Alleged harassing activity by police of following the plaintiff around is not a seizure. Christensen v. County of Boone, 483 F.3d 454 (7th Cir. 2007):

In the present case, the plaintiffs allege that Deputy Krieger followed them in his squad car as they drove on Boone County roads and sat outside businesses that the couple patronized. This alleged behavior did not constitute a Fourth Amendment search. Driving on public streets is one of the activities during which a person does not enjoy a legitimate interest in privacy. United States v. Knotts, 460 U.S. 276, 281 (1983) (“A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”). Nor can individuals reasonably expect privacy in the parking lot of a business. See Dunkel, 900 F.2d at 107. In observing the couple’s public movements, Deputy Krieger did not conduct a search in violation of the Fourth Amendment.

Nor were the plaintiffs ever “seized” within the meaning of the Fourth Amendment. We recognize that, in certain circumstances, a Fourth Amendment “seizure” may occur when police intentionally restrict the freedom of a person to move about in public. See Brower v. County of Inyo, 489 U.S. 593, 596 (1989). For example, if law enforcement officers attempt to stop a fleeing suspect by forcing his automobile off the road, they have conducted a seizure for purposes of the Fourth Amendment. Id. at 597. This type of seizure occurs, however, only if two conditions are met. First, the officer must, through physical force or a show of authority, “communicate[] to a reasonable person that he [is] not at liberty to ignore the police presence and go about his business.” Florida v. Bostick, 501 U.S. 429, 437 (1991) (internal quotation marks omitted); see also United States v. Packer, 15 F.3d 654, 657 (7th Cir. 1994). Second, when the officer’s encounter with the plaintiff is nonphysical, the plaintiff must have submitted to the show of authority to establish that a seizure has taken place. See California v. Hodari D., 499 U.S. 621, 626 (1991) (“An arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority.” (emphasis omitted)).

In light of these requirements, the theory that the plaintiffs were “seized” when Deputy Krieger followed them in his squad car is inconsistent with the allegations of the complaint. The alleged actions by Deputy Krieger were nonphysical. …

Defendant’s girlfriend’s statement to the police that she could not consent to a search without conferring with her boyfriend first did not implicate Randolph. When he showed up, he freely consented. United States v. Wells, 231 Fed. Appx. 243 (4th Cir. 2007)* (unpublished).

Court probation officers who were separate from the state probation system still had the authority to conduct probation searches because their regulations were similar to Griffin‘s. United States v. Godsey, 224 Fed. Appx. 896 (11th Cir. 2007)* (unpublished).

Recognizing the “tension” in civil rights cases between a Franks challenge and the liberal pleading requirements of F.R.C.P. 8, the plaintiff was able to state a claim for relief and survive summary judgment on an allegation that there was an inadequate showing of probable cause for a search warrant. Carthage v. Sumpter Twp., 2007 U.S. Dist. LEXIS 19452 (E.D. Mich. March 20, 2007).*

Excessive force claim was stated for throwing plaintiff down and kneeing him in the back unnecessarily. Warren v. Township of Derry, 2007 U.S. Dist. LEXIS 19537 (M.D. Pa. March 20, 2007):

In the action sub judice, plaintiffs allege that Shank and other officers n10 pulled Samuel from his vehicle, threw him to the ground, and kneed him in the back. Plaintiffs further claim that the officers grabbed Olandis, forced him to the police car, and slammed his head against the hood. (See Doc. 40, Ex. A. at 32-37. While “[n]ot every push or shove … is constitutionally unreasonable,” Sharrar v. Felsing, 128 F.3d 810, 821 (3d Cir. 1997) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)), there is sufficient record evidence to suggest that the force used was excessive. The record is devoid of evidence that plaintiffs posed a threat to officer safety or resisted arrest. See Gravely, 2007 WL 655290, at *2. Nor were plaintiffs suspected of a violent or serious crime. Id. Accordingly, in the context of the procedural posture of the case, see supra Part II, the court finds that plaintiffs have presented sufficient evidence to establish a prima facie claim of excessive force, and defendants’ motion for summary judgment will be denied as to this claim.

The Sixth Circuit holds that officers who arrested a protester for a misdemeanor at an abortion clinic without determining probable cause had a duty to determine whether exculpatory evidence militated against probable cause on the totality of circumstances. Logsdon v. Hains, 492 F.3d 334, 2007 FED App. 0252P (6th Cir. 2007):

Reading Plaintiff’s complaint in the light most favorable to him, Defendants failed to reasonably determine whether they had probable cause. In the course of initially assessing whether probable cause to arrest Plaintiff existed, Defendants respectively “turn[ed] a blind eye” to potentially exculpatory evidence when they refused to listen to the witnesses at the scene. A prudent officer must draw reasonable conclusions from the facts and circumstances known to him as supported by “reasonably trustworthy information.” See Beck, 379 U.S. at 91. It appears that Defendants deliberately excluded from a totality of known facts and circumstances information that might bear on the accuracy, reliability, or trustworthiness of the report that Plaintiff had trespassed on CWS’s property. To that extent, Defendants did not act as “prudent officer[s]” and their conclusions cannot be deemed “reasonable.” Rather, potentially conflicting explanations from these eyewitnesses would have informed Defendants’ probable cause analyses, giving them reason to question the reliability of reports that Plaintiff had committed criminal trespass. Cf. Ahlers, 188 F.3d at 370. Although our Circuit’s precedent “does not mandate that law enforcement operatives should conduct quasi-trials as a necessary predicate to the warrantless arrest” of suspects, Painter, 185 F.3d at 571 n.21, it does require that warrantless arrest follow consideration of the totality of the circumstances reasonably known to the arresting officers. Because officers initially assessing probable cause to arrest may not off-handedly disregard potentially exculpatory information made readily available by witnesses on the scene, there is a set of facts consistent with the pleadings in which Defendants violated Plaintiff’s Fourth Amendment rights. See Gardenhire, 205 F.3d at 318; Ahlers, 188 F.3d at 371-72; cf. Painter, 185 F.3d at 571.

. . .

Our conclusion is only that sufficient facts have been alleged to avoid dismissal on the pleadings. We conclude that Plaintiff has stated a claim that Defendants lacked probable cause to arrest Plaintiff and, therefore, that they violated Plaintiff’s Fourth Amendment rights.

Comment: I’ve been writing a motion on and off that deals with a probable cause affidavit for arrest that is conclusory and ignores all the exculpatory evidence. Suddenly, it has legs that I did not believe it would have.

Law of the case barred relitigating on a second appeal a search issue determined in the first appeal. United States v. Currence, 231 Fed. Appx. 294 (4th Cir. 2007)* (per curiam).

Defendant who challenged his search on appeal could not raise the same ground in a 2255 habeas claim. United States v. Johnson, 2007 U.S. Dist. LEXIS 48582 (W.D. La. July 3, 2007).*

The arrestee was arrested when he stood in the doorway of his home and refused to consent to the entry of police officers, including defendant officer. Although there was a search warrant for another person, there was no search warrant to enter the arrestee’s home. On appeal, the Ninth Circuit held that the record was clear that the officers did not have reasonable or probable cause to believe that the person for whom they held the warrant either resided in or was to be found at the arrestee’s home. Even when officers had a right to enter a home without a search warrant, the homeowner could not be arrested for refusing admission without a warrant. Because those principles were clearly established, defendant officer was not entitled to qualified immunity when he either failed to be cognizant of or ignored those principles. [Lexis overview] Villegas v. Hackett, 225 Fed. Appx. 580 (9th Cir. 2007)* (unpublished).

Under Michigan law, the trucking industry is a highly regulated industry under Burger. After stopping the driver and finding violations of operating regulations, the officer could justifiably enter the trailer to compare the bill of lading to the load and the route being traveled. The load here was not professionally loaded, and boxes were askew, and that justified looking in them. United States v. Soto, 498 F. Supp. 2d 1041 (W.D. Mich. 2007).

