found under similar circumstances that an officer is justified in maintaining a reasonable suspicion based on such behavior. It was not merely Defendant’s presence in a high crime area, but, also the passenger’s unprovoked and rapid exit from the area that aroused the officers’ suspicion in this case. As observed in Wardlow, “[o]ur cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Id. at 124.

Defense counsel filed a motion to suppress but withdrew it because defendant lacked standing. The post-conviction court found that it would have denied the motion to suppress if it had not been withdrawn, and that supported the findings of the trial court so there was no IAC. Cluck v. State, 2007 Ark. LEXIS 557 (October 25, 2007).*

Plaintiff’s complaint fairly pled a Fourth Amendment violation without specifically pleading § 1983, and when the complaint was amended and pled § 1983, defendant attempted to remove the action to federal court. The removal was untimely. Howard v. City of Atlanta, 2007 U.S. Dist. LEXIS 79283 (N.D. Ga. October 25, 2007).*

National Park Ranger’s traffic stop of the defendant for driving on parking lights was valid, but the subsequent search, allegedly by consent that was belied by the video of the stop, was not, so the court suppresses a patdown based on alleged consent that was preceded by a complete search of the vehicle and luggage in it before the patdown without any suspicion or valid consent. United States v. Moore, 2007 U.S. Dist. LEXIS 79587 (W.D. Va. October 26, 2007):

The court cannot find, even under the relatively low Terry standard, that the government has met its burden and that the search in this case was legal. No reasonable articulable suspicion existed to justify the prolonged detention and questioning of Moore. Ranger Gagnon testified that as he approached the vehicle, Moore placed both his hands outside of the vehicle, demonstrating his willingness to cooperate. Moore’s continued cooperation, talkative demeanor and friendly attitude does not suggest that crime was afoot. Finally, Ranger Gagnon testified that Moore was breathing heavily, sweating, and taking his hat on and off during the stop, but the video does not bear this out. Review of the video shows that Moore did not take his hat on and off in a nervous manner as the Ranger testified. Instead, Moore took his hat off once when Ranger Gagnon ordered him out of the truck. Rather than appearing nervous, shifty, or suspicious in any degree, Moore appeared cooperative and friendly on the video. Furthermore, in the video, Ranger Gagnon explicitly states to Moore that he wasn’t “sweating when [he] got out of the vehicle” and only began sweating after the Ranger patted him down and found the marijuana pipe.

The video shows that Ranger Gagnon requested Moore’s license and ordered him to exit the vehicle immediately after Moore told Ranger Gagnon that he was at Floydfest. At this point in the stop, a mere twenty-five seconds into it, the only activities that Ranger Gagnon witnessed to provide any basis for a reasonable articulable suspicion were Moore’s placing of his hands out of the truck’s window as Ranger Gagnon approached vehicle and Moore’s statements that he thought he had his lights on, was looking for a place to get coffee, and that he just left Floydfest. Ranger Gagnon does not ask any questions about why Moore had his hands out of the vehicle or otherwise mention it, thus leaving Moore’s statement as to where he had been as the only possible source of suspicion. In contrast to the Ranger’s testimony, on the video Moore does not seem nervous, his responses seem perfectly normal, and there is no indication that he is breathing heavily. One aspect of the stop that Ranger Gagnon did testify about correctly was Moore’s cooperative, friendly, and polite behavior.

Thus, the only basis for any suspicion that the court can glean from the video is Moore’s statement that he had been at Floydfest. As explained above, Floydfest is an annual music festival held in Floyd County, Virginia. To access the festival, many people travel on the Parkway. Due to the increased volume of traffic on the Parkway, the NPS has established a Criminal Interdiction Team, the focus of which is festival attendees. Ranger Gagnon testified that the focus of the Criminal Interdiction Team was drugs, alcohol, and weapons, mirroring the line of questioning posed to Moore and his passenger.

Search of vehicle was shown to be by consent. Defendant’s inquiry as to the consequences of refusal showed she knew what was going on. United States v. Simmons, 2007 U.S. App. LEXIS 25260 (3d Cir. October 26, 2007)* (unpublished).

Religious items can be reasonable suspicion when combined with other factors. United States v. Baranoff, 2007 U.S. Dist. LEXIS 80095 (N.D. Fla. October 29, 2007):

In this case, the strong smell of the cleaning liquid, the religious items in and on the van, and the Defendant’s nervous behavior, combined with Deputy Condy’s training and experience in narcotics investigations all created a set of circumstances giving him “reasonable suspicion that an additional crime was being committed”.

2254 petitioner was denied relief because the findings of the state court were fully supported by the evidence (28 U.S.C. § 2254(d)) that petitioner abandoned the property and disclaimed any interest in it. Ramirez v. Phillips, 2007 U.S. Dist. LEXIS 79936 (S.D. N.Y. October 30, 2007).* (Comment: This case is part of what is a noticeable shift from Stone v. Powell being an absolute bar to § 2254(d) being a factual and legal bar under AEDPA. In this case, Stone was an alternative finding.)

Defendant police officer was entitled to qualified immunity for plaintiff’s arrest. The officer actually had probable cause before the arrest, and he prudently chose to keep investigating. Plaster v. Boswell, 2007 U.S. Dist. LEXIS 80197 (W.D. Va. October 30, 2007).*

A lie about travel plans can be a factor in the totality for reasonable suspicion in detention. Here, defendant consented to a search, and officers found an obvious hidden compartment in the passenger speaker. The search was within the scope of consent. United States v. Garrett, 2007 U.S. Dist. LEXIS 79193 (E.D. Mich. October 25, 2007).*

Defendant’s driving was reasonable suspicion to believe he was DWI, even though it turned out he wasn’t drunk. Then, the officer asked about contraband and he offered to allow a search. United States v. Floyd, 2007 U.S. Dist. LEXIS 79095 (D. Conn. October 25, 2007):

Here, in response to Officer Rosedale’s inquiry as to whether there was any contraband in the vehicle, the defendant not only advised Rosedale that there was no contraband in the vehicle but invited Rosedale to search the vehicle. The defendant consented to the search of the vehicle and no Fourth Amendment violation occurred in connection with the seizure of the firearm.

Compare State v. Washington from Indiana posted on the 26th holding such questioning unreasonable under the Indiana Constitution.

