Traces of cocaine found in defendant’s car led to a search warrant for defendant’s blood for cocaine, and it would be admissible at trial. United States v. Burchard, 2007 U.S. Dist. LEXIS 47584 (W.D. Ky. June 29, 2007).

Probable cause for a vehicle search developed as the suspicion escalated during the stop. Also, defendant had standing to challenge his own stop in a car (without citing Brendlin). State v. Menezes, 286 Ga. App. 280, 648 S.E.2d 741 (2007).*

Defendant’s consent to search his computer was validly given. The underage complainant at first said that she was raped by defendant, but recanted the rape claim and said that he had pictures of her on his computer. That was reason to believe that a crime had been committed. The defendant said “Absolutely” when asked if he would consent to a computer search. People v. Shinohara, 872 N.E.2d 498 (5th Dist. 2007).*

Allegations that government agents had knowledge that a murder would occur and did nothing to stop it did not state a claim for relief under Bivens. Padilla v. United States, 2007 U.S. Dist. LEXIS 65171 (W.D. Tex. August 20, 2007):

[T]he Court finds Plaintiffs have only produced unsupported allegations of constitutional liability coupled with conclusory assertions that should be dismissed in the face of Supreme Court and Fifth Circuit precedent.

Viewing the summary judgment evidence in the light most favorable to the Plaintiffs and resolving every doubt in their favor, the Court finds it should dismiss Plaintiffs’ claims against all of the individual Defendants because they are entitled to qualified immunity. First, Plaintiffs fail the first prong of the qualified immunity framework, for they fail to sufficiently allege Defendants violated an actual constitutional right. Even if the Court were to find Plaintiffs sufficiently demonstrated a constitutional deprivation, the Court nonetheless finds Plaintiffs fail prong two of the qualified immunity analysis because Plaintiffs do not sufficiently allege any constitutional violations that were clearly established law at the time of the actions at issue.

Allegations in a motion to suppress were too vague to warrant a hearing. United States v. Rivera, 2007 U.S. Dist. LEXIS 65255 (N.D. Ind. August 31, 2007).*

Officers do not need reasonable suspicion to conduct a knock and talk. United States v. Coleman, 2007 U.S. Dist. LEXIS 65169 (W.D. La. August 31, 2007).*

Probable cause was slim, but sufficient on totality. The good faith exception would save the search in any event. United States v. Rossman, 2007 U.S. Dist. LEXIS 65319 (D. Utah August 31, 2007).*

Officer had reasonable suspicion of drug smuggling of defendant’s vehicle close to the border on a drug corridor. United States v. Avendano-Sanchez, 2007 U.S. Dist. LEXIS 65358 (W.D. Tex. August 28, 2007).*

Merely having the keys to a car did not show that defendant had standing to contest its search. Aragon v. State, 229 S.W.3d 716 (Tex. App.—San Antonio 2007):

Here, although Aragon had the keys to the car and was driving at the time of the incident, no evidence was admitted showing that he had permission to possess the vehicle or that he had an actual, reasonable, and subjective expectation of privacy in the searched vehicle. Aragon did not introduce evidence that he owned the vehicle or that the registered owner of the vehicle gave him consent to be in the car. In the absence of such evidence showing that he had a legitimate expectation of privacy in the vehicle, he lacks standing to complain of the search. See Rodriguez v. State, No. 01-04-00723-CR, 2005 Tex. App. LEXIS 9020, 2005 WL 2850234 *3 (Tex. App.-Houston [1st Dist.] Oct. 25, 2005, no pet.) (mem. op.). Accordingly, we hold that Aragon did not have a reasonable expectation of privacy in the vehicle and its contents so as to have standing to complain of the validity of any search or seizure of the blood and ballistics evidence in question. We overrule Aragon’s second and third issues.

Defendant’s argument in the trial court was voluntariness of consent, but it changed to exploitation of the original illegality of seeking consent during the stop, based on a case decided after trial but before the appeal. Because post-conviction relief would be inadequate or never get to the claim, and just in a general sense of fairness, the court elects to get to the merits and suppresses the search based on the intervening case. State v. Calvert, 214 Ore. App. 227, 164 P.3d 1169 (2007):

Counsel could have raised the exploitation issue to preserve an argument for a different understanding of exploitation under Article I, section 9, that is, for the understanding that the Supreme Court subsequently established in Hall [State v. Hall, 339 Ore. 7, 115 P.3d 908 (2005)]. However, there is no reason for counsel to have anticipated Hall, and counsel cannot be faulted for not developing on his own the analysis that the court adopted in Hall, an analysis that few people envisioned. Consequently, had counsel made an exploitation argument in this case, the trial court presumably would have rejected it, and, but for Hall, we presumably would have affirmed that decision on appeal if the issue had been preserved.

Hall, which came after the suppression ruling in this case, changed everything. As the state now concedes, Hall establishes that the police violated Article I, section 9, in obtaining the evidence that defendant sought to suppress in this case, notwithstanding that defendant consented to the search that produced the evidence. The state also does not argue that the record might have been different if defendant had made an exploitation argument in support of her suppression motion. In other words, raising and preserving the exploitation argument would have made no difference at the trial level, and there is no dispute that, under Hall, the denial of defendant’s motion to suppress now constitutes plain error. Hence, our decision to exercise our discretion in this case is consistent with preservation principles, because raising the exploitation argument below would have made no difference to the trial court’s ruling.

Finally, the error is not one that can be corrected through post-conviction relief. Before Hall, reasonable counsel could believe that there was no basis on which to seek suppression of the drug evidence in this case on exploitation grounds. Consequently, counsel’s failure to seek suppression on that basis would not constitute constitutionally deficient representation that would entitle defendant to obtain post-conviction relief from her conviction. Hence, were we not to exercise our discretion to correct the error in this case, defendant would be left with a conviction that is based on evidence that the state obtained in violation of defendant’s rights under Article I, section 9, and that defendant sought to suppress at trial under that provision. We are satisfied that it would be a mistake for us to affirm defendant’s conviction under the circumstances of this case.

Comment: How many courts would be that generous? My own wouldn’t. They would have no compunction in both finding procedural default or criticizing defense counsel for trying to protect the client’s interest. And they call their building the “Justice Building.” And they wonder why the criminal defense bar does not respect much of their work.