Officers were subject to qualified immunity for seizure of documents during search warrant over a battery because of reason to believe evidence would be found there. [And that’s a stretch; documents in a battery case? How?] Kicklighter v. Herrin, 2007 U.S. Dist. LEXIS 55308 (S.D. Ga. July 31, 2007):

In the instant case, it was reasonable for the officers to believe that the Sheriff’s Department files were subject to lawful seizure. Kicklighter was storing the files at his residence even though he had been suspended from the Sheriff’s Department. Therefore, regardless of whether the officers were actually entitled to seize these files, the Court finds that they are entitled to qualified immunity because they reasonably believed that the files were the property of the Sheriff’s Department and therefore subject to lawful seizure.

Convicted plaintiff could not bring himself within Heck‘s limited exception for inevitable discovery or independent source. Clayton v. City of Poughkeepsie, 2007 U.S. Dist. LEXIS 55082 (S.D. N.Y. June 21, 2007)*:

The doctrines of independent source, inevitable discovery, and harmless error discussed in Heck are not applicable, where, as here, the entire evidentiary basis for the charged offense derives from a single episode involving a single search that is now being questioned as part of a § 1983 action. Indeed, it was so patently obvious to Plaintiff’s criminal defense attorney that the entire case turned on his motion to suppress evidence from the search at issue that he referred to that motion as “dispositive,” and his client (the Plaintiff) pled guilty just weeks after that motion was denied. Without the search and seizure at issue, there would undoubtedly not have been any criminal charge filed against Plaintiff for possession of these narcotics. Accordingly, given that the exception described in Heck is not applicable here, Plaintiff’s purported § 1983 claims based on the allegedly unreasonable search and seizure described above are hereby dismissed.

Court ordered entries to investigate environmental spills and contamination at a car dismantler’s property did not violate the Fourth Amendment. Matter of Murtaugh v. New York State Dep’t of Envtl. Conservation, 2007 NY Slip Op 6085, 42 A.D.3d 986 (4th Dept. 2007):

Although constitutional protections against unreasonable searches and seizures apply to administrative inspections of private commercial property, those engaged in business in industries subject to a complex and pervasive pattern of regular and close supervision and inspection have a substantially diminished expectation of privacy in such business affairs, and that diminished “privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections” (Donovan v Dewey, 452 U.S. 594, 599, 101 S. Ct. 2534, 69 L. Ed. 2d 262; see generally Marshall v Barlow’s, Inc., 436 U.S. 307, 313, 98 S. Ct. 1816, 56 L. Ed. 2d 305; People v Quackenbush, 88 N.Y.2d 534, 541-542, 670 N.E.2d 434, 647 N.Y.S.2d 150). The dismantling of vehicles is a pervasively regulated industry (see People v Cusumano, 108 A.D.2d 752, 753, 484 N.Y.S.2d 909). Under the statutory scheme, respondents’ entry is in furtherance of the substantial governmental interest in environmental protection and remediation, rather than in furtherance of criminal investigation and prosecution (cf. People v Scott, 79 N.Y.2d 474, 498-499, 593 N.E.2d 1328, 583 N.Y.S.2d 920; People v Burger, 67 N.Y.2d 338, 344, 493 N.E.2d 926, 502 N.Y.S.2d 702). Moreover, the statute furnishes ” ‘a constitutionally adequate substitute for a warrant’ ” by informing the property owner of the prospect of the inspection and limiting the discretion of the inspecting officers (Quackenbush, 88 N.Y.2d at 542). Thus, the owner is informed in advance that the inspections to which he or she is subject do not constitute discretionary acts by a government official but are conducted pursuant to statute. The owner further is informed in advance that the entry will be made only by DEC officials, agents, and contractors, that the entry will be made only in the event of actual or suspected discharges of petroleum or petroleum byproducts onto the lands or into the waters of the State, and that the intrusion will last only until any contamination is remediated. We thus conclude that the Navigation Law provisions do not violate the proscription against unreasonable searches and seizures contained in the Fourth Amendment of the United States Constitution or article I, § 12 of the New York State Constitution (see Matter of Crandall v Town of Mentz, 295 A.D.2d 907, 908, 745 N.Y.S.2d 347). We therefore affirm the order in appeal No. 2.

Officer had exigent circumstances to enter defendant’s house to check on a child in need when the caregiver had been hospitalized. Somebody was inside holding a child who refused to come to the door. State v. Burnett, 230 S.W.3d 15 (Mo. App. 2007):

The State contends that Officer Till had information from Capps that raised the suspicion that the child was in immediate need of aid. The State emphasizes that L.N. was last known to be with her father, whose parental rights had been terminated for drug offenses and a substantiated, though uncharged, claim of child sexual abuse. Officer Till saw the silhouette of a person holding an infant or a small child. The attempts of Officer Till and Ms. Capps to contact the occupants were ignored by the occupants of the house. Wineinger, the child’s legal guardian, had surmised that L.N. would be at that residence. These were sufficient to support the reasonable inference that L.N. was within the residence.

Comment: When children are involved in an exigent circumstances claim, a sliding scale is obvious, and this case is an example.

The defendant was in a group standing in an area known for drug sales. Two officers got out of an unmarked car and approached them. The defendant would not look at them, and it became apparent that he had something in his mouth. The officers knew that hiding drugs in the mouth was common, so they could direct the defendant to spit it out. In the Matter Of: I.R.T., 2007 N.C. App. LEXIS 1624 (July 17, 2007).*

Best Buy in Shreveport was installing a new hard drive in the defendant’s computer, and they did a simple diagnostic check not requested by the defendant to verify that the computer was operating correctly, because it had operations issues. The repairman used his own flashdrive to check the computer’s function, and then the computer opened the default “My Pictures” folder, and he found child porn. The police were called. The search was a purely private search. The advances in computer technology and privacy concerns do not yet require the courts to revisit the expectation of privacy issues. State v. Horton, 962 So. 2d 459 (La. App. 2d Cir. 2007):

We recognize that State v. Hutchinson, supra, was decided in 1977 and State v. Coleman, supra, was decided in 1985, some thirty and twenty-two years ago respectively-long before the technological revolution in electronic communications, computers and the internet in the last ten years. These new technologies have raised privacy issues in all aspects of our cultural life which will perhaps one day require this court or the supreme court to revisit the private search question. However, the facts of this case do not warrant a re-examination of our previous decision in State v. Coleman, supra, because the discovery of the illicit images on Horton’s computer was clearly by accident, and the evidence adduced does not establish that Horton had a subjective expectation of privacy, nor did he demonstrate that his expectation is one that society is prepared to recognize as reasonable and legitimate. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed.2d 576 (1967). Horton brought his computer to Best Buy to have a hard drive installed and the computer physically cleaned. Surely it is not a far reach for a customer to expect that the computer technician might perform a cursory inspection of the computer’s operation, particularly if the computer appeared to be having some problems. In a sense, the discovery of the images by the technician in this case is more analogous to a “plain view” discovery of evidence of a crime.

Even if we assumed that the Best Buy employee’s opening of the “My Pictures” file was unauthorized, and that Horton had a privacy interest in the images contained in the folder, we cannot conclude that Horton thereby meets the “reasonable expectation of privacy test” standards. Horton did not exercise dominion or control over the computer images in the “My Pictures” folder because he had voluntarily relinquished control of the computer to the repair store and failed to secure the images in the folder. The images were located in the default file, which meant that it opened automatically when the “My Pictures” folder was opened. In other words, displaying the images required no conscious thought and action or intention of the technician to enter the file.

(Comment: This case was not the proper vehicle to raise the issue of whether there is now a greater expectation of privacy in a computer, if the defendant did. One would suspect that it was raised by the defendant, but we cannot be sure. At any rate, this case was simple on the facts: The default opening folder was “My Pictures.” I know that the general populace does not read search and seizure cases to see how the law has developed in this regard, or on the reasonable expectation of privacy in general, but the defendant had to know that somebody might see what was on his computer in the shop, particularly when “My Pictures” comes right up when the computer is turned on. I would also assume that anyone would know that the computer would have to be tested to make sure that the new hard drive would be read when the computer was turned on. This was not some sophisticated invasion of privacy by the computer geeks; it was simple and necessary to do their jobs. One cannot reasonably disagree with the outcome. If the law on reasonable expectation of privacy in a computer is going to change, it is going to require far better facts than these.)