Under Stone v. Powell, there only need be a procedural mechanism under state law to challenge a search, and then the question is whether the procedural mechanism failed somehow such that a Fourth Amendment claim could not have been brought. McNoriell v. Warren, 2007 U.S. Dist. LEXIS 79199 (E.D. Mich. October 25, 2007)*:

Federal courts will not address a Fourth Amendment claim upon habeas review if the petitioner had a full and fair opportunity to litigate the claim in state court and the presentation of the claim was not thwarted by any failure of the state’s corrective processes. Stone v. Powell, 428 U.S. 465, 494-95 (1976). A court must perform two distinct inquiries when determining whether a petitioner may raise a claim of illegal arrest in a habeas action. First, the “court must determine whether the state procedural mechanism, in the abstract, presents the opportunity to raise a fourth amendment claim. Second, the court must determine whether presentation of the claim was in fact frustrated because of a failure of that mechanism.” Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000) (quoting Riley v. Gray, 674 F.2d 522 (6th Cir. 1982)).

The National Security Letter case reported yesterday is Doe v. Gonzales, 500 F. Supp. 2d 379 (S.D. N.Y. 2007):

. . . This Court, in a lengthy decision dated September 28, 2004, granted Plaintiffs’ motion for summary judgment and declared § 2709 unconstitutional on its face, under the First and Fourth Amendments. See Doe v. Aschroft, 334 F. Supp. 2d 471 (S.D. N.Y. 2004) (“Doe I“). “Considering the implications of its ruling and the importance of the issues involved,” the Court stayed enforcement of its judgment pending appeal. See id. at 526.

Shortly after this Court’s decision, a court in the District of Connecticut enjoined the Government from enforcing the nondisclosure requirement of § 2709(c) insofar as it prevented the plaintiff in that case from revealing its identity as a recipient of an NSL, holding that § 2709(c) failed to satisfy strict scrutiny because it was not narrowly tailored to serve a compelling state interest. See Doe v. Gonzales, 386 F. Supp. 2d 66, 82 (D. Conn. 2005) (“Doe II“).

While appeals in Doe I and Doe II were pending, Congress passed the USA Patriot Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, 120 Stat. 192. (Mar. 9, 2006) (the “Reauthorization Act.”). The Reauthorization Act effectuated substantial changes to § 2709 and added several provisions ‘relating to judicial review of NSLs which were codified at 18 U.S.C. § 3511 (“§ 3511”). As a result of these amendments, the Second Circuit remanded the Doe I appeal to enable this Court, if the parties were to continue the litigation in light of the amendments to the statute, to consider the validity of the revised § 2709(c) and the new procedures codified in § 3511. See Doe v. Gonzales, 449 F.3d 415, 419 (2d Cir. 2006).

The gag rule on NSL recipients violates the First Amendment:

C. STRICT SCRUTINY

The Court’s analysis begins by noting that for the same reasons articulated in Doe I, see 334 F. Supp. 2d at 511-13, the nondisclosure provision of the revised § 2709, like its predecessor, embodies both a prior restraint and a content-based restriction on speech. The nondisclosure provision of the amended § 2709 still acts as a prior restraint because it still prohibits speech before it occurs. See id. at 511-12; see also Doe II, 386 F. Supp. 2d at 73. In granting the FBI authority to certify that an NSL recipient cannot disclose to any person information about receipt of the NSL, and in including this prescription in the actual NSL letter issued, the amended § 2709(c) “authorizes suppression of speech in advance of its expression.” Ward v. Rock Against Racism, 491 U.S. 781, 795 n.5 (1989); see also Alexander v. United States, 509 U.S. 544, 550 (1993) (“The term prior restraint is used to ‘describe administrative and judicial orders forbidding certain communications in advance of the time that such communications are to occur.'”) (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, at 4-14 (1984)) (emphasis added in Alexander).

Additionally, the amended § 2709(c) continues to act as a content-based restriction on speech. In Doe I, the Government argued that § 2709(c) was not a content-based restriction because it prohibited disclosure irrespective of a speaker’s viewpoint. See 334 F. Supp. 2d at 512. The Court disagreed, finding that although the pre-Reauthorization Act § 2709(c) was neutral with respect to viewpoint, it nonetheless functioned as a content-based restriction because it closed off an “entire topic” from public discourse. See id. at 513 (“‘The First Amendment’s hostility to content-based regulation extends not only to restrictions of particular viewpoints, but also to prohibition of public discussion of an entire topic.'”) (quoting Consolidated Edison Co. of New York v. Public Serv. Comm’n, 447 U.S. 530, 537 (1980)). The nondisclosure requirement of the revised § 2709(c) continues to close off discussion of an entire topic. Prohibiting an NSL recipient from discussing anything about the NSL it received, including even the mere fact of receipt, means that “the first-hand experiences of NSL recipients,” id. at 513, are completely excluded from the public debate. Likewise, the Doe II court, which also found § 2709(c) to be a content-based restriction, stated that it had “the practical impact of silencing individuals with a constitutionally protected interest in speech and whose voices are particularly important to an ongoing, national debate about the intrusion of governmental authority into individual lives.” 386 F. Supp. 2d at 75. Indeed, Plaintiffs indicate that as a result of the nondisclosure requirement enforced in this case, they have been precluded from fully contributing to the national debate over the government’s use of surveillance tools such as NSLs, perhaps most particularly consequential in inhibiting their ability to speak and inform public discourse on the issue during Congress’s consideration of the Reauthorization Act.

Presumably, Congress’s intention in amending 2709(c) to allow the FBI to certify on a case-by-case basis whether nondisclosure is necessary was to more narrowly tailor the statute to reduce the possibility of unnecessary curtailment of speech. Unfortunately, one necessary consequence of the resulting discretion now afforded the FBI is that the amended 2709(c) creates the risk not only that an “entire topic” of public debate will be foreclosed, but also the risk that the FBI might engage in actual viewpoint discrimination. By now allowing the FBI to pick and choose which NSL recipients are prohibited from discussing the receipt of an NSL, conceivably the FBI can engage in viewpoint discrimination by deciding to certify nondisclosure when it believes the recipient may speak out against the use of the NSL and not to require nondisclosure when it believes the recipient will be cooperative. Thus, the statute has the potential to “contravene the fundamental principle that underlies [the Supreme Court’s] concern about ‘content-based’ speech regulations: that ‘government may not grant the use of a forum to people whose views if finds acceptable, but deny use to those wishing to express less favored or more controversial views.'” City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48-49 (1986) (quoting Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972)). The Government’s position is that the FBI’s discretion does not create the opportunity for viewpoint discrimination because the prohibition on nondisclosure is premised not on the content of any expected speech but on the circumstances of the counterterrorism or counterintelligence investigation, which may require secrecy in order to preserve the integrity of the investigation. Although this response suggests a relevant point, the Government’s alleged concern solely with the effect of speech rather than the speech itself does not render 2709(c) any more content-neutral. See Forsyth County, 505 U.S. at 134 (“Listeners’ reaction to speech is not a content-neutral basis for regulation.”).