A custodial arrest of juvenile for truancy and possession of tobacco was not authorized under state law, so handcuffing the defendant and conducting a search incident of his pockets was unjustified. Small quantity of marijuana found should have been suppressed. State ex rel. Juvenile Dep’t v. J.D., 214 Ore. App. 251, 164 P.3d 1182 (2007).*

In a case from 2005 received today, a cellphone was properly seized incident to an arrest. United States v. Allen, 2005 U.S. Dist. LEXIS 45327 (S.D. Ohio March 15, 2005).*

The defendant’s statement being voluntary, the search as a result was not invalid. She also consented to a search that produced the credit card identity theft equipment. United States v. Kabiarets, 496 F. Supp. 2d 394 (D. Del. 2007).*

Rooker-Feldman abstention barred federal court from determining what amounted to an appeal from a state juvenile proceeding and its Fourth Amendment claim. Kovacic v. Cuyahoga County Dep’t of Children & Family Servs., 2007 U.S. Dist. LEXIS 50046 (N.D. Ohio July 9, 2007).*

Shipping company became suspicious of an incoming container that the recipient repeatedly came to ask about, and there have been previous seizures of containers there. They called the police when the container arrived, and a drug dog alerted on it. A warrant was obtained after he was detained. The container was packed with marijuana. United States v. Barraza, 492 F. Supp. 2d 816 (S.D. Ohio 2005).*

Washington holds that the trial judge that issued a search warrant was not barred from hearing a motion to suppress that warrant under either the appearance of fairness requirement of the Code of Judicial Conduct or due process because appellate review cures any errors. State v. Chamberlin, 161 Wn.2d 30, 162 P.3d 389 (2007):

Chamberlin argues that Judge Hancock displayed actual bias when he stated that he was sure he had read carefully the application for the warrant and the sworn testimony in support of the warrant. 1RP at 4-5. In its proper context, the statement does not show bias. Judge Hancock said that he did not remember issuing the warrant. But, assuming he did, “[I] also believe I would be capable of fairly and impartially hearing any motion to suppress despite the fact that I issued the warrant.” 1RP at 5. He said he would review the warrant for issues he might have missed and, if wrong, suppress the evidence. In context, the statement has a different meaning. Judge Hancock was explaining that he believed he could, and would, compartmentalize the proceedings and be unbiased. We find no actual bias under these facts.

Even where actual bias is not apparent, a party is not without protection against prejudice or error. Independent appellate review reduces the risk of error. Appellate courts review de novo the legal conclusion of law whether probable cause is established. In re Det. of Peterson, 145 Wn.2d 789, 799, 42 P.3d 952 (2002). In determining whether probable cause is established, the appellate courts review the same evidence presented below. What this means is where the probable cause finding was error, appellate review cures the error.

Comment: This issue was not raised as a Fourth Amendment or state privacy claim. This is also the majority rule.

The E.D. Wis. holds that an overnight guest who otherwise had standing to challenge the search of the house [Olsen] did not have standing to challenge the entry of officers into the curtilage of the backyard during a knock-and-talk. [This was an extraordinary knock-and-talk:] The officers came to the house from all directions and surrounded it while investigating a heroin operation based on an informant seeing heroin on the premises in the extremely recent past. Somebody inside threw a bag of heroin out the window on the knock. That act created exigent circumstances for a warrantless entry based on reasonable suspicion of destruction of evidence. [The court fails to note police created exigency.] United States v. Butler, 2007 U.S. Dist. LEXIS 55907 (E.D. Wis. August 1, 2007):

Butler criticizes the recommendation and argues that the police were unreasonable in their “knock and talk” tactics because (1) they impermissibly and illegitimately entered the back area of the residence when they had no authority to do so, in order to detain persons found in the residence; and (2) they manufactured exigent circumstances and made a warrantless and illegitimate entry into the home. (Butler’s Obj. 5-7.) Over Butler’s objections, the court notes that the “knock and talk” form of investigation was reasonable, and the officers did not gain impermissible or illegitimate entry into the home as Butler suggests.

To begin, this circuit has noted that “knock and talks” are reasonable forms of police investigation, subject to certain constitutional limitations. Adeyeye, 359 at 461 (7th Cir. 2004) (approving of the “knock and talk” technique of investigation). The relevant preliminary Fourth Amendment inquiry for a “knock and talk” is whether a “reasonable person would feel free to terminate the encounter.” Id. at 462. Turning to the instant case, the court finds that it’s unlikely that the defendants would have felt free to terminate the encounter. The stipulated facts demonstrate that the officers came to the residence, surrounded the home, knocked on the doors, displayed their badges, and demanded that the occupants open the doors. (Stipulated Facts PP 3-4.) The officers’ actions, particularly the demand that the occupants open the door, lead the court to conclude that a reasonable person would, more than likely, not feel at liberty to terminate the encounter or request that the officers leave. Thus, the court finds that the conduct of the officers in this case “conveyed the message that compliance with their requests was required,” and therefore “transformed the situation from a consensual encounter into an investigatory stop.” See Adeyeye, 359 F.3d at 462 (citing United States v. Jerez, 108 F.3d 684 (7th Cir.1997)).

However, the constitutional inquiry does not end there; upon a determination that the individuals did not feel free to terminate the encounter, the court must next consider whether the officers had reasonable suspicion to conduct the “investigatory stop” or “knock and talk.” See Adeyeye, 359 F.3d at 462. “Reasonable suspicion” is “more than an inchoate and unparticularized suspicion or hunch,” and determining whether or not reasonable suspicion existed involves examining the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). The court once again turns to the stipulated facts and readily determines that there was reasonable suspicion for the officers to perform the “knock and talk” investigation. The facts state that the officers were investigating a tip, given that same day, that the persons in control of that residence were operating a heroin house. The informant gave facts that he or she personally observed large quantities of heroin within the home. (Stipulated Facts P 1.) These facts, viewed in totality, form an adequate finding of reasonable suspicion, and the court finds that the officers did not violate the Fourth Amendment in conducting the “knock and talk.”

Comment: Surrounding a house during a knock-and-talk is extraordinary and per se coercive, and the court correctly concludes that the persons inside would feel compelled to comply with any request for entry. The court fails, however, to decide that the act of the officers was a police-created exigency when the occupants threw the bag out the window in response. As for the destruction of evidence, how much heroin was in the sandwich bag tossed out the window compared to the whole amount allegedly inside, and did they have time to move that amount? What was the surveillance before the knock-and-talk? This case is just wrong to me, and it should be appealed and reversed.