Police officers pulled over a car, and the passenger fled. The police found out who he was and where he was staying and went to his motel room and entered without a warrant. Inside, they found drugs. The pursuit was not in hot pursuit, and the entry was not with exigent circumstances. Even probable cause was lacking because flight alone is not enough. [To compound the problems, the parties stipulated to police reports as the evidence of the arrest, and it was full of factual holes that the appellate court could not resolve since the state carried the burden of proof.] State v. Smith, 960 So. 2d 369 (La. App. 2d Cir. 2007). (Comment: The state should not have stipulated to using the reports in this case, but the opinion makes it fairly clear that the best case scenario for the state on the gaps in the proof was still a losing proposition.)

Defendant was stopped in Montana for DUI on a cross country trip in an Avis rental car. The plans for the short trip raised suspicions of drug trafficking in the officer. The officer called Avis who considered the rental agreement terminated by the arrest. Avis directed that the car be held until they could retrieve it, and defendant’s personal belongings were removed. Removal was lawful, and it led to finding a roach. The officer got a search warrant for the closed containers and found the cash. Defendant’s unusual travel plans were probable cause for issuance of the search warrant. State v. $129,970.00, 2007 MT 148, 337 Mont. 475, 161 P.3d 816 (2007).*

Police officer discharged from employment for allegedly stealing $160 from an arrestee was not deprived of any Fourth Amendment interest by the City requiring production of two days worth of bank records from him. Westbrook v. City of Omaha, 231 Fed. Appx. 519 (8th Cir. 2007)* (unpublished):

In this case, Omaha’s intrusion began with a citizen complaint that Westbrook took money and wagered at a casino the next day, considered with his assertion of usually withdrawing money from an ATM before wagering. The scope of the intrusion was an order for two-days’ record of Westbrook’s banking, to which he complied. Under these circumstances, neither the inception nor the scope of intrusion was unreasonable. The investigation’s purpose was to determine employee, work-related misconduct, and not criminal prosecution. See Uniformed Sanitation Men Ass’n, Inc. v. Comm’r of Sanitation, 392 U.S. 280, 284, 88 S. Ct. 1917, 20 L. Ed. 2d 1089 (1968) (citing Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967), and stating “that testimony compelled by threat of dismissal from employment could not be used in a criminal prosecution of the witness”). Thus, the district court did not err in granting summary judgment on the Fourth Amendment claim.

Plaintiff stated a claim for excessive force for his arrest, and the right was clearly established, but he loses on qualified immunity because the officers would not clearly know that they violated his rights. Humphrey v. Mabry, 482 F.3d 840 (6th Cir. 2007).*

Defense counsel could not be ineffective for not raising what was, for all intents and purposes in the habeas petition, a frivolous ground to suppress. The search was clearly legal. United States v. Ball, 2007 U.S. Dist. LEXIS 23426 (M.D. Fla. March 30, 2007).*

Civil rights case was barred by Heck because it sought to negate an element of the crime that plaintiff was convicted of. Houston v. Buffa, 2007 U.S. Dist. LEXIS 23532 (E.D. Mich. March 30, 2007):

The court finds that, applying the rule of Heck to the facts of this case, Houston cannot proceed on either of his claims under § 1983. The fourth element of Interference with Police, as charged by the trial court, is that “the officer was then carrying out lawful duties.” (Tr. at 213.) In order to proceed on either of Houston’s claims, he would have to negate one element of the offense, thereby calling into question the validity of his conviction.

In Houston’s underlying criminal trial, the parties presented two competing versions of the events of January 27, 2003. Under Houston’s version, the police officers arrived at the club and immediately, without explanation, rationale or probable cause, placed him in handcuffs, took him into a back room and, without any provocation or motivation whatsoever, proceeded to beat him while he was still handcuffed. This is the exact factual scenario upon which Houston’s § 1983 claims are based. Conversely, under the prosecution’s version, Houston initially consented to speak with them in a back room but, on the way to the room, Houston began an altercation which essentially did not end until the police eventually got him to the back room and, after continued struggle, placed him in handcuffs and took him to the station. This is the exact factual scenario upon which the Officers’ § 1983 defense is based.

Reasonable suspicion ripened into probable cause when a gun was found during a patdown. United States v. Johnson, 2007 U.S. Dist. LEXIS 23119 (D. Del. March 29, 2007).*

Assuming, without deciding, that defendant did not receive a copy of the inventory of the seizure (and the evidence tended to indicate that he did not), the court would not suppress the search under Hudson because this is not a constitutional defect that the exclusionary rule was designed for. United States v. Makki, 2007 U.S. Dist. LEXIS 27034 (E.D. Mich. April 12, 2007):

Here, as in Hudson, given that a valid search warrant entitled the agents to look for the items listed on Attachment A at the Medical Office and the Residence, “[r]esort[ing] to the massive remedy of suppressing evidence of guilt is unjustified.” Hector, 474 F.3d at 1155 (quoting Hudson, 126 S. Ct. at 2168). Regardless of whether the agents had shown Defendant the search warrant, they would have executed it and found the items seized inside the Medical Office and the Residence. Therefore, “while the acquisition of the [evidence seized by the agents] was the product of a search pursuant to a warrant, it was not the ‘fruit of the fact’ that the [agents failed to provide Defendant with a list of items to be seized].” Hudson, 126 S. Ct. at 2169.

In addition, the causal connection between any failure to provide Defendant with a list of the items to be seized and the evidence actually seized is

“highly attenuated, indeed non-existent, in this case. … [as] the only legitimate interest served by the presentation of [the list of items to be seized] … is to head off breaches of the peace by dispelling any suspicion that the search is illegitimate. … This interest does not implicate the seizure of evidence described [in the list of items to be seized] in the search warrant nor would it be vindicated by suppression of the evidence seized.”

Hector, 474 F.3d at 1155.

Accordingly, in light of the rationale of the exclusionary rule and the considerations set out by the Supreme Court in Hudson, the Court concludes that suppression of the evidence in this case would not be an appropriate remedy.

Detention at gunpoint and with handcuffs does not per se turn a stop on reasonable suspicion into an arrest. United States v. Valenzuela, 231 Fed. Appx. 785 (10th Cir. 2007)* (unpublished):

The officer’s conduct in this case did not exceed the scope of a Terry stop under the circumstances and was reasonable at all times. We have previously held a Terry stop does not necessarily become unreasonable because officers draw their weapons and point them at a subject. See United States v. Shareef, 100 F.3d 1491, 1506 (10th Cir. 1996); see also Neff, 300 F.3d at 1220. “[T]he use of guns in connection with a stop is permissible where the police reasonably believes the weapons are necessary for their protection.” Perdue, 8 F.3d at 1462. In holding the use of firearms reasonable under certain circumstances, we noted that “[w]henever the police confront an individual reasonably believed to present a serious and imminent danger to the safety of the police and public, they are justified in taking reasonable steps to reduce the risk that anyone will get hurt.” United States v. Merritt, 695 F.2d 1263, 1274 (10th Cir. 1982).

Defendant consented to entry of the officers, and he was arrested. A protective sweep was then justified. “Consequently, officers were constitutionally entitled to seize the incriminating evidence found in plain view during the protective sweep.” United States v. James, 2007 U.S. Dist. LEXIS 27278 (D. Kan. April 11, 2007).*

Officers passing through an unlocked gate to get to defendant’s front door for a knock and talk was not a violation of the Fourth Amendment. United States v. Otero, 231 Fed. Appx. 809 (10th Cir. 2007)* (unpublished).