As a prior restraint and content-based restriction, the amended statute is hence subject to strict scrutiny. See Doe I, 334 F. Supp. 2d at 511. The Government indicates that, although it reserves the issue of the appropriate level of scrutiny for appeal, it does not argue this issue in light of the Court’s prior determination in Doe I. (See Gov’t Opp. 11.)

The statute can survive strict scrutiny only if it is “narrowly tailored to promote a compelling government interest,” United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000), and there are no “less restrictive alternatives [that] would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.” Reno v. ACLU, 521 U.S. 844, 874 (1997). Any restriction on speech which is content-based and acts as a prior restraint is presumed unconstitutional, and the government bears the burden of demonstrating that the provision satisfies strict scrutiny. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (“Content based restrictions are presumptively invalid.”); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”); Playboy Entm’t Group, 529 U.S. at 816 (“When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.”).

. . .

As was the case with the Court’s initial decision, fundamentally this ruling is “about the process antecedent to the substance of any particular challenge.” Id. at 475 (emphasis in original). Thus, the Court first considers whether the process relating to the issuance and review of an NSL requiring nondisclosure is sufficiently narrowly tailored to ensure that First Amendment rights are not unnecessarily abridged. When a statute confers discretion on government officials to suppress speech, as § 2709(c) does, that discretion must be reasonably limited by objective criteria. See Thomas v. Chicago Park Dist., 534 U.S. 316, 324 (2002). Moreover, the government must exercise its discretion within (a system that allows for “procedural safeguards designed to obviate the dangers of a censorship system.” Freedman v. Maryland, 380 U.S. 51, 58 (1965). Such safeguards must include an opportunity for meaningful judicial review. Finally, even where the government has demonstrated a compelling interest justifying the restriction of expression, any such restriction must be narrowly tailored both in scope and duration. As detailed below, the nondisclosure provision of § 2709(c), even with the safeguard of the judicial review afforded by § 3511(b), prescribes a process that is constitutionally deficient under the First Amendment in several respects.

Ohio’s Sixth District Court of Appeals holds that a traffic stop that included the use of a drug dog within the officer’s normal 15 minutes for a traffic stop [note my prior post stating that it should not take more than 2-3 minutes; apparently it depends upon the nature of the fishing expedition] was not unconstitutional. State v. Johnson, 2007 Ohio 3961, 2007 Ohio App. LEXIS 3603 (6th Dist. August 3, 2007):

[*P10] In the case under consideration, the entire traffic stop took about seven minutes, or half the time usually expended by Trooper Romero prior to issuing a citation. Based on the facts offered at the suppression hearing, the trooper had probable cause to stop the vehicle for speeding and detain Flory and appellant for the length of time necessary to run background checks and issue a citation or warning. Furthermore, as stated above, he was not required to have any reasonable suspicion of drug activity in order to have Hans perform an exterior sniff of the car. Therefore, the fact that his conversation with the occupants of the vehicle also supplied Trooper Romero with some suspicion of drug activity is of little consequence. In addition, the duration of the conversation was not of such a length to impermissibly expand the length of detention. Hans, who was certified as a drug detection dog at the time of the stop, alerted before the permissible background checks were completed, and the alert gave Trooper Romero probable cause to search the entire vehicle.

[*P11] Consequently, in viewing the stop under a totality of the circumstances test, we conclude that Trooper Romero did not engage in an impermissible “fishing expedition.” Therefore, the trial court did not err in denying the motion to suppress, and appellant’s sole assignment of error is found not well-taken.

Traffic statute that regulated exiting tollroad to pay tolls that defendant argued was unconstitutionally overbroad, thus voiding his traffic stop, still justified the stop. Under Illinois v. Krull, the statute was constitutional enough for the officers to rely on it, and the product of the stop would not be suppressed for that reason. Also, the district court rejects the defense claim that the dog alerted because of handler cues. United States v. Melcher, 2007 U.S. Dist. LEXIS 56961 (N.D. Okla. August 3, 2007):

The exclusionary rule ought not be employed when officers acted in good faith reliance on a statute, even if the statute ultimately may be found unconstitutional. See Krull, 480 U.S. at 355; Michigan v. DeFillippo, 443 U.S. 31 (1979); Cardenas-Alatorre, 485 F.3d at 1114. This exception to the exclusionary rule is applicable here. The Court is unable to conclude that the troopers acted in an objectively unreasonable manner in relying on OKLA. STAT. tit. 47, §11-309(2). See Cardenas-Alatorre, 485 F.3d at 1115-17 (holding that, even if the New Mexico traffic law was unconstitutionally vague as applied to defendant, the court was unable to conclude that the officer acted in an objectively unreasonable manner in relying on the traffic statute to effectuate a traffic stop; thus, the exclusionary rule did not apply). Thus, the evidence should not be excluded.

This district court erroneously found no reasonable suspicion during what was a valid traffic stop. During the 22 minutes of the stop at 3 a.m., defendant gave a false name, passenger’s failure to know where they had been during travels or his social security number, etc. United States v. Ellis, 497 F.3d 606, 2007 FED App. 0297P (6th Cir. 2007).*

Officer had reasonable suspicion at least, and apparently probable cause, for plaintiff’s stop, so summary judgment granted the officer. Miller v. O’Bryan, 498 F. Supp. 2d 548 (N.D. N.Y. 2007).*

Videotape of controlled buys rendered the alleged deficient portions of the affidavit to be irrelevant. There was abundant probable cause on the videotape alone. United States v. Harris, 2007 U.S. Dist. LEXIS 57114 (E.D. Ark. August 3, 2007).* (Comment: Controlled buys recorded via a camera on the snitch’s body are becoming more common since the cost of cameras and records has come way down.)