Defense counsel was not ineffective for failing to move to suppress on the ground that the defendant’s stop was pretextual under Ladson. There was an objective basis for the stop, which was challenged, and the case was sufficiently like other cases finding no pretext that the court finds none. State v. Nichols, 161 Wn.2d 1, 162 P.3d 1122 (2007). Comment: This case summarizes Washington’s law on pretexual stops and searches, but finds the facts deficient.

Defendant had been held more than 48 hours before arraignment in apparent violation of Gerstein and County of Riverside but he had a full and fair opportunity to challenge that in state court and did and lost, so a federal court could not review it on habeas. Evans v. Booker, 2007 U.S. Dist. LEXIS 55735 (E.D. Mich. August 1, 2007).*

Consent of driver to search car did not extend to a passenger’s purse. Smith v. Smith, 2007 Iowa App. LEXIS 730 (June 13, 2007):

We conclude under the specific facts and circumstances here that it was not reasonable for Officer Bovy to believe the consent given by Montgomery to search the vehicle authorized a search of the purse. The purse was found by Bovy sitting on the front passenger seat where Smith, the only female in the vehicle, had been sitting immediately before he asked her to exit the vehicle. Thus, all of the facts available to Bovy at the time of the search supported a conclusion that Smith had placed the purse on the seat as she got out of the vehicle and it belonged to her, not Montgomery. We agree with the district court that “it should have been clear to the officer that the purse belonged to the passenger and not the driver.” Accordingly, we conclude it was unreasonable for Bovy to believe the purse belonged to anyone other than Smith or that anyone other than she had actual or apparent authority to consent to a search of the purse.

Patdown revealed a hard object which defendant volunteered was a knife, and the officer was justified in reaching into his pocket for it. “The fact that the object was in fact a marijuana pipe does not change the result. The district court erred in granting the motion to suppress.” State v. Shine, 2007 Iowa App. LEXIS 711 (June 13, 2007).*

Defendant failed to show that the officer’s affidavit was made recklessly. Parsing the words in the affidavit did not show recklessness in the choice of words. Omission of reference to a pathway from the marijuana grow operation added nothing to defendant’s challenge. State v. Blow, 2007 Iowa App. LEXIS 747 (June 13, 2007).*

Telling the defendant that the officer need to talk to him outside was a stop because no reasonable person would feel able to just ignore it and walk away. State v. Roark, 229 S.W.3d 216 (Mo. App. 2007):

In response to Barklage’s request that Roark return to the parking lot, Roark asked for an explanation. Barklage declined that request, saying that he would explain outside. At this point in the encounter, a reasonable person in Roark’s position would not have felt free to disregard Barklage and “go about his business.” Bostick, 501 U.S. at 434. We therefore determine that by the time that Roark and Barklage arrived outside, a Fourth Amendment stop had occurred and turn to the question of what articulable facts support the State’s assertion that Barklage had a reasonable suspicion that Roark was involved in criminal activity.

The N.D. Cal. holds that Heck v. Humphrey should logically apply to state civil penalty actions as well, although no case could be found on point. Mk Ballistics Sys. v. Simpson, 2007 U.S. Dist. LEXIS 53142 (N.D. Cal. July 6, 2007):

An action under 42 U.S.C. § 1983 seeking damages for an alleged illegal search and seizure of evidence upon which criminal charges are based is barred by Heck until criminal charges have been dismissed or the conviction has been overturned. Harvey v. Waldron, 210 F.3d 1008, 1015-16 (9th Cir. 2000). This rule “avoid[s] the potential for inconsistent determinations on the legality of a search and seizure in the civil and criminal cases” and is consistent with the strong judicial policy, emphasized by the Heck court, in favor of preserving consistency and finality and preventing collateral attacks on convictions. Id. at 1015. However, as plaintiffs point out, there have been no criminal convictions in the underlying case, nor are there criminal charges pending, as the underlying action is for civil penalties under the California Health and Safety Code and the California Business and Professions Code.

Although neither the court nor the parties were able to find case law applying Heck in a civil context, it seems logical that Heck’s rationale would extend to these circumstances. Even assuming that Heck is not directly applicable, the court finds it appropriate to stay the present action so as not to risk a result that would be inconsistent with the decision of the state court in the underlying action.

Driver of a rental vehicle has to show standing by showing that he or she was given permission to drive the vehicle by the renter. United States v. Taylor, 496 F. Supp. 2d 852 (S.D. Ohio 2006):

Based upon the foregoing discussion of authority, it is apparent that an individual does not have a reasonable expectation of privacy in a vehicle, merely because he is its driver. Rather, the driver must demonstrate that he obtained possession from the owner of the vehicle or someone authorized by the owner to give him possession of the vehicle. In addition, the driver of a rental car, who has neither rented the vehicle nor is listed as an authorized driver, must have had a significant relationship with an authorized driver and the rental company. Herein, Robinson failed to present any evidence that he had any type of relationship with the owner of the Lincoln Navigator. Therefore, this Court is compelled to conclude that Robinson has failed to meet his burden of proving, by the preponderance of the evidence, that he had a reasonable expectation of privacy in that vehicle.

In contrast, the Connecticut Court of Appeals held that a defendant who claimed he was in possession of a car with permission had standing, but he lost on the merits by inevitable inventory. Even if the officer’s entry into the car was unlawful, a lawful inventory would occur as the police were trying to locate the owner. State v. Vallejo, 102 Conn. App. 628, 926 A.2d 681 (2007).

Comment: These two cases reflect a reality in standing and cars: If it is a rental car, the burden effectively seems to be higher to show standing than in a car owned by an individual. This is likely because of the likelihood that a car was rented through a strawman or a patsy to use for drug running. The cases do not say this, but one has to believe that the judges are thinking that.