Under the totality of circumstances, the encounter between the defendant and the officer in a city park was voluntary and led to consent. State v. Young, 37 Kan. App. 2d 700; 157 P.3d 644 (2007).*

Officer had exigent circumstances, the factual basis of which are not explained, for entering premises to search for pseudophedrine which he found was being flushed after he knocked [it would be better if there was evidence mentioned that the officer actually heard the flushing]. Layton v. Commonwealth, 2007 Ky. App. LEXIS 134 (May 4, 2007) (maybe unpublished, following Britt v. Commonwealth, 2006 WL 141590 (Ky. Jan. 19, 2006) (unpublished), which is supposed to be exactly the same.*

Defendant was detained on suspicion of burglary. A patdown produced a watch. Taking the defendant to the police station to determine whether the watch was stolen was an unreasonable extension of the detention without reasonable suspicion. Even the patdown was unreasonable. State v. Boyce, 2007 Ohio 2131, 2007 Ohio App. LEXIS 2011 (2d Dist. May 4, 2007).*

Utah holds that a state constitutional challenge, that it stresses that it would have welcomed, was waived by defense counsel’s failure to develop the issue at trial and on appeal. State v. Worwood, 2007 UT 47, 164 P.3d 397, 581 Utah Adv. Rep. 8 (2007):

[*P14] We would have welcomed an analysis under article I, section 14 of the Utah Constitution; however, we find Worwood’s state constitutional claim to be procedurally barred and inadequately briefed. We have repeatedly instructed counsel on the consequences of failing to properly preserve and develop a state constitutional law claim. Still, this instruction bears repeating, given the frequency with which these claims are inadequately briefed before this court.

[*P15] When interpreting state constitutional provisions that are similar or identical to those in the federal constitution, we encourage a primacy approach. Under the primacy model, “‘a state court looks first to state constitutional law, develops independent doctrine and precedent, and decides federal questions only when state law is not dispositive.'”

[*P16] In developing an independent body of state search and seizure law, we have held that article I, section 14 of the Utah Constitution often provides greater protections to Utah citizens than the Fourth Amendment, despite nearly identical language. In order to further develop state constitutional law, however, claims must be properly presented to this court. In criminal cases, “‘specific preservation of claims of error must be made a part of the trial court record'” before the issue can be heard on appeal. The issue must be “‘raised to a level of consciousness'” that allows the trial court an adequate opportunity to address it. It follows, then, that perfunctorily mentioning an issue, without more, does not preserve it for appeal. Although inapplicable in this case, a court may consider an unpreserved issue when plain error is apparent or in an exceptional circumstance. Furthermore, in part on the basis of the principle that preservation requires the lower court to be cognizant of a discreet issue, we have repeatedly refrained from engaging in state constitutional law analysis unless “an argument for different analyses under the state and federal constitutions is briefed.” (footnotes omitted)

Inevitable discovery supported admission of evidence found during police entry while a search warrant was being obtained. Officers saw a “bound, motionless body” through a motel room window, and they sought a search warrant, but entered before the warrant issued. Teal v. State, 282 Ga. 319, 647 S.E.2d 15 (2007)*:

In the case before us, the information summarized above contained in the affidavit in support of the application for the search warrant for the motel room had been gathered prior to the illegal entry of the GBI crime scene investigator into the room. We conclude that the State established that the evidence in question would have been discovered by lawful means, and the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the illegal conduct, since the investigation that took place prior to the police error or illegal conduct resulted in information that served as the basis for issuance of a search warrant. Accordingly, we conclude the trial court did not err when it admitted the evidence.

Defendant’s flagging down cars, including the unmarked police car, and having people jumping in and out of his car, was indicative of drug dealing. That gave the officers reasonable suspicion to stop and detain him. Nothing else, however, gave them probable cause to search. State v. Hunter, 2007 Tenn. Crim. App. LEXIS 584 (July 23, 2007):

According to the officer’s testimony, the defendant was pulled over for “known drug activity.” The “known drug activity,” however, amounted to the defendant sitting in his car off to the side of the street and having brief encounters with two women. The women were not observed leaving the defendant’s vehicle carrying anything, the women were not identified as known drug users, and Officer Stokes admitted that he could not see inside the defendant’s vehicle to ascertain what was going on inside. Officer Stokes also admitted that law enforcement had not received complaints about the defendant as one being involved in drug activity. Officer Stokes’ observations, while sufficient to stop the defendant for further investigation, were not sufficient to make a warrantless arrest and search of the defendant and his property. Accordingly, we conclude that the trial court erred in denying the defendant’s motion to suppress the drug evidence obtained during the search of the defendant’s vehicle and dismiss the case against the defendant.

Vehicle left in an intersection where owner could not be immediately located could be towed and impounded. Inventory thereafter was lawful and not pretextual. State v. Resnick, 2007 Ohio 3717, 2007 Ohio App. LEXIS 3400 (12th Dist. July 23, 2007).*

Defendant’s refusal to identify himself when stopped violated Washington statute, and Hiibel forecloses his argument that he could not be convicted of that offense. The DVD of the stop was admissible despite the defense argument an inference was raised defendant was hiding something. State v. Stratton, 139 Wn. App. 511, 161 P.3d 448 (2007).*

Defendant’s arrest was valid under state law, but, even if it was not, the Fourth Amendment exclusionary rule applies to constitutional violations, not state law violations, and this is the majority rule. United States v. Planells-Guerra, 2007 U.S. Dist. LEXIS 62417 (D. Utah August 23, 2007)*:

Most courts hinge the validity of searches incident to arrest and the application of the exclusionary rule on whether the arrest violated federal Fourth Amendment principles, not state law. 22 Consequently, when an officer has probable cause to make an arrest and the arrest does not otherwise offend constitutional principles, the resulting search incident to arrest does not violate the Fourth Amendment even where the officers lack authority to make the arrest under state law.

Factual disputes preclude summary judgment in false arrest and excessive force case, and that includes qualified immunity. Parris v. Huttie, 2007 U.S. Dist. LEXIS 62233 (W.D. Mo. August 21, 2007).*

Warrantless entry in a homicide case was based on probable cause and exigent circumstances, so summary judgment was granted the defendants on most of the claims. Curiel v. County of Contra Costa, 2007 U.S. Dist. LEXIS 62032 (N.D. Cal. August 13, 2007).*

Defendant’s mother, who primarily spoke Portugese, consented to an entry that led to removal of a minor female from her son’s room where she was found with the door open. The court finds that she understood enough English to consent because she was answering questions at the suppression hearing before the question was finished. Commonwealth v. Costa, 69 Mass. App. Ct. 823, 872 N.E.2d 750 (2007).*

Defendant was ordered out of a car and frisked. The state argued that it was valid as a search incident, but he was not arrested until much later. Because the search was not even “roughly contemporaneous” with the arrest, the search incident doctrine could not be relied upon. Commonwealth v. Washington, 449 Mass. 476, 869 N.E.2d 605 (2007):

Because there was probable cause to arrest, the motion judge upheld the search as one incident to an arrest. The problem with this analysis is that the defendants were not arrested at the time of the search or at a time “substantially contemporaneous” thereto. New York v. Belton, 453 U.S. 454, 465, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). See Commonwealth v. Alvarado, 420 Mass. 542, 554, 651 N.E.2d 824 (1995). The judge noted correctly that a suspect need not be formally under arrest at the precise moment of a search incident to an arrest; the search may precede the formal arrest so long as probable cause exists independent of the results of the search. Commonwealth v. Johnson, 413 Mass. 598, 602, 602 N.E.2d 555 (1992). However, the search and the arrest still must be roughly contemporaneous. See Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980) (formal arrest “followed quickly on the heels” of search); Commonwealth v. Brillante, 399 Mass. 152, 154 n.5, 503 N.E.2d 459 (1987) (formal arrest “immediately after” search). Compare Commonwealth v. Alvarado, supra (search two hours after arrest not incident to arrest). A search incident to an arrest is a limited exception to the warrant requirement, justified by “the need ‘to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape’ and the need to prevent the concealment or destruction of evidence.” New York v. Belton, supra at 457, quoting Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). To permit a search incident to arrest where the suspect is not arrested until much later, or is never arrested, would sever this exception completely from its justifications. See Commonwealth v. Alvarado, supra. It would, in effect, create a wholly new exception for a “search incident to probable cause to arrest.” This we decline to do.