Knock and talk led to a warrantless entry without any showing of exigent circumstances, and qualified immunity did not protect the officers from trial on this question. Modrell v. Hayden, 2007 U.S. Dist. LEXIS 56980 (W.D. Ky. August 2, 2007)*:

This Court cannot find that the Defendants have met the heavy burden of proving exigency. See Radka, 904 F.2d at 361. There is no evidence in the record that any suspected illegal activity was ongoing in the upper portion of the residence occupied by Plaintiff.

Defendants were suspected of running drugs from Florida to Maine in their van, and the police entered their house without a warrant. “[*P36] Because probable cause did not exist to search the apartment without the information gained from the warrantless entry into the apartment, none of the above discussed exceptions to the warrant requirement or the exclusionary rule apply, and the evidence seized from the Rabons’ apartment during the initial warrantless entry and the subsequent search pursuant to the warrant should have been ordered suppressed.” The court explored in great detail every justification for a warrantless entry proferred by the state and excluded them all because all depended on probable cause. The informant provided only general information that anyone would know and not “inside information” sufficient to create probable cause. State v. Rabon, 2007 ME 113, 930 A.2d 268 (2007).* (Comment: This is an interesting and fascinating case. The court took all of the state’s justifications for the warrantless entry and carefully analyzed them, finding that each depended upon probable cause. This is worth the read, just for re-educating yourself on the basics of warrantless entries and the need for probable cause.)

Entry by consent led to officer seeing defendant with a crack pipe in his hand, which was quickly pocketed. The officer was justified in a patdown for officer safety, and retrieving the crack pipe was justified by plain feel. State v. Wilson, 2007 Ohio 4174, 2007 Ohio App. LEXIS 3783 (8th Dist. August 16, 2007).*

Defendant was in custody and not free to leave. After five hours she inculpated herself in a child’s death. She tried to leave and actually was permitted out of the building, but her boyfriend had the keys to the locked car, and he was inside being questioned, too. Initially, she was promised that she could leave. In the parking lot, entreaties from the officer got her back inside, and he contradicted earlier promises that she could leave any time by stating that she needed to clear things up about the death. On the totality, the court finds it was custodial and she believed she could only leave after telling him what he wanted. Morris v. State, 871 N.E.2d 1011 (Ind. App. 2007):

Also, it is clear from the recordings of Morris’s statements to Captain Davis that she very much wanted to go home after talking to him, and that indeed he had promised that she could go home after she finished talking to him. Nonetheless, after finishing talking to Captain Davis and while waiting in the lobby waiting for her mother and fiance to leave, Sergeant Haalck asked again to talk to her. This was a direct violation of Captain Davis’s earlier promise to her. Given the totality of the circumstances, this is the final straw that leads us to the conclusion that a reasonable person in Morris’s position would not have felt free to resist the entreaties of the police at that time, and that she was in custody when she gave her statements to Sergeant Haalck.

Massachusetts holds that the character of the person pursued and event are controlling for a protective sweep and not whether there are “articulable facts” supporting it. The violent fugitive apprehension team of the State Police entered on an arrest warrant and also looked in the basement for others, finding a dismantled gun. The sweep was proper. Commonwealth v. Dejesus, 70 Mass. App. Ct. 114, 872 N.E.2d 1178 (2007):

It is clear in this case from the judge’s findings that the violent fugitive apprehension section of the State police employed the protective sweep protocol based on the character of the fugitive they were called on to apprehend. Trooper Sullivan, an officer of twenty-three years with the State police department, in recent years had the apprehension of violent fugitives as his sole activity within the department. Asked to explain why the section used protective sweeps, he testified:

“A. Well, officers’ safety is our number one issue. Everyone is going to come to work and everyone is going to go home. When we go into an apartment, we have to clear the apartment for people, for everyone’s safety. Someone could sneak up from behind us with a gun. They could jump on top of us. People are hiding all the time in closets, underneath beds, in between bed frames and mattresses, just for everyone’s safety, the entire apartment is going to be clear. . . .

“Q. And in your five years on this fugitive [apprehension unit], how many times have you had occasion or individuals at — hidden or come out from places when you were doing the sweep?

“A. Numerous times, well over hundreds.”

We do not read Maryland v. Buie to require necessarily that the findings of “articulable facts” justifying a protective sweep be separate from the violence implicit in the crime for which the defendant is sought and the violence implicit in his criminal history. A violent criminal record can, in our view, constitute the separate basis called for by Maryland v. Buie and result in a commonsense application of the overarching constitutional principle of reasonableness. In the Supreme Court’s decision Justice White, speaking for the majority, stated:

“The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter. A Terry [Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)] or Long [Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983)] frisk occurs before a police-citizen confrontation has escalated to the point of arrest. A protective sweep, in contrast, occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary’s ‘turf.’ An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.”

Maryland v. Buie, 494 U.S. at 333.

The “articulable facts” that justified the sweep are, in our view, found in the violent crime (armed carjacking) for which the defendant’s arrest warrant was issued and in his record of violent felonies and firearm possession charges. There is nothing at variance with this conclusion in the Dubois case, that involved no suggestion of criminal violence, or in the Nova case, where the arrest had been completed and the defendant removed from the scene before the police returned to the apartment and executed a protective sweep. Here the police had an objective concern for their safety — a concern rooted in the articulable facts of the defendant’s criminal history. The defendant’s motion to suppress the evidence of the handgun found in plain view in the basement should have been denied.

Order allowing motion to suppress reversed.

IRS subpoena issued under 26 U.S.C. § 7602 was not an invasion of plaintiff’s privacy because it was not overbroad and was within the IRS’s jurisdiction. Evangelist v. IRS, 2007 U.S. Dist. LEXIS 66946 (D. Md. August 20, 2007):

This Circuit has noted that a subpoena duces tecum can exceed the confines of the Fourth Amendment, but only when it is not sufficiently tailored to the investigation. In re Subpoena Duces Tecum, 228 F.3d 341, 347 (4th Cir. 2000). However, “there is no unreasonable search and seizure, when a subpoena, suitably specific and properly limited in its scope, calls for the production of documents which, as against their lawful owner to whom the writ is directed, the party procuring its issuance is entitled to have produced.” Id. In this case, the IRS sought financial records to assist in its calculation of Evangelist’s tax deficiency. The Court concludes that plaintiff’s financial records were relevant to this analysis. Without additional facts or allegations concerning the Government’s actions, the Court concludes that the IRS did not infringe on plaintiff’s right to privacy. Thus, Evangelist’s claim for invasion of privacy must fail under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Not just any crack in a windshield justifies a stop under Florida law. The crack has to pose a safety risk before a stop can be justified. “Nevertheless, the Eleventh Circuit held that the officer’s mistake of law could not provide the reasonable suspicion to justify a traffic stop.” United States v. Chanthasouxat, 342 F.3d 1271, 1279 (11th Cir. 2003). Hilton v. State, 961 So. 2d 284 (Fla. 2007).