Consent once removed does not permit an informant to invite in the police. There is a significant difference between consent once removed initiated by officers rather than informants. The government even offered a lame policy argument. Callahan v. Millard County, 494 F.3d 891 (10th Cir. 2007) [free link not yet on CA10’s website]:

We find the distinctions between an officer and an informant summoning additional officers to be significant. Had the person inside Mr. Callahan’s home been an undercover officer, no extension of our case law would be necessary. Mr. Callahan would have consented to opening his home to the police. Consent is a well-established method of conducting a reasonable search, despite lacking a warrant. United States v. Ringold, 335 F.3d 1168, 1174 (10th Cir. 2003) (“It has long been established that an officer may conduct a warrantless search consistent with the Fourth Amendment if the challenging party has previously given his or her voluntary consent to that search.”). Tenth Circuit precedent permits the police to use deception to gain such consent. See Pleasant v. Lovell, 876 F.2d 787, 802 (10th Cir. 1989). … Once lawfully inside the home, an officer may effect a warrantless arrest that is supported by probable cause. United States v. Cruz-Mendez, 467 F.3d 1260, 1269 (10th Cir. 2006). We have never drawn a constitutional distinction between an entry or search by an individual police officer and an entry or search by several police officers. Thus, the consent granted to the hypothetical undercover officer would have covered additional backup officers without any need for additional exceptions to the warrant requirement.

On the other hand, the invitation of an informant into a house who then in turn invites the police, which are the present facts, would require an expansion of the consent exception. In this context, the person with authority to consent never consented to the entry of police into the house. Other courts have overcome this distinction by noting that a state may grant the power to arrest to the police as well as its citizens, and if the informant has the power to arrest, then an informant must be capable of summoning the police. Yoon, 398 F.3d at 810-11. This logic is unconvincing. That a citizen has the power to arrest does not grant the citizen all of the powers and obligations of the police as agents of the state. Cf. Arnsberg v. United States, 757 F.2d 971, 979 (9th Cir. 1985) (law enforcement officers have “obligations, such as the duty to execute warrants, which private citizens lack; those obligations make the law of the citizen arrests an inappropriate instrument for determining FTCA liability”); Caban v. United States, 728 F.2d 68, 73-74 (2d Cir. 1984) (immigration officers have different privileges and duties than private individuals, and therefore citizen’s arrest statute does not apply to such officers); United States v. Hillsman, 522 F.2d 454, 461 (7th Cir. 1975) (discussing the differences between a private citizen’s right to make an arrest and that of a police officer). These distinct obligations and powers must also be reflected in a distinction between inviting a citizen who may be an informant into one’s house and inviting the police into one’s house.

The officers also ask this court to adopt the “consent-once-removed” doctrine based on policy considerations. They argue that without this doctrine law enforcement will be severely hampered in its pursuit of drug traffickers because the use of informants is vital, and requiring officers to obtain a warrant whenever an informant was in a home would jeopardize personal safety and cause delays. This argument fails for two reasons. First, this contradicts the nature of the exceptions based on exigent circumstances requiring that the police may not manipulate or abuse the circumstances creating the exigency. Zogmaister, 90 Fed. Appx. at 330 (citing Aquino, 836 F.2d at 1272). Second, as recently restated by the Supreme Court in Georgia v. Randolph, “[a] generalized interest in expedient law enforcement cannot, without more, justify a warrantless search.” 126 S. Ct. 1515, 1524 n.5 (2006); Coolidge, 403 U.S. at 481 (“The warrant requirement … is not an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.”)

Thus, while our case law would support a holding that the Fourth Amendment allows an undercover officer to summon backup officers within a home after that officer has been invited with consent, neither the case law nor a rational extension of the case law would support including officers summoned by an informant within a home. Based on this, we hold that entering Mr. Callahan’s home based on the invitation of an informant and without a warrant, direct consent, or other exigent circumstances, the task force officers violated Mr. Callahan’s constitutional rights under the Fourth Amendment.

Tasering a handcuffed and compliant arrestee states a claim that survives summary judgment on an excessive force claim. King v. Shoar, 2007 U.S. Dist. LEXIS 50876 (M.D. Fla. July 13, 2007).*

The jury’s verdict in an excessive force claim was not excessive, was internally consistent with the jury instructions read as a whole, and the motion for new trial was denied. The sleeping plaintiff was attacked by a police dog apparently because they wanted to issue him a traffic ticket. Rogers v. City of Kennewick, 2007 U.S. Dist. LEXIS 50882 (E.D. Wash. July 13, 2007).* The first two paragraphs describe the claim:

In the early morning hours of a midsummer’s night, Ken Rogers, a working man innocent of any wrongdoing, was lawfully sleeping in the back yard of his stepson’s home when out of the darkness and without warning, a large, vicious dog attacked him. Mr. Rogers was then beaten by unknown assailants with knees, fists, and flashlight while the dog continued to bite him. The dog was a Kennewick Police Department “bite-and-hold” K-9; the assailants were law enforcement officers of the City of Kennewick and a Benton County deputy sheriff.

This misfortune was the conclusion of a chain of events that began at about 1:00 a.m. on July 13, 2003, when Sergeant Dopke of the Kennewick Police Department activated his overhead lights and followed a man riding a miniature motor scooter without a helmet or lights for a very short distance and time to a residence where the motorist entered the garage of a home in a residential neighborhood. The garage door was shut behind him by a female resident of that home. The residents of the home described the motorist as a person named “Troy”, last name unknown, who happened to be walking by the house late that night, saw them outside, asked if he could take the scooter for a ride and was permitted to. One of the women explained that she closed the garage door because “Troy” asked her to. The two male residents denied being “Troy;” “Troy” was said to have run through the house and out the back door into the yard and then over the back fence. Though Sgt. Dopke repeatedly told the residents that he was only interested in issuing the man a traffic citation and leaving, the residents persisted in this story. He then called out a bite-and-hold K-9 that could only detect scent by air sniffing, not sniffing an object such as the miniature motor scooter or the floor of the house or the grass of the backyard. When the K-9 reacted to the area of the backyard adjacent to the yard where Mr. Rogers was then sleeping oblivious to these events, Officer Kohn, the K-9 officer, and two other law enforcement officers were directed by Sgt. Dopke to search for and apprehend “Troy”, the traffic violator. It was in following that order that Officer Kohn later unleashed the K-9 when reacting to scent in the driveway of the backyard of the house where Mr. Rogers was lawfully sleeping with the permission of the owner, his stepson. The above-described encounter followed. Much later, “Troy” was determined to have been one of the male residents of that house.