The court also held that mere drug involvement does not warrant a frisk for weapons:

Yet while drug involvement certainly may be a relevant factor in assessment of threats to police safety, we are reluctant to adopt a blanket rule that all persons suspected of drug activity are to be presumed armed and dangerous for constitutional purposes. See Commonwealth v. Rodriguez, 415 Mass. 447, 450, 614 N.E.2d 649 (1993) (fact that drugs are involved is insufficient, in itself, to justify “no-knock” warrant). Thus, we do not uphold the search on this basis.

Affidavit for search warrant did not show nexus to the place to be searched other than a vehicle in the driveway noted to belong to a person with the same last name. That person was the defendant’s father. The court decides that this was not a sufficient transgression to suppress. The police knew that the owner of the vehicle was the defendant’s father, and that showed nexus sufficient to save the search warrant under the good faith exception. The warrant was also not unparticular because it sought records related to bomb making, not all records. Defendant was a suspect in making bomb threats. People v. Osantowski, 274 Mich. App. 593, 736 N.W.2d 289 (2007):

However, this transgression is minor. Goldston, supra at 529-530. If the affidavit had noted that Marvin Osantowski was defendant’s father, then defendant would have been sufficiently linked to the location to be searched. The Clinton Township Police Department knew that Marvin Osantowski was defendant’s father, as they both had been arraigned on unrelated charges the morning the search warrant was obtained and executed. In fact, the affidavit’s failure in this instance is merely a good-faith oversight and not the product of police misconduct. Accordingly, the stated purpose of the exclusionary rule, to deter police misconduct, would not be served by applying the rule on the basis of the affidavit’s identified deficiency. Goldston, supra at 530. Therefore, the items seized need not be suppressed. Id. at 526.

Defendant’s conclusory motion to suppress which was not accompanied by an offer of proof or a list of witnesses did not overcome the government’s response which showed justification for the stop and search, so motion denied. United States v. Valdez, 2007 U.S. Dist. LEXIS 51312 (W.D. La. June 18, 2007).*

Landlord’s right to inspect leased premises does not permit him to admit law enforcement officers to aid in the inspection. Blanchard v. Lonero, 2007 U.S. Dist. LEXIS 78506 (E.D. La. October 22, 2007):

The lease does give the landlord the right to inspect the property during regular business hours; however, the lease does not authorize the landlord to consent to a search of the premises by law enforcement personnel. Courts have consistently recognized that a landlord does not have authority to admit others to a premises without the consent of the tenant. See Chapman v. United States, 365 U.S. 610, 616, 81 S.Ct. 776, 779-80, 5 L.Ed.2d 828 (1961); see also Georgia v. Randolph, 547 U.S. 103, 111, 126 S. Ct. 1515, 1522, 164 L. Ed. 2d 208 (2006). Because the Loneros’ contractual right to inspect the property did not extend to the right to admit law enforcement officers to search the property, the motion to dismiss is denied.

Plaintiff refused to stop, so he was not seized by the defendant officers. Lewis v. Wilcox, 2007 U.S. Dist. LEXIS 78450 (M.D. Ga. October 22, 2007).*

Park ranger during a traffic jam heard a commotion from one vehicle and went to see about it and asked general questions. It was merely a consensual encounter. Then he reasonably suspected the occupants were under the influence, and he saw an open container in violation of 36 C.F.R § 4.14(b). United States v. Ownby, 2007 U.S. Dist. LEXIS 78288 (E.D. Tenn. October 19, 2007).*

Reviewing the videotape of defendant’s driving, the court cannot conclude that the officer had reasonable suspicion for the stop. United States v. Pace, 2007 U.S. Dist. LEXIS 78286 (E.D. Tenn. October 18, 2007).*

2255 petitioner did not show that defense counsel was ineffective for not moving to suppress consent granted by one with apparent authority when the moving papers and affidavit in support did not mention that defense counsel was ever informed of this, even if it was meritorious, which the court does not accept. Smith v. United States, 2007 U.S. Dist. LEXIS 78272 (E.D. N.C. October 17, 2007).*

A repo man with the paperwork showing the authority to repossess a car for the lienholder when the payments have not been made has apparent authority to consent to a search of the vehicle. United States v. Alexander, 2007 U.S. Dist. LEXIS 62747 (W.D. Wis. August 24, 2007) (R&R), 2007 U.S. Dist. LEXIS 65616 (W.D. Wis. September 5, 2007) (R&R adopted):

The government has met its burden of persuasion in the instant case by establishing that Bowman had the apparent authority to consent to this search. Wisconsin law authorizes self-help for repossession of personal property so long as there is no breach of the peace. Although the government observes that state law is irrelevant to determining the reasonableness of a search, in this case, state law on property repossession is relevant to determining whether it was reasonable for the police to believe Bowman had authority to consent to the search. Along these lines, Alexander argues that the government has not established that Fjelstad actually had defaulted on her car loan, thus giving Bowman actual authority to repossess her car. See Reply, dkt. 37, at 1-2. This reliance on an upstream fact might seem fastidious, but it’s a valid point: the record does not reflect that Officer Nale personally verified the accuracy of Bowman’s representations. Even so, the police reports, exhibits and hearing testimony sufficiently establish that it was reasonable for Officer Nale and his colleagues to rely on Bowman’s apparent authority to repossess the Buick and then to consent to a police search. Bowman had sought out police assistance and he shared his paperwork with them showing the repossession order that had been placed for the car. Obviously the MPD has received similar requests in the past, since it had assigned its officers to assist Bowman. Therefore, it was reasonable for WCPT officers to conclude that Bowman was authorized to repossess the Riviera.

Comment: As stated in footnotes to § 8.37 of the Treatise, apparent authority to consent is the good faith exception in action in a warrantless search.

Post-conviction petitioner could not claim the benefit of a decision that came down after his conviction that sufficiently changed the law such that he might have prevailed if he had raised the issue first. Defense counsel is not expected to forecast changes in the law as significant as happened. It was reasonable to have not made the motion at the time, and he would not have prevailed at the time. Moore v. State, 872 N.E.2d 617 (Ind. Ct. App. 2007):

We agree with the State that both Flaherty and Figert are distinguishable and do not presage the holding in Merritt. In Flaherty, a police officer drafted a probable cause affidavit for the search of a specific apartment unit allegedly controlled by the Flahertys based on a controlled buy performed by a confidential informant. The affidavit stated only that the informant entered the apartment building and emerged five minutes later with marijuana. Following their convictions for possession of LSD and marijuana, the Flahertys challenged the sufficiency of the affidavit. Judge Miller noted that the affidavit “made no attempt to establish the informant’s reliability” and framed the issue as

whether the affidavit itself, without additional information or testimony presented after the search warrant is executed, alleges sufficient facts upon which the issuing authority could have made an independent determination of probable cause. Here, the affidavit left to the speculation of the magistrate whether or not the informant actually entered Apartment # 72. If we were to uphold the search warrant in this case, we would be sanctioning the search of any apartment unit merely upon an officer’s observation of an unreliable informant entering an apartment lobby. We decline to do so and hold the affidavit insufficient.

443 N.E.2d at 341, 343 (footnote omitted).

. . .

In the instant case, as the State points out, Officer Santa’s affidavit “established that a reliable informant was present inside the home to be searched. It further established that the informant knew what cocaine looked like, that there was cocaine in the home, and that someone inside the home wanted to sell that cocaine.” Appellee’s Br. at 9. As such, we disagree with Moore’s contention that Flaherty and Figert “could have formed the basis for a successful Motion to Suppress.” Appellant’s Reply Br. at 4. Moreover, as the State correctly observes,

at the time of the Merritt ruling, there was no precedent requiring an affidavit to state information indicating that a drug dealer frequents, resides or is concealing drugs at a house even though the affidavit sufficiently states that a reliable source had bought [or, more accurately, had an opportunity to buy] drugs from the drug dealer at [a] specifically described house within the past seventy-two hours.

Appellee’s Br. at 7. Accordingly, we conclude that Moore has failed to establish by a preponderance of the evidence that his trial counsel was ineffective in failing to file a motion to suppress, i.e., that such a motion would have been successful. Wales, 768 N.E.2d at 523. We therefore affirm the denial of Moore’s petition for post-conviction relief.