Hand-to-hand drug transaction was probable cause for stop and vehicle search. Question of defendant’s ability to consent because he could not speak English was moot. State v. Castro-Medina, 959 So. 2d 828 (Fla. App. 2d Dist. 2007), released for publication July 27, 2007.*

Where there are co-tenants, both do not have to consent to make a search legal. The defendant consented to the search, and his wife objected at first after he consented and then relented. Moorer v. State, 286 Ga. App. 395, 649 S.E.2d 537 (2007).*

Officer’s walking up to the defendant to talk to him was not a seizure. During the conversation, he developed cause to believe the defendant was DUI. Motion to suppress erroneously granted. People v. Walter, 374 Ill. App. 3d 763, 872 N.E.2d 104 (2d Dist. 2007).*

Officers on their own set up a driver’s license checkpoint, and defendant was stopped and found DUI. The checkpoint was unlawful. State v. Luxon, 230 S.W.3d 440 (Tex. App. — Eastland 2007):

Chief Meadows testified that he did not give Officers McCullough and Garza permission to operate the driver’s license checkpoint. Chief Meadows said that Officers McCullough and Garza had previously asked him whether they could run a driver’s license checkpoint. At that time, Chief Meadows believed that driver’s license checkpoints were illegal, and he testified that he told Officers McCullough and Garza that he would have to check with Wade Norris, the police chief at the time, about their request to operate a checkpoint. Chief Meadows testified that he had not checked into their request when they conducted the checkpoint. He also testified that, as far as he knew, Chief Norris did not give Officers McCullough and Garza permission to conduct the checkpoint. Rather, Chief Meadows said that Officers McCullough and Garza made the decision to operate the checkpoint on their own, based on the approval of Officer Garza, who was the senior patrol officer. However, Chief Meadows explained that the operation of the checkpoint was not an appropriate exercise of Officer Garza’s authority.

Chief Meadows also testified that he did not know how the checkpoint was set up or where Officers McCullough and Garza conducted the checkpoint. …

. . .

In balancing the competing interests in this cause, we must weigh the State’s interest against the level of intrusion. Schenekl, 30 S.W.3d at 414. Chief Meadows testified that Officers McCullough and Garza conducted a driver’s license checkpoint. Prouse recognized that “the States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles.” Prouse, 440 U.S. at 658. Chief Meadows had limited knowledge about the operation of the checkpoint. He testified that he did not know how the checkpoint was set up. While he testified that Officers McCullough and Garza told him that they were stopping every car that arrived at the checkpoint, he also testified that he did not know how many cars they stopped or how many arrests resulted from the checkpoint. Chief Meadows also did not know where Officers McCullough and Garza conducted the checkpoint. Officers McCullough and Garza did not testify at the suppression hearing. Thus, the record lacks evidence establishing the details of the checkpoint. The record also lacks evidence demonstrating the effectiveness, if any, of the checkpoint in advancing the State’s interest.

In considering the level of intrusion, the roadblock in this cause was similar to the roadblock in Sanchez. The evidence at the suppression hearing demonstrated that Officers McCullough and Garza–the officers in the field–set up the subject roadblock on their own initiative. Officers McCullough and Garza made the decisions as to where, when, and how to operate the roadblock. They conducted the roadblock without the authorization or guidance of a supervisory officer. The evidence also showed that the roadblock was not conducted pursuant to a departmental plan of the Payne Springs Police Department and that the Payne Springs Police Department did not have any departmental procedures for the purpose of limiting the discretion of the field officers conducting the roadblock.

Thus, in this cause, the operation of the roadblock was left to the unfettered discretion of the officers in the field. …

Protective sweep was unjustified where the only information that officers had was that defendant was alone inside, and he had come out. [A sweep is for people, not evidence.] Robertson v. Commonwealth, 49 Va. App. 787 (2007):

By contrast, in the case at hand, the officers had no such information indicating the presence of another individual inside appellant’s dwelling. The evidence demonstrates that Officer Thompson was told by Tiffany that appellant was alone in the house. The admitted videotape supports her statement. In the thirty-five minute tape, the camera was focused entirely on the front door and windows of the house. At no point did police appear to see or hear another individual inside the house. The tape also shows appellant yelling at the officers before they entered, “Ain’t nobody else in the house!”

The instant case resembles the circumstances of United States v. Colbert, 76 F.3d 773 (6th Cir. 1996), cited by the dissent in Williams, 49 Va. App. at 463-64, 642 S.E.2d at 306-07 (Humphreys, J., dissenting). In Colbert, the Sixth Circuit held that a “[l]ack of information cannot provide an articulable basis upon which to justify a protective sweep.” 76 F.3d at 778. The Court explained, “[A]llowing the police to justify a protective sweep on the ground that they had no information at all is directly contrary to the Supreme Court’s explicit command in Buie that the police have an articulable basis on which to support their reasonable suspicion of danger from inside the home.” Id.

In the case at hand, the officers similarly had no information by which they could reasonably infer that another individual could be present inside the dwelling after appellant was detained outside. Moreover, on cross-examination, when asked why police needed to secure the house, Officer Thompson replied, “You’ll have to ask them. … Typically, a procedure would be, even though there’s one person in the house, we don’t know if there’s anybody else in the house and we’re securing the house.” The evidence shows, therefore, that the officers did not possess a reasonable suspicion that, after appellant’s arrest, appellant’s dwelling harbored an individual posing a danger to the officers or others, as required by the standard set forth in Buie.