Plaintiff was arrested at the El Paso airport after TSA found a white powdery substance in his luggage in clear bags. He said it was laundry detergent. He was held for six days, got a perfunctory hearing within 48 hours in which he did not participate, and then it was discovered that there was no contraband in his luggage. The district court finds that there was no constitutional violation, and the perfunctory hearing did not violate the constitution, even if it violated Texas law. Finally, even if there was a colorable claim, the officers had qualified immunity. Bittakis v. City of El Paso, 2007 U.S. Dist. LEXIS 24429 (W.D. Tex. March 13, 2007). Comment: The moral? Don’t carry laundry soap in your luggage such that it looks like cocaine. How? Beats me.

Court finds that search occurred after 6 a.m., so Rule 41 was not violated. And, in dicta, the court says that a violation of the 6 a.m. start time would not necessarily warrant suppression because that would not necessarily be a constitutional violation, citing Hudson. United States v. Carling, 2007 U.S. Dist. LEXIS 24431 (D. Conn. March 22, 2007).*

Informant’s information about defendant’s home was largely corroborated by the police, so there was pobable cause for the search warrant. United States v. Shofner, 2007 U.S. Dist. LEXIS 24498 (D. Minn. February 21, 2007).*

Questioning by one officer with others standing around would not lead a reasonable person to believe that he was seized. State v. Wood, 218 S.W.3d 596 (Mo. App. S.D. 2007):

Defendant asserts that he was seized because he was alone in the parking lot with several officers present, and he was questioned without being told he could refuse to answer and leave anytime. Neither assertion is persuasive. While it is true that several officers arrived at the scene to assist Gordon, no one except Millirons interacted with Defendant. Millirons never displayed his weapon during the encounter. Prior to initiating the search, Millirons did not physically touch Defendant. He was handcuffed only after Millirons felt the metal pipe, which he immediately recognized as drug paraphernalia. At that point, Millirons had probable cause to arrest Defendant. See State v. Vanacker, 759 S.W.2d 391, 394 (Mo. App. 1988). According to Millirons, he did not threaten or coerce Defendant to make him answer questions. In our view, the language used by Millirons in questioning Defendant would not indicate to a reasonable person that compliance with the officer’s requests might be compelled. Finally, it is well settled an officer is not required to inform a citizen that he or she is free to leave or refuse to respond to questions before the encounter can be deemed consensual. Shoults, 159 S.W.3d at 446-47; State v. Day, 87 S.W.3d 51, 56 (Mo. App. 2002); Rowe, 67 S.W.3d at 655-56; State v. Scott, 926 S.W.2d 864, 870 (Mo. App. 1996).

In sum, the trial court concluded that the encounter between Defendant and Millirons was consensual.

Comment: Once again, a court finds a citizen would not feel seized when a bunch of officers are standing near him and he is being questioned by one. What a court finds a reasonable person would understand in police-citizen interactions is not what a reasonable person would actually believe is happening because such interactions are inherently coercive.

Defendants’ alleged violation of HIPAA by disclosing medically private information did not constitute a violation of § 1983 or the Fourth Amendment. Urbina v. Carson, 2007 U.S. Dist. LEXIS 74890 (E.D. Cal. September 25, 2007):

The first issue is whether Plaintiff sufficiently alleges a constitutional deprivation. Plaintiff argues that he was deprived of his Fourth and Fourteenth Amendment rights.FN1

1. Plaintiff also argues that Defendants are in violation of Federal law because their conduct violates the “privacy rule” under the HIPAA 45 C.F.R. §§ 160.103, 164.502. He states that Carson’s telephone disclosures to Orner and Callanan were not authorized by HIPAA because Carson did not have Plaintiff’s consent. However, Plaintiff also recognizes in his opposition that there is no private right of action for damages under HIPAA but discusses the statute to “demonstrate that Plaintiff’s claims are not barred by California’s litigation privilege and that Plaintiff has stated a cause of action under 42 U.S.C. § 1983.” (Doc. 28, Opposition, n. 3.) Plaintiff offers no support for the proposition that a violation of HIPAA’s medical privacy rule implicates a recognized constitutional right for purposes of 42 U.S.C. § 1983.

. . .

Plaintiff does not allege any facts suggesting there has been an unreasonable search or seizure by Defendants. To the contrary, Plaintiff admits that Plaintiff himself subpoenaed the Medical Screening Form and provided it to Defendants as part of Plaintiff’s discovery obligations. Plaintiff cannot credibly suggest that he did not know that his medical records would be subject to scrutiny and discovery. He impliedly consented to the use of his medical records in this case. These records are highly relevant to the nature and extent of his injuries and damage claims. Plaintiff offers no law or argument that he had a legitimate expectation of privacy in the medical information that he voluntarily provided to the defense in this lawsuit; that he was legally required to provide; and that he put his medical conditions and the extent of his injuries in issue by the allegations of his complaint. Plaintiff also does not address this issue in his opposition. Plaintiff only alleges that Carson spoke to Callanan and Orner during the course of the Urbina I litigation about Plaintiff’s medical screening and medical condition. This is insufficient to show a Fourth Amendment violation. Neither does Plaintiff allege that either private defendants acted under the color of state law.

Attorneys representing the plaintiff in a § 1983 case which started with eight defendants and ended with a $1 compensatory and $250,000 punitive (reduced to $5,000) award against one defendant with abandoned claims against others filed what the court described as an “unconscionable” fee request that was denied, after some soul searching, in its entirety. Mendez v. County of San Bernardino, 2007 U.S. Dist. LEXIS 75495 (C.D. Cal. May 21, 2007):

Thus, what began with five plaintiffs alleging over eighteen claims against eight defendants ended with one plaintiff prevailing against one defendant on two claims with an award of only nominal damages.

Notwithstanding the relative lack of complexity of the litigation and the less than stellar result, Plaintiff, on May 10, 2005, filed a motion for attorneys’ fees and costs as the prevailing party. In the motion, Plaintiff’s counsel indicated they had run up a staggering total of $1,213,542.75 in fees and costs in a relatively uncomplicated case. The Plaintiff reduced that amount to the claimed amount of about $790,000, after reducing the fees relating to litigating the unsuccessful Monell claims and a further reduction to make the fees more reasonable.

. . .