Comment: And the court said retroactivity will be determined in another case when the issue is ripe.

Class certification denied in a claim for racial profiling of African-American males seeking DNA samples to solve a serial rape case because the lead plaintiff had become sufficiently acquainted with one of the defendants that it was doubtful he could vigorously pursue the claim. Monroe v. City of Charlottesville, 2007 U.S. Dist. LEXIS 63013 (W.D. Va. August 27, 2007)*, later order 2007 U.S. Dist. LEXIS 67444 (W.D. N.C. September 12, 2007).*

Connecticut follows majority rule and decides that, although the state constitution is read more broadly than the Fourth Amendment, on full consideration of all aspects of the argument, the state will not adopt an automatic standing rule, noting the jurisdictions which hold for and against the proposition. State v. Davis, 283 Conn. 280, 929 A.2d 278 (2007).

Comment: This was not a rubberstamping of the state’s argument. This is a thorough and thoughtful analysis of whether automatic standing should be adopted, and it balances several factors and policy considerations and discusses at length Jones, Rakas, and Salvucci and other states’ opinions.

A defendant who fled in the 90’s and left his codefendant for trial, and the co-defendant lost at trial but won his search issue on appeal, could not plead law of the case because the evidence at the trials was different. But, it does not matter because he was a non-passenger, non-driver of the vehicle that was searched, and he has no standing. United States v. Avelar, 2007 U.S. Dist. LEXIS 53434 (N.D. Tex. July 23, 2007)*:

Avelar relies on Rivas [the co-defendant’s case] to argue that, because the Fifth Circuit has determined that the government did not satisfy its burden of establishing that it had reasonable suspicion to conduct a non-routine border search when the drug canine merely “cast” on Rivas’ vehicle, this court is bound to follow the reasoning of Rivas and grant his motion. But Avelar has not adduced evidence, or even argued, that he personally had an expectation of privacy in the tractor and car hauler that Rivas was driving or that any such expectation was reasonable. Furthermore, it is undisputed that Avelar was neither the driver nor a passenger in the tractor, or that he was even present at the Los Indios Port of Entry at the time of the search.

Accordingly, the court holds that Avelar has not met his burden of establishing that his own Fourth Amendment rights were violated when U.S. Customs officials searched Rivas’ vehicle at the border. The Fifth Circuit’s decision in Rivas is inapposite, because Rivas did have standing to challenge the seizure (as fruit of the poisonous tree) that stemmed from a warrantless, non-routine border search of the vehicle he had driven across the border. (bracketed material added)

Defendant lacked standing to challenge the search of a sparse apartment that was only being used for a drug operation because he could not show any legitimate connection to the property, such as being a guest with permission to be there. He was apparently just a trespasser. But, if he wasn’t, he loses under Carter. United States v. Thornton, 493 F. Supp. 2d 1024 (S.D. Ohio 2007):

Herein, Thornton failed to present any evidence that he had a legitimate or reasonable expectation of privacy in 2316 Eastview Avenue. For instance, there is no evidence that he was the owner or lessee of that location or even that he was on the premises as a result of permission granted by the person having authority over that house (i.e., its owner or lessee). Moreover, there was no evidence that the Defendant or anyone else was living at that address or had even stayed there overnight. There were no beds, blankets, pillows or sheets therein. Indeed, given that the house was sparsely furnished with no pots or pans in the kitchen and the only food in the refrigerator being left over fast food, this Court finds that 2316 Eastview Avenue was not serving as a residence or a place to sleep overnight for anyone. On the contrary, the quantity of drugs and drug paraphernalia seized at that location cause this Court to find that it was being utilized as a commercial establishment related to the distribution of powdered and crack cocaine. Consequently, like the defendant in Talley, Thornton did not have a legitimate or reasonable expectation of privacy in 2316 Eastview Avenue. Moreover, in the absence of evidence that Thornton was inside the house at 2316 Eastview Avenue with the permission of the person having authority over it, this Court must conclude that he was a trespasser. The Sixth Circuit has held that trespassers do not have a legitimate expectation of privacy in the place on which they are trespassing. United States v. Hunyady, 409 F.3d 297 (6th Cir.), cert. denied, 126 S.Ct. 810 (2005). See also, United States v. McRae, 156 F.3d 708, 711 (6th Cir. 1998) (holding that a defendant who had been living in a vacant house for approximately one week failed to demonstrate that he had a legitimate expectation of privacy). However, even if the evidence had established that Thornton was at 2316 Eastview Avenue with the permission of its owner, this Court would nevertheless conclude that, in accordance with Carter, supra, he lacked a legitimate expectation of privacy in that location, since, like the defendants in Carter, Thornton was at 2316 Eastview Avenue in order to engage in a commercial activity relating to the distribution of controlled substances, i.e., the sale and/or purchase of drugs.

ATF agents, acting on the word of a concerned citizen that defendant was a felon in possession of a fiream, came to defendant’s house acting as real estate investors, and they went through the house and found a gun case and felt it, feeling a gun. (1) The entry into the closet and feeling the gun was beyond the scope of consent and an unlawful search. (2) The good faith exception did not apply because the search warrant had not yet issued. (3) Stripped of the unlawful search, the affidavit for the search warrant still provided probable cause, so suppression was not warranted. United States v. Lord, 230 Fed. Appx. 511 (6th Cir. 2007) (unpublished):

The government responds that Agents Allen and Weaks “were invited to examine the residence and the closets by the defendant.” Although this is an accurate factual description of the circumstances surrounding the June 8 search, nothing in the record supports the government’s implication that Lord’s consent to look inside his bedroom closet extended to the examination of the contents of a closed case inside the closet. Our court has held that, in ascertaining the scope of a consent to search, a reviewing court considers what “the typical reasonable person [would] have understood by the exchange between the officer and the suspect.” United States v. Garrido-Santana, 360 F.3d 565, 576 (6th Cir. 2004). We think it unlikely that a reasonable person would understand Lord’s consent to two men he believed to be prospective home buyers to encompass the “squeez[ing] and grab[bing]” of a closed case in his bedroom closet. We accordingly reject the government’s suggestion that Lord’s consent to examination of his closet extended to the handling of closed storage containers in the closet. Under Bond and Waller, Agent Weaks’s actions in squeezing the case constituted an unlawful search, the fruits of which must be excluded unless some exception to the exclusionary rule applies.

The government contends that the district court properly admitted the evidence obtained as a result of Agent Weaks’s actions under the good faith exception to the exclusionary rule. The government’s invocation of the good faith exception is inappropriate here, as the search it seeks to justify occurred prior to the issuance of a warrant, and there was, therefore, no warrant on which the agents could have relied in searching Lord’s home. See United States v. Leon, 468 U.S. 897, 913, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (adopting good faith exception to exclusionary rule where police seize evidence in reasonable reliance on a warrant issued by a detached and neutral magistrate); United States v. Jenkins, 396 F.3d 751, 761 (6th Cir. 2005) (noting that government’s reliance on good faith exception was “erroneous” where illegal search in question “occurred before the warrant was issued, and thus the [seized evidence] could not be admissible under a doctrine that requires reasonable reliance on a warrant”).

The independent source doctrine is a more appropriate basis for the resolution of this case. Under that rule, the presence of unlawfully secured information in a search warrant affidavit does not necessarily make a subsequently obtained warrant invalid. See id. at 758. Instead, a court reviewing a request for the suppression of evidence seized during the execution of a warrant issued on the basis of an affidavit containing both (1) information acquired during an unlawful search and (2) lawfully obtained, “untainted” information must evaluate “the sufficiency of the untainted affidavit to see if probable cause exists without the tainted information.” Id. at 760 (interpreting rule announced in Murray, 487 U.S. at 537-38). “If the application for a warrant contains probable cause apart from the improper information, then the warrant is lawful and the independent source doctrine applies, providing that the officers were not prompted to obtain the warrant by what they observed during the initial entry.” Id. at 758 (internal quotation marks omitted).