Even if an officer witnesses only a minor traffic violation, a motion to suppress on the ground that the stop was pretextual must fail. Trujillo v. State, 286 Ga. App. 438, 649 S.E.2d 573 (2007).*

An officer may ask for consent during a traffic stop, and when it occurs during the wait for the computer check to return, it does not prolong the stop. State v. Bickel, 2007 Ohio 3517, 2007 Ohio App. LEXIS 3276 (5th Dist. July 10, 2007).*

A forfeiture warrant in Texas can be a search warrant which “in Texas is defined as a ‘written order, issued by a magistrate and directed to a peace officer, commanding him to search for any property or thing and to seize the same.'” Claimant’s shotgun attack on the warrant and seizure is rejected. There was probable cause and particularity. Real Property Located at 4125 Blanton v. State, 230 S.W.3d 476 (Tex. App.-–Ft. Worth 2007).*

Juvenile was questioned at home and he admitted to having a gun. Officers could follow the defendant into his bedroom to retrieve the gun. Commonwealth v. Guthrie G., 449 Mass. 1028, 869 N.E.2d 585 (2007), aff’g 66 Mass. App. Ct. 414, 848 N.E.2d 787 (2006).*

After a stop, defendant ran off, and the officer gave chase. The officer remembered that the police car was unlocked, so he came back and saw a confederate removing a duffel bag from the stopped car. The officer could seize the bag. Defense counsel was not ineffective for not challenging the search. State v. Peagler, 2007 Ohio 3592, 2007 Ohio App. LEXIS 3296 (2d Dist. July 13, 2007).*

Defendant’s claim that his stop was without probable cause was belied by the videotape. “[A]fter review of the videotape, we conclude that the automobile carrying the defendant did drive in a manner that justified the stop. The trial court found that the stop was legal and proper under the circumstances.” Affirmed. State v. Butts, 2007 Tenn. Crim. App. LEXIS 564 (July 13, 2007).*

Patdown produced a lighter and the officer saw a straw protruding from the pocket. In the watch pocket was a folded dollar bill. Despite the fact the officer knew that dollar bills could be folded and contain drugs, the inherently legal nature of the dollar bill prohibited the officer from searching it. Grandison v. Commonwealth, 274 Va. 316, 645 S.E.2d 298 (2007).

Defendant’s patdown was unjustified under the circumstances, and consent was sought at the same time. When a consent to a search is preceded by a violation of the Fourth Amendment to the United States Constitution, the State, in addition to proving the voluntariness of the consent, must also establish a break in the causal connection between the illegality and the evidence thereby obtained. When a request for consent is virtually simultaneous with an illegal pat-down search and there is no break in the activity between the pat-down search and the consent, the consent is not voluntary as a matter of law, and the evidence must be suppressed as fruit of the poisonous tree under Wong Sun. State v. Burton, 37 Kan. App. 2d 916, 159 P.3d 209 (2007).

In a post-conviction proceeding, the defendant carries the burden of showing why a Fourth Amendment claim was not raised. Otherwise, relitigating it is barred by res judicata. State v. King, 2007 Ohio 2810, 2007 Ohio App. LEXIS 2605 (5th Dist. May 30, 2007).

Fitting the description and fleeing the scene (heading in a direction away from the scene) in a particularly described car and then the odor of gunshot residue about the defendant’s person 15 minutes after a shooting was probable cause. People v. Jones, 374 Ill. App. 3d 566, 313 Ill. Dec. 96, 871 N.E.2d 823 (1st Dist. 2007):

Here, the serious crimes of murder and attempted murder had been committed about 15 minutes before the police apprehended defendant. Defendant was within three blocks of the crime scene and fit the general description of the fleeing suspects. These circumstances alone support a finding of probable cause. More facts would have been needed to establish probable cause if the suspect had been physically or temporally more distant from the scene or if the officers did not know for certain that a serious crime had been committed. Not only did the time and place of defendant’s apprehension correspond to the time and place of the shooting, but defendant also fit the description given by the witnesses and had been running as reported by the witnesses.

The odor of gunshot residue was yet another fact in support of probable cause. “[D]istinctive odors can be persuasive evidence of probable cause. A police officer’s detection of controlled substances by their smell has been held to be a permissible method of establishing probable cause.” Stout, 106 Ill. 2d at 87.

Also, citizen informant at the scene did not have to be corroborated like a snitch. While the officers did not get their names, they were at the scene and the officer could assess their credibility when they made their report. Id.*:

Defendant argues against this conclusion, characterizing the descriptions the officers received from anonymous witnesses as vague and uncorroborated. In general, the reliability of an ordinary citizen, unlike an informant, need not be established. People v. Williams, 305 Ill. App. 3d 517, 524, 712 N.E.2d 883 (1999). Absent indications to the contrary, information provided by an ordinary citizen is presumed to be reliable. Williams, 305 Ill. App. 3d at 524. Here, although the witnesses did not provide their names, the officers were able to observe them and assess their credibility. The witnesses’ descriptions were sufficiently specific. Shackleton testified that the witnesses said the offenders had low haircuts, very little or no facial hair, black shorts, black shoes and were running southbound on foot. Defendant matched this general description.

When the defendant during a traffic stop made a furtive gesture that the officer took as her looking for a weapon, the officer was permitted to frisk the vehicle for a potential weapon. People v. McDaniel, 160 P.3d 247 (Colo. 2007)* (this case is a replica of Michigan v. Long, but it was decided only citing state cases).

Nighttime search was justified for a meth lab. The officers had good information that defendant did his cooks twice a week at night in his basement. Officers watched the premises and saw the lights turned off and another person leave. The potential for removal of the meth before daytime justified a nighttime entry. Furthermore, the officers could objectively rely on the warrant for the nighttime entry under the good faith exception. Roth v. State, 2007 ND 112, 735 N.W.2d 882 (2007):

[*P27] We conclude the information contained in Deputy Bitz’s affidavit provided sufficient probable cause to justify a nighttime search. The confidential informant stated that Roth manufactured methamphetamine in his basement, and surveillance established that there was activity in the basement during the late nighttime hours. Surveillance also established that at least one other person connected with drug activity was in the residence at the time. These facts, taken together, indicate that Roth was likely manufacturing methamphetamine in his home at nighttime. Therefore, in order for law enforcement to catch Roth in the process of manufacturing methamphetamine, the search needed to be conducted at nighttime rather than in the daytime. If law enforcement searched Roth’s residence at a time when he was not manufacturing, it was reasonably probable that much of the evidence of the manufacturing process, including the methamphetamine itself, would have been removed from the premises. Nor is the evidence as convincing when the actual manufacturing is not in process. Section 19-03.1-23.1, N.D.C.C., provides an increased penalty for the manufacture or distribution of a controlled substance within one thousand feet of a school, but not for possession with intent. See State v. Dennis, 2007 ND 87, P1. For these reasons, law enforcement officers have a legitimate interest in catching a suspect in the act of manufacturing drugs.