First, the fee request is staggering in light of the issues prevailed upon at trial and the actual amount of damages recovered by Plaintiff. The Court granted the defense motion for summary judgment as to both the Monell claims and the negligent training claims. Plaintiffs then voluntarily dismissed all excessive force claims, the illegal entry claims, and the claims against Deputy Lawyer. Thus, this case, which began with five plaintiffs asserting over eighteen claims, was whittled down to two plaintiffs, stating claims for false arrest and illegal search.

The trial of this case was not lengthy or extensive[;] measured in a few days, not weeks or months. It did not invoke complex issues of law or, indeed, of fact. In short, counsel took a routine case, involving claims of false arrest and illegal search, and billed over 2,500 hours.

This case was not complex, nor did it present any novel constitutional issues. The incident which formed the basis for the claims that went to trial happened over several hours during the night of one day and the early morning of the next. The legal claims were straight-forward and were made even less complicated by the fact that, as will be discussed, plaintiffs’ counsel had litigated at least two prior cases with almost identical facts.

Indeed, here the facts were largely undisputed. Moreover, the shooting and events leading up to it were not even at issue. Thus, the only relevant facts were those occurring after the shooting when Plaintiff was detained briefly in the police unit and questioned at the station. There was similarly no dispute about the actual search of Plaintiff’s residence. Plaintiff was not present during the search, and the only result was the disturbance of clothing in the closets. No evidence was found or seized. As to the propriety of the search, Deputy Reyes admitted he failed to give the admonition that Plaintiff could decline to consent.

. . .

Further, as mentioned above, this case was made even simpler to prepare and try due to the fact that Plaintiffs’ counsel had litigated at least two prior cases involving almost identical circumstances. See e.g. Sepulveda v. Hawn, 2002 U.S. Dist. LEXIS 11373 (E.D. Cal. 2002); Gallardo v. Reinnecius, 1998 U.S. Dist. LEXIS 18495 (E.D. Cal. 1998). In fact, a substantial portion of Plaintiff’s motion for partial summary judgment in this case appears to have been cut and pasted directly from a motion in the Sepulveda case. Defendants’ Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Cost, 11: 18-28; compare Defs’ Exh. E. at pp. 4-5 and 7 with Defs’ Exh. F. at pp. 10,11 and 13. Nevertheless, counsel billed a total of 92.25 hours to prepare a summary judgment motion which was essentially a reproduction of the Sepulveda motion with cosmetic modifications.

However, this is not the only billing request that illustrates the outrageousness of the instant petition. To the contrary, the motion is replete with excessive billing entries, often involving multiple attorneys, and relating to matters that were not overly complicated. For instance, from August 7, 2003, to August 11, 2003, counsel billed 19.75 hours to “Review motion to dismiss and prepare opposition.” While this entry does not appear excessive at first glance, the Court also discovered that an associate had billed 22.5 hours for the same task. In total, counsel billed 42.25 hours to prepare a response to an uncomplicated motion to dismiss that addressed only two issues. Counsel subsequently billed another 19 hours to prepare for the hearing on this motion to dismiss. In contrast, Defendants’ counsel spent a mere minutes in preparation for the hearing. Counsel also includes time billed on claims either abandoned prior to trial or dismissed by the Court. For example, from June 9, 2004, to July 26, 2004, Geoffrey Graber, an associate, billed a total of 57 hours for the “Preparation of Joint Stipulation regarding plaintiffs’ motion to compel information regarding prior discipline against deputies.” The time spent on this task was clearly excessive. More important, the motion to compel was aimed at seeking information to support the Monell claim. As that claim was disposed of on summary judgment, counsel should not have billed for any of that time.

Moreover, in light of the sheer number of hours billed, the Court was presented with the daunting task of sifting through these thousands of hours to assess the propriety of the fees sought. However, a large number of the entries were improperly “block-billed,” thereby frustrating the Court’s efforts to determine whether the fees were, in fact, reasonable. Indeed, counsel’s pervasive use of block-billing made it virtually impossible to determine whether the fees related to claims dismissed by the Court or abandoned by Plaintiffs. Of course, the “fee applicant bears the burden of establishing entitlement to an award…and should maintain time records in a manner that will enable a reviewing court to identify distinct claims.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). . . .

Plaintiff claims $1,857.30 for “Travel expenses for attorney West, including car rental, meals, lodging, laundry, DSL, copies,” and $71.88 for “Office Supplies from Office Depot.” This amount, which is unrecoverable in any event, was apparently incurred by Mr. West in a mere three day stay in a Fresno hotel. The summary of costs, together with the attorney’s fee request, clearly demonstrate the unreasonableness of the counsels’ billing practices.

The Court, having been presented with an outrageous and excessive request, finds it appropriate to deny the motion for fees and costs in its entirety. Congress, when it enacted the Civil Rights Attorneys’ Fees Act, certainly did not intend the section as a vehicle for the recovery of such excessive attorneys’ fees and costs from the public treasury. The section 10 clearly contemplates only the award of reasonable fees to the prevailing party. 42 U.S.C. § 1988 (emphasis added).

Plaintiff cannot compel this Court to merely cut the offensive request to a reasonable amount. First, this is impossible in light of the improper billing records submitted as discussed, supra. More important, courts have acknowledged that Congress did not intend to condone the practice of submitting outrageously inflated fee requests in the hope that the district court would then pare down the award to reach a reasonable amount. Brown, 612 F.2d at 1059; see also Scham, 148 F.3d at 559. The Seventh Circuit’s reasoning is persuasive on this point:

If, as appellant argues, the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked for in the first place. To discourage such greed a severer reaction is needful[.]

Brown, 612 F.2d at 1059.

Rather, Congress intended to allow the reasonable recovery of attorney’s fees in order to encourage the representation of individuals in civil rights cases, who otherwise might be unable to afford counsel. Fair Housing Council, 999 F.2d at 97. Thus, the section was enacted to enable those injured by police misconduct to pursue appropriate relief. This Court recognizes the laudable and important goat of section 1988 and will not allow it to be perverted by outrageous and totally unsupportable fee requests such as that at issue here. Accordingly, the Court finds that under the circumstances of this case, a more severe reaction than mere reduction of the fee is warranted.