We turn our attention, then, to the representations Agent Allen made in his July 15 affidavit, disregarding the affidavit’s claim that, when Agent Weaks squeezed the case, he “felt a hard object that appeared to be a rifle or a shotgun.” Stripped of that information, the affidavit consists of the reports provided by the “concerned citizen” to Agent Allen on February 23, 2004, and July 6, 2004, concerning Lord’s possession of a firearm and Agent Weaks’s observation of a “soft long-gun case” inside Lord’s closet.

Defendant’s traffic stop was valid, and he fled. His flight justified an arrest that further justified a search incident. United States v. Patrick, 2007 U.S. Dist. LEXIS 30347 (D. Mass. April 25, 2007).*

Plaintiff’s allegation of excessive force was insufficient to put defendants on notice, so plaintiff allowed to amend complaint. Reed v. City of San Diego, 2007 U.S. Dist. LEXIS 30420 (S.D. Cal. April 24, 2007):

Because the Fourth Amendment test for reasonableness is inherently fact-specific, see Chew v. Gates, 27 F.3d 1432, 1443 (9th Cir. 1994) (citing Reed v. Hoy, 909 F.2d 324, 330 (9th Cir. 1989)), it is a test that escapes “mechanical application” and “requires careful attention to the facts and circumstances of each particular case.” Graham, 490 U.S. at 396; Fikes v. Cleghorn, 47 F.3d 1011, 1014 (9th Cir. 1995). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. In all, police officers are not required to use the least intrusive degree of force possible; they are required only to act within a reasonable range of conduct. See Forrester v. City of San Diego, 25 F.3d 804, 806 (9th Cir. 1994). In fact, the officer’s right to make an arrest necessarily includes the right to use some degree of force. Graham, 490 U.S. at 396; Cunningham v. Gates, 229 F.3d 1271, 1290 (9th Cir. 2000) While Plaintiff need not allege evidentiary facts, she must at least allege, at a minimum, that excessive force was used on her, when, and by whom, if known. Absent such minimal allegations, County is unable to prepare an adequate answer and to investigate any alleged incident of excessive force.

“We are presented with a question this court has not yet resolved: Does a license plate check by a law enforcement officer that reveals information about a person’s car ownership, driver status and criminal record constitute a search under the Fourth Amendment? We agree with all the other courts that have considered the issue that it does not. We therefore hold that Defendant Ismael Diaz-Castaneda’s Fourth Amendment rights were not violated when a Clackamas County Deputy Sheriff stopped the truck in which Diaz-Castaneda was a passenger, asked him for identification and checked his driver’s license or Oregon identification card with radio dispatch. Accordingly, we affirm the district court’s denial of Diaz-Castaneda’s motion to suppress.” Defendant had standing to challenge the stop, but there was no Fourth Amendment claim in looking at a license plate. United States v. Diaz-Castaneda, 494 F.3d 1146 (9th Cir. 2007):

We agree that people do not have a subjective expectation of privacy in their license plates, and that even if they did, this expectation would not be one that society is prepared to recognize as reasonable. Cf. Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring) (setting forth criteria for searches under Fourth Amendment). First, license plates are located on a vehicle’s exterior, in plain view of all passersby, and are specifically intended to convey information about a vehicle to law enforcement authorities, among others. No one can reasonably think that his expectation of privacy has been violated when a police officer sees what is readily visible and uses the license plate number to verify the status of the car and its registered owner. See Ellison, 462 F.3d at 561-62. Second, a license plate check is not intrusive. Unless the officer conducting the check discovers something that warrants stopping the vehicle, the driver does not even know that the check has taken place. See Walraven, 892 F.2d at 974. Third, the Supreme Court has ruled that people have no reasonable expectation of privacy in their vehicle identification number (VIN), which is located inside the vehicle but is typically visible from the outside. See New York v. Class, 475 U.S. 106, 113-14, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986). If it was not a Fourth Amendment search when the police officers in Class opened a car’s door and moved papers obscuring the VIN, it surely also was not a search when Helzer ran a computerized check of Diaz’s license plate.

Implausible travel plans coupled with defendant’s shaking so badly she could not hold the papers was reasonable suspicion. United States v. Contreras, 2007 U.S. App. LEXIS 17009 (10th Cir. July 18, 2007).*

Second consent was an intervening act of free will, even assuming the police exceeded the bounds of his consent to the first entry [something not at all clear]. Defendant was a suspect in possessing 2 tons of marijuana in a house. United States v. Chavez-Barraza, 2007 U.S. App. LEXIS 16971 (5th Cir. July 17, 2007):

Although the presumed violation and the second consent were temporally close, the remaining two factors favor a finding that Chavez-Barraza’s second consent was an independent act of free will. After the search, Chavez-Barraza was given the option to stay at Twig Road and chose to accompany the police to the Lettunich Street property. Chavez-Barraza’s knowledge that he was free to leave, coupled with his decision not to do so, indicate that his subsequent consent was an independent act of free will. Cf. United States v. Jenson, 462 F.3d 399, 407 (5th Cir. 2006) (noting that there was “no evidence that [the defendant] knew he was free to leave,” while rejecting the government’s argument for a break in the causal chain).

Furthermore, the violation here, if indeed a violation occurred, was not flagrant. Chavez-Barraza does not dispute that he gave the officers a broad written consent to search the Twig Road residence for “contraband or other evidence of drug trafficking,” but rather contends that his personal papers were not included in the scope of that consent, and that Officer Triana unlawfully seized the mortgage statement by placing it in his pocket and carrying it outside. This conduct was “at worst a minor and technical invasion of [Chavez-Barraza’s] rights.” United States v. Sheppard, 901 F.2d 1230, 1235 (5th Cir. 1990). We therefore conclude that Chavez-Barraza’s consent was an intervening act of free will that broke the causal chain.

“Premises” in a search warrant includes a garage and the probable cause extended to the garage under the description of the offense under investigation. It did not, however, extend to the defendant’s house based solely on the officer’s conclusion that “it is common” for drugs or drug transaction records to be found in the house. People v. Eirish, 165 P.3d 848 (Colo. App. 2007):

While an officer’s “training and experience” may be considered in determining probable cause, such training and experience cannot substitute for an evidentiary nexus, prior to the search, between the place to be searched and any criminal activity. See United States v. Schultz, 14 F.3d 1093 (6th Cir. 1994); United States v. Benevento, 836 F.2d 60 (2d Cir. 1987), abrogated on other grounds by United States v. Indelicato, 865 F.2d 1370 (2d Cir. 1989); see also United States v. Nolan, 199 F.3d 1180, 1183 (10th Cir. 1999)(“we have never held that the mere observation of repetitive illegal drug activity outside a suspect’s residence by itself is sufficient to establish probable cause for a search of the suspect’s residence”).

A division of this court has found that a companion’s possession of methamphetamine while standing in the defendant’s detached garage did not justify a search of the defendant’s residence. See People v. Bachofer, supra. Likewise, other jurisdictions have found that probable cause did not exist to search a person’s home because visitors were suspected of drug activity. See United States v. Huguez-Ibarra, 954 F.2d 546 (9th Cir. 1992)(no probable cause to search residence for drugs merely because officers observed known drug runners visiting property without observing drug items taken into residence); State v. Thieling, 2000 ND 106, 611 N.W.2d 861 (N.D. 2000)(no probable cause to search residence for drugs merely because some of defendant’s visitors were suspected of drug activity); see also State v. Ratzlaff, 255 Kan. 738, 877 P.2d 397 (Kan. 1994) (although police verified informant’s claim that large-scale drug operation was in progress, no probable cause to search defendant’s residence because no showing that defendant was involved).

The affidavit in this case alleged that during the controlled drug transaction the broker entered only the garage on a rural property. This garage was located fifty to sixty yards from defendant’s home, and the affidavit does not allege any criminal activity in the home itself or by the residents of the home. In addition, the affidavit fails to connect the broker to the residence beyond the officer’s observation of his entrance onto the property. See Mills v. City of Barbourville, 389 F.3d 568 (6th Cir. 2004)(no probable cause because affidavit did not connect residence to illegal activity or even state that person engaged in such activity lived there); State v. Buccini, 167 Ariz. 550, 810 P.2d 178 (Ariz. 1991)(no probable cause to search defendant’s home because lack of evidence linking items sought with the particular suspected criminal activity); State v. Jackson, 380 So. 2d 616 (La. 1980)(even if highly probable that defendant had weapon in residence, search warrant invalid because no evidence of that weapon or the defendant was connected to crime).