Comment: This was raised as in ineffective assistance claim for defense counsel’s failure to properly raise a nighttime search issue, and the court reached the merits. On the exclusionary rule, the court cited Hudson, but only as “But see,” not relying on it.

Police officers were justified in knocking on the door of the defendant’s apartment and ordering its occupant to step outside into the hallway under the exigent-circumstances exception to the warrant requirement: the officers were responding to a report of shots fired near the apartment; the officers had apprehended defendant and his fiancee; defendant matched the description of the shooter; the fiancee told police that her brother and a gun were inside the apartment, but not if anyone else was present; the officers heard rustling and movement after they knocked on the door; and the occupant attempted to slam the door shut when he saw the officers. [Headnote by the court] Consent thereafter was voluntary. State v. Smith, 2007 Ohio 3786, 2007 Ohio App. LEXIS 3445 (1st Dist. July 27, 2007).*

Police responding to a stabbing call, assured by the defendant that the victim had not been cut all that bad, still had exigent circumstances to enter. State v. Dillon, 2007 SD 77, 738 N.W.2d 57 (2007):

[*P24] Dillon claims the actions are not reasonable because Susan Dillon told Chief Deputy Baxter, the cut was not too bad and it was an accident. Furthermore, Dillon claims that two hours had elapsed since the phone call reporting the stabbing occurred, thus no emergency existed. It would be unreasonable to expect the police to believe Arrow was not really injured, stop their investigation and simply ignore the possibility he could be in need of some assistance of which Susan Dillon was not aware or not divulging. This is especially true when Susan Dillon had already lied to the officers about who had stabbed Rattling Leaf and tried to tell the police Rattling Leaf “had hit some glass on the stairwell and that’s where the blood came from.” Viewing these facts and the police actions using the objectively reasonable standard indicates exigent circumstances existed.

Excessive force claim was filed by plaintiff against an officer who was a bank fraud investigator in an unmarked car who had not made a traffic or felony stop and approached plaintiff with gun drawn and then stuck it through plaintiff’s car window. Scheuerman v. City of Huntsville, 499 F. Supp. 2d 1205 (N.D. Ala. 2007):

Weaber argues that he is entitled to qualified immunity on the excessive force claim because a police officer is allowed to use deadly force “when he is confronted with a car backing toward him in reverse as he is approaching the driver, where that car actually makes contact with his leg, arms, and foot, where he fears the car is going to pull him under and kill him, and where the entire incident evolves rapidly[,] lasting only a matter of seconds.” The Supreme Court has instructed that courts are to evaluate excessive force claims considering the “totality of the circumstances.” Graham v. O’Connor, 490 U.S. 386, 396 (1989). The court looks not only to the moment shots were fired, but also examines the circumstances immediately prior to Weaber’s decision to use deadly force. The court must ask what precipitated the need to shoot plaintiff.

This is not a case where a uniformed officer uses potentially deadly force by crashing into the driver to prevent harm to others, after activating his blue lights and siren, and chasing a car whose driver is fleeing and driving recklessly in the dead of night. See Scott v. Harris, 127 S. Ct. 1769 (2007).

This is not a case where a uniformed officer, attempting to apprehend a drug trafficker, identifies himself and uses deadly force in self-defense of a moving car. See Robinson v. Arrugueta, 415 F.3d 1252 (11th Cir. 2005).

This is not a case where a uniformed officer uses deadly force on a suspected felon after he avoids an investigatory pat-down, flees in a car, and engages in a high-speed reckless chase with multiple police cars in tow, and refuses to get out of his car once it had been blocked on three sides and told by police to exit his vehicle. See Pace v. Capobianco, 283 F.3d 1275 (11th Cir. 2002).

Instead, this is a case in which an off-duty investigator, who was not in uniform, exited his unmarked vehicle to confront an individual, and drew his weapon when there was no reasonable suspicion that a crime had even been committed. It is undisputed that plaintiff did not see Weaber exit his vehicle, and was not aware that Weaber was walking toward plaintiff’s automobile, until Weaber’s arm, with his hand holding a gun, appeared through his front window. Viewing the totality of the circumstances, it was not objectively reasonable for Weaber to use deadly force on the plaintiff.

The plaintiff sued pro se over a laundry list of issues from a federal search warrant, all of which lacked any merit, including a claim that the U.S. Magistrate Judge lacked authority to sign off on search warrants, and the case was dismissed. First, he alleged that the warrant lacked a judge’s signature and stamp from the court, but all he had were copies, and the court takes judicial notice of the records on file that are signed originals. The second group of claims were that the informant was not brought before the judge to swear to the affidavit. An affiant may appear and relate hearsay, and this hearsay is sufficient. Finally, qualified immunity provides protection for all defendants. Collins v. Bruns, 2007 U.S. Dist. LEXIS 60644 (E.D. Mo. August 17, 2007).*

There is no expectation of privacy in the common area of a Parolee’s house; chronic driving without a license was justification for a parole search. Once inside, the parole officer found evidence of counterfeiting. “We also find as a matter of law, having considered the totality of the circumstances, that the agents had a ‘particularized and objective basis for suspecting legal wrongdoing,’ Williams, 417 F.3d at 376, such that the search of the premises was supported by reasonable suspicion.” United States v. Noble, 2007 U.S. Dist. LEXIS 54168 (W.D. Pa. July 26, 2007). Comment: This is about the lowest threshold for a parole search.

Duplex had doors, but they were unlocked and open and there was only an unlocked screen door. There is a “fact-dependent nature of the inquiry into the reasonableness of an individual’s expectation of privacy in a particular place.” United States v. Villegas, 495 F.3d 761 (7th Cir. 2007).

Unarmed plaintiff who alleged he did not hear knock and announce and heard the explosion of a “flash bang” device and was shot running out of the back of the house survived summary judgment on his Fourth Amendment excessive force claim. Martin v. City of S. Lake Tahoe, 2007 U.S. Dist. LEXIS 54220 (E.D. Cal. July 26, 2007)*:

Under plaintiff’s version of the facts, he was shot while he ran out of a house because of what he thought was a gas leak explosion. Plaintiff was unarmed and was not advised to freeze or stop by defendant Williams. Plaintiff’s version of the facts implicitly asserts that plaintiff did not see the officers and that he did not look at defendant Reagan or raise his arm in a threatening manner. At that time, defendant Williams did not have knowledge that plaintiff had committed or was committing a crime.