As indicated, this Court acknowledges the importance of pro bono representation and, in general, commends Plaintiffs’ firm for its demonstrated commitment to providing free legal service. However, pro bono work is defined as the involvement in “uncompensated legal services especially for the public good” Black’s Law Dictionary 1220-21 (7th ed. 1999) (emphasis added). Generally speaking, attorneys taking on pro bono cases do so with little or no expectation of reimbursement. While section 1988 permits the recovery of attorney’s fees for a plaintiff who prevails in a civil rights action, this Court does not view the section as contemplating the use of pro bono civil rights cases as a mechanism for generating fees, attorney hours, or as a firm “profit center,” and this Court views that as a fair characterization of what was done in this case. As detailed above, the firm took a relatively simply case involving a claimed false arrest and illegal search and billed over 2,500 hours. Counsel then submitted an incredibly excessive petition for fees and costs seeking nearly $800,000, which, to make matters worse, it expects to be paid by the taxpayers of this state. Moreover, the actual fees and costs purportedly exceeded $1.2 million.

Prior opinion: Mendez v. County of San Bernardino, 2005 U.S. Dist. LEXIS 45700 (C.D. Cal. April 4, 2005).

Comment: When I charged less per hour, I used to evaluate fee requests for losing defendants in § 1983 and prepare an affidavit of what was reasonable under the circumstances. In the ones given me, I would always find padding: e.g., (1) “10 hours, research on state action” where it was a city law enforcement officer as the defendant, where state action is a given; (2) “42 hours preparing response to X’s brief” where the resulting product was 6 pages long, citing five cases. With everything online now, a lawyer cannot take the same brief and reproduce it in another case and bill for it just like the first time. It is unethical, immoral, and unconscionable. Which is why hourly rates promote unethical billing practices.

Valid traffic stop + smell of marijuana = probable cause. United States v. Hodges, 2007 U.S. Dist. LEXIS 76245 (M.D. Ga. October 15, 2007).*

Search warrant for drugs validly led to seizure of $2,336 off the defendant during the search as a search incident. United States v. Bethea, 2007 U.S. Dist. LEXIS 76109 (D. Vt. October 12, 2007).*

Police rousted the plaintiffs from their house in nightclothes because the police were looking for a murder suspect that was not there. The city filed a motion to dismiss for insufficient allegations against them under § 1983, which was granted with leave to amend the complaint. McCall v. City of Portsmouth, 2007 U.S. Dist. LEXIS 76356 (E.D. Va. October 12, 2007).*

Plaintiff’s complaint that he was strip searched by the defendant officer on the side of a highway was precluded under Heck. As a factual matter, the court finds the allegation completely implausible because it was contradicted by plaintiff’s prior testimony in another related matter than he ran away from the police officer to avoid being searched. Douglas v. Bonafede, 2007 U.S. Dist. LEXIS 72248 (W.D. N.Y. September 27, 2007).*

Defendant’s guilty plea belied his claim that counsel was ineffective for not pursuing a search issue that essentially was frivolous because the underlying state warrant was valid. Moreover, his guilty plea precluded his attempted appeal of the search issue. Hutchinson v. United States, 2007 U.S. Dist. LEXIS 72314 (E.D. Mo. September 26, 2007).*

Posted on Bender’s Immigration Bulletin–Daily Edition, an immigration judge in NYC on October 3d held in a removal proceeding that the alien was profile stopped without justification. While the Fourth Amendment exclusionary rule does not apply to removal proceedings (INS v. Lopez-Mendoza), this stop rose to the level of a due process violation. The Judge also held that a profile stop violated 8 C.F.R. § 287.8(b)(2), and that was a separate basis for suppression:

If the immigration officer has a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States, the immigration officer may briefly detain the person for questioning.

Google Earth sent me an e-mail because I posted a piece once before about their GPS Track Stick, with a new low price: $269. It is advertised as follows:

The Super Trackstick is the perfect tool for individuals, law enforcement and government agencies looking for a way to track anything that moves. The Super Trackstick records its own location, time, date, speed, heading, altitude and temperature at preset intervals. With over 4Mb of memory, it can store months of travel information.

The included magnetic mount makes the Super Trackstick easy to attach and remove from any metal surface.

. . .

How it works The Super Trackstick receives signals from twenty four satellites orbiting the earth. With this information, the Trackstick Pro can precisely calculate its own position anywhere on the planet to within fifteen meters.

Where it works The Super Trackstick will work anywhere on the planet Earth. Your exact location and the route traveled can be viewed and played back directly within Google Earth™. Everything is included and there are no monthly fees.

Applications / Features
• Seamless integration into Google Earth™
• Professional GPS location Recorder
• Vehicle location and route histories
• Package / container shipment history
• Employee and vehicle monitoring
• Mileage recording and verification
• Homeland Security
• Search and Rescue
• Military Operations
• Private Investigation
• Public Safety
• Law Enforcement
• Child / Family Safety

It records information, rather than transmitting it to the subscriber through the Internet.

A 68 year old inmate with a history of prostate problems was subjected to a forced catheterization for a random drug test, and it was unreasonable. Levine v. Roebuck, 2007 U.S. Dist. LEXIS 77073 (W.D. Mo. October 16, 2007):

The Court holds that involuntary catheterization of a 68-year-old man with a history of prostate problems, as part of a random drug screening and without suspicion, is unreasonable. This invasive procedure is particularly unreasonable–as opposed to taking hair, blood, sweat or saliva samples–because, unlike those other collection methods, catheterization is a gross personal indignity to the prisoner. See Yanez, 619 F.2d at 855. Youngs could have chosen several other less intrusive options, including keeping LeVine in a room until he was able to urinate; Youngs was surely aware of these alternatives as they were outlined in the prison’s own drug testing policy. As a result, prison officials like Youngs, when considering the use of invasive procedures, and before deciding which action to ultimately take, should look at the readily available alternatives and their respective levels of intrusiveness in determining the constitutionally acceptable range of reasonableness. See Bell, 441 U.S. at 559 (outlining test for reasonableness, stating “[c]ourts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted”); cf. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982) (in qualified immunity context, “[w]hen an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate”). Therefore, because Youngs did not conduct the search in a reasonable manner, she violated LeVine’s Fourth Amendment rights.

Plaintiffs’ allegations that defendants acting on an anonymous tip that the children were abused and the house uninhabitable coerced consent stated a claim for relief, and the motion to dismiss was denied. Loudermilk v. Arpaio, 2007 U.S. Dist. LEXIS 76819 (D. Ariz. September 27, 2007):

Plaintiffs have asserted in their First Claim that their Fourth Amendment rights were violated when Defendants Cash and Cramer searched their home. The Fourth Amendment generally prohibits the warrantless entry of a person’s home except in a few well-defined circumstances, such as based on voluntary consent or exigent circumstances. Kyllo v. United States, 533 U.S. 27, 31, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001); Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990). Plaintiffs assert in support of their Second Claim that their Fourteenth Amendment rights were violated when Defendants Cash and Cramer repeatedly threatened to remove the children without cause. “The Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies.” Mabe v. San Bernadino County, Dept. of Public Schools, 237 F.3d 1101, 1107 (9th Cir. 2001)(citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)).

“Officials may remove a child from the custody of its parents without prior judicial authorization only if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury.” Wallis v. Spencer, 202 F.3d 1126, 1136-37 (9th Cir. 2000); Calabretta, 189 F.3d at 813-14. Courts generally have found that entry of social workers or police officers into a home to inspect or remove a child requires a warrant. Calabretta, 189 F.3d at 813; Roska v. Peterson, 328 F.3d 1230, 1240 (10th Cir. 2003).

With respect to Plaintiffs’ claim based on violation of the Fourteenth Amendment, parents and children have a constitutional right to live together without governmental interference and will not be separated without due process of law except in emergencies. Doe v. Lebbos, 348 F.3d 820, 827 (9th Cir. 2003) (citing Mabe, 237 F.3d at 1107). Courts have analyzed threats to remove a child from a family under the fundamental right to familial relations, which includes the liberty interests of parents in the care, custody and management of their children. Doe v. Heck, 327 F.3d 492, 524 (7th Cir. 2003); King v. Olmsted County, 117 F.3d 1065, 1066-68 (8th Cir 1997). The liberty interest in maintaining the family unit is guaranteed by the Fourteenth Amendment. See Heck, 327 F.3d at 523.

. . .

Based on the Amended Complaint’s allegations, Defendants Cash and Cramer persisted in seeking entry into Plaintiffs’ home in order to search the premises, despite Plaintiffs’ continued refusal and consultation with their attorney. Moreover, as further alleged, Defendants persisted in their threats to remove the children if the Plaintiff Parents did not consent to the search, stating that they could arrest or handcuff the Parents in front of the children. Based on the allegations set forth in the Amended Complaint, viewed in Plaintiffs’ favor, no reasonable official would have believed that his or her conduct was authorized by state or constitutional law.

While being pursued, defendant fled from Missouri into Illinois, and the stop might have violated Illinois law, but it did not violate the Fourth Amendment. United States v. Mitchell, 2007 U.S. Dist. LEXIS 76461 (E.D. Mo. October 12, 2007):

There does appear to be a split in the circuits regarding whether an officer’s lack of authority under state law to conduct an arrest, which is otherwise constitutionally valid, constitutes an unreasonable seizure under the Fourth Amendment. Santoni v. Potter, 369 F.3d 594, 598-99 (1st Cir. 2004) (recognizing split and declining to reach issue); United States v. Atwell, 470 F. Supp. 2d 554, 573 (D. Md. 2007) (recognizing split). The view expressed by Bell and Abbott, however, continues to be the law of this Circuit. See, e.g., United States v. Stonerook, 134 Fed. Appx. 982, 984 (8th Cir. 2005) (following Bell); …. Moreover, the law expressed by this Circuit appears to express the emerging majority. Atwell, 470 F. Supp. 2d at 573 (collecting cases). Thus, to determine whether Defendant’s Fourth Amendment rights were violated, the court looks to the totality of the circumstances surrounding the incident. United States v. Flores-Sandoval, 474 F.3d 1142, 1145 (8th Cir. 2007).

On these facts, it is clear that the officers’ actions were proper under the Fourth Amendment. When a police officer observes a traffic violation — however minor — he has probable cause to stop the vehicle. Whren v. United States, 517 U.S. 806, 818, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996); United States v. Martin, 411 F.3d 998, 1000 (8th Cir. 2005). “This is true even if a valid traffic stop is a pretext for other investigation.” United States v. Linkous, 285 F.3d 716, 719 (8th Cir. 2002). Here, the evidence is undisputed that Officer Joyner personally observed a traffic offense committed by the Defendant. As such, the officers had probable cause to stop the car.

Once an officer has a right to stop a driver, the officer may “conduct an investigation ‘reasonably related in scope to the circumstances that justified the interference in the first place.'” United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994) (quoting United States v. Cummins, 920 F.2d 498, 502 (8th Cir. 1990)). “This reasonable investigation includes asking for the driver’s license and registration, requesting that the driver sit in the patrol car, and asking the driver about his destination and purpose.” Id.; United States v. Jones, 269 F.3d 919, 924-5 (8th Cir. 2001). When “‘the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions.'” United States v. Johnson, 58 F.3d 356, 357 (8th Cir. 1995) (quoting United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993)); accord, United States v. Pereira-Munoz, 59 F.3d 788, 791 (8th Cir. 1995) (officers are permitted to graduate responses to the demands of the particular situation).

Recovery of shotgun from defendant’s property was by a relative of his without any encouragement or assistance from the police. United States v. Gatling, 2007 U.S. Dist. LEXIS 76564 (E.D. N.C. October 15, 2007).*

Defendant was the target of a knock-and-talk because of his subscription to child porn websites. The officers spent over an hour with him, and he consented [by all appearances because he knew the computers would be taken anyway, so it was looked at as a realization that the government was going to get them anyway], and the consent was valid. United States v. Delano, 2007 U.S. Dist. LEXIS 76626 (W.D. Ky. October 15, 2007).*

ONE case today, a Tuesday. Go figure:

Defendant’s terms of his suspended sentence, which he conveniently omits to argue in his brief, was sufficient basis for the search of his property. Officers came to the property “to serve some kind of a probate order” and found a meth lab. While they were there, the appellant showed up, and he was handcuffed, claimed control of the property, and consented. Appellant’s bad faith search argument was rejected on the facts, and the record supports the trial court’s conclusion. Morris v. State, 2007 Ark. App. LEXIS 680 (October 10, 2007)* (unpublished).