Police raided the wrong house at 6 a.m. (336 v. 338). As soon as they realized their mistake, they withdrew without explanation or apology. Under Maryland v. Garrison, they are supposed to withdraw as soon as they realize their mistake. No liability for searching the wrong house, and qualified immunity protects them from suit. Closure v. Onondaga County, 2007 U.S. Dist. LEXIS 8947 (N.D. N.Y. February 7, 2007). Comment: No mention here of the “plainly incompetent” language from Malley v. Briggs. This is a remarkable and unsettling case.

Search incident to a vehicle the defendant had just gotten out of and fled from was proper because there was probable cause to arrest him. United States v. Polanco, 2007 U.S. Dist. LEXIS 8943 (D. V.I. January 25, 2007).*

Where defendant did not request findings of fact and conclusions of law and the trial court did not make any in denying a motion to suppress, the issue could still be determined on appeal from the record of the hearing. Defendant’s wife’s intoxication did not prevent her from consenting on the totality of the circumstances. State v. Hahn, 2007 Ohio 557, 2007 Ohio App. LEXIS 515 (5th Dist. February 7, 2007).*

An uncorroborated tip from a 911 caller stating that a person is wanted by the police cannot form the basis for reasonable suspicion for the police to conduct a stop of that person. The only fact that could be corroborated by the stop was the defendant’s name, dress, and location. No unlawful conduct was observed. The frisk of the defendant that produced a weapon should have been suppressed. State v. Herrington, 961 So. 2d 1271 (La. App. 4th Cir. 2007):

In the instant case an anonymous tip was relayed to Detective Perez. The tipster gave the names of two men, described what they were wearing, said that they were walking together, and asserted that the two men were wanted in a shooting. The only reliable information that was given by the tipster was Mr. Herrington’s name and a description of the clothes he was wearing. Although Mr. Herrington was walking near the location where he was said to be walking, he was alone, and he was not walking with another person as the tipster had said he was. Additionally, there was no predictive information given about Mr. Herrington’s future actions, and the information that Mr. Herrington and the person with whom he was supposed to be walking were wanted in connection with a shooting was false. Further, Mr. Herrington did not appear nervous when Detective Perez confronted him, and he fully cooperated with the police. No surveillance was conducted, and there was no corroboration of the information given by the tipster.

Based on these facts and circumstances, we find that the investigatory stop of Mr. Herrington was not justified. Therefore, the weapon that Mr. Herrington was carrying was illegally seized. The trial court erred in failing to grant Mr. Herrington’s motion to suppress the evidence.

Officer’s own creation of exigent circumstances denied him summary judgment on a claim of a warrantless entry based on those exigent circumstances. Bayer v. Marinette County & Rick Berlin, 2007 U.S. Dist. LEXIS 49243 (E.D. Wis. July 9, 2007):

The defendants contend that under the circumstances of this case, Deputy Berlin reasonably believed that immediate entry into the lower section of Scooter’s was necessary in order to prevent the imminent destruction of evidence. They note that at the time Deputy Berlin and his law enforcement team entered the bar, several dancers were in the lower level. This fact, they argue, together with the fact that there were bathrooms in the downstairs level with toilets, sinks, and showers in which the drugs could be quickly tossed, necessitated prompt action to avoid destruction of evidence. Because the undercover investigation had established probable cause to believe there were illegal drugs in the lower level, and because Deputy Berlin reasonably thought the destruction of the drugs was imminent, the defendants argue the warrantless entry and search was justified.

This argument fails, however, because it ignores the fact that it was the conduct of Deputy Berlin that created the exigency that the defendants now claim justified the warrantless entry. It is well-established that law enforcement officers cannot justify their search on the basis of exigent circumstances of their own making. United States v. Duchi, 906 F.2d 1278, 1284 (8th Cir. 1990); United States v. Buchanan, 904 F.2d 349 (6th Cir. 1990); United States v. Thompson, 700 F.2d 944, 950 (5th Cir. 1983); United States v. Rosselli, 506 F.2d 627, 630 (7th Cir. 1974); United States v. Curran, 498 F.2d 30, 34 (9th Cir. 1974); Niro v. United States, 388 F.2d 535, 539 (1st Cir. 1968). In this case, Deputy Berlin elected to enter the tavern without a warrant after being apprised of the undercover officers’ observations even though, by his own admission, he had sufficient evidence to establish probable cause for a warrant. By entering the tavern without a warrant under these circumstances, he caused the very exigency that he now claims justifies the warrantless entry of the lower level. He alerted the occupants of the tavern to the presence of police and their interest in searching for drugs. If this were enough to show exigent circumstances, a warrant would never be required to search a person’s home for drugs as long as there was probable cause to believe drugs were being stored inside. An officer could simply appear at the door and ask permission to search. Upon refusal, any reasonable officer would be justified in believing that the drugs would be gone by the time he returned with a warrant. Clearly, if the requirement for a warrant is to be meaningful, more must be shown to establish exigent circumstances.

Defendant’s own version of events showed that there was no reasonable expectation of privacy in the place searched. Wallace v. United States, 2007 U.S. Dist. LEXIS 49412 (E.D. Mo. July 9, 2007).*

Officer’s questioning did not unduly extend the traffic stop to vitiate consent. Trujillo v. State, 2007 Ga. App. LEXIS 790 (July 9, 2007).*

Washington finds a securities investigation subpoena governed by “Article I, section 7 of the Washington Constitution [which] requires that ‘[n]o person shall be disturbed in his private affairs … without authority of law.'” State v. Miles, 160 Wn.2d 236, 156 P.3d 864 (2007).

The information sought here potentially reveals sensitive personal information. Private bank records may disclose what the citizen buys, how often, and from whom. They can disclose what political, recreational, and religious organizations a citizen supports. They potentially disclose where the citizen travels, their affiliations, reading materials, television viewing habits, financial condition, and more. Little doubt exists that banking records, because of the type of information contained, are within a person’s private affairs.

We turn next to whether there was authority of law supporting the issuance of the subpoena to Miles’ bank. The trial court held that the statute did not provide authority of law. We agree.

Washington State also holds that same day that a police officer’s random check of a motel registry was an invasion of privacy. State v. Jorden, 160 Wn.2d 121, 156 P.3d 893 (2007).

Comment: These are valuable opinions if one’s state constitution has the power that Washington’s does. Their constitution protects “private affairs” and that can be a big difference.

Officer who validly stopped the defendant developed reasonable suspicion from contradictory answers from the occupants. United States v. Martinez, 230 Fed. Appx. 808 (10th Cir. 2007)* (unpublished).

Defendant’s probation search was valid, and the probation officer developed reasonable suspicion defendant possessed a sword, a dangerous weapon. United States v. Klein, 228 Fed. Appx. 787 (9th Cir. 2007)* (unpublished).

Plaintiff nursing home was a closely regulated business subject to inspection, and it could not show that it was maliciously targeted for a search by the regulators. Golden Years Homestead Inc. v. Buckland, 466 F. Supp. 2d 1059 (S.D. Ind. 2006):

In light of our review of the arguments presented by both parties and the exhibits submitted by each side, while construing all facts in the light most favorable to Golden Years, we hold that a reasonable fact-finder could not find that the ISDH Defendants conducted their surveys in an unreasonable manner so as to give rise to a Fourth Amendment claim. As described above, Blue and Beverly hold that a nursing facility has, at most, a very attenuated expectation of privacy meriting Fourth Amendment protection, and that regulatory inspections ordinarily do not offend any existing right. Thus, a search would have to be unreasonable in manner or effect–that is, outside the statutory and regulatory guidelines–in order to support relief under the Fourth Amendment. See our Entry of March 30, 2004. We are unpersuaded that a reasonable jury could ever so find in this case.