A knock-and-announce civil case was dismissed on summary judgment on the merits of the officers’ claim of exigent circumstances [And Hudson could not be applied. This case was doomed on the merits.] Molette v. City of Alexandria, 2007 U.S. Dist. LEXIS 53896 (E.D. Va. July 25, 2007):

[After discussing Wilson and Richards:] With these principles in mind, it is clear that the SRT’s unannounced entry into the Wise Street houses was not unreasonable under the Fourth Amendment. At the time of the attempted entry, the SRT reasonably believed that knocking and announcing their presence would be dangerous. As mentioned, Mr. Molette was: suspected in the attempted murder of Officer Fuller; wanted on a valid arrest warrant for violating the terms of his probation; reportedly seen at the Wise Street locations; and believed to be armed with an AK-47 and two pistols. Under these circumstances and in light of the law enforcement’s actions as a whole, we find that the SRT’s unannounced entry into the Wise Street houses did not violate Mr. Molette’s Fourth Amendment rights. Accordingly, Plaintiff’s unreasonable search and seizure claims under the Fourth Amendment will be dismissed with prejudice.

Defendant’s pager was unlawfully seized during a Terry frisk because it could not be a weapon, but its seizure was inevitable as a part of a search incident to defendant’s arrest. Alternatively, it was harmless. United States v. Garcia, 496 F.3d 495, 2007 FED App. 0299P (6th Cir. 2007).*

Under the category “If it’s a federal case from Kansas, it involves a traffic stop and reasonable suspicion”: The question of standing need not be reached if the court determines that the defendant would lose on the merits. The stop was valid because it was based on a traffic stop. The search was arguably invalid as an inventory. While the search occurred too soon to be called an inventory, it would, however, have inevitably later be conducted as an inventory, so the Fourth Amendment was not violated. The officers searched a shoe box. United States v. Nanez-Lopez, 2007 U.S. Dist. LEXIS 57372 (D. Kan. August 6, 2007).*

Defendant driving his mother’s car with her permission had standing to challenge its search. There was a substantial basis for the issuance of the search warrant for the car because of surveillance information and informants who corroborated each other. United States v. Mendoza, 2007 U.S. Dist. LEXIS 57285 (D. Id. August 6, 2007).*

Officer had reasonable suspicion because of defendant’s drug prior and common association with known drug dealers. United States v. Mateo-Vera, 2007 U.S. Dist. LEXIS 57212 (D. Or. August 1, 2007):

Here, Officer Broderick possessed information that defendant had been convicted of delivery of a controlled substance, that defendant socialized with an individual who had a lengthy history of drug and firearms offenses, and that a confidential informant informed Sergeant O’Toole that a Hispanic male who drove a gold-colored SUV was dealing methamphetamine from his residence at the Harbor Ridge Apartments, where defendant lived. Therefore, under the totality of the circumstances, Officer Broderick reasonably suspected criminal activity. See United States v. Arvizu, 534 U.S. 266, 274-75 (2002); United States v. Torres-Sanchez, 83 F.3d 1123, 1128-29 (9th Cir. 1996).

Pennsylvania holds that there is no right of privacy in non-privileged prisoner mail under either the Fourth Amendment or state constitution, questions separately analyzed and discussed. The law is well settled. Commonwealth v. Moore, 2007 PA Super 207, 928 A.2d 1092 (2007).

Plaintiff who was prosecuted but placed in pre-trial diversion program (“Pretrial Intervention Program”) in New Jersey sued for unlawful seizure. There was probable cause for the search warrant, and he loses on the merits. Orlowski v. Borough of Sayreville, 2007 N.J. Super. LEXIS 237 (July 11, 2007) (Comment: This case falls in the category of “no good deed goes unpunished.” He got a great break from the prosecutor in diverting him, and he shows his appreciation by filing a BS case against the police that depended entirely on his being able to show no probable cause for the warrant, a prospect that was less than dim. Heck v. Humphrey was apparently not raised in defense that diversion was not a sufficiently successful outcome in the criminal case to permit the civil case. As a matter of policy, Heck maybe should be extended this far; at least the defense should have raised it. [I only assume they did not because the court never mentions it.] My point is this: Filing civil cases like this is going to make that local prosecutor far less likely to offer diversion to other defendants in the future, so the plaintiff, actually his lawyer, quite literally “cut off his nose to spite his face.” As for this plaintiff, he better hope he does not get arrested again in that jurisdiction.

Plaintiff’s jury verdict for defendants’ euthanizing her dogs after seizing them was sustained. SPCA was acting under color of law when it seized plaintiff’s dogs. Prior appeal only held that plaintiff did not have an expectation of privacy in the allegedly abandoned premises. It did not decide that plaintiff’s rights were not violated by the seizure and killing of the animals, which the jury found that they were. Jury verdict affirmed, but punitive damages award set aside. Snead v. Soc’y for the Prevention of Cruelty to Animals of Pa., 2007 PA Super 204, 929 A.2d 1169 (2007):

[*P19] Here, Snead’s Section 1983 claims are grounded in the Fourth and Fourteenth Amendments to the United States Constitution. Snead claims that SPCA’s euthanizing of the dogs constituted an unreasonable “seizure” in violation of her Fourth Amendment rights; and, additionally, that she was deprived of due process under the Fourteenth Amendment. It is conceded that SPCA was acting under color of state law when it took possession of and euthanized Snead’s dogs; therefore, the first prerequisite for making out a Section 1983 claim is satisfied. (Trial court opinion, 2/1/06 at 3, 5; notes of testimony, 7/11/05 at 84.)

A seizure of property occurs when there is some meaningful interference with an individual’s possessory interest in that property. See Soldal v. Cook County, 506 U.S. 56, 61-65, 113 S.Ct. 538, 543, 121 L.Ed.2d 450 (1992). A seizure of property sufficient to implicate Fourth Amendment rights occurs where the seizure is unreasonable. Id. In determining whether a government seizure violates the Fourth Amendment, the seizure must be scrutinized for its overall reasonableness. Id.

Wagner, supra at 1254. The killing of Snead’s dogs is a seizure within the meaning of the Fourth Amendment. Van Patten v. City of Binghamton, 137 F. Supp. 2d 98, 107 (N.D. N.Y. 2001) (citation omitted). However, a seizure alone does not constitute a Fourth Amendment violation; the question is whether this seizure was reasonable under the circumstances. Id., citing Soldal, supra, 506 U.S. at 61-